Atlantic Cement Co., Inc. v. Williams

Decision Date11 June 1987
Citation129 A.D.2d 84,516 N.Y.S.2d 523
PartiesIn the Matter of ATLANTIC CEMENT COMPANY, INC., Respondent-Appellant, v. Henry G. WILLIAMS, as Commissioner of the Department of Environmental Conservation of the State of New York, et al., Appellants-Respondents.
CourtNew York Supreme Court — Appellate Division

Robert Abrams, Atty. Gen. (James J. Periconi, Peter H. Schiff and Val E. Washington, of counsel), Albany, for appellants-respondents.

Lombardi, Devorsetz, Stinziano & Smith (William J. Gilberti, Jr., and Albert M. Ferlo, Jr., Joshua H. Heintz and Rosemary Stack, of counsel), Syracuse, for respondent-appellant.


HARVEY, Justice.

Petitioner operates a mining operation and cement manufacturing facility on approximately 2,000 acres of land in Albany County. It has been in business at that location since 1961 and its operation is one of the largest of its type in the United States. Petitioner employs approximately 500 people and its product is distributed throughout the entire market east of the Mississippi River.

In 1974, the Legislature enacted the New York State Mined Land Reclamation Law (MLRL) (L.1974, ch. 1043). Effective in 1975, the MLRL required mine operators to obtain a permit from respondent Department of Environmental Conservation (DEC) in order to continue mining (ECL 23-2711). In that year, petitioner submitted a detailed application which included, among other things, maps of the entire area owned, mining plans, reclamation plans and the required reclamation bond. The application was approved and a permit was issued. Since permits are only issued for periods of one or three years (ECL 23-2711 [3] ), petitioner subsequently applied for renewal of its permit.

In response to petitioner's 1978 renewal application, DEC requested that a long-form environmental assessment form (EAF) be submitted. This request was based upon the provisions of the newly enacted State Environmental Quality Review Act (SEQRA) which had become effective in 1976 (L.1975, ch. 612). Although petitioner protested the application of SEQRA requirements to it, it nevertheless submitted the requested information. DEC issued a "negative declaration", i.e., a determination that petitioner's activities would not have a significant impact on the environment and thus that an environmental impact statement (EIS) was not necessary. Petitioner's renewal of the permit was granted.

Petitioner's renewal was approved in 1981 without major incident. On June 11, 1984, DEC received from petitioner the standard renewal application, accompanied by the required fee and reclamation report. Twenty-eight days later, on July 9, 1984, DEC issued a notice of incomplete application indicating that petitioner's application would have to undergo SEQRA review. DEC also sought additional information under its so-called "Life of the Mine Review Policy", which purportedly was based upon various requirements of SEQRA and MLRL.

In April 1985, following petitioner's refusal to provide the additional information, DEC issued a positive declaration under SEQRA, thus requiring petitioner to prepare a draft EIS. DEC then notified petitioner that if the additional submittals were not made by May 1, 1985, its permit renewal application would be denied as incomplete. On April 30, 1985, petitioner commenced the instant CPLR article 78 proceeding challenging the authority of respondent Commissioner of Environmental Conservation to impose the life of the mine review policy, the application of SEQRA to its permit renewal and the denial of its application for renewal. On May 23, 1985, DEC denied petitioner's renewal application upon the ground that it had failed to submit the requested additional information (see, ECL 70-0117[2]; 6 NYCRR 621.14[b] ). Thereafter, petitioner's article 78 proceeding was heard by Special Term. The court held that DEC's denial of the renewal application on the ground that it was incomplete was illegal, arbitrary and capricious. The court's holding was based primarily on its determination that petitioner's application must be "deemed complete" since DEC failed to notify petitioner within 15 days of receipt of the application that more information was needed (see, ECL 70-0109[1] ). The court also found, in footnotes, that the Commissioner lacked the power to invoke the life of the mine review policy without authorizing legislation; that petitioner's mining activities were grandfathered under SEQRA and, consequently, petitioner was not required to submit an EIS; and, finally, that DEC had already determined that the operation would have no significant environmental impact. Special Term therefore entered a judgment granting the petition to the extent of annulling DEC's determination denying petitioner's renewal application and remitted the matter to the Commissioner with the direction that he process the renewal application as a complete application in accordance with the decision of the court. Respondents appeal. Petitioner cross-appeals from that part of the judgment which denied its request that respondents be ordered to issue the renewal mining permit immediately.

