State of Vt. v New York State Dept. of Envtl. Conservation

[*1] State of Vt. v New York State Dept. of Envtl. Conservation 2006 NY Slip Op 52594(U) [15 Misc 3d 1145(A)] Decided on August 10, 2006 Supreme Court, Albany County Teresi, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 10, 2006
Supreme Court, Albany County

State of Vermont, Petitioner,

against

THE New York State Department Of Environmental Conservation and INTERNATIONAL PAPER COMPANY, Respondents.



783-06



Christopher Amato, Esq., Of Counsel

Dreyer Boyajian LLP

Attorneys for Petitioner, State of Vermont

75 Columbia Street

Albany, New York 12210

Frank V. Bifera, Esq.

Hiscock & Barclay LLP

Attorneys for Respondent, International Paper Company

50 Beaver Street

Albany, New York 12207

Charles H. Knass, Esq.

Thomas R. Lotterman, Esq.

Bingham McCutchen LLP

Attorney for Respondent, International Paper Company

3000 K Street, N.W.

Suite 300

Washington, D.C. 20007

John J. Sipos, Esq.

Assistant Attorney General Hon. Eliot Spitzer

Attorney General for the State of New York

Attorney for Respondents, The State of New York

The Capitol

Albany, New York 12224

Joseph C. Teresi, J.

Petitioner brings this Article 78 proceeding challenging Respondent, The New York State Department of Environmental Conservation's (hereinafter NYSDEC), determination that Respondent, International Paper Company's (hereinafter "IP"), proposed test burn of tire-derived fuel is a Type II action exempt from environmental review under the State Environmental Quality Review Act ("SEQRA") and Environmental Conservation Law Article 8. Petitioner, the State of Vermont, further seeks to (a) enjoin NYSDEC to consider IP's long-term goals as an "action" under SEQRA; (b) remand this case back to the Respondent NYSDEC for a new determination regarding the environmental significance of the proposed test burn; (c) enjoining NYSDEC from permitting the test burn unless they have complied with the SEQRA review procedures; and (d) imposition of a temporary restraining order (TRO) prohibiting the proposed test burn of tire-derived fuel from occurring at IP's Ticonderoga Mill. Respondents, NYSDEC and IP, oppose the petition with an answer.

After a full review of the record this Court will dismiss the petition.

Initially, Petitioner's counsel, Christopher A. Amato, Esq., seeks an order admitting Vermont Assistant Attorney General Erick Titrud, Esq., to practice in the State of New York pro hac vice pursuant to NY App. Div., 3d Dept. Part 805.3. This Court will grant the petitioner's motion to admit Erick Titrud, Esq., to practice in the State of New York pro hac vice.

Additionally, this Court notes that it does not accept "Sur-Reply" papers as they are not permissible in accordance with any CPLR provision and as such those papers are returned to the Respondents, the New York State Department of Environmental Conservation and International Paper Company, respectively, along with this decision.

IP owns and operates a pulp and paper mill located in the Town of Ticonderoga, Essex County, New York. IP has operated the mill for over 80 years and is the largest employer in Essex County. The Ticonderoga Mill is located less than one mile from the New York/Vermont border. IP currently possess a Clean Air Act Title V Air Emission Permit which imposes limitations on the facilities emission of sulfur dioxide, oxides of nitrogen and particulate matter, along with other requirements. On July 5, 2005, IP applied to NYSDEC to modify its Title V permit to allow it to conduct a 14-day test burn of tire-derived fuel as an alternative fuel in the facility's power boiler, which currently uses No. 6 fuel oil and wood/bark. As a result of rising oil prices the cost of fuel to power the main boiler has skyrocketed causing the mill's existence to be in jeopardy. IP contends that, in an effort to reduce its fuel costs and dependency on oil, the mill seeks to conduct a two week test burn of tire-derived fuel which is more cost-effective and may help the mill sustain its existence. Tire-derived fuel consists of scrap tires which are effective as fuel because of their high heating value and low cost. IP states that during the two week test "extensive stack testing of air emissions will be conducted to obtain information necessary to establish the permitting requirements for use of [tire-derived fuel] as a permanent [*2]fuel."

