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Manzo B. and Son, Inc. - Hearing Report and Order of Disposition, May 2, 2000

Hearing Report and Order of Disposition, May 2, 2000

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION

In the Matter of

Application for a Solid Waste Management Facility
Permit pursuant to Environmental Conservation Law Article 27
and Title 6 of the Official Compilation of Codes, Rules and Regulations
of the State of New York, Part 360 (Solid Waste Management Facilities),

by

B. Manzo & Son, Inc.

HEARING REPORT and ORDER OF DISPOSITION
[May 2, 2000]

Introduction

Prior to 1989, the Applicant B. Manzo & Son, Inc. ("Manzo" or the "Applicant") was operating a construction and demolition debris transfer station at 260 Meredith Avenue on Staten Island without the necessary authorizations from the Region 2 Staff of the New York State Department of Environmental Conservation ("Department Staff" or "Staff"). Also, Manzo had placed fill in regulated tidal wetlands and freshwater wetlands areas at the facility.

In order to settle these violations, on January 11, 1989, Manzo entered into an Order on Consent with the Department. (DEC File No. 20-85-0205). The order assessed civil penalties against Manzo for its violations of the ECL and directed Manzo to restore the affected wetlands areas. The order also required Manzo to protect an upland portion of Manzo's property as natural area through a deed restriction as well as by planting extensive vegetation within that area. Lastly, the order granted Manzo temporary authority to operate for no more than 120 days and required Manzo to file a Departmental permit application within 90 days (and to provide additional information required thereafter within 15 days.)

Subsequently, the Department Staff extended the temporary authority to operate pursuant to the 1989 Order on Consent on numerous occasions for short time periods. During this time on many occasions, DEC Staff notified Manzo that its application was incomplete and requested that the Applicant submit specified materials and information.

In November 1996, Manzo's consultant sent to the Department a Support Documentation Binder, which the Department Staff treated as a modified permit application for the construction and operation of a construction and demolition debris transfer station. Different from earlier submissions, the design of the facility proposed in 1996 proposes to expand Manzo's operations deeply into an area required to be deed-restricted, vegetated, and left as natural area pursuant to the terms of the 1989 consent order. Staff contend that implementation of the 1996 plans would also result in an encroachment into a regulated tidal wetland adjacent area. The Department Staff responded to that submission by letter dated December 17, 1996, informing Manzo that its application had to be resubmitted to conform to the terms of the 1989 Order on Consent. The permit applicant, Manzo, never responded to Staff's letter.

By letter dated February 11, 1999 the Department Staff informed Manzo that temporary authority to operate would not be extended beyond March 15, 1999 unless Manzo submitted a new site plan that would conform to the requirements of the 1989 consent order, complied with the other outstanding obligations under the 1989 consent order. Additionally, Staff allege that new violations committed by Manzo also would have to be resolved.

Manzo failed to meet any of the conditions Staff identified in the February 11, 1999 letter. Manzo's temporary authority to operate expired on March 15, 1999. By letter dated August 18, 1999, the Department Staff again confirmed that Manzo's temporary authority to operate had expired and that the Department would not extend the temporary authority to operate.

The CPLR Article 78 Proceeding

In response, Manzo brought a proceeding pursuant to CPLR Article 78 in Richmond County Supreme Court to enjoin the Department from discontinuing Manzo's transfer station operations. On March 10, 2000, the Richmond County Supreme Court rendered its Decision and Order in favor of the Department on March 10, 2000. B. Manzo & Son, Inc., v NYS Dep't of Environmental Conservation, et al., Decision and Order issued March 10, 2000 (Supreme Court, Richmond County [Index No. 8395/99].)

The Court stated that the Manzo was not issued a temporary permit; instead, Manzo's authority to operate derived solely from the consent order; this authority expired pursuant to the terms of the order; Manzo had no vested right to operate and the consent order did not grant such a right. Regarding Manzo's contention that a permit was granted by operation of law, the Court stated that the Department notified the Manzo that the application was not complete and the required environmental studies had not been completed, by correspondence dated September 9, 1991, within five days of the Manzo's demand (citing, Tayntor v NYS Dep't of Env'l Conservation, 130 AD2d 571, 515 NYS2d 513 [2nd Dep't. 1987].)

Manzo has moved for reargument before the Richmond County Supreme Court and has appealed to the Appellate Division to have the Supreme Court's decision overturned.

The Request For Administrative Permit Hearing

While the Article 78 proceeding was pending in Richmond County Supreme Court, Manzo submitted its request to the Department Staff for a decision on the permit application, pursuant to 6 NYCRR §621.8(b). The Department Staff responded on October 18, 1999, denying the permits sought by Manzo. In that response, Staff stated that SEQRA review was not completed by either co-lead agency (the City of New York Department of Sanitation and the Department are co-lead agencies), that the permit application failed to comply with the tidal wetlands land use regulations, and that the permit application was also denied pursuant to 6 NYCRR §621.9(f) because the applicant had failed to comply with the 1989 order on consent.

Subsequently, Manzo requested this hearing based upon Staff's permit denial.

