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Essex County - Interim Decision, March 20, 1996

Interim Decision, March 20, 1996

STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
50 Wolf Road
Albany, New York 12233-1010

In the Matter

- of the -

Application of ESSEX COUNTY for modification of its solid waste management facility permit
to increase the daily tonnage of solid waste received at the Essex County Landfill in the Town
of Lewis, Essex County, New York pursuant to the Environmental Conservation Law ("ECL") and Title 6
of the Official Compilation of Codes, Rules and Regulations of the State of New York ("6 NYCRR")

DEC Project No. 5-1532-00035/00001-0

INTERIM DECISION

March 20, 1996

Interim Decision of the Commissioner

Essex County has appealed to the Commissioner from the February 29, 1996 Rulings of Administrative Law Judge Robert P. O'Connor. ALJ O'Connor denied the County's motion dated February 22, 1996 for an order that DEC Staff's determination that public hearings should be held in this matter was untimely. The County also appeals from the ALJ's contemporaneous ruling that suspended scheduling of the hearing pending a completeness determination by the Adirondack Park Agency ("APA") in light of the APA's recent decision to assert jurisdiction in this matter.

I must conclude that the Department Staff's determination to hold a public hearing was not mailed within the sixty day time period mandated by 70-0119(1) of the Environmental Conservation Law ("ECL"). Therefore the matter is remanded to the Staff of Region 5. The second part of the ALJ's Ruling is therefore moot.

Under the Uniform Procedures Act ("UPA") Staff should make a determination whether to issue or deny the permit modification requested by the County. In deciding whether the requested permit modification should be granted or denied, it is appropriate to give consideration to the Adirondack Park Agency's February 8, 1996 decision to assert jurisdiction and evaluate the traffic and other environmental consequences of the County's proposal. As the ALJ's Ruling observed, the UPA, SEQRA, and the Adirondack Park Agency Act are structured to provide for an integrated and orderly review of the environmental consequences of proposed projects within the Adirondack Park before permitting decisions are made. Although SEQRA excludes actions as to which the Adirondack Park Agency asserts jurisdiction from the requirement of preparing an environmental impact statement, the APA's review is the functional equivalent of an environmental impact statement. Only the EIS and Findings requirements are excluded. (ECL 8-0111.5(c)). All of the other provisions of SEQRA apply, including the requirement of 8-0109(1) that the APA "act and choose alternatives which, consistent with social, economic, and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects..." Consistent with that structure, 621.9(a)(4) of the Department's regulations suspend the time periods for a decision specified in the UPA where a lead agency other than DEC is preparing an environmental impact statement under SEQRA. As discussed further at the end of this decision, the principle of that rule could be applied here by Staff. Alternatively, Staff could deny the requested modification without prejudice, or the applicant could agree to waive the UPA time frames for a decision on the application.

Chronology

The factual chronology, which was more clearly presented with the papers on this appeal than in the motion papers before the ALJ, is as follows:

On December 4, 1995 the County applied to the Department's Region 5 Office for a modification of its existing landfill permit. The modification requested is an increase in the maximum allowable daily intake rate of solid waste from 95 tons per day to 500 tons per day at Cell 1 of the landfill. The landfill is located within the Adirondack Park, in the Town of Lewis.

On December 5, 1995, the Department forwarded a copy of the County's application to the Adirondack Park Agency ("APA"). This was done pursuant to a long-standing procedure established by a Memorandum of Understanding ("MOU") that the Department, the APA, and the Department of Health executed in 1976.

The MOU procedure, which is still in effect and used, provides that with respect to applications involving waste disposal projects,Modification of the County's existing landfill permit is a "project." See 6 NYCRR 621.1(p) and (n). the Department is the Lead Agency. The term "Lead Agency" as used in the 1976 Memorandum of Understanding means one of the three agencies which are parties to the MOU that has the primary interest in the application, as specified in the MOU's Appendix 1. The term "Lead Agency" in the MOU should not be confused with the term "lead agency" used in connection with preparation of environmental impact statements under SEQRA and defined in 6 NYCRR 617.2(u). As Lead Agency, the Department has primary responsibility for the County's application, and to coordinate processing of the application with the APA.

Having sent the APA a copy of the County's application on December 5th, DEC Region 5 received a response from the APA dated December 8th. The APA advised that the County's requested permit modification from 95 tons per day to 500 tons per day in the operating rate for Cell 1 is not a matter subject to the APA's jurisdiction. The APA's response continued by noting that the Agency will require a permit for construction and operation of Cells 2 through 6 of the landfill, and that it had previously met with and expressed concerns to the County about development of Cells 2 through 6 which would apparently be accelerated under the County's plan.

Department Staff of Region 5 next made a determination whether the County's application was complete. It prepared a Notice of Complete Application and Notice of Public Information Meeting dated December 18, 1995. The Notice was faxed to the County on December 20th and a copy was mailed on December 21, 1995.