NYSDEC has conducted extensive research, analysis and public hearings on the issue of expanding IP's Air Emissions's permit. On October 7, 2005, they issued a combined Notice of the Complete Permit Application and Notice of Legislative Hearings, as well as a proposed draft permit. That notice determined that the two-week test burn would be exempt from review pursuant to SEQRA and classified the test burn as a Type II action in accordance with 6 N.Y.C.R.R. § 617.5(c)(18). On October 20, 2005 NYSDEC issued a supplemental Notice of Complete Application and Notice of Legislative Public Hearing for IP and again tentatively determined that the proposed test burn is a Type II action exempt from SEQRA review. This Court was recently notified that NYSDEC has completed review of its draft permit application from IP and forwarded the same on to the United States Environmental Protection Agency who has 45 days to review the proposition, suggest revisions or take no action. NYSDEC will not issue a final permit until the EPA's time period to review such claim expires.

The State of Vermont has participated in the numerous public hearings regarding the proposed test burn and submitted detailed written comments to NYSDEC opposing the proposed test burn on numerous grounds under SEQRA. The State of Vermont contends that the test burn should not proceed until the NYSDEC reviews the proposal under the requirements of SEQRA and reviews IP's plan as Type I action requiring an environmental impact statement. On February 7, 2006, the State of Vermont filed this Order to Show Cause and verified petition seeking the relief previously stated herein, and a temporary restraining order against NYSDEC and IP to stop the proposed test burn.

After a full review of the record this Court will dismiss the petition and deny the request for a TRO.

Standing

Initially, this Court notes that the petitioner, The State of Vermont, does have standing to challenge the petition under SEQRA.

"In order to demonstrate standing to raise a SEQRA challenge, the petitioners must show that the . . . determination would potentially cause them to suffer an injury in fact' which falls within the zone of interests' sought to be promoted or protected by the statute. Since the zone of interests, or concerns, of SEQRA encompasses the impact of agency action on the relationship between the citizens of this State and their environment the petitioners must demonstrate a potential injury which is environmental and not solely economic in nature'." Bridon Realty Co. v. Town Bd. of Town of Clarkstown, 250 AD2d 677, 678 (2 Dept. 1998) (citations omitted).

Further, in establishing suit in a parens patriae capacity the petitioner must demonstrate "(1) allege injury to a sufficiently substantial segment of its population;' (2) articulate an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party; and must (3) express a quasi-sovereign interest.' Clearing House Ass'n, L.L.C. v. Spitzer, 394 F. Supp. 2d 620, 627-28 (S.D.NY 2005). In addition,"the concept of parens patriae . . . include[s] actions in which a state seeks to redress quasi-sovereign interests, such as damage to its general economy or environment, even where the injury is to a fairly narrow class of persons." U.S. v. Hooker Chemicals & Plastics Corp., 749 F.2d 968, 984 (2d Cir. 1984).

Here, the State of Vermont, has clearly demonstrated that the determination by NYSDEC [*3]could cause potential injury to their environment and thus have suffered an injury in fact related to the zone of interests of SEQRA. Further, this Court finds that the State of Vermont has the capacity with which to sue on behalf of its citizens. The petitioner has established that the determination of the NYSDEC could potentially cause harm to a sufficient segment of the population, that the State is more than a nominal party and finally, that the potential damage to the State of Vermont's environment is a quasi-sovereign interest. Therefore, this Court finds that the State of Vermont has standing to bring this Article 78 proceeding under SEQRA and on behalf of its citizens, in a parens patriae capacity.

