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Town of Covington Planning Board and Town of Middlebury Town Board v. DEC Division of Mineral Resources

Project: Texas Salt Brine Wyoming Village Brine Field Expansion, Towns of Covington and Middlebury, Wyoming County

Disputing Agencies: Planning Board of the Town of Covington and the Town Board of the Town of Middlebury (requesting to act as Co-Lead Agencies) v. the New York State Department of Environmental Conservation, through its Division of Mineral Resources

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], with implementing regulations at 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 has been made in the context of an environmental review pursuant to SEQR for a proposed expansion of an existing salt brine well field (known as the Wyoming Village Brine Field) that is owned by the Texas Brine Company, LLC (TBC). The disputing agencies are the Planning Board of the Town of Covington (Covington Planning Board) and the Town Board of the Town of Middlebury (Middlebury Town Board), which are asking to act as co-lead agencies,1 and the New York State Department of Environmental Conservation, through its Division of Mineral Resources (NYSDEC).

This designation of NYSDEC, through its Division of Mineral Resources, to serve as lead agency for the SEQR review of this project, is based on: (1) NYSDEC's comparatively broader jurisdiction, through its authority under the Oil, Gas and Solution Mining Law (OGSML, which is set out in Article 23 of the Environmental Conservation Law); and (2) that NYSDEC has greater capability to provide the most thorough environmental assessment of the proposed action.

Action and Site

The proposed action involves an application by TBC to expand the existing Wyoming Village Brine Field. The brine field is used for solution salt mining purposes.

The existing brine field is located in the Town of Middlebury (Middlebury), Wyoming County. It covers an area that is approximately 1220 acres with 121 solution mining wells. The proposed expansion would encompass an additional 60 acre parcel of land in Middlebury and a 220 acre land parcel in the Town of Covington (Covington). Both parcels of land - the additional 60- acre and 220-acre parcels - are owned by TBC and border the existing brine field in Middlebury.

The TBC Wyoming Village Brine Field has been in operation since 1987, and was the subject of a final environmental impact statement (FEIS). NYSDEC served as lead agency for the initial permitting of this brine field (consisting of 94 wells on 680 acres). The brine fields were expanded in 1996 and 2005. The 1996 expansion, involving 450 additional acres and 60 additional wells, was the subject of a final environmental impact statement and findings, and NYSDEC was the lead agency for that expansion. See Final Environmental Impact Statement for Texas Brine Corporation, Wyoming Brine Field Expansion Project, which was completed on November 14, 1996. The 2005 expansion, involving 18 wells on 149 acres, was the subject of a negative declaration. NYSDEC was the lead agency for that review.

An additional 47 wells are anticipated to be added to the field as a result of the proposed action. This would expand TBC's project life for this well field by an additional 12 years. The water source for the solution mining is the Niagara River, which is delivered through a 60 mile long pipeline. During the next permit term, sixty of TBC's existing 121 wells are scheduled to be, or will have already been, plugged.

Regulatory Setting

The two towns and NYSDEC staff describe their respective jurisdictions as follows: The applicant would be required to obtain a special use permit for the brine field expansion from the Covington Planning Board. In the Town of Middlebury, the applicant may require a zoning amendment from the Middlebury Town Board as the proposed expansion, according to the Town, is not within its Solution Mining Overlay District.

The New York State Legislature has imposed an important limitation on the jurisdiction of the two towns under ECL §23-0302(2).2 Specifically, while towns may regulate land use, they are preempted from regulating the operational details of solution mining.

NYSDEC, on the other hand, has the jurisdiction to regulate the operational details of the solution salt mining activity. From NYSDEC, the applicant would be required, under ECL Article 23, to obtain individual well drilling permits as well as well plugging permits. The applicant would also have annual reporting requirements for solution salt mining wells and facilities. NYSDEC also regulates solution mining activity through its 1992 generic environmental impact statement on the OGSML, which, among other things, established thresholds for future environmental reviews of individual well drilling applications. See Final Generic Environmental Impact Statement on the Oil, Gas and Solution Mining Regulatory Program, published on the Department's website at http://www.dec.ny.gov/energy/45912.html. The generic environmental impact statement sets outs the typical set of considerations in solution mining (e.g., ground and surface water contamination, subsidence, erosion and sedimentation and impacts on agricultural uses). See Draft Generic Environmental Impact Statement on the Oil, Gas, and Solution Mining Regulatory Program, Volume II, p. 13-6, dated January 1988, published on the Department's website at http://www.dec.ny.gov/energy/45912.html. 3 Such impacts of individual well drilling permits would be evaluated under ECL Article 23 and NYSDEC's FGEIS.

