Essex County - Ruling, February 29, 1996
Ruling, February 29, 1996
STATE OF NEW YORK : DEPARTMENT OF ENVIRONMENTAL CONSERVATION
In the Matter of
the Application of
Essex County Government Center
Elizabethtown, New York 12932
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")
RULINGS OF THE ADMINISTRATIVE LAW JUDGE
DEC Project No. 5-1532-00035/00001-0
On December 4, 1995, Essex County filed with the Department's Region 5 Division of Regulatory Services an application to modify its existing solid waste management facility permit to increase the daily tonnage of solid waste received at the Essex County Landfill located off U.S. Route 9 in the Town of Lewis, Essex County. The requested permit modification would increase the maximum daily tonnage of waste allowed to be received at the landfill from 95 tons per day to 500 tons per day.
The Department Staff subsequently, on February 22, 1996, forwarded a request to the Department's Office of Hearings seeking a hearing on the County's application.
Upon receipt of the Hearing Request in the Office of Hearings, I was assigned as the presiding Administrative Law Judge ("ALJ") in the instant matter, and by telephone on February 22, 1996, I so advised Frederick Buck, the County Superintendent of Public Works and designated contact person for the proposed project. At the same time, I requested Mr. Buck or one of his colleagues in County government to make the necessary arrangements in preparation for a hearing on a convenient date between March 20 and March 27, 1996. Upon my receipt of the information regarding a hearing location and date, I advised Mr. Buck that I would prepare the required Hearing Notice for publication in local newspapers and in the Department'sEnvironmental Notice Bulletin in order that a hearing could be held expeditiously.
The Applicant's Motion
On the morning of February 27, 1996 the Office of Hearings received a letter motion dated February 22, 1996 from Richard B. Meyer, Esq., Essex County Attorney, pursuant to 6 NYCRR 624.6(c) and 621.7(a), seeking that the Department Staff's request for a hearing be denied and that any hearing scheduled be canceled. The County's basis for its motion is that, pursuant to 6 NYCRR 621.7(a), the Department Staff's determination to hold a public hearing is untimely.
6 NYCRR 621.7(a) provides in pertinent part, "After a permit application for a major project is complete . . ., and notice . . . has been provided, the department shall evaluate the application and any comments received on it to determine whether a public hearing will be held. If a public hearing must be held, the applicant and all persons who have filed comments shall be notified by mail. This shall be done within 60 calendar days of the date the application is complete."
The County notes that the Department Staff's Notice of Complete Application is dated December 18, 1995, thus triggering the 60 day timetable provided for the Staff to determine the necessity of a public hearing. The County asserts this timetable expired on Friday, February 16, 1996, and therefore, the Staff's February 20, 1996 letter to George Cannon, Chairman of the Essex County Board of Supervisors, advising of the determination to hold a public hearing was untimely. On this basis, the County moves that the Office of Hearings has no jurisdiction in the instant case and that the application should be returned to the Department's Region 5 Staff for further processing.
The Department Staff's Response
The Department's Region 5 Attorney, Malcolm A. Coutant, Esq., submitted a response to the above motion on February 27, 1996. The Staff's position is that the requisite time frames were met and the Office of Hearings should proceed with the scheduling of the hearing.
An Application for A Solid Waste Management Facility Permit, DEC Form No. 47-19-2, was dated December 4, 1995 and signed by Joyce W. Morency, then Chairperson of the Essex County Board of Supervisors. The form is date-stamped as received by Region 5, Dept. of Environmental Conservation, Ray Brook, N.Y. on December 4, 1995. The Department Staff asserts the receipt of this form, together with previously received materials from the County, constituted the formal application.
In accordance with ECL 70-0109(1)(a), "On or before fifteen calendar days after the receipt of an application for a permit which has been filed in a manner and in a form prescribed by the department, the department shall mail written notice to the applicant of its determination whether or not the application is complete." ECL 70-0109(1)(b) continues, "If the department fails to mail written notice to an applicant of its determination whether or not an application is complete within such fifteen calendar day period, the application shall be deemed complete."