Ripeness

An issue is ripe for judicial review, in an Article 78 proceeding, when a determination is final or, in other words, when "the decision-maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury." Town of Coeymans v. City of Albany, 237 AD2d 856, 857 (3 Dept. 1997); see also CPLR § 7801(1). Under SEQRA assessing whether a decision is "final" is difficult because of the ongoing planning and approval process. Wing v. Coyne, 129 AD2d 213, 216 (3 Dept. 1987). The Court of Appeals has found that

"a determination will not be deemed final because it stands as the agency's last word on a discrete legal issue that arises during an administrative proceeding. There must additionally be a finding that the injury purportedly inflicted by the agency may not be prevented or significantly ameliorated by further administrative action or by steps available to the complaining party. If further agency proceedings might render the disputed issue moot or academic, then the agency position cannot be considered definitive or the injury actual or concrete". Stop-The-Barge ex rel. Gilrain v. Cahill, 1 NY3d 218, 223 (NY 2003).

As determined in Stop-The-Barge, the agency's determination is deemed final, under SEQRA review, (1) once the agency determines the type of SEQRA review needed (concluding all analysis, investigation and public commentary periods) and (2) at the point where the applicant can carry on with the project without issuing an environmental impact statement. Id. While additional case law determines at what point Type I actions are available for judicial review, this Court will not address that issue because the determination by NYSDEC is that the proposed test burn by IP is a Type II action.

This Court finds that NYSDEC, for purposes of ripeness, has determined what type of SEQRA review is needed (Type II), completed their analysis, data gathering and public commentary period and the project can move forward without issuance of an environmental impact statement. In addition, while currently the permit application is under review by the United States EPA, the Petitioner, the State of Vermont itself, has no further administrative steps or actions which could alleviate their potential injury, rendering the decision of the NYSDEC final and binding as to the State of Vermont. This Court finds that the issues here are ripe for judicial review.

SEQRA

The Court of Appeals has discussed the main goals of SEQRA as [*4]

"an attempt to strike a balance between social and economic goals and concerns about the environment. SEQRA makes environmental protection a concern of every agency. In proposing action, an agency must give consideration not only to social and economic factors, but also to protection and enhancement of the environment. SEQRA insures that agency decision-makersenlightened by public comment where appropriatewill identify and focus attention on any environmental impact of proposed action, that they will balance those consequences against other relevant social and economic considerations, minimize adverse environmental effects to the maximum extent practicable, and then articulate the bases for their choices." Jackson v. New York State Urban Development Corp., 67 NY2d 400, 414 -15 (NY 1986); see also Envtl. Conserv. Law § 8-0101; 6 N.Y.C.R.R. § 617.1.

The New York Codes, Rules and Regulations (NYCRR) provides enforcement procedures for the Environmental Conservation Law (ECL), where SEQRA is codified. The NYCRR provides that any actions' undertaken by an agency that have a significant impact on the environment require an environmental impact statement (EIS). 6 NYCRR § 617.1. Actions' are defined as any "projects or physical activities, such as construction or other activities that may affect the environment by changing the use, appearance or condition of any natural resource or structure, that: (i) are directly undertaken by an agency; or (ii) involve funding by an agency; or (iii) require one or more new or modified approvals from an agency or agencies; . . . " 6 N.Y.C.R.R. § 617.2(b)(i-iii).

In addition, actions' under SEQRA are separated into Type I and Type II actions, each requiring different types of environmental review by SEQRA. 6 N.Y.C.R.R. §§ 617.4, 617.5. Type I actions are enumerated in 6 N.Y.C.R.R. § 617.4 and require a determination by SEQRA, an acceptance of the agency's EIS and in-depth investigations and analysis as to the environmental impact of the agency's proposed action. 6 N.Y.C.R.R. § 617.3. Type II actions are those that "are not subject to review and have been determined not to have a significant impact on the environment or are otherwise precluded from environmental review." 6 N.Y.C.R.R. § 617.2 (a). Agency's that apply for review or funding of their actions under SEQRA, and receive a Type II determination have no further obligations under SEQRA. Id. In making a determination based upon an agency's action, the NYSDEC must take into account all activities and steps in the action and consider the long-term impact/plan of the agency. 6 N.Y.C.R.R. § 617.3(g)(1)and(2); 617.7(c)(2).

