Opinion
2008/13911.
Decided November 17, 2010.
KNAUF SHAW, LLP, For Preserve Scenic Perinton Alliance, Inc., By: Alan J. Knauf, Esq., of counsel, Linda R. Shaw, Esq., of counsel.
ANDREW W. CUOMO, ESQ., Attorney General, State of New York, For Lisa M. Porter, New York State, Department of Environmental Conservation, Alexander B. Grannis, By: Jane C. Cameron, Esq., Deputy Attorney General.
HARRIS BEACH, PLLC, For Waste Management of New York, LLC, By: Richard T. Sullivan, Esq., of counsel, Kimberly A. Colaiacovo, Esq., of counsel.
PLACE ARNOLD, For the Town of Perinton By: Robert M. Place, Esq., of counsel.
Waste Management of New York, LLC's (WMNY) application for the Parkway Phase III Expansion ("Project") sought to expand its High Acres Landfill ("Landfill") an additional 144.3 acres of landfill operations, consisting of 138.5 acres for a new landfill in the Town of Macedon; 5.8 acres future wedge expansion ("Wedge Expansion") located in the Town of Perinton and, once the base of both the new Macedon landfill and the Wedge Expansion are fully completed, a raising up to a height of 100 feet approximately 90 acres on the top of the Landfill ("Vertical Expansion"). The New York State Department of Environmental Conservation ("DEC") reviewed the application, which was a modification of an existing Part 360 Permit, as a single undertaking. The application, which did not seek to site a new landfill in Perinton or to build a waste to energy ("WTE") facility, was reviewed by DEC for nearly three years. On March 14, 2008 the DEC granted a modification of the Landfill's NYSDEC Permit, which will expire on July 8, 2013. The DEC also issued a Freshwater Wetlands Permit and a Water Quality Certification Permit. A Title V Air Facility Permit will be required prior to the start of the project's construction.
Although the bottom foundation of the Wedge is only 5.8 acres, when fully utilized and landfilled, the top surface will be nearly 30 acres.
The Solid Waste Management Facility Permit must be renewed every ten years. DEC Memorandum of Law, November 20, 2009.
The Perinton Town Board adopted the State Environmental Quality Review Act ("SEQRA") findings nearly four years after the application was submitted. Those determinations, as well as the decisions of the Town Board, Planning Board and Zoning Board of Appeals, came after complete reviews of an extensive record and six public meetings. The original application was revised after a public scoping session with DEC.
The Supplemental Final Environmental Impact Statement ("SFEIS") identified and addressed all areas of potential environmental impact. The Perinton Town Board, Zoning Board of Appeals and Planning Board granted the necessary approvals for the Wedge Expansion which constitutes approximately 3% of the previously approved footprint in Perinton. The request for Town approval of the Vertical Expansion was withdrawn. By so doing, these boards determined that the Wedge Expansion in Perinton would not have any significant adverse environmental impacts.
To petitioner's counsels' credit, the petition exhaustively analyzes and challenges the DEC's environmental review and the resulting approvals for the Project. Petitioner, which the court finds has standing to maintain this proceeding, also challenges the determinations made by Perinton's Town Board, Zoning Board of Appeals and Planning Board. The petitioner does not challenge any of the Town approvals issued for the 138.5 acres for a new landfill in Macedon, which contains 96% of the Project's area.
During the April 1, 2010 oral argument, the court inquired whether the Town of Macedon was a necessary party. No party has moved pursuant to CPLR § 1001. Since this decision will not "inequitably affect" the Town of Macedon, its joinder is dispensable.