The Department Staff acknowledges that December 19, 1995, i.e. - fifteen days after it received the formal application, is the date by which, pursuant to above noted ECL 70-0109(1)(a), it was to have mailed notice to the County concerning the completeness of the County's application. In fact, the Staff's Notice of Complete Application form is clearly dated December 18, 1995. However, for reasons unknown, the Staff did not notify the County of its completeness determination on December 18, 1995, when the form is dated, or on December 19, 1995, the deadline prescribed by law. Therefore, in accordance with above noted ECL 70-0109(1)(b), the County's application was deemed complete on December 19, 1995. The Staff did fax its completeness determination to the County on December 20, 1995, followed by a mailing of same on December 21, 1995.
Pursuant to ECL 70-0119(1)(a), "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."
The Department's Hearing Permit Procedures, at 6 NYCRR 624.6(b)(1) provide, "Computation of time will be according to the rules of the New York State General Construction Law."
General Construction Law 25-a(1) provides, "When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day . . .".
The Department Staff's position is that the 60 day period from December 19, 1995, when the County's application was deemed complete, ended on February 17, 1996, a Saturday on a three day holiday weekend. The State, as well as most local governments within the State, observed President's Day, Monday, February 19, 1996, as a legal holiday. Therefore, the Department Staff's legal obligation to notify the Applicant extended to Tuesday, February 20, 1996, i.e. - the next succeeding business day.
The Department Staff faxed its determination to hold a hearing to both Frederick Buck, Essex County Superintendent of Public Works, and to George Cannon, current Chairman of the Essex County Board of Supervisors, on Tuesday, February 20, 1996, and followed with mailed copies to both persons the next day, February 21, 1996. Mr. Buck acknowledged receipt of the fax copy of the determination to conduct a public hearing in a telephone conversation with Department Staff at 4:05 P.M. on Tuesday, February 20, 1996.
The Applicant's Reply
At 1:42 P.M. on February 28, 1996, Richard B. Meyer, Esq., Essex County Attorney, transmitted by facsimile (fax) a reply to the Staff's response to the County's motion. In it the County asserts that the December 18, 1995 date on the Staff's Notice of Complete Application is the governing date for a determination of completeness, and that the 60 day timetable for determining the need for a public hearing must be calculated from that date, thus causing the Staff's hearing determination to be untimely by four days.
Additionally, the County argues that even if the Staff's calculations were correct, the hearing determination was still untimely because the Uniform Procedures Act requires notification of such a determination to be made by mail. The Staff's notification was made on February 20, 1996 by fax and not mailed until the following day. The County alleges that the Civil Practice Law and Rules ("CPLR") 2103(b)(5) provide that service is not complete until a copy of the papers served by fax is also mailed, and therefore, service of the Staff's hearing determination was not complete until February 21, 1996 or a day after the Staff's calculated deadline.
It is clear from the above that Essex County's application for modification of its solid waste management facility permit was deemed complete, pursuant to ECL 70-0109(1)(b), on December 19, 1995, not on the date which Staff happened to place on the Notice of Complete Application form. The applicable sections of law here provide for an application to be complete upon a mailed written notice, or by default, upon a failure to mail such written notice within the prescribed fifteen day period, not on the date placed on the Department's notification form.
The sixtieth day following the complete application as prescribed by ECL 70-0119(1) within which to determine whether or not to conduct a public hearing was on Saturday, February 17, 1996. Pursuant to General Construction Law 25-a(1), since the sixty day period ended on the weekend, the Department Staff had until the next succeeding business day, in this instance Tuesday, February 20, 1996, to mail the County its written determination to hold a public hearing. In fact, the Staff did fax a letter to the County on Tuesday, February 20, 1996, explaining that it had determined a hearing on the County's proposal was necessary, and followed with a mailing of the same letter to the County the next day, February 21, 1996.