Considering that SEQRA does not provide a standard for judicial review this Court must review NYSDEC's determination to find "whether [the] determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion." CPLR § 7803(3). Further, is it well settled that "in reviewing a determination made pursuant to SEQRA, it is not the role of the court to weigh the desirability of the proposed action, choose among alternatives, resolve disagreements among experts, or substitute its judgment for that of the agency." Matter of Jackson v. New York State Urban Dev., 67 NY2d 400, 416 (1986). Therefore, the only role of this Court is to determine whether NYSDEC made their decision in compliance with SEQRA, not second-guess NYSDEC's determination which can only be annulled if it was arbitrary, capricious or unsupported by substantial evidence. Id. [*5]

Here, NYSDEC has determined that the proposed two-week test burn of tire derived fuel at IP's Ticonderoga Mill in Essex County New York is a Type II action. The petitioner has challenged that determination on several grounds and pleads this Court to remand this case back to NYSDEC for further determination under SEQRA. This Court finds that the determination by NYSDEC was not arbitrary and capricious and fully complied with the requirements of SEQRA. NYSDEC determined that the two-week test burn was a Type II action because it falls under an exemption allowing actions that are "basic data collection and research, water quality and pollution studies" to be exempt from environmental review under SEQRA. 6 N.Y.C.R.R. § 617.5(c)(18). This determination by NYSDEC is not arbitrary and capricious and fully complies with SEQRA requirements and therefore, this Court will dismiss the petition.

This Court further notes that petitioner's argument that NYSDEC failed to comply with SEQRA by impermissibly segmenting the "action" and failing to take into account the long-term plan of the test burn is without merit. NYSDEC, in making their determination, fully complied with SEQRA in determining the full ramifications and breadth of the action'. In addition, NYSDEC's decision that the proposed test burn is an independent activity being performed to collect data and analyze whether IP's Ticonderoga Mill would benefit from using tire-derived fuel in the future, was not arbitrary and capricious. Again, this Court will not substitute its judgment, especially on technical environmental determinations, for that of the NYSDEC which is extensively more knowledgeable about such technical aspects of the proposed test burn and unless such determinations are in violation of law, arbitrary or capricious or not supported by substantial evidence, they will be upheld. This Court finds that NYSDEC took into account substantial information, data and analysis before rendering their determination that the proposed test burn was a Type II action and furthermore that determination was supported by that substantial data, therefore, after a full review of the record, this Court will dismiss the petitioner's petition in all respects.

All papers, including this Decision and Order are being returned to the attorneys for the Respondent. The signing of this Decision and Order shall not constitute entry or filing under CPLR § 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.

SO ORDERED!

Dated:August 10, 2006

Albany, New York

_______________________________

JOSEPH C. TERESI, J.S.C.

PAPERS CONSIDERED:

[*6]1.Order to Show Cause, dated February 7, 2006, with Attached Affirmation of Christopher A. Amato, Esq., dated February 7, 2006, with Attached Verified Petition, dated February 7, 2006, with Attached Exhibits A - K.

2.Affidavit of Douglas R. Elliott, dated May 19, 2006.

3.Verified Answer with Objections in Point of Law, dated April 11, 2006.

4.Affidavit of Thomas R. Lotterman, Esq., dated April 10, 2006, with Attached Exhibits A1 - A10.

5.Affidavit of Robert Iwanchuk, CCM, dated April 10, 2006, with Attached Exhibits 1 - 3.

6.Affidavit of Stephen F. Regan, dated April 10, 2006 with Attached Exhibits 1 & 2.

7.Affidavit of Donna L. Wadsworth, dated April 10, 2006.

8.Objections in Point of Law, Verified Answer and Return, dated April 11, 2006, with Attached Affidavit of Betty Ann Hughes, dated April 10, 2006, with Attached Affidavit of Thomas J. Gentile, dated April 11, 2006, with Attached Affidavit of James G. Coutant, P.E., dated April 7, 2006, with Attached Affidavit of William R. Wasilauski, dated April 7, 2006.

9.Attorney's Reply Affirmation of Christopher A. Amato, Esq., dated May 18, 2006, with Attached Exhibits A - C.