Over the past 10 months, this court has read, reread and read again the hundreds of pages of submissions by the parties, heard and reviewed the April 1, 2010 oral argument, accessed the 33,000 pages of documents returned to the court by the respondents and reviewed written answers to questions the court submitted to the parties. Having so done, there are three primary issues which need be addressed:
1. Article 78 considerations.
The Court finds that except for the DEC permitting the Vertical Expansion in Perinton, the determinations made by the various governmental entities were rational and supported by substantial evidence. They were not made in violation of lawful procedures nor affected by any errors of law. They were not arbitrary, capricious or abusive of discretion. There also is no merit to the petition's allegations that conflicts on the Perinton Conservation Board render the various Town approvals invalid. The determinations of the DEC and the Town cannot be nullified simply because the petitioner disagrees with the result or would like greater immediate consideration given to WTE. Consistent with ECL § 27-0106, a WTE facility would be preferred to a landfill, a position not lost on the DEC. However, it is not the court's prerogative to chose among alternatives. 2. Segmentation.
See Pell v. Board of Education, 34 NY2d 222, 231 (1974).
The Court must give "great weight and judicial deference" to factual evaluations in the area of an agency's expertise and, if the determinations have a rational basis, the Court may not substitute its judgment, or Petitioner's judgment, for that of the agency. See Matter of Peckham v. Calogero , 12 NY3d 424 , 431 (2009).
The DEC's affidavit of John A. Swanson (November 16, 2009) implicitly acknowledges the shortcomings of landfills and alludes to a better alternative (paragraph 22): "For the foreseeable future, landfilling will continue to be a method for managing solid waste for which there is no other viable option." This is tacitly agreed to in the State's verified answer: ". . . the State affirmatively states, inter alia: dd. Permit conditions are based on current technologies and requirements will be modified as conditions and technologies require."(pages 10 and 11) Regardless, the Wedge Expansion configuration is inadequate for a WTE facility.
Matter of Riverkeeper, Inc. v. Planning Bd. of Town of Southeast , 9 NY3d 219 , 232 (2007): "It is not the province of the courts to second-guess thoughtful agency decision making and, accordingly, an agency decision should be annulled only if it is arbitrary, capricious or unsupported by the evidence. The lead agency, after all, has the responsibility to comb through reports, analyses and other documents before making a determination; it is not for a reviewing court to duplicate these efforts. As we have repeatedly stated, [w]hile judicial review must be meaningful, the courts may not substitute their judgment for that of the agency for it is not their role to weigh the desirability of any action or [to] choose among alternatives'" (Akpan v Koch, 75 NY2d 561, 570 [1990], quoting Jackson, 67 NY2d at 416; see also Matter of Merson v McNally, 90 NY2d 742, 752 [1997]).
Petitioner argues that by deferring the air pollution issues related to the Title V Air Permit modification SEQRA review, the DEC engaged in illegal segmentation and failed to meet the SEQRA literal compliance standard. The DEC persuasively counters that ". . . a full SEQRA review of air impacts was deferred because such a deferral was determined to be more environmentally protective." and it is more environmentally sound to analyze the air impacts closer in time to commencement of the project. Since the expansion is expected to commence in about 2014, but no earlier than 2012, the DEC determined it would be difficult to create models that would accurately reflect ambient conditions at that time. "Moreover, the Federal PSD permit requires data collection close to the time of project construction and it makes sense to use the same data for the Federal and State permit reviews." Accordingly, petitioner's request to annul the DEC review process for failure to meet the SEQRA literal compliance standard is denied.
NYS Attorney General April 30, 2010 letter, p. 8.
NYS Attorney General April 30, 2010 letter, p. 4. footnote 3: "The PSD permit program requires data collection from the 12-month period immediately preceding receipt of the PSD application, and construction must commence within 18 months of the PSD permit approval. If the Expansion construction is not commenced within eighteen months after issuance of the federal PSD permit, that permit would automatically expire and WMNY would be required to reapply for a new federal PSD permit. See 40 Code of Federal Regulations §§ 52.21[m] and[r]".
