ELG Utica Alloys, Inc. v. Department of Environmental ConservationELG Utica Alloys, Inc. v. Department of Environmental Conservation
Petitioner owns an approximately 21-acre parcel (hereinafter the site) in the City of Utica, Oneida County, on which Universal Waste, Inc.1 operated a scrap metal business beginning in the 1950s. The Mohawk River flows in close proximity to the north side of the site and there is a wetland on the site‘s east border. The site is upgradient from the river and wetland and is within a flood plain. The site, wetlands and river are all contaminated with polychlorinated biphenyls (hereinafter PCBs). Respondent Department of Environmental Conservation (hereinafter DEC) listed the site in 1985 on the inactive hazardous waste site registry as a class 2 site (see
The lengthy procedural history, briefly set forth herein, began with DEC‘s involvement at the site in the 1970s when an investigation revealed that PCBs had been disposed of at the site as part of scrap metal salvage activities. DEC classified the site as class 2, premised upon a significant threat to the environment and requiring remediation. DEC sought a summary enforcement order in March 1986, which petitioner opposed contending, among other things, that other parties were also responsible for the contamination in the area and thus were necessary parties. Petitioner also sought reclassification of the
Throughout the 1990s, DEC and petitioner engaged in various procedures and investigations regarding the site and, during such time, the Department of Health issued advisories regarding fish consumption for a large section of the river inclusive of the area of river near the site. In 1998, DEC reclassified the site to class 2a, which was a temporary classification indicating that further investigation was necessary. Additional testing was conducted on and near the site and, in 2002, DEC returned the site to class 2 status. In 2003, petitioner submitted the relevant application, seeking to delete the site from the registry or, alternatively, to reclassify it to class 3. Petitioner asserted that the site did not present a significant threat to the environment because its contamination was not migrating off the site and there were multiple other sources in the area contributing to the pollution of the river. DEC summarily denied the petition. However, petitioner successfully had the summary denial overturned in a proceeding pursuant to
A hearing was held in October 2004 and February 2005 before Administrative Law Judge Maria Villa (hereinafter ALJ Villa). Petitioner abandoned its request to have the site deleted from the registry and, accordingly, the primary issue distilled to whether petitioner established that the site was not a significant threat to the environment so that it could properly be reclassified as a class 3 site (see
An agency‘s interpretation of its own regulation is entitled to deference (see Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337, 342 [2004]), and there is no indication here that the new regulation was intended to apply to hearings where an ALJ had already rendered a recommended decision under the two-step process (cf. Matter of Duell v Condon, 84 NY2d 773, 783 [1995] [intent of body enacting rule is primary consideration regarding whether it is retroactive]; A.T. Med., P.C. v State Farm Mut. Ins. Co., 10 Misc 3d 568, 571 [2005] [Insurance Department‘s interpretation of its regulation as retroactive upheld]). The regulatory change occurred when the review process was in mid-stream and there was neither a clear way to fully implement the new procedure to the partially completed process nor a request by the parties to do so. At the time of ALJ Villa‘s recommended decision, she was not a person designated to render final agency action in the matter and, in fact, her decision makes clear—consistent with regulations then in effect—that the final determination rested with the Commissioner. Although the new regulations became effective before the Commissioner‘s final determination was rendered, there was no provision in the regulations for the new procedures to apply to pending matters in which the hearing had already been conducted and a hearing report issued (cf. Matter of Regenbogen v New York State Willard Psychiatric Ctr., 254 AD2d 593, 594-595 [1998] [statutory amendment to
We consider next petitioner‘s argument that the Commissioner‘s determination should be annulled because of the protracted delay between ALJ Villa‘s recommended decision in 2006 and the Commissioner‘s final determination over five years later in 2011. The Court of Appeals has recently reiterated that “[a] rule that rendered every administrative decision void unless it was determined in strict literal compliance with statutory procedure would not only be impractical but would also fail to recognize the degree to which broader public concerns, not merely the interests of the parties, are affected by administrative proceedings” (Matter of Dickinson v Daines, 15 NY3d 571, 575 [2010], quoting Matter of Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 NY2d 531, 535 [1992]). “Limits regarding the time within which an administrative agency must act ‘are generally construed as discretionary in the absence of express limits on the authority of the agency to act after the time period‘” (Matter of Court Reporting Inst. v New York State Educ. Dept., 237 AD2d 1, 4 [1997], quoting Matter of Estate of Clifford v New York State Empls. Retirement Sys., 123 AD2d 1, 4 [1986]). “When an administrative body fails to comply with procedural provisions that are merely directory, relief will be granted only if petitioner[] show[s] that substantial prejudice resulted from the noncompliance” (Matter of Syquia v Board of Educ. of Harpursville Cent. School Dist., 80 NY2d at 535-536). The statute directing the Commissioner to provide a written determination within 30 days of receipt of the complete record does not expressly limit action thereafter or set forth specific consequences (see
Petitioner asserts that various errors of law occurred including, among others, that the Commissioner used a standard for determining whether there was a “significant threat” that was inconsistent with the regulations and case law. When striking down an earlier version of a
The Commissioner did not, however, premise his determination in this matter upon the mere presence of PCBs at the site and a potential for harm. He found that a highly toxic contaminant (i.e., PCBs) was present in concentration levels at the site that exceeded the environmental quality standards (see
Petitioner‘s further contention that the Commissioner was bound under the doctrine of collateral estoppel from giving such significance to the exceedances of environmental standards because of language in ALJ O‘Connor‘s 1987 decision denying DEC‘s request for summary enforcement is without merit. We also find unavailing petitioner‘s assertions that the Commissioner‘s determination constituted an unexplained change in DEC‘s interpretation of the law or the adoption of a new rule without adhering to the State Administrative Procedure Act.
Next, we consider petitioner‘s argument that the Commissioner‘s determination is not supported by substantial evidence. The Commissioner “may make his own findings of fact and need not adopt those of the ALJ” (Matter of Jackson‘s Marina v Jorling, 193 AD2d 863, 866 [1993];
It is undisputed that PCBs are highly toxic and a potential cause of serious health issues in humans and animals. There is also no disagreement that PCBs were disposed of at the site; however, the level of contamination on site and migration off site are disputed. The Commissioner found that in excess of 25 tons of materials containing PCBs had been disposed of at the site between 1957 and 1978. Unlike ALJ Villa, the Commissioner found credible the testimony of a former employee of petitioner who reported that, during his employment at the site, he personally dumped PCB-ridden oil from about 90 transformers per week (the equivalent of 5,000 gallons of oil) onto the ground without any precautionary measures or efforts to control the contamination. There was no evidence of meaningful cleanup efforts, and the Commissioner concluded that the “massive quantities” of PCBs either remained at the site or had migrated to the wetlands and the Mohawk River. The Commissioner discussed at length the soil and groundwater testing at the site and, while noting conflicting evidence, set forth the factors and proof he found persuasive. Among other things, he reiterated the indiscriminate disposal of tons of PCBs, the lack of cleanup or otherwise accounting for the PCB-contaminated waste, and evidence of onsite contamination levels above state standards for both soil and groundwater.
The Commissioner set forth his reasons for finding offsite impact, including testimony of DEC staff, testing and investigation that he credited. Disagreeing with ALJ Villa, he did not find such proof less persuasive than petitioner‘s expert, who opined that the migration of PCBs off of the site was occurring minimally, if at all. Moreover, although there was proof that
Stein, Garry and Rose, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.