Residents for Responsible Gov't v. Grannis

• Decision Date: 22 July 2010
• Citation: 907 N.Y.S.2d 330,75 A.D.3d 963
• Parties: 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. Alexander B. Grannis, as Commissioner of Environmental Conservation, et al., Respondents. (Proceeding No. 2.)
• Court: New York Supreme Court — Appellate Division

907 N.Y.S.2d 330

75 A.D.3d 963

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.Alexander B. Grannis, as Commissioner of Environmental Conservation, et al., Respondents. (Proceeding No. 2.)

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

July 22, 2010.

R. Nils Olsen Jr., Buffalo, for Residents for Responsible Government, appellant.

Law Office of Gary A. Abraham, Allegany (Gary A. Abraham of counsel), for County of Niagara and others, appellants.

Andrew M. Cuomo, Attorney General, Albany (Joseph Koczaja of counsel), for Alexander B. Grannis, respondent.

Cohen & Grigsby, P.C., Pittsburgh, Pennsylvania (Daniel M. Darragh of counsel), for CWM Chemical Services, L.L.C., respondent.

Before: SPAIN, J.P., LAHTINEN, STEIN, McCARTHY and GARRY, JJ.

LAHTINEN, J.

Appeals from a judgment and order of the Supreme Court (Sackett, J.), entered May 8, 2009 in Albany County, which dismissed petitioners' applications, in two combined proceedings pursuant to CPLR article 78 and actions for declaratory judgment, to review a determination of the Department of Environmental Conservation finding that the hazardous waste disposal permit modification application of respondent CWM Chemical Services, LLC was complete.

Petitioners contend that respondent Department of Environmental Conservation (hereinafter DEC) violated ECL article 27, title 11, when it issued a notice of completenesson a permit modification 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 hazardous waste landfill, known as RMU-1, on property it owns in Niagara County. RMU-1 is part of CWM's 710-acre hazardous and industrial waste treatment, storage and disposal facility, which has operated since the early 1970s and includes 10 closed landfills. In 1993, following extensive review, the Industrial Hazardous Waste Facility Siting Board issued a certificate of environmental safety and public necessity for RMU-1 ( see ECL 27-1105), and DEC granted CWM a permit to operate that facility ( see 6 NYCRR part 373). As relevant to these 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 its permit, including substituting a technologically superior geosynthetic clay liner (hereinafter GCL) as a final cover for RMU-1 instead of the CCL. Over the next eight years, DEC conducted investigations regarding this change and other changes sought by CWM, the agency issued numerous notices of incomplete application with requests for additional information, and received revised applications as well as scientific research reports and technical information. CWM eventually narrowed its modification application to essentially seeking to use the GCL as a final cover and, since the final cover system with the GCL would be 2 1/2 feet whereas one using CCL would have been five feet, CWM sought to use the resulting extra 2 1/2 feet of air space 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 additional 106,870 cubic yards of space available, increasing the total waste of RMU-1 by about three percent.

CWM submitted an environmental assessment form with an April 2008 permit modification application and, after DEC initially found deficiencies in the application, a revised application followed in June 2008. DEC issued a negative declaration ( see ECL art. 8) in September 2008 in which it noted the superior performance of the GCL cover. While DEC acknowledged in its negative declaration that there would be an increase in disposal capacity at RMU-1, it observed that there would also be adecrease in truck traffic necessary to deliver clay for a CCL cover and that the extended operations would be substantially similar to those that had been ongoing at the site. In November 2008, DEC published a notice of complete application.¹ Petitioners then commenced these combined CPLR article 78 proceedings and declaratory judgment actions seeking to annul DEC's determination. Supreme Court dismissed the petitions and petitioners appeal.

We consider first petitioners' argument that DEC violated ECL article 27, title 11, by issuing a notice of complete application at a time when DEC had not yet adopted a statewide hazardous waste facility siting plan. ECL 27-1109(6) provides that any application regarding a facility that is subject to ECL 27-1105 will not be deemedcomplete until DEC determines that the application is consistent with the statewide hazardous waste facility siting plan required by ECL 27-1102. Since DEC has not yet adopted an ECL 27-1102 plan, CWM's application can be complete only if it is not subject to ECL 27-1105. As is relevant here, ECL 27-1105 is applicable to "any expansion ... of the aggregate land disposal capacity of an existing land disposal 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 significant environmental impact pursuant to article eight of this chapter" (ECL 27-1105[2][c] ).

"Where a statute is ambiguous and its interpretation 'involves specialized "knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom," we defer to the administrative agency's interpretation unless irrational or unreasonable' " ( Matter of New York State Superfund...