Gracie Point Cmty. Council v. New York State Dep't of Envtl. Conservation

• Decision Date: 29 December 2011
• Citation: 2011 N.Y. Slip Op. 09562,92 A.D.3d 123,936 N.Y.S.2d 342
• Parties: In the Matter of GRACIE POINT COMMUNITY COUNCIL, by its President, Anthony ARD, et al., Appellants, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 09562

92 A.D.3d 123

936 N.Y.S.2d 342

In the Matter of GRACIE POINT COMMUNITY COUNCIL, by its President, Anthony ARD, et al., Appellants,

v.NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 29, 2011.

Boies, Schiller & Flexner, L.L.P., Albany (George F. Carpinello of counsel) and Kramer, Levin, Naftalis & Frankel, L.L.P., New York City (Jeffrey L. Braun of counsel), for appellants.

Eric T. Schneiderman, Attorney General, Albany (Lisa M. Burianek of counsel), for New York State Department of Environmental Conservation and another, respondents.

Michael A. Cardozo, Corporation Counsel, New York City (Jane L. Gordon of counsel), for New York City Department of Sanitation, respondent.James T.B. Tripp, New York City, for Environmental Defense Fund, respondent.Wilmer, Cutler, Pickering, Hale & Dorr, L.L.P., New York City (Charles C. Platt of counsel), for Residents Sane Trash Solutions, amicus curiae.

Before: MERCURE, Acting P.J., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.

MERCURE, Acting, P.J.

Appeal from an order and judgment of the Supreme Court (O'Connor, J.), entered July 13, 2010 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to, among other things, review a determination of respondent Assistant Commissioner of Environmental Conservation granting respondent New York City Department of Sanitation permits to construct a marine garbage transfer station.

The City of New York generates approximately 50,000 tons per day in waste and recyclables. After the Fresh Kills landfill in the Borough of Staten Island closed in 2001, the majority of the City's waste managed by respondent New York City Department of Sanitation (hereinafter DSNY), as well as commercial waste collected by private haulers, was delivered to private transfer stations and then transferred to long-haul trucks for disposal in landfills primarily located in other states. The City's heavy reliance on trucks and the heavy concentration of private transfer stations in community districts located in the Boroughs of Brooklyn, the Bronx and Queens led to concern about the health and environmental impacts to those communities.

In 2004, DSNY released a proposed new solid waste management plan (hereinafter SWMP) ( see ECL 27–0107) for the management of the City's solid waste for the next 20 years. The SWMP is designed to minimize reliance on the truck-dependent facilities in Brooklyn, the Bronx and Queens by relying on trains or barges, instead of trucks, to export waste. The SWMP would reduce, by 5.6 million miles annually, the distance traveled by DSNY trucks and related long-haul transfer trailers within the City. Under the SWMP, four City-owned, marine garbage transfer stations—one in Manhattan, one in Queens and two in Brooklyn—would be converted into new facilities designed to accept waste and transfer it to leak-proof containers for shipment by barge or rail to final disposal sites. One of the inactive transfer stations to be demolished and rebuilt is located at East 91st Street in the Gracie Point neighborhood of Manhattan; that is the project at issue here.

The Gracie Point facility, which is located along the East River waterfront, operated from approximately 1940 until 1999. The new transfer station would occupy the same location as the existing facility, but with a larger footprint over the water, requiring dredging of the East River and disturbance of tidal wetlands. The entrance ramp would follow the same footprint as the existing ramp but include 14–foot high sound barriers, a computerized weighing station and a larger tipping floor to eliminate on-street queuing of trucks. The ramp crosses FDR Drive and is abutted on both sides by a recreational facility, the Asphalt Green sports and recreational complex; the transfer station itself is separated from the recreational area by FDR Drive. Although the site is zoned light industrial, the area in the immediate vicinity of the site is now primarily residential. The facility would have a maximum peak limit of 1,860 tons per day of garbage—or, petitioners maintain, an average of eight trucks per hour—with higher limits authorized during upset or emergency conditions.

