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Lead Agency Dispute: County of Clinton and City of Plattsburgh and Town of Plattsburgh

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

PROJECT: Waste Sludge Treatment Facility, Town of Plattsburgh, Clinton County

DISPUTING AGENCIES: City of Plattsburgh City Council and Town of Plattsburgh Town Board and Planning Board

I have been asked to designate a lead agency to conduct an environmental review under the New York State Environmental Quality Review Act (SEQR; Article 8 of the New York State Environmental Conservation Law [ECL]; see also, Part 617 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York [6 NYCRR Part 617]). The request for a designation of lead agency concerns the proposal by the City of Plattsburgh to modify a waste sludge treatment facility in the Town of Plattsburgh, Clinton County. The disputing agencies are the City of Plattsburgh City Council (City Council), the Town of Plattsburgh Town Board (Town Board) and the Town of Plattsburgh Planning Board (Planning Board). This designation of the City Council to serve as lead agency is based upon my finding that the City Council has broader governmental powers for investigation of the impacts of the proposed modifications to the waste sludge treatment facility than do the Planning Board or the Town Board.

Action and Site

Specifically, the action is a proposal by the City of Plattsburgh to implement a modified method of biosolids handling known as Alkaline Treatment at a waste sludge treatment facility previously used for in-vessel composting of waste sludge. Implementation of this system would not require new construction of any structures or modifications to site utilities, road, storm water management, or other appurtenances. Construction will include the installation of mixing equipment inside the storage building and possible use of three external portable storage silos adjacent to existing structures. The project is located at the southeast corner of the intersection of Rugar Street and I-87, within the Town of Plattsburgh's Industrial Zoning District. The lot is owned by Clinton County. The City operated the facility on the County's property pursuant to an inter-municipal agreement (IMA) from approximately 1986 to 2001 (when a fire caused temporary cessation of operations), and again from approximately 2002 to 2006. Air emissions and solid waste permits for the facility remain active and in effect, so that the proposed modification will require merely a modification of the existing permits.

Regulatory Setting

Based on joint letters received on behalf of the Town Board and Planning Board from their attorneys, dated July 30, 2010 and August 27, 2010, and on letters on behalf of the City Council from the Corporation Counsel, dated August 12, 2010 and August 25, 2010, the jurisdictions asserted by the agencies involved with this project, which I accept for purposes of resolving this lead agency dispute, are as follows:

Under the IMA between the City and the County, the City is responsible for construction and operation of the sludge waste treatment facility. The City is also required to be the applicant and permit holder for all relevant permits and approvals needed for this project. The City Council, therefore, has responsibility to fund and directly undertake this action.

The Town Board asserts that the project is subject to a nine-month moratorium on new and modified solid waste facilities in the Town of Plattsburgh, pursuant to a local law enacted by the Town Board on August 18, 2010. Notwithstanding the moratorium or potential future amendments to local laws, the Town Board also asserts that the proposed modification and operation are subject to the controls set forth under the existing Town of Plattsburgh Zoning Ordinance. However, the Town Board's lead agency dispute papers fail to establish any specific discretionary authority with regard to the project.

The Planning Board asserts that, at a minimum, the action will be subject to the Planning Board's discretionary site plan standards and procedures as an "Industrial Plant" (Town of Plattsburgh Zoning Ordinance, Article VII) and special use permit jurisdiction (Town of Plattsburgh Zoning Ordinance, Article VIII). The Planning Board further asserts that additional regulatory controls could be imposed, depending on the outcome of analyses undertaken during the moratorium.

The New York State Department of Environmental Conservation (DEC) is responsible for air and solid waste facility permitting (State Air Facilities Permit DEC #5-0942-00006/00009 and Solid Waste Permit DEC #5-0942-00006/00006). The City intends to apply to DEC for a permit modification to incorporate the proposed different method of biosolids handling, Alkaline Treatment. In addition, stormwater management on the site is permitted by the DEC through its General Stormwater Permit.

The Town Board and Planning Board provided a joint filing which offered arguments in support of each agency but indicated that the boards would rely on the Commissioner's designation to designate the appropriate lead agency. Lead agency for a SEQR review may be assumed only by an involved agency with authority to make discretionary decisions concerning one or more components of the overall plan. Based on the jurisdictions asserted in their filings, the Planning Board and the City Council appear to satisfy the criteria to be considered involved agencies, and both have stated their interest in serving as lead agency.

No other involved agencies have sought lead agency status or commented on the request for lead agency designation.

Discussion

In resolving a lead agency dispute, I am guided by the three criteria listed in order of importance in 6 NYCRR §617.6(b)(5)(v):

  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.

My designation of a lead agency must be based strictly on applying these criteria to the facts of each individual case.

A. First Criterion

The first criterion asks whether the potential impacts from the proposed action are of local, regional or statewide significance. The existing treatment facility is located entirely within the Town of Plattsburgh boundaries and is also contained within the boundaries of an area which has been identified as a potential Environmental Justice (EJ) community. Construction activities typical of new construction such as noise, dust and internal operational traffic are not anticipated for this action as the majority of operations, and most, if not all work to complete the proposed modification, will be done inside an existing building. Off-site operations or activities will primarily involve truck traffic using local roads that may involve some changes in traffic pattern, noise, ground-level air quality, or safety impacts. The travel route for hauling sludge from the City's wastewater treatment plant to the sludge treatment facility utilizes several roads, including but not limited to town roads.