In early January, 1996, a public meeting on the application was held and public comments on the application were received.

On February 8, 1996 the Members of the APA reversed the APA Staff's December 8th determination of non-jurisdiction. The APA Members concluded that the County's proposed Cell 1 changes were material and constitute new "land use and development," so that amendment of the existing APA-issued permit for the landfill is required before the Cell 1 changes are undertaken. The APA Members' decision was explained in a letter dated February 12, 1996 from APA Staff to the County. The February 12 letter notes that APA Staff and County representatives had met following the APA Members' decision, to discuss the process of applying for an amendment of the APA permit. Individuals on the APA and County staffs were selected as contact persons with respect to preparation, submission, and review of a permit application to APA.

On February 20, 1996, DEC Region 5 Staff made a determination to hold a public hearing on the County's application to DEC. The Staff's determination is set forth in a letter dated February 20, 1996 from Region 5 Staff to the County. The letter was faxed to the County on February 20th. Receipt of the fax transmission by the County at 4:05 P.M. that day was confirmed by telephone.

A copy of the Staff's February 20th letter determination was mailed to the County on February 21st.

On February 22, 1996, the Staff forwarded its request for a public hearing to DEC's Office of Hearings. Robert P. O'Connor was assigned to serve as the Administrative Law Judge ("ALJ") in the matter.

Also on February 22, 1996, the County transmitted a letter motion to ALJ O'Connor for an order that the hearings be cancelled. The County contended that Staff's determination to hold a public hearing was not made within the time limits specified under the Uniform Procedures Act ("UPA"), which is Article 70 of the Environmental Conservation Law ("ECL"). DEC Staff responded contending that the time frames had been met. The County then replied, and the ALJ ruled on February 29, 1996.

The ALJ's Rulings

The ALJ's February 29, 1996 Rulings denied the County's motion and granted Staff's request for a public hearing. However, because of the APA's February 8, 1996 change of position, he postponed the scheduling of the hearing to allow for coordination of the DEC hearing with the APA public hearings on the County's proposal. He noted in his decision that ECL 70-0119(4) specifies that hearings should be consolidated where applications are pending before two agencies in connection with the same project. He noted that APA's February 8, 1996 change of position was analogous to a change from a negative to a positive declaration under the State Environmental Quality Review Act ("SEQRA"). The UPA 70-0109(4) suspends the time periods for a DEC decision on a permit application where an environmental impact statement ("EIS") and findings made under SEQRA need to be made by a lead agency other than DEC. The purpose of this provision is to allow the environmental impacts of a proposed action to be considered by the SEQRA lead agency and be evaluated by DEC in its permit processing, keeping in mind that all agencies need to act to minimize or avoid adverse environmental impacts associated with activities which they may authorize by permit. His Ruling on this point recognized that the time constraints on permit processing under the UPA are not so inflexible or rigid as to require DEC to decide whether to issue a permit prior to another agency having lead agency status under SEQRA from implementing its responsibility to take a "hard look" at the environmental impacts of the project. These important principles underlay the second part of the ALJ's Ruling that suspended the scheduling of the hearing. In asserting jurisdiction on February 8, 1996, the APA Members concluded that the proposed Cell 1 changes were "material" in terms of both the change in tonnage and service area, and the potential for offsite impacts, including traffic, land use, and fiscal. The ALJ ruled that the APA's February 8 decision, like a SEQRA determination to prepare an EIS, required the DEC to suspend the scheduling of a public hearing until APA determines that it has a complete application before it, so that public hearings may be held jointly.

The Appeal

The County has appealed the ALJ's February 29, 1996 Rulings to the Commissioner pursuant to 6 NYCRR Part 624. As noted at the beginning of this decision, I am constrained to find that the Department's determination that a public hearing should be held was not made and delivered to the County in accordance with 70-0119(1) of the Uniform Procedures Act. My reasoning is as follows:

Under 70-0109(1)(b) of the UPA, the County's application to DEC was "deemed complete" on December 19, 1995. This is clear because the application was filed on December 4, and no notice of complete or incomplete application was "mailed" by Staff within 15 days as required by 70-0109(1)(b). The 15th day after December 4th was December 19th.

The date of completeness was not December 18th, as the County contends. The UPA is clear that the date the Department "mails" the notice controls. The Legislature's use of the term "mail" in the UPA was deliberate, to preclude the opportunity or temptation to backdate UPA notices. The County's argument that the date written on the notice should be applied instead of the actual mailing date is inconsistent with both the terms and the intent of 70-0109 and 70-0119 of the UPA.

