| Matter of Residents for Responsible Govt. v Grannis |
| 2010 NY Slip Op 06203 [75 AD3d 963] |
| July 22, 2010 |
| Appellate Division, Third Department |
| In the Matter of Residents for Responsible Government, Appellant,v Alexander B. Grannis, as Commissioner of Environmental Conservation, et al., Respondents.(Proceeding No. 1.) In the Matter of County of Niagara et al., Appellants, v AlexanderB. Grannis, as Commissioner of Environmental Conservation, et al., Respondents. (ProceedingNo. 2.) |
—[*1] Law Office of Gary A. Abraham, Allegany (Gary A. Abraham of counsel), for County ofNiagara and others, appellants. Andrew M. Cuomo, Attorney General, Albany (Joseph Koczaja of counsel), for AlexanderB. Grannis, respondent. Cohen & Grigsby, P.C., Pittsburgh, Pa. (Daniel M. Darragh of counsel), for CWM ChemicalServices, L.L.C., respondent.
[*2]Lahtinen, J. Appeals from a judgment and order of theSupreme Court (Sackett, J.), entered May 8, 2009 in Albany County, which dismissedpetitioners' applications, in two combined proceedings pursuant to CPLR article 78 and actionsfor declaratory judgment, to review a determination of the Department of EnvironmentalConservation finding that the hazardous waste disposal permit modification application ofrespondent CWM Chemical Services, LLC was complete.
Petitioners contend that respondent Department of Environmental Conservation (hereinafterDEC) violated ECL article 27, title 11, when it issued a notice of completeness on a permitmodification application pertaining to a commercial hazardous waste landfill and, furthermore,that DEC's negative declaration regarding that application was not supported by the record.Respondent CWM Chemical Services, LLC operates an active 47-acre commercial hazardouswaste landfill, known as RMU-1, on property it owns in Niagara County. RMU-1 is part ofCWM's 710-acre hazardous and industrial waste treatment, storage and disposal facility, whichhas operated since the early 1970s and includes 10 closed landfills. In 1993, following extensivereview, the Industrial Hazardous Waste Facility Siting Board issued a certificate ofenvironmental safety and public necessity for RMU-1 (see ECL 27-1105), and DECgranted CWM a permit to operate that facility (see 6 NYCRR part 373). As relevant tothese appeals, the permit established a final height limitation for the landfill and provided that,when closed, the landfill must be covered with a compacted clay layer (hereinafter CCL).
In 2000, CWM commenced communication with DEC about possible modifications to itspermit, including substituting a technologically superior geosynthetic clay liner (hereinafterGCL) as a final cover for RMU-1 instead of the CCL. Over the next eight years, DEC conductedinvestigations regarding this change and other changes sought by CWM, the agency issuednumerous notices of incomplete application with requests for additional information, andreceived revised applications as well as scientific research reports and technical information.CWM eventually narrowed its modification application to essentially seeking to use the GCL asa final cover and, since the final cover system with the GCL would be 2½ feet whereas oneusing CCL would have been five feet, CWM sought to use the resulting extra 2½ feet of airspace available before reaching the maximum allowable height for additional waste disposal.This would extend the operational life of RMU-1 for up to one year by making an additional106,870 cubic yards of space available, increasing the total waste of RMU-1 by about 3%.
CWM submitted an environmental assessment form with an April 2008 permit modificationapplication and, after DEC initially found deficiencies in the application, a revised applicationfollowed in June 2008. DEC issued a negative declaration (see ECL art 8) in September2008 in which it noted the superior performance of the GCL cover. While DEC acknowledged inits negative declaration that there would be an increase in disposal capacity at RMU-1, itobserved that there would also be a decrease in truck traffic necessary to deliver clay for a CCLcover and that the extended operations would be substantially similar to those that had beenongoing at the site. In November 2008, DEC published a notice of completeapplication.[FN*]Petitioners then commenced these combined CPLR article 78 proceedings and declaratoryjudgment actions seeking to annul DEC's determination. Supreme Court dismissed the petitions[*3]and petitioners appeal.
