Buffalo Dev. Corp. v New York State Dept. of Envtl. Conservation
Annotate this CaseDecided on May 22, 2009
Supreme Court, Erie County
Buffalo Development Corp., Skydeck Corporation, Saturn Development Corporation, Petitioners
against
New York State Department Of Environmental Conservation, Alexander Grannis, Commissioner, Respondents City of Buffalo, As an Interested or Necessary Party
4350/2008
APPEARANCES:
RICHARD E. STANTON, ESQ.
Attorney for Petitioners
ANDREW M. CUOMO, ATTORNEY GENERAL
KAREN R. KAUFMANN, ESQ., of counsel
Attorney for Respondents
Frederick J. Marshall, J.
This Article 78 proceeding was the subject of a Memorandum Decision by this Court dated January 7, 2009. In that decision the Court did not specifically address the petitioner's second claim for relief and on May 5, 2009 petitioner's motion for re-argument pursuant to CPLR 2221(2)(d)(2) was granted.
This Court, in dismissing the petition, relied on the decision in Citizens' Environmental Coalition, Inc. v. New York State Department of Environmental Conservation, 57 AD3d 1279, 2008 NY Slip Op 10092 [3rd Dept.2009], and found that the NYSDEC's reliance on 6 NYCRR §375-3.3(a)(2) did not conflict with the clear language of the Environmental Conservation Law which established the Brownfield Cleanup program (see Title 14 - Environmental Conservation Law §27-1401 et seq). That regulation states that "In determining eligibility, the Department shall consider only contamination from on-site sources." 6 NYCRR §375-3.3(a)(2). Petitioner contends that even if that regulation is proper, it was still arbitrary and capricious for the DEC to deny eligibility by determining that the disputed parcels located at 267 Franklin Street and 432 Pearl Street did not meet the "source" requirement. The DEC counters that those parcels, while contaminated, are not the source of that contamination and that, therefore, the DEC acted [*2]properly in denying the petitioner's request to include those parcels as Brownfield sites.
The term "source" or "source area" is defined in the Commissioner's regulations as "a portion of a site or area of concern at a site where the investigation has identified a discrete area of soil, sediment, surface water or groundwater containing contaminants in sufficient concentrations to migrate in that medium or to release significant levels of contaminants to another environmental medium, which could result in a threat to public health or the environment. A source area typically includes, but is not limited to, a portion of a site where a substantial quantity of any of the following are present:
(1)Concentrated solid or semi-solid hazardous substances;
(2)Non-aqueous phase liquids; or
(3)Grossly contaminated media.
6 NYCRR §375-1.2(au)
Petitioners contend that each of the parcels located at 267 Franklin and 432 Pearl meet that definition and should be approved as part of the Brownfield site. They point to the affidavit of their expert, Paul H. Werthman, P.E. in which he states that both properties contain contaminants in sufficient concentrations to migrate and will eventually release those contaminants to another environmental medium which could threaten the public health or the environment. Werthman also states that the contamination found at 267 Franklin meets the definition of "grossly contaminated media". Thus, he asserts that both parcels are a "source" of the contamination as defined by the DEC's own regulation and, therefore, the DEC may not exclude those sites on the basis that they are "off-site" parcels.
DEC argues, and petitioner agrees, that the origin of the main contaminant, perchloroethene (PCE), was a former dry cleaning establishment located wholly within the boundaries of a parcel identified as 275-277 Franklin Street. (See return Item 22, Section 4.4, page 13; also affidavit of Martin L. Doster, paragraph 18) That parcel was accepted by DEC as part of the approved Brownfield site. The essence of DEC's position is that it may exclude a parcel if it determines that the contamination present did not originate within the boundaries of that parcel. At oral argument, the DEC pointed to that part of the definition of "source" found in its regulations that requires that the investigation identify a "discrete area" of a medium containing contaminants. 6 NYCRR §375-1.2(au)
The phrase "discrete area" is not defined either in the statute or the regulations. The ordinary and common meaning of "discrete" according to Merriam-Webster's Dictionary is "individually distinct" or "consisting of distinct or unconnected elements." Nothing in the statute, regulations or common definition of "discrete" suggests that real property boundaries should be determinative of what a "source" of contamination is, or more importantly, how the scope of a Brownfield site is initially determined. Moreover, in determining eligibility, the DEC may "determine that contiguous properties or parcels, or only a portion of any proposed site, meets the statutory definition of brownfield site,' and may approve contiguous properties or parcels or only a portion of a site for participation in the brownfield cleanup program." 6 NYCRR §375-3.3(a)(4)(i)
This Court notes that the DEC has previously approved as part of the Brownfield site, an adjacent parcel known as 279 Franklin Street which appears to contain lower levels of contaminants than the parcel at 267 Franklin which was not approved. (See Fig. 7, Return Item [*3]22) And the parcel at 279 Franklin was approved notwithstanding the fact that it has never been identified as being a point of origin (or source) of the contamination.