Staff's Request for Relief

Staff requests suspension of this permit hearing pending the outcome of both court proceedings due to the overlapping judicial proceedings and the congruence of the issues. Staff provides examples of the overlapping or identical issues in these various proceedings. Manzo, in its description of issues proposed to be raised on the judicial appeal, presented as its first issue: "Whether Appellant's application for a transfer station permit for its existing facility was deemed completed as a matter of Law [sic] on August 7, 1990; and Appellant was granted a permit for its existing facility as a matter of law on September 9, 1991."

Similarly, in its Affirmation in Support of Order to Show Cause for Relief to Reargue before the Supreme Court (dated March 16, 2000), Manzo argues under Point I that "Petitioner's application for a transfer station permit for its existing facility was deemed completed as a matter of law on August 7, 1990; and Petitioner was granted a permit for its existing facility as a matter of law on September 9, 1991.

In addition, Manzo is requesting mandamus to compel the Department to issue a permit based upon Manzo's November 1996 submission. But that submission also is the basis of Manzo's request for this administrative permit hearing. Nonetheless, Manzo argues in its Affirmation in Support of Order to Show Cause for Relief to Reargue that the court should compel the Department to issue the transfer station permit to DEC.

The Applicant's Reply

By letter dated April 19, 2000, Manzo filed two affidavits that were prepared for the CPLR Article 78 proceeding, an affidavit of Michael Nagy, P.E. (dated December 11, 1999), and an affidavit of Donald Manzo (dated October 8, 1999) and a letter from Manzo's attorney to Staff Counsel (Menicucci to Drescher, March 12, 1999) requesting extension of the consent order authority to operate. These documents are largely repetitive of the prior proceedings and the Applicant's arguments as summarized above.

SEQRA and UPA Requirements

Both SEQRA and UPA require compliance with SEQRA prior to a determination that an application for a permit is complete, see NYCRR §617.3(c) and §621.3(a)(6). Accordingly, the issuance of a negative declaration or a final environmental impact statement and findings must occur before the Department can make a final determination on a permit application.

According to Staff, permits for solid waste transfer stations in the City of New York are reviewed by the City of New York Department of Sanitation and the Department as co-lead agencies. That review has not yet been completed by either agency because Manzo has failed to submit complete materials necessary for the environmental review. No negative declaration or other final determination under SEQRA has been made in this matter.

As Staff has noted, if a governmental agency acts without fulfilling the statutory requirements of SEQRA, the governmental action is void. In the Matter of 628 Land Associates, Interim Decision of the Commissioner, September 12, 1994; In the Matter of E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359 [1988]; Matter of Modern Landfill, Inc. v. Jorling, 161 A.D.2d 1112 [A.D. 4th Dept. 1990]). Where action is taken without any SEQRA compliance, the courts have held that this failure constitutes a matter of foremost State policy concern and that it is within the Commissioner's authority to correct the failure by nullifying the action. Modern Landfill, supra; Freshwater Wetlands Appeals Board v. Zagata, 244 A.D. 2d 343, 663 N.Y.S. 2d 881 (2nd Dept. 1997)[the public's right to participate in environmental decision-making is embodied in the SEQRA legislation, and cannot be waived or forfeited by any party including the DEC, unless, as expressly provided in ECL 70-0109(3)(b) and 6 NYCRR §621.9(c) the DEC defaults in responding to a five-day demand.]

The Article 78 Court's statement that Manzo must exhaust the administrative process before bringing the issue of permit denial to the Court, is not inconsistent with the above cited caselaw. Manzo v NYS DEC, supra. Instead, the Applicant must provide the agency with a complete application and provide a draft environmental impact statement that, in the determination of the co-lead agencies, is complete and adequate for public review.

If the co-lead agencies' request for inclusion of necessary information in the DEIS is ignored or refused by the Applicant, the co-lead agencies may continue to reject the document. However, differences between the Applicant and the co-lead agencies' staff regarding interpretation of technical issues need not be resolved before the co-lead agencies accept the DEIS as complete.

Conclusion and Order of Disposition

Since this permit application has not yet been subjected to SEQR and a SEQR determination, this administrative permit hearing request is premature and is not ripe for review through the Department's public hearing procedure.

Suspension of the permit hearing pending outcome of the court proceedings, as requested by Staff, does not remedy the lack of SEQR information critical to a determination of completeness or any meaningful review by the Department. Accordingly, this matter is remanded to Staff until such time as the Applicant undertakes the necessary submittals, including a draft environmental impact statement, to cause Staff to make a completeness determination, including a SEQRA determination. At this point, no further action or review can be conducted by this Office. Therefore, this matter is remanded to Staff for further review and processing consistent with this Order and is removed from the Office of Hearings and Mediation Services' permit hearing docket.

/s/
Kevin J. Casutto
Administrative Law Judge

Albany, New York
May 2, 2000

TO: Pamela I. Tillman, Esq.
Menicucci & Castellano
26 Dumont Avenue
Staten Island, New York 10305

Udo Drescher
Assistant Regional Attorney
NYSDEC Region 2
One Hunters Point Plaza
47-40 21st Street
Long Island City, New York 11101

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