The CPLR in 2103(b)(5) provides that service is accomplished "by transmitting the paper to the attorney by electronic means . . . Service by electronic means shall be complete upon receipt by the sender of a signal from the equipment of the attorney served indicating that the transmission was received, and the mailing of a copy of the paper to that attorney." CPLR 2103(c) provides that service upon a party, if the party's attorney cannot be served, shall be "by a method specified in paragraph . . . five . . . of subdivision (b) of this rule", i.e. - by electronic means or facsimile (fax), followed by a mailed copy.
In the instant situation, the Department's faxed hearing determination letter on February 20, 1996 was not only received by the County on February 20, 1996 as a result of the facsimile transmission. The Staff's letter was expressly acknowledged as having been received by the County in a telephone conversation that same afternoon between the County's designated project representative and the Department Staff. It is clear that the County was at that time on notice and fully aware of the Staff's determination to hold a public hearing on the proposed project. That the Department's Region 5 Office might not have actually placed a copy of the faxed letter in the mail until the following day does not cause the notification to be untimely in this instance.
The extensive public interest and expression of potentially substantive and significant issues regarding the County's proposal clearly were instrumental in causing the Department Staff to seek a public hearing in this matter. Unaccountably, the Staff waited until the very last minute to satisfy its legal obligation to notify the County of its determination to hold a public hearing on the County's application. Nevertheless, the Staff did so within the statutory time limit, as extended in this instance by virtue of General Construction Law 25-a.
Therefore, the County's motion is denied, and the Department Staff's request for a public hearing in this matter is granted. Subject to the following considerations, the hearing should be scheduled as promptly as possible to consider the County's proposal.
The ALJ's review of the administrative file relating to an application begins once a Hearing Request from the Department Staff is docketed in the Office of Hearings. My review of the file materials provided to the Office of Hearings in the instant case has revealed an issue concerning the processing of the application which requires resolution before scheduling of the requested hearing can proceed.
As noted above, Essex County's application to the Department for modification of its DEC-issued solid waste management facility permit was deemed complete on December 19, 1995. Prior to that date, the Adirondack Park Agency ("APA") had determined that the County's proposal did not constitute a material change to APA's existing authorization for Cell 1 of the landfill, APA having originally permitted the facility in the January 25, 1984 Agency Permit 83-61, pursuant to the Adirondack Park Agency Act. The import of the APA's pre-December 19, 1995 determination regarding the County proposal is comparable to a negative declaration under the provisions of the State Environmental Quality Review Act ("SEQRA"), ECL Article 8 and 6 NYCRR Part 617.
However, on February 8-9, 1996, the APA changed its position and determined that the County's requested increase in tonnage is a material change which requires modification of the APA permit for Cell 1 of the landfill. (See letter to Richard B. Meyer, Esq., et al dated February 12, 1996 from William J. Curran of the APA). This revised APA position is comparable to a lead agency under SEQRA changing from a negative declaration to a positive declaration.
If APA had made its material change determination prior to December 19, 1995, the Department Staff would have been obligated to find the County's application to DEC to be incomplete. A DEC determination of incompleteness would have been required by 6 NYCRR 621.3(a)(9), which provides, "A project located within the Adirondack Park may also require permits from the Adirondack Park Agency . . ., as well as from the department. In such a case, the application for a department permit shall not be considered complete until the applicant has submitted to all agencies complete applications for all required permits, and SEQR requirements of all other agencies are fulfilled, or until the applicant demonstrates good cause not to do so."
APA's February 8-9, 1996 action has resulted in a requirement for an application by the County to APA for an amendment of APA's permit for the landfill. No such application to APA has yet been determined to be complete.
APA's February 8-9, 1996 determination is a change of circumstances which has occurred between the Department Staff's December 19, 1995 completeness determination and the present time. This requires DEC to suspend scheduling of a hearing on this matter pending APA's determination of completeness of a permit application filed with it by the County.