The DEC does not contest the finding that the ground water at
both 432 Pearl Street and 267 Franklin Street is contaminated or that the
contamination has migrated via groundwater to those sites from the point of origin. (See letter of
Dale A. Desnoyers, Exhibit 19 to volume 2, compendium of exhibits attached to petitioner's
Notice of Petition) In the case of 432 Pearl Street, Mr. Desnoyers characterized the contaminants
as marginal but goes on to state that those "marginal levels were attributable to advective
diffusion in the ground water." Reading the Desnoyers letter in conjunction with the affidavit of
DEC Engineer Martin L. Doster, sworn to June 25, 2008, it is clear that the PCE contaminant
migrated to the parcels located at 267 Franklin Street and 432 Pearl Street with the point of
origin being the former dry cleaner site located at 275-277 Franklin Street.
Furthermore, respondent DEC has never contested that the contaminant PCE, in sufficient quantities, can be a threat to public health and the environment. Nor does the DEC contest the Werthman conclusion that the parcel at 267 Franklin Street contains "grossly contaminated media".Further support for the petitioner's position can be found in prior legislative history. For example, in his comments on the draft revised regulations, former Member of the Assembly and now State Comptroller Thomas P. DiNapoli noted on page 44 of those comments that "the proposed regulations state that in considering BCP's eligibility, the DEC may consider only that contamination from a source or sources located on the Brownfield' (see proposed Part 375-3.3(2))" (See Exhibit 4 to Respondent's Memo. of Law in opposition to petition)
In response to those and other comments to the proposed Part 375 regulations, the DEC revised the proposed regulation 375-3.1(a)(2)(i) to change the on-site language to "consider only contamination from on-site sources. (emphasis added) (See Response To Comments, Exhibit 5, page D6 to respondent's Memorandum of Law) The comment goes on to state that "this is consistent with the remedial programs' long history of addressing contamination at the source and working out from the source." (emphasis added) This change in language, which appears in the regulation in its final form, does not support the Attorney General's conclusion that the phrase "on-site sources" is restricted to a "point of origin" interpretation. Rather, the comment supports petitioner's contention that the entire Brownfield site should include not only the area containing the point of origin of the contamination, but also those areas which have been affected via contamination migration from the point of origin.
Thus it is clear that both parcels meet the definition of "source" as defined by the DEC's own regulations.
The Court is well aware that "in a proceeding seeking judicial review of administrative action, the Court may not substitute its judgment for that of the agency responsible for making the determination." Flacke v Onondaga Sys., 69 NY2d 355, 507 NE2d 282, 514 NYS2d 689. "[W]here . . . the judgment of the agency involves factual evaluations in the area of the agency's expertise and supported by the record, such judgment must be accorded great weight and judicial deference" (Flacke, 69 NY2d @ 363). However, it is well settled law that, where "the question is one of pure legal interpretation of statutory terms, deference to the [administrative agency] is not required" Matter of Toys "R" Us v. Silva, 89 NY2d 411, 676 NE2d 862, 654 NYS2d 100. Compare Matter of Lighthouse Pointe Prop. Assoc., LLC v NYSDEC, 2009 Slip. Op. 00878 [4th [*4]Dept.2009]
Such is the case here. In this challenge, petitioner does not seek to question the findings of the DEC as to location and concentration of contamination. Both parties to this dispute agree that the contamination has migrated from its original point of origin so as to affect the four parcels which petitioner seeks to develop. The respondent DEC attempts to justify its conclusion that the two properties in question do not meet the definition of "Brownfield site" by ignoring its own definition of "source" and thereby concluding that both parcels are considered to be "off-site" and therefore ineligible under 6 NYCRR §375-3.3(a)(2).
432 Pearl Street and 267 Franklin Street meet the definition of "source" because investigation has identified a discrete area of groundwater containing contaminants (in this case PCE) "in sufficient concentrations to migrate in that medium, or to release significant levels of contaminants to another environmental medium, which could result in a threat to public health or the environment." 6 NYCRR §375-1.2(au). 267 Franklin Street is also a "source" because there is a substantial quantity of grossly contaminated media on-site.
In his letter to the petitioner, Director Dale A. Desnoyers also justifies the refusal of the DEC to admit these parcels as Brownfield sites by concluding that both sites may be remediated by addressing the "source" contamination found on the previously approved Brownfield site. He also points to the availability of the State Hazardous Waste Remedial Fund as a means to clean up the two parcels in dispute. (See letter of Desnoyers, supra .) However, neither of these considerations are found either in the statute or the regulations which define a Brownfield site. The DEC may not exclude the disputed parcels as Brownfield sites simply because there exist alternative means to cleanse them of their contamination. And the mere existence of alternative means to remediate contamination does not compel the conclusion of the DEC that the redevelopment or reuse of these parcels will not be complicated by the presence of a contaminant. The undisputed evidence points to the contrary.
In conclusion, the decision of the DEC to exclude 267 Franklin Street and 432 Pearl Street
from eligibility as Brownfield sites was arbitrary and capricious and its interpretation of its own
regulations was erroneous. Upon re-argument, the petition's second claim for relief is granted
and the DEC is directed to designate 267 Franklin Street and 432 Pearl Street as Brownfield
sites.
DATED:May, 2009
____________________________
Hon. FREDERICK J. MARSHALL
Justice, Supreme Court
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