In terms of NYSDEC jurisdiction, the applicant would also be required to seek coverage under a State Pollution Discharge Elimination System (SPDES) General Permit for Construction Activity for various components of this action or seek an individual SPDES permit.

The role of lead agency for a SEQR review may only be assumed by an involved agency with authority to make discretionary decisions on one or more components of the overall action. Based on the foregoing, the Covington Planning Board and Middlebury Town Board, and NYSDEC all appear to satisfy the criteria to be considered involved agencies. 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 that are set forth in 6 NYCRR §617.6(b) (5)(v). They are listed below in order of importance as follows:

  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 is based solely on application of these criteria to the facts of each case.

A. First Criterion

The first criterion asks whether the potential impacts from the proposed action are of primarily of local, regional or of statewide significance.

Both the Covington Planning Board and Middlebury Town Board have identified potential impacts to be local in nature, confined to the two host communities. Local impacts include the typical suite of construction related impacts (e.g., noise, dust, traffic and storm water runoff) from drill pad preparation, drilling, and operation of new solution mining wells. Based on information from previous expansions to TBC fields, site preparation for each well generally includes a 15 foot wide gravel access road, a 60 foot by 150 foot gravel pad, an 8 foot by 12 foot by 6 foot well house, and on-site pipelines and instrumentation. In that expansion review, sixty proposed well pads were estimated to involve about 35 surface acres of disturbance. Based on this, the current action of up to 47 new wells would equate to about 28+/- acres of surface disturbance over the two towns.

NYSDEC staff acknowledges the potential local impacts from the solution mining activity, but also asserts that impacts of regional significance could occur, given the geographic dispersal of wells across over 1200 acres and the fact that the application involves two towns. Potential impacts of regional significance include ground and surface water impacts whose potential boundary of impact area have more to do with geologic boundaries rather than municipal ones.

Based on the foregoing, I conclude that the potential impacts associated with the TBC expansion are of both local and regional significance. It is difficult - at best - to assign the predominant label to either class of impact in this case. This criterion therefore favors neither NYSDEC nor the Covington Planning Board and the Middlebury Town Board to serve in the role of lead agency.

B. Second Criterion

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

Under its special use permit jurisdiction, the Covington Planning Board, pursuant to Town Law §274-b), is authorized to impose reasonable conditions and restrictions that are directly related and incidental to the proposed special use permit. In terms of zoning, such authority is broad. The Middlebury Town Board's action is legislative. Towns are given broad discretion when their zoning decisions are legislative. See, e.g., Litz v. Town Board of the Town of Guilderland, 197 A.D.2d 825 (1993).

NYSDEC has jurisdiction through its permit approval under ECL Article 23 for all of the approximately 49 wells over the life of the project, whether in they are located in the Town of Covington or the Town of Middlebury, and authority to regulate all aspects of the proposed brine field expansion project under ECL Article 23 and its implementing regulations (6 NYCRR Part 550 et seq.). NYSDEC also has jurisdiction over approvals for well plugging permits for closure of wells in the existing field under ECL Article 23 and future wells in the proposed project area. Finally, NYSDEC is responsible for the administration and management of annual reporting requirements for solution salt mining wells and facilities.

As mentioned above, both towns and their boards are restricted by the preemption clause in ECL Article 23 that limits their jurisdiction to matters of land use. ECL §23-0303(2) expressly prevents the towns from regulating the operational details of solution mining. The operational impacts are at the heart of this matter since attention to the operational details will serve to prevent impacts from the activity.

I find that the extent of NYSDEC's jurisdiction for this action under the OGSML is broader than that of the Covington Planning Board and Middlebury Town Board, either collectively or singularly, especially given the fact that the towns are precluded from regulating the operational aspects of solution mining under the OGSML. I therefore conclude that the second criterion favors NYSDEC.

C. Third Criterion

The third criterion asks which agency possesses the greatest capability for providing the most thorough environmental assessment of the proposed action.

The Middlebury Town Board and NYSDEC are familiar with the well field and its potential impacts. While the Covington Planning Board may be familiar with solution mining to the extent that it has bordered a longstanding well field, it has no direct experience in managing wells within its municipal boundaries. Both boards have identified themselves as possessing, or being capable to possess sufficient personnel to provide an assessment of the current project.