3. The Vertical Expansion approval.
The DEC's most recent ECL § 27-0106 analysis is 17 years old and may not be based on current technologies. This analysis may become even more outdated should the DEC approved Vertical Expansion go on line more than ten years in the future as claimed by petitioner. Not unmindful of this, the March 14, 2008 permit reserves to the DEC "the right to modify, suspend or revoke this permit" on the grounds of "newly discovered material information or a material change in environmental conditions, relevant technology or applicable law or regulations since the issuance of the existing permit". However, should the Vertical Expansion, which was withdrawn and is not even before the requisite Perinton boards, not begin within ten years, there would be a violation of 6 N.Y.C.R.R. § 360-1.11(d).
6 N.Y.C.R.R. § 360-1.11(d) Duration of permits. "The department must fix the duration of permits for a period not to exceed 10 years . . ."
Counsel for DEC correctly points out that "[a]dministrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference to matters that ought to be' considered." Although the court must be concerned with whether the DEC considered utilization of alternative technologies to landfilling, more problematic is the timing of that consideration vis a vis commencement of a Vertical Expansion in Perinton.
Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 553-54 (1978).
As above, not only has the DEC properly determined that another (i.e. air) approval should be considered with information closer in time to commencement of the project, but also the technology to control those emissions is undetermined. Given the decision by DEC that it was premature to issue the Title V Air permit at this time, it is arbitrary for the DEC to disregard that reasoning and issue, a possible decade in advance of construction, the solid waste permit for a massive unapproved Vertical Expansion.
Michele Kharroubi November 16, 2009 affidavit § 17. "WMNY has not yet determined what technology it will use to control its emissions."
The argument that the three permits can not be severed because that is how the application was presented is unpersuasive. In fact, the components of the project were not submitted contemporaneously. "On or about November 17, 2005, WMNY revised their (sic) May 2005 application and requested a 100 vertical expansion of the Landfill in addition to the horizontal expansion. DEC determined that this revision required an additional public scoping process." Lisa M. Porter November 19, 2009 affidavit, pages 7 and 8.
At this point in time, an analysis of conditions that may well be affected by imponderables for the next ten years, is based on inherently incomplete (i.e. not yet substantial) information. DEC's position that present approval of the Vertical Expansion was needed for "considerable planning, forethought and capital", is subordinate to WMNY and the Perinton community benefitting from future technologies and any changes in the law. As the DEC pointed out ". . . permit modification would best be reviewed closer to the time of construction because, inter alia, additional contemporaneous data will yield a more environmentally protective result." "Current conditions at and around the Landfill, including changes in area population and industry, can be more accurately assessed closer to the time of construction." It could be in Perinton's best interest to thoroughly investigate, understand and take advantage of the benefits of future technology and law appropriate to the size of the Vertical Expansion. The Town of Perinton should consider a Vertical Expansion only after the DEC does an updated and thorough analysis consistent with ECL § 27-0106 and the then available technology.
April 30, 2010 letter from NY Assistant Attorney General Jane C. Cameron.
Michele Kharroubi November 16, 2009 affidavit ¶ 20.
Ninety acres x 100 feet = 392,000,000 cubic feet. A square plot of ground, 208.7 feet on a side, will cover an acre. An American football field, 360 feet by 160 feet, is about 1.3 acres; 12 high school basketball courts are a little more than 1 acre.
Otherwise, the DEC's findings and the resolutions of the various Town boards were sufficiently based on the extensive record before them. The involved agencies took a hard look at the potential environmental impacts, reviewed the submissions, sought input from the public and incorporated the public's comments into the process. The ultimate determinations were rational, lawful and not arbitrary, capricious or abusive of discretion. Accordingly, the petition is dismissed other than this court declaring that the DEC approval of the Vertical Expansion in the Town of Perinton is deferred until such time that the Vertical Expansion is ready to be commenced, approved by the requisite town boards and findings are made consistent with the then existing law and technology.
"Nonetheless, petitioner would be willing to consent to a declaratory judgment that Waste Management does not have a NYSDEC permit for the Vertical Expansion." Knauf Shaw LLP May 28, 2010 letter to the court.
Petitioner's request for an award of attorneys' fees pursuant CPLR Article 86 is denied in that the court finds that the position of the DEC was substantially justified.
Submit Order.