We consider first petitioners' argument that DEC violated ECL article 27, title 11, by issuinga notice of complete application at a time when DEC had not yet adopted a statewide hazardouswaste facility siting plan. ECL 27-1109 (6) provides that any application regarding a facility thatis subject to ECL 27-1105 will not be deemed complete until DEC determines that theapplication is consistent with the statewide hazardous waste facility siting plan required by ECL27-1102. Since DEC has not yet adopted an ECL 27-1102 plan, CWM's application can becomplete only if it is not subject to ECL 27-1105. As is relevant here, ECL 27-1105 is applicableto "any expansion . . . of the aggregate land disposal capacity of an existing landdisposal facility" (ECL 27-1105 [1] [e]). However, the statute goes on to carve out exceptions,including for "[a] facility that has been determined by [DEC] to have no significantenvironmental impact pursuant to article eight of this chapter" (ECL 27-1105 [2] [c]).
"Where a statute is ambiguous and its interpretation 'involves specialized "knowledge andunderstanding of underlying operational practices or entails an evaluation of factual data andinferences to be drawn therefrom," [we] defer to the administrative agency's interpretation unlessirrational or unreasonable' " (Matter ofNew York State Superfund Coalition, Inc. v New York State Dept. of Envtl. Conservation,68 AD3d 1588, 1589 [2009], quoting Matter of KSLM-Columbus Apts., Inc. v New York State Div. of Hous. &Community Renewal, 5 NY3d 303, 312 [2005], quoting Kurcsics v Merchants Mut.Ins. Co., 49 NY2d 451, 459 [1980]). The language of ECL 27-1105 inclusively applies to"any" of various facilities in the first paragraph of the statute only to be followed by numerousexceptions in the second paragraph. The statute is susceptible to more than one reasonableinterpretation as to a proper reading of its first two paragraphs. Further, this statute is part of anetwork of statutes and statutorily authorized regulations aimed at the complex permitting,monitoring and regulating of commercial hazard waste landfills; an area that sufficientlyimplicates specialized agency knowledge and understanding of underlying operational practicessuch that DEC's interpretation is entitled to deference. As currently relevant, ECL 27-1105 (2)(c) provides an exception from the requirements of ECL 27-1105 for "[a] facility that has beendetermined by [DEC] to have no significant environmental impact pursuant to [ECL article 8]."We are unpersuaded that it was unreasonable for DEC to interpret this language as allowing anexception from ECL 27-1105 for a permit modification that the agency had examined and forwhich it had issued a negative declaration.
The next issue is whether DEC's determination of no significant impact is supported by therecord. While petitioners do not dispute the superior quality of the GCL final cover system, theycontend that DEC failed to take a hard look at the environmental impact of extending theoperation of the RMU-1 for approximately one year. "Judicial review of an agency determinationunder [the State Environmental Quality Review Act] is limited to 'whether the agency identifiedthe relevant areas of environmental concern, took a "hard look" at them, and made a "reasonedelaboration" of the basis for its determination' " (Matter of Riverkeeper, Inc. v Planning Bd. of Town of Southeast, 9NY3d 219, 231-232 [2007], quoting Matter of Jackson v New York State Urban Dev.Corp., 67 NY2d 400, 417 [1986]). "It is not the province of the courts to second-guessthoughtful agency decisionmaking and, accordingly, an agency decision should be annulled onlyif it is arbitrary, capricious or unsupported by the evidence" (Matter of Riverkeeper, Inc. vPlanning Bd. of Town of Southeast, 9 NY3d at 232; see Akpan v Koch, 75 NY2d561, 570 [1990]).[*4]
Here, over the course of eight years, DEC required CWMto provide an array of reports and information regarding the effectiveness of GCL covers as wellas ramifications resulting from the use of such a cover at RMU-1. In its negative declaration,DEC identified areas of environmental concern, including information regarding the superiornature of GCL covers, the resulting increase in capacity at RMU-1, the extension of theoperational life of RMU-1 by approximately one year, and the similar nature of the operationsduring this extended time. DEC determined, and the record supports, that a GCL cover affordsbetter protection, thus having a positive environmental impact. The agency also noted thatallowing the GCL cover would decrease the truck traffic that otherwise would have beennecessary to deliver clay for a CCL cover. Although truck traffic delivering waste wouldcontinue for the additional year, such traffic was not different from what had been ongoing formany years. DEC considered and concluded that continuing the hazardous waste disposal at thesite for an additional year would not have a significant impact since all activities would besubstantially the same as previously approved after comprehensive evaluation during the earlierpermit process. We are unpersuaded that DEC's determination is unsupported by the record orreflects an arbitrary action.
Spain, J.P., Stein, McCarthy and Garry, JJ., concur. Ordered that the judgment and order isaffirmed, without costs.
Footnote *: Following a public hearing andreceipt of written public comments, DEC issued the permit modification in July 2009.