NYSDEC has an existing staff of professional engineers and geologists with unique and long-standing expertise in regulating solution mining operations, SEQR review and natural resource protection including the safeguarding of ground and surface water from contamination. In addition, NYSDEC staff have served as lead agency for the SEQR review of the initial application for this well field in 1985 and two subsequent expansions in 1996 and 2005. NYSDEC has completed a programmatic EIS on its permitting and overseen the preparation of two EISs. Due to NYSDEC's in-house specific expertise in assessing the environmental impact of well drilling and solution mining, and the fact that it has served as lead agency for the original permitting of this well field and subsequent expansions, this third criterion strongly favors NYSDEC.

Finding

I find that NYSDEC, through its Division of Mineral Resources, should serve as lead agency for the SEQR review of TBC's proposed Wyoming Brine Field Expansion project. This decision is based on the conclusion that NYSDEC has the broadest authority to carry out the SEQR review through its jurisdiction under the OGSML and my conclusion that NYSDEC has the greater capability to provide a thorough environmental assessment of the proposed action.

This designation in no way changes or diminishes the responsibilities or authority of the Covington Planning Board or the Middlebury Town Board, or other involved agencies with jurisdiction over the project. In designating NYSDEC as lead agency, I remind it to remain aware of any potential impacts that have been identified during this lead agency dispute, particularly the concern for public involvement, or impacts which may be identified during the course of the environmental review. In developing the record through the SEQR process, I am directing NYSDEC staff to ensure that concerns of both the Covington Planning Board and Middlebury Town Board are given due consideration through the permitting processes including any heightened public outreach that may be necessary to insure that local concerns are adequately considered.

Dated: July 15, 2014

/s/ Joseph J. Martens, Commissioner
Albany, New York

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1 Past Commissioner lead agency decisions have interpreted the SEQR regulations to disallow the designation of a co-lead agency. See Commissioner's Lead Agency Decision, Village of Briarcliff Manor v. Village of Tarrytown, Westchester County, September 15, 2008; Commissioner's Lead Agency Decision, Town of Shandaken Town Board v. Town of Shandaken Planning Board v. NYCDEP v. NYSDEC, March 20, 2000; and Commissioner's Lead Agency Decision, Town of Putnam Valley v. Town of Yorktown, December 28, 1999.
2 ECL §23-0303(2) states that "[t]he provisions of this article shall supersede all local laws or ordinances relating to the oil, gas and solution mining industries; [sic] but shall not supersede local government jurisdiction over local roads or the rights of local government under the real property tax law." In Matter of Mark S. Wallach, as Chapter 7 Trustee for Norse Energy Corp. USA, v. Town of Dryden et al., NY Slip op. 04875 (NY Court of Appeals, June 30, 2014), the Court held that ECL §23-0303(2) does not by its terms preempt the home rule authority vested in municipalities to regulate land use so as to prohibit the use of land for natural gas drilling using the high volume hydraulic fracturing method of gas drilling. According to the Court, ECL §23-0303 (2) only preempts municipalities from regulating the operational details of gas drilling (or as the Court phrased it the "how to" of drilling activity). Thus, under the Court's interpretation of ECL §23-0303 (2) (which also applies to solution salt mining) Middlebury and Covington would be preempted from regulating the operational details of solution salt mining though they could regulate the use of land for such activities through zoning.
3 See also Kathleen F. Sanford, Solution Salt Mining in New York, available at http://www.dec.ny.gov/energy/1558.html.

Distribution of Copies:

Disputing Parties
David DiMatteo (Law Office of David M. DiMatteo), representing both the Towns of Covington and Middlebury
Daniel Leuer, Supervisor, Town of Middlebury
Jerry Davis, Supervisor, Town of Covington
Thomas Noll, Chief - Permits Section, Bureau of Oil & Gas Permitting and Management, NYSDEC Division of Mineral Resources

Applicant
Matt Slezak, Manager-Drilling, Texas Brine Company, LLC Brian Stacy, Plant Manager, Texas Brine Company, LLC

New York State Department of Environmental Conservation
David Denk, Regional Permit Administrator, Region 9
Lawrence H. Weintraub, Esq., Assistant Counsel, Office of General Counsel, Central Office
Robert L. Ewing, Division of Environmental Permits, Central Office


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