Lead Agency Dispute: Broome Co Resource Recovery Agency v. Town of Kirkwood
New York State Department of Environmental Conservation
Commissioner's Determination of Lead Agency
under Article 8 of the
Environmental Conservation Law
PROJECT: Proposed Broome County Resource Recovery Project
This decision to designate, as lead agency, the Broome County Legislature, is made pursuant to 6 NYCRR §617.6(e). My determination is based on the fact that the County Legislature, due to its broad powers to oversee and approve the proposed facility, more appropriately meets the criteria for lead agency enumerated at 6NYCRR §617.6(d)(1).
The proposed action is the construction and operation of a solid waste management - resource recovery facility within Broome County. The facility will have a nominal charging rate of 500 tons/day and generate electrical energy to be sold to an existing utility.
On May 12, 1986, the Broome County Resource Recovery Agency (hereinafter referred to as "the BCRRA") mailed a notice to the other potentially involved agencies declaring its intention to act as lead agency for the proposed facility. The Town of Kirkwood, by a letter dated June 11, 1986, objected to the BCRRA acting as lead agency and expressed its desire to act as lead agency. After the expiration of the 30-day period for designating a lead agency, the Towns of Union and Conklin and the Village of Johnson City also objected to the BCRRA acting as lead agency.
In light of the inability of the involved agencies to agree on a lead agency, the Town of Kirkwood, in a letter dated June 12,1986, requested that, pursuant to 6NYCRR 9617.6(e), the Commissioner of Environmental Conservation resolve the dispute and designate a lead agency. In a letter dated June 18, 1986, the BCRRA joined in this request.
According to 6NYCRR §617.6(d)(1), in resolving lead agency disputes, I must consider the location of the anticipated impacts; the breadth of the applicable jurisdiction; and the capability of each agency for providing a thorough environmental assessment.
The proposed facility will be a key part of the County's response to the problem of solid waste management. The decisions made in the process of developing the resource recovery project will have the potential to impact each municipality in the County. I acknowledge that the municipality which is chosen as the location for the facility may experience site-specific impacts, such as those upon traffic, noise, air quality, aesthetics and changes in the nearby community character including land use values. It must also be recognized that impacts related to landfill use, waste stream changes, need for transfer stations, recycling and by-pass capacity will affect all communities and citizens in the county. Therefore, due to the county-wide nature of the existing solid waste problem and the fact that several potential sites exist, I find that the impacts must also be viewed in a broader context.
The next criterion to consider is the breadth of the agencies' jurisdiction in the process. Since the proposed action is the construction and operation of a resource recovery facility to address the solid waste management needs of Broome County, the agency chosen as lead agency should have broad jurisdictional authority. The Broome County Legislature, which has the statutory responsibility for approving the site and technology, the BCRRA which is responsible for planning, development, construction and financing the facility and the Region 7 office of the Department of Environmental Conservation, through its permit jurisdictions, clearly possess the broad authority necessary to act as lead agency. However, the Town of Kirkwood's authority may be limited. If the Town of Kirkwood is chosen as the site of the facility, it may possess certain jurisdiction over the siting of the facility. But, if the proposed site is located outside of the Town of Kirkwood, the Town would possess no greater jurisdiction than any other municipality within Broome County that will be utilizing the facility. In fulfilling obligations to consider alternatives, the Town would have no authority to act upon any potential sites outside its boundaries. In addition, it must be noted that the legislative grant of authority to the BCRRA specifically restricts its powers to require the vote of the County Legislature to approve site and technology selection (Public Auth. L. §2047-e).
The final criterion to consider is the agencies' capacity for providing a thorough environmental assessment. The Broome County Legislature has available all of the resources of the county government to assess potential environmental impacts from facility construction and operation.
Based on a careful consideration of all the facts presented, I find that due to the county-wide nature of the proposed project, the broad statutory authority to oversee and approve the facility, and the ability to draw on county-wide resources, that the Broome County Legislature is the agency best suited to act as lead agency for the preparation of a generic environmental impact statement (EIS) regarding the location of a site for a county solid waste management resource recovery facility. The generic EIS should address the appropriate geographic site for the facility, the preferred type of technology that will be employed and generic issues such as traffic, noise and aesthetics. Also, the generic EIS can properly discuss relevant site-specific issues to the degree that they can be addressed at this early stage of review, prior to the detailed engineering and permit related technical decision phase.
This decision does not in any manner limit or minimize the responsibility of the involved agencies to review the entire action. If, after completion of the generic EIS, there is a need to assess potential significant site-specific technical and permit-related impacts which may arise during the technical/engineering design of the facility, I direct the Region 7 office of the Department of Environmental Conservation to serve as lead agency for the preparation of a supplemental EIS to evaluate such significant technical and permit-related impacts.
Henry G. Williams Commissioner
Dated: July 19, 1986
Albany, New York
Distribution of Copies:
- J. Kraham, Chairman, Broome County Legislature
J. Sweet, Legislative Clerk, Broome County Legislature
C. Young, County Executive, Broome County
L. Kelly, Chairman, Broome County Resource Recovery Agency
J. Griffin, Supervisor, Town of Kirkwood
R. Kafin, Attorney, Town of Kirkwood
New York State Department of Environmental Conservation:
- L. Marsh