The Department thereupon had sixty days from the December 19, 1995 date that the application was deemed complete within which to determine whether or not to conduct a public hearing. As provided by 70-0119(1) of the UPA:

"After evaluating an application for a permit and any comments of the department staff, other state agencies or units of government or members of the public, the department shall, on or before sixty calendar days after it mails notice to the applicant that the application is complete or on or before sixty days after the application is deemed complete pursuant to the provisions of this article, determine whether or not to conduct a public hearing on the application and mail written notice to the applicant of a determination to conduct a public hearing." (emphasis added).

As 70-0119(1), states, the sixty day time period began on the date the application was deemed complete, December 19, 1995. Sixty days thereafter was February 17, 1996, a Saturday, followed by a Sunday and a legal holiday. Therefore, consistent with General Construction Law 25-a(1), the Department Staff had until Tuesday, February 20th, to "determine whether or not to conduct a public hearing...and mail written notice to the applicant of [the] determination." Under the undisputed facts, the Department faxed the notice to the County at about 4:00 P.M. on February 20th. Receipt of the fax transmission by the County was acknowledged in a phone call at 4:05 P.M. But the Department did not "mail" the determination until February 21st.

I conclude that the term "mail written notice to the applicant" at the end of the first sentence of 70-0119(1) controls. Since the notice was not "mailed" within 60 days, the determination to hold the hearing was not made in conformity with the statutory requirement, and therefore must be annulled.

I appreciate that CPLR 2103(b)(5) allows service of legal papers by fax, and that the County received the fax of the Staff's notice on the 60th day. But this section of the CPLR also requires mailing of a follow-up copy of the faxed document in order to complete service. In this case, service was not complete until the 21st. The wording of CPLR 2103(b)(5) and 2103(f), by distinguishing between "electronic means" and "mailing," only reinforces a conclusion that the term "mail" in 70-0119(1) cannot legitimately be interpreted as meaning "faxed."

However, the outcome of this decision, which points out the importance of adherence to UPA requirements, should not force DEC Staff to issue the permit prior to obtaining the benefit of APA's environmental review.

As noted at the outset of this decision, SEQRA, the UPA and the Adirondack Park Agency Act, are structured to assure that environmental consequences are examined prior to decisions on permits, as well as to require timely decisions. Under the UPA, I am remanding this matter to Staff for a decision. However, in determining whether to grant or deny the permit modification, and when to do so, the Staff should take into account the APA Members' February 8, 1996 decision, which is an event which intervened after the DEC application was deemed complete.See 6 NYCRR 621.9(f): "An application for a permit may be denied for failure to meet any of the standards or criteria applicable under any statute or regulation pursuant to which the permit is sought, including applicable findings required by Article 8 of the ECL or any of the reasons set forth in Section 621.14(a)(1)-(5) of this Part. Section 621.14(a)(4) lists "newly discovered material information" as a reason for permit denial. An integrated reading of the UPA, SEQRA and the Adirondack Park Act See Long v. Adirondack Park Agency, 76 NY2d 419, 559 NYS2d 941 (1990). leads to the conclusion that the APA's environmental review should be undertaken and coordinated with processing of the County's application to DEC, prior to any final DEC decision. In a case where a lead agency other than DEC is undertaking an environmental review under SEQRA, the time periods for a decision are "suspended not less than 35 days prior to the date on which a final decision is required," pending receipt of a final EIS. (6 NYCRR 621.9(a)(4).Section 621.9(a)(4) provides that "the time periods...shall be suspended not less than 35 days prior to the date on which a final decision is required...pending receipt...of either a final environmental impact statement, or a determination of non-significance. Upon receipt these materials, the time periods shall resume." This provision, which automatically suspends the time period for a decision, compliments 621.3(a)(9) referred to by the ALJ, which says that an application to the Department shall not be considered complete until complete applications are submitted to all agencies (i.e., APA). Under the applicable facts, however, 621.9(a)(4) applies because of the APA Members' February 8, 1996 decision. The APA's review is the functional equivalent of a SEQRA review. As the ALJ has observed. See Matter of Dudley Road Association v. Adirondack Park Agency, 214 AD2d 274, 632 NYS2d 876 (3d Dept., 1995); Friedman v. Adirondack Park Agency, 165 AD2d 33 (3rd Dept., 1991). See also Gerrard, et al, "Environmental Impact Review in New York", 18.18[2]; and Weinberg's Practice Commentary following ECL 8-0111 in McKinney's. Applying this rule here, the time periods for a DEC decision are suspended until DEC receives the equivalent of a final environmental impact statement from APA. This objective could also be served by denial of the County's application for a DEC permit modification, without prejudice. Alternatively, the County can agree to waive the UPA time frames for a decision on this application in order to allow time for coordinated permit processing with the APA.

Conclusion

Accordingly, I am remanding this matter to the Staff of Region 5 in accordance with this Interim Decision.

For the New York State Department
of Environmental Conservation
_____________/s/_____________
Michael D. Zagata, Commissioner

Dated: Albany, New York
March 20, 1996

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