Pending APA's review of the potential environmental impacts of the County's proposal and completeness determination, the time periods for a DEC decision on the County's application are suspended pursuant to ECL 70-0109(4). This section of the Uniform Procedures Act provides, "The time periods for a department decision on an application for a permit . . . shall be suspended pending receipt by the department of any final environmental impact statement and any explicit findings related to a proposed project as may be required pursuant to article eight (environmental quality review) of this chapter when the department is not lead agency . . .".
In the instant matter, APA review serves as the equivalent of a SEQRA review. This outcome is supported by the fact that this project is a Class A Regional Project subject to APA jurisdiction, and is excluded from the environmental impact statement ("EIS") process of SEQRA, pursuant to ECL 8-0111(5)(c). This section of SEQRA provides that the EIS requirements set forth in ECL 8-0109(2) shall not apply to: "Actions subject to the Class A or Class B regional project jurisdiction of the Adirondack park agency . . ." pursuant to 807, 808 or 809 of the Executive Law. (See Gerrard, et al, "Environmental Review in New York", 8.18(2), stating in essence that because the factors to be considered by the Adirondack Park Agency Act's environmental review provisions are similar to the types of factors typically involved in SEQRA review, decisions made under the Adirondack Park Agency Act are excluded from the EIS requirements of SEQRA; see also Weinberg's Practice Commentary following ECL 8-0111 in McKinney's, "The dispensation from the EIS requirements was granted in recognition of the nature of the exempted proceedings under the . . . Adirondack Park Act provisions."
In sum, the County's proposed project is an excluded action under SEQRA, because within the boundaries of the Adirondack Park the APA environmental review process, pursuant to Article 27 of the Executive Law, is intended to be the functional equivalent of the SEQRA environmental review process applicable to projects throughout the rest of the State outside the Adirondack Park boundaries, i.e. - the "hard look" at the environmental impacts of projects proposed within the Adirondack Park must still be taken, but through the eyes of the APA.
APA's environmental review should not be eclipsed by DEC's processing of the 6 NYCRR Part 360 landfill permit aspects of the County's proposal in the absence of consideration of the overall environmental impacts of the project. The APA review process should be coordinated with DEC's consideration of the County's requested modification of its DEC-issued landfill permit.
ECL 70-0119(4) provides, "When an applicant has submitted applications for one or more permits associated with a project and more than one public hearing is required, including public hearings pursuant to article eight of this chapter, said public hearings shall be consolidated into a single public hearing at the request of the applicant wherever practicable. Public hearings associated with a project shall also be consolidated or held jointly with one or more other state or local agencies, wherever practicable."
Therefore, a joint APA-DEC public hearing on this proposal should be convened as promptly as possible after the APA determines that an application filed with it by the County is complete. The APA is requested to advise the undersigned ALJ and the DEC Region 5 Staff as soon as it has received a complete application for the project, and to coordinate further proceedings with DEC.
Pursuant to 6 NYCRR 624.6(e) and 624.8(d), these Rulings may be appealed in writing to the Commissioner.
Any appeals must bereceived at the office of Commissioner Michael D. Zagata (NYSDEC, Room 608, 50 Wolf Road, Albany, New York 12233-1010) no later than March 5, 1996. Additionally,
responses to the initial appeals will be allowed. Any responses must be received as above no later than March 11, 1996.
The parties shall ensure transmission of all appeal and reply papers to me and to each other at the same time and in the same manner as transmission is made to the Commissioner.
For the New York State Department
of Environmental Conservation
By: ROBERT P. O'CONNOR
ADMINISTRATIVE LAW JUDGE
Dated: Albany, New York
February 29, 1996
Richard B. Meyer, Esq.
Essex County Attorney
Court Street, P.O. Box 217
Elizabethtown, New York 12932
518-873-3380 (fax 518-873-3356)
Malcolm A. Coutant, Esq.
Region 5 Attorney
New York State Department of
Route 86, P.O. Box 296
Ray Brook, New York 12977-0296
518-897-1227 (fax 518-897-1394)
Daniel T. Fitts
Adirondack Park Agency
P.O. Box 99, Route 86
Ray Brook, New York 12977
518-891-4050 (fax 518-891-3938)