It is important to note at the outset of our analysis that this dispute involves the renewal of a permit, not an initial application for a permit. Generally, in the absence of a material change in conditions or evidence of a violation of the terms of the permit, a renewal should be granted without unduly burdening the applicant (see, ECL 70-0115[2]; 6 NYCRR 621.12[3]; cf. ECL 23-2711[8], [9]; 30 U.S.C. § 1256[d] ). This policy is consistent not only with analogous permit and license renewal procedures in other areas of law (see generally, 12 N.Y.Jur.2d, Business and Occupations, § 1, at 444-445), but also with the express intent of the Legislature to "foster and encourage the development of an economically sound and stable mining and minerals industry" (ECL 23-2703[1] ). To require burdensome information at each renewal, which occurs every one or three years, would create destabilizing uncertainty and additional expense upon the mining industry.

The first issue posed by respondents for consideration is whether Special Term erred in ruling that DEC could not request additional information about petitioner's renewal application after the date that the application was statutorily deemed complete. It is undisputed that the uniform procedures prescribed by ECL article 70 apply to petitioner's renewal application (see, ECL 23-2711[2]; 70-0107[3][i] ). ECL 70-0109(1)(b) provides that "[i]f the department fails to mail written notice to an applicant of its determination whether or not an application is complete within such fifteen calendar day period, the application shall be deemed complete". The interpretation of this statute is significant since petitioner's permit renewal application was received by DEC on June 11, 1984 and DEC did not issue a notice of incomplete application until July 9, 1984, well over the 15-day limit for DEC to respond. Nevertheless, DEC argues that this does not preclude it from seeking additional information. While DEC's argument seems on its face to belie the common-sense meaning of "complete", a closer analysis of the statutory language and its history is necessary to resolve this issue.

This appears to be the first appellate court interpretation of ECL 70-0109(1)(b); thus, it is instructive to review the relevant rules of statutory construction to be utilized. It is axiomatic that statutory interpretation must begin with an analysis of the literal language of the statute (see, e.g., Mills Music v. Snyder, 469 U.S. 153, 164, 105 S.Ct. 638, 645, 83 L.Ed.2d 556; Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82; We're Assoc. Co. v. Cohen, Stracher & Bloom, 65 N.Y.2d 148, 151, 490 N.Y.S.2d 743, 480 N.E.2d 357). When the language used by the Legislature is clear, judicial inquiry is limited (Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701, 66 L.Ed.2d 633; Matter of Washington Post Co. v. New York State Ins. Dept., 61 N.Y.2d 557, 565, 475 N.Y.S.2d 263, 463 N.E.2d 604; Matter of Cristo Bros., 97 A.D.2d 274, 275, 470 N.Y.S.2d 781, affd. 64 N.Y.2d 975, 489 N.Y.S.2d 35, 478 N.E.2d 176). If any ambiguity exists, the spirit and purpose underlying the statute must be considered together with the language employed (People v. Eulo, 63 N.Y.2d 341, 354, 482 N.Y.S.2d 436, 472 N.E.2d 286; Matter of Anderson v. Board of Educ. of City of Yonkers, 46 A.D.2d 360, 364-365, 362 N.Y.S.2d 536, affd. 38 N.Y.2d 897, 382 N.Y.S.2d 750, 346 N.E.2d 551). A provision of a statute should not be construed so as to render it ineffective, nor should the statute be interpreted in a fashion which undermines or erodes the purpose for which it was enacted (American Lodge Assn. v. East N.Y. Sav. Bank, 100 A.D.2d 281, 285, 474 N.Y.S.2d 332; Matter of New York Life Ins. Co. v. State Tax Commn., 80 A.D.2d 675, 676, 436 N.Y.S.2d 380, affd. 55 N.Y.2d 758, 447 N.Y.S.2d 245, 431 N.E.2d 970; McKinney's Cons.Laws of N.Y., Book 1, Statutes §§ 95, 144). Of course, when a statute has been interpreted by an administratrive agency and the statute involves matters within the expertise of the agency, deference is given to that interpretation (Kurcsics v. Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459, 426 N.Y.S.2d 454, 403 N.E.2d 159; Home Off. Reference Lab. v. Axelrod, 116 A.D.2d 858, 860, 498 N.Y.S.2d 181, lv. denied 68 N.Y.2d 601, 505 N.Y.S.2d 1025, 496 N.E.2d 238). On the other hand, where the question is merely one of statutory reading and analysis, an agency's interpretation is entitled to little weight (Kurcsics v. Merchants Mut. Ins. Co., supra, 49 N.Y.2d p. 459, 426 N.Y.S.2d 454, 403 N.E.2d 159).

We see no reason to defer to DEC's interpretation here. Interpretation of these statutes involves statutory reading and analysis, and the accurate apprehension of legislative...

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