Lead Agency Dispute: City of Oswego v. DEC
New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law
PROJECT: Niagara Mohawk Power Corporation proposes to redevelop the Oswego Steam Station located in the City of Oswego, Oswego County
DISPUTING AGENCIES: The City of Oswego and Region 7 Office of the New York State Department of Environmental Conservation in Syracuse (DEC)
This decision to designate the Region 7 Office of DEC as lead agency for the conduct of the environmental review under the State Environmental Quality Review Act (SEQRA) is made pursuant to Article 8 of the Environmental Conservation Law (ECL) and 6 NYCRR Part 617. This decision is based on my findings that the impacts are primarily regional and statewide in nature and that DEC has broader jurisdiction under the ECL to regulate the multiple aspects of this redevelopment project.
The proposed project is the application by Niagara Mohawk Power Corporation (NMPC) to redevelop its Oswego Steam Station (OSS) by converting one of two existing 850 MW oil and/or gas-fired generating units to a multi-fuel unit burning primarily coal and/or natural gas (alone or in combination), with oil as a back-up fuel. In addition, the redevelopment would add a "Minergy" process to recycle all OSS fly ash into a marketable lightweight aggregate product.
The Region 7 Office of DEC has jurisdiction to issue or deny permits under: ECL Article 19 (Air Pollution Control) and 6 NYCRR Part 201 for the proposed modification to allow burning of coal at an existing emission point and for a new emission point at the rotary kiln for the proposed Minergy process; ECL Article 15 (Protection of Water and Water Quality Certification) and 6 NYCRR Part 608 for modification to an existing break wall and harbor dredging to facilitate coal carrying vessels; and ECL Article 17 (State Pollutant Discharge Elimination System) and 6 NYCRR Part 750-757 for modifications to the existing SPDES Permit.
The City of Oswego has jurisdiction under their local code Chapter 207 to issue or deny a solid waste permit for the generation, collection, transport and disposal of solid waste; and jurisdiction under Chapters 280 and 267 for site plan review and consistency under its waterfront revitalization program.
In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in paragraph 6 NYCRR Part 617.6(b)(5)(v). These are: (1) whether the anticipated impacts of the action being considered are primarily of statewide, regional or local significance (i.e., if such impacts are of primarily local significance, all other considerations being equal, the local agency involved will be lead agency); (2) which agency has the broadest governmental powers for investigation of the impacts of the proposed action; and (3) which agency has the greatest capability for providing the most thorough environmental assessment of the proposed action.
The first criterion relates to whether the anticipated impacts are primarily of statewide, regional or local significance. DEC and the City of Oswego have identified air emissions and water discharges as the primary environmental concerns associated with the proposed project and point out the need for dispersion modeling and compliance with Federal New Source Performance Standards under 40 CFR Part 60 (1998). In addition, the City of Oswego has identified noise, dust and traffic as other probable impacts associated with the proposed project.
The proposed project will require reevaluation and revision of the air permits issued for the existing generating facility, located on the eastern shore of Lake Ontario. Typical air emissions from a coal burning, steam electric generating station are oxides of sulfur and nitrogen, which are contributors to acid deposition. The location of the plant relative to the prevailing westerly winds could exacerbate acid deposition in northern New York or beyond, thus impacting regional and state resources. Furthermore, the proposed addition of a rotary kiln as part of the Minergy process would generate additional airborne pollutants and would also require revision of the air permits to add the new emission point(s).
The proposed project will also require reevaluation and revision of permits relating to the waters of Lake Ontario. Withdrawing cooling and process waters from the lake and/or discharging effluents to the lake or nearby groundwater potentially impacts a water resource of regional and statewide significance and with the addition of the Minergy process, project water needs could be significantly increased.
The City of Oswego also raised the potential for noise, dust and traffic impacts; however, compared to the probable significant impacts to air and water resources of regional and/or statewide importance, these additional potential impacts do not rise to the same level of concern. Thus, based on the likelihood that the proposed project would affect regional and statewide air and water resources, DEC is strongly favored as the lead agency.
The next criterion, the breadth of jurisdiction, also favors DEC as lead agency. The jurisdiction to evaluate possible modifications to the existing air and SPDES permits fall clearly within the regulatory authority of DEC. In addition, dredging associated with modification with an existing break wall and any necessary harbor dredging to facilitate coal carrying vessels will also require DEC review. It is clear that the primary impacts of concern fall under the exclusive jurisdiction of DEC.
In comparison, the City of Oswego's jurisdiction is limited. The applicant must obtain a solid waste permit under Chapter 207 of the City's local code, as well as building and demolition permits. The building and demolition permits are both limited in scope and apparently ministerial in nature. Even the requirement for site plan approval, which provides broad authority for review, does not equal the breadth of jurisdiction necessary to address the impacts of greatest concern in this project. It is clear that DEC has the greater breadth of jurisdiction to review the primary impacts associated with the proposed redevelopment of the Oswego Steam Station.
In consideration of the last criterion, modification to air pollution control and SPDES permits, the issuance of a water quality certification, and the issuance of approvals and/or exemptions under New York State solid waste rules, all require specific environmental expertise that is within the explicit purview of DEC. It is clear that, in this situation, DEC has the greatest capability for providing the most thorough environmental assessment.
I conclude, based on the potential regional and statewide location of impacts and DEC's broader jurisdiction under ECL, that the Region 7 Office of DEC maintains greater expertise for conducting the environmental review for this redevelopment project and that DEC should, therefore, be lead agency for the SEQR review for the proposed Niagara Mohawk Oswego Steam Station Redevelopment project.
This decision in no way limits the jurisdiction or responsibility of the City of Oswego. The applicant must obtain the necessary City permits and approvals prior to commencing the action. I encourage the City of Oswego to continue to identify all of its environmental concerns so that the DEC Region 7 Office can consider them when it determines the significance of the proposed action.
John P. Cahill, Commissioner
Albany, New York
- Daniel Palm, Regional Director, DEC Region 7
Ralph Manna, Regional Permit Administrator, DEC Region 7
Mayor Hammill, City of Oswego
Joseph Miakiaz, Director, Environmental Regulatory Affairs, Niagara Mohawk Power Corporation
Peter Henner, Attorney for City of Oswego
New York State Department of Environmental Conservation:
- Victor Gallo