The lead agency criteria (6 NYCRR 617.6[b][5][v]) provide that when impacts are primarily local in significance, all other considerations being equal, the local involved agency should be lead agency. Since the impacts from the proposed waste sludge treatment facility are predominantly local in nature, and both competing agencies are local agencies, this criterion favors neither disputing party.

B. Second Criterion

The second criterion asks which agency has the broadest governmental powers for investigation of the impacts of the proposed action.

The City Council, as the site operator, sponsor of the proposed site and permit modification, and the party responsible for obtaining all necessary permits or approvals, has control and authority through the IMA to design, modify, alter or rearrange proposed activities at the site. The City Council is in a position to implement modifications or necessary changes to the project that may be identified as the result of the SEQR analysis and review. This authority inherent in comparison to being an agency sponsor is quite compelling when considered in comparison to the authority of the other disputing agency.

The Planning Board asserts that, under the Town of Plattsburgh Zoning Law, it is required to consider whether the project meets the requirements for a special use permit and site plan approval. Specifically, with regard to the Planning Board's special use permit review, pursuant to Town of Plattsburgh Zoning Law §8.6, the Planning Board must determine whether the proposed action will discourage the development and use of adjacent lands and whether the nature, scale and intensity of use is appropriate for this site. The Planning Board has also asserted that, as part of its special use permit jurisdiction it will need to consider many issues such as vehicle access and circulation, pedestrian circulation, parking, layout, drainage and erosion control, water and sewer capacity, water quality impacts, landscaping and vegetation, emergency access and demands, flooding potential, lighting, and nuisance odors.

There is no denying that the Planning Board's special use permit jurisdiction is broad. However, the relevance of special use permit jurisdiction to interior modifications of an existing operation is not clear. Further, the Planning Board's argument that it also possesses site plan review authority appears to be of minimal effect given that the vast majority of this proposed modification is proposed to be undertaken within or immediately adjacent to existing structures.1

Based upon a careful consideration of all the facts presented, I find that the second criterion, breadth of authority, favors the City Council. The City Council, as the project sponsor principally responsible for funding and construction oversight, has the ability to add, change and even delete any project elements to avoid or reduce impacts. The City Council is thus best suited to follow up with changes and alterations that may be identified as means to avoid or mitigate potential impacts as a result of the SEQR process.

C. Third Criterion

The third criterion asks which agency possesses the greatest capability for providing the most thorough environmental assessment of the proposed action. While I acknowledge the capability of the Planning Board to review land use projects, I find that, as a practical matter, both agencies have equal capacity to conduct a review of this project using existing in-house staff or by contract for additional professional assistance.

Therefore, I find that the third criterion favors neither of the disputing agencies to serve as the lead agency for the review of this project.

Finding

I find that the City Council should serve as lead agency for the environmental review of the proposed modification of the existing waste sludge treatment facility because the City Council has broader governmental powers to investigate the impacts of the project as well as to avoid or mitigate such impacts. This designation in no way changes or diminishes the responsibility or authority of other involved agencies with jurisdiction over the project, nor does it hamper the participation of any interested agencies.

While designating the City Council as lead agency, I must remind it to remain aware of any potential impacts that have been identified during this lead agency dispute, or which may be identified during the course of the environmental review. In making its determination of significance under SEQR, I encourage the City Council to solicit analyses and comments from the Town Board and Planning Board. Continued consultation between the City Council and all other involved agencies, including the DEC, will enable the City Council to better identify the full range of potential impacts of the project and, if necessary, explore alternatives and mitigation to avoid or minimize those impacts.

1 The Town Board recently enacted a moratorium on solid waste facilities (Local Law No. 2 for the Year 2010, dated August 18, 2010). Assuming that the proposed facility modification is subject to this moratorium, the Planning Board would not be able to consider the proposal because of the moratorium, and thus it would not have discretionary decisions to make. In this scenario, the Planning Board would lack jurisdiction to be considered an involved agency until such time as the moratorium expired.

/S/
Alexander B. Grannis, Commissioner
Dated: October 18, 2010
Albany, New York

Distribution of Copies:

Disputing Parties
Daniel A. Ruzow, Whiteman, Osterman & Hanna, LLP, Attorney for Town of Plattsburgh Town Board and Planning Board
Town of Plattsburgh, Attn: Bernie Bassett, Supervisor
John E. Clute, Corporation Counsel, City of Plattsburgh
City of Plattsburgh, Attn: Donald M. Kasprzak, Mayor

Involved Parties
Clinton County, Attn: Michael Zurlo, Administrator
NYSDEC Region 5, Attn: Mike McMurray, Regional Permit Administrator

New York State Department of Environmental Conservation, 625 Broadway, Albany
Lawrence H. Weintraub, Assistant Counsel, Office of General Counsel, Central Office
Robert Ewing, Division of Environmental Permits, Central Office

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