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Lead Agency Dispute: DEC v. Office of Alcoholism and Substance Abuse Services v. Putnam County v. Town of Philipstown

New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law

PROJECT: Two Hundred Bed Substance Abuse Treatment Facility By Daytop Village, Inc., in Garrison, Town of Philipstown, Putnam County.

DISPUTING AGENCIES:

  • Region 3 Office, New York State Department of Environmental Conservation;
    New York State Office of Alcoholism and
    Substance Abuse Services;
    Putnam County Health Department;
    Town of Philipstown Zoning Board of Appeals.

This decision to designate the New York State Office of Alcoholism and Substance Abuse Services (OASAS) as lead agency for the conduct of an environmental review under the State Environmental Quality Act (SEQR) process is made pursuant to Article 8 of the Environmental Conservation Law and 6 NYCRR 617.

I find that OASAS has the most appropriate jurisdiction and powers to investigate potential impacts, and because the potential impacts are not so primarily of local significance to require designation of a local lead agency.

The subject of this dispute is the application by Daytop Village, Inc. to OASAS for a certificate of approval to operate a 200 bed substance abuse treatment facility in Garrison, (Town of Philipstown), Putnam County. The Garrison site consists of approximately 65 acres of land to be leased from the Capuchin Friars. The Capuchin Friars own a total of approximately 93 acres and will continue to occupy the remaining parcel of land. The treatment program will be located exclusively in an existing three and one-half story brick structure, built in 1931. Since it was built, the building has been used, together with the other buildings on the site, as a Catholic monastery. No new construction of residential buildings is proposed by the applicant, although some renovations will be needed and limited expansion is anticipated.

By letter dated December 18, 1992, OASAS requested a resolution of a SEQR lead agency dispute concerning the referenced application. On December 31, 1992, the Town of Philipstown Zoning Board of Appeals (ZBA) submitted its request for lead agency. The ZBA states in its request that a special permit is required for the proposed residential group accommodation facility and for a proposed sewage treatment plant building.

In its letter, the Town argues that its review will address other activities on the sections of the site not being leased to Daytop, including cumulative and growth inducing impacts relating to expanded or improved common infrastructure. The sewage treatment plant, which was built in 1933, will necessarily be enlarged from its present capacity of 6,675 gallons per day to 35,000 gallons per day. The existing plant has a State Pollutant Discharge Elimination System (SPDES) Permit (Permit #NY-248037) issued by DEC to the capuchin Friars on March 13, 1992. The current SPDES permit contains a compliance schedule requiring the rebuilding of the wastewater treatment facility to be completed by September 13, 1993. Site disturbance for expansion of the wastewater treatment facility will require an additional area of about two acres. The balance of the Garrison site will continue to be used by the Capuchin Friars in its historic function, as a residential religious retreat.

Coordination letters have been sent by OASAS to a number of state and local agencies with a potential of their being involved agencies. The Regional office of the State Department of Environmental Conservation will have to approve and issue a modified SPDES permit, but is not interested in being lead agency. Based on the balance of the responses returned to OASAS, no other agency has been identified as an involved agency.

In resolving a dispute about lead agency, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR 617.6(e)(5). These are: (1) whether the anticipated impacts are primarily of local, regional or statewide significance; (2) which agency has the broadest powers for investigation of potential impacts; and (3) which agency has the greatest ability to provide a thorough environmental assessment of the proposed action.

Examination of the first criterion shows that the physical location of the impacts will be primarily local. This project involves merely a change in the use of an existing facility coupled with the limited upgrading and enlargement of already existing structures. The application of the proposed use by Daytop Village, Inc. really amounts to little more than the substitution of the long standing use; i.e. a residential religious retreat, with a residential substance abuse treatment facility. It would likely have some on-site and local impacts, but those impacts are marginal changes from the type and degree of impacts already exhibited by the existing facility. The upgrading of the sewage treatment plant is already required; however, this project will result in a somewhat larger facility than the compliance plan contemplated. The impacts are largely confined directly to the project site itself.

I conclude that local impacts cited by the ZBA are minimal that they are a relatively minor element in the designation of a local lead agency pursuant to the Part 617 criteria.

The next criterion to consider in this dispute is the breadth of jurisdiction. The licensing and establishment of a substance abuse service program is a part of a statewide effort to curb a social disorder that is statewide, even national, in scale. In creating OASAS, the State Legislature granted to OASAS statewide jurisdiction over alcoholism and substance abuse services. OASAS exercises an exceptional degree of authority and control over all aspects of this and similar facilities.

In order for this project to be operated as proposed, the applicant must also obtain a special use permit from the Town of Philipstown. Special use permits carry with them the presumption that the use is allowed in the applicable zone so long as established conditions or standards are met. In as much as the proposed facility does not envision the creation of a whole new set of buildings, ancillary facilities, services, or physical plant, aside from what is little more than a name change of the operator and minor expansion, there will be relatively little additional impacts to be caused by the Daytop Village proposal.

The primary environmental concerns of this proposed action relate to the increased requirements for sewage treatment, the control of which fall under county and state jurisdiction, e.g. the county health department and the New York State Department of Environmental Conservation (DEC). As stated earlier, the existing treatment plant is old and obsolete, requiring replacement; regardless of who will undertake the task. With or without this proposed action, we can expect a disturbance in and around the treatment plant. In addition, the sewage related impacts are not within the jurisdiction of the Town to resolve.

OASAS, in reviewing and approving the application for the Daytop Village operation at this site, must consider the ability of the facilities to meet all environmental regulations. In addition, OASAS has the authority to require an applicant to modify its proposal to make necessary physical plant change or to withdraw its application if adverse impacts cannot be adequately mitigated. In addition to licensing review and approvals, OASAS will be involved in funding the operation of the facility as part of its statewide substance abuse treatment program.

The Town through its planning board has the authority to address site and related construction details of the proposed action, except as noted above. However, it does not have the principal responsibility for the level of decision making required for a facility of this nature. I conclude that the breadth of powers necessary to review this project favors OASAS as lead agency.

The third criterion in resolving a lead agency dispute is which agency has the greatest capability to provide a thorough environmental assessment of the proposed action. Since both the Philipstown ZBA and OASAS either have professional staff or have the ability to hire consultants and call upon other agencies to provide them with any necessary technical analyses of potential impacts, the review capabilities of both agencies must be considered equal. OASAS already has professional reviewers in its employ. Hiring consultants at the local level would be a duplicate effort, the cost of which would be borne by the Town.

I therefore conclude, based on all the facts presented, that the New York State Office of Alcoholism and Substance Abuse Services best serves the role of lead agency for conduct of review under SEQR for the proposed establishment of a 200-bed residential drug-free substance abuse treatment center in Garrison, Town of Philipstown, Putnam County, because the OASAS has the most appropriate jurisdiction and powers to investigate potential impacts, and because the potential impacts are not so primarily of local significance to require-designation of a local lead agency.

In undertaking this environmental review, OASAS has an obligation to address all substantive and relevant environmental issues raised by the Town of Philipstown Zoning Board of Appeals. I would encourage the Zoning Board of Appeals or other units of the Philipstown Town government to make OASAS fully aware of their specific environmental concerns and to participate fully in the SEQR process.

This decision does not in any manner relieve, limit or minimize the responsibility of all other involved agencies in completion of the environmental review process.

/s/
Langdon Marsh Executive Deputy Commissioner
Dated: 2/18/93
Albany, New York


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