Beginning in 2004, DSNY, as lead agency, and respondent Department of Environmental Conservation (hereinafter DEC), as an involved agency, undertook environmental review of the SWMP under the State Environmental Quality Review Act ( see ECL art. 8 [hereinafter SEQRA] ) and its City counterpart, the City Environmental Quality Review Procedure. After an extensive public review and comment process, DSNY issued a final environmental impact statement (hereinafter FEIS) for the SWMP. Prior proceedings and actions commenced by local residents and community groups, including most of the petitioners in this proceeding, challenged the siting of the transfer station, the adequacy of the FEIS on various grounds, and the City's failure to obtain state legislative approval under the public trust doctrine. Those proceedings and actions were dismissed ( see Powell v. City of New York, 85 A.D.3d 429, 924 N.Y.S.2d 370 [2011], lv. denied 17 N.Y.3d 715, 933 N.Y.S.2d 655, 957 N.E.2d 1159 [2011]; Matter of Association for Community Reform Now [“ACORN”] v. Bloomberg, 52 A.D.3d 426, 861 N.Y.S.2d 325 [2008], lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 599, 897 N.E.2d 1083 [2008]; Matter of Powell v. City of New York, 16 Misc.3d 1113[A], 2007 WL 2108133 [2007] ). As relevant here, the Appellate Division, First Department concluded that DSNY and other City respondents (1) “took the requisite ‘hard look’ at the relevant areas of environmental concern” ( Matter of Association for Community Reform Now [“ACORN”] v. Bloomberg, 52 A.D.3d at 428, 861 N.Y.S.2d 325); (2) rationally concluded that the inability of the transfer station to meet zoning noise restrictions was irrelevant due to background noise levels that already exceeded the zoning performance standard ( id. at 427, 861 N.Y.S.2d 325); (3) “rationally rejected a Harlem River Yard site in the Bronx based on the policy objective of avoiding the trucking of ‘Manhattan waste’ to a facility in another borough” ( id. at 429, 861 N.Y.S.2d 325); and (4) were not required to seek approval from the State Legislature prior to construction and operation of the transfer station and access ramp because “the Asphalt Green sports center and Bobby Wagner Walk, a pedestrian thoroughfare along the East River ... do not constitute parkland subject to the public trust doctrine” ( Powell v. City of New York, 85 A.D.3d at 430–431, 924 N.Y.S.2d 370). DEC approved the SWMP in October 2006.

DSNY also submitted applications to DEC seeking the permits required for construction and operation of the transfer station, including a solid waste management facility permit, a tidal wetlands permit and a use and protection of waters permit, with an associated water quality certification. DEC determined that the applications satisfied all of its regulatory requirements and issued draft permits subject to numerous conditions to protect public health, safety and the environment. The matter was then referred to DEC's Office of Hearings and Mediation Services and assigned to an Administrative Law Judge (hereinafter ALJ).

Petitioners, a group of residents and community organizations with an interest in the Gracie Point neighborhood, and respondent Environmental Defense Fund (hereinafter EDF) petitioned for full party status. Following a legislative hearing and an issues conference, the ALJ concluded that a substantive and significant issue had been raised regarding whether the project would comply with the operational noise requirement set forth in 6 NYCRR 360–1.14(p), and granted full party status to both petitioners and the EDF ( see 6 NYCRR 624.5 [d][1] ).¹ The ALJ further determined, however, that none of the remaining issues raised by petitioners warranted an adjudicative hearing or amendment of the draft permit. Upon petitioners' appeal, respondent Assistant Commissioner of Environmental Conservation affirmed and directed DEC to issue the requested permits and water quality certification.

Petitioners then commenced two proceedings pursuant to CPLR article 78 in Supreme Court, Albany County and New York County. The proceedings were consolidated pursuant to a stipulation of the parties and, thereafter, Supreme Court, Albany County dismissed. Petitioners appeal, and we now affirm.

Initially, we reject petitioners' argument that DEC's determination to issue the requested permits amounts to a “declaration of regulatory impotence when it comes to protecting public health, safety and welfare” and an express disavowal of its mandate to first consider the health, safety and welfare of the people of New York in deciding whether to grant such permits. The basis for this argument is DEC's conclusion that 6 NYCRR 360–1.11(a)(1) does not provide an independent basis to deny a permit that meets the permit issuance criteria, which are set forth in 6 NYCRR 360–1.10. It is settled, however, that “the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable” ( Matter of Gaines v. New York State Div. of Hous. & Community Renewal, 90 N.Y.2d 545, 548–549, 664 N.Y.S.2d 249, 686 N.E.2d 1343 [1997]; see Matter of Brooklyn Assembly Halls of Jehovah's Witnesses, Inc. v. Department of Envtl. Protection of City of N.Y., 11 N.Y.3d 327, 334, 869 N.Y.S.2d 878, 898 N.E.2d 921 [2008] ). In our view, DEC's interpretation of its regulations was rational and, thus, entitled to deference.

In ECL 27–0703(2)(a), the Legislature authorized DEC to promulgate regulations governing the operation of solid waste management facilities, and provided that such...