Stop-The-Barge, by Its President, Kathleen Gilrain, et al., Petitioners,
John P. Cahill, as Commissioner of the New York State Department of Environmental Conservation, et al., Respondents.
Eliot Spitzer, Attorney General, Albany (Joseph Koczaja of counsel), for John P. Cahill and another, respondents.
Michael D. Hess, Corporation Counsel (David Weiner of counsel), for New York City Department of Environmental Protection, respondent.
Fischbein, Badillo, Wagner & Harding, New York City (Gil Feder of counsel), and Cohen, Dax & Koenig, P. C., Albany (John W. Dax of counsel), for NYC Energy, L. L. C., respondent.
Young, Sommer, Ward, Ritzenberg, Wooley, Baker & Moore, L. L. C., Albany (Jeffrey S. Baker of counsel), for petitioners.
Joseph R. Cannizzaro, J.
Petitioners commenced this CPLR article 78 proceeding seeking to annul, vacate and set aside the air pollution control permit (Air Permit) issued by respondent New York State Department of Environmental Conservation (DEC) on December 18, 2000, and the revised conditioned negative declaration (CND) issued by respondent New York City Department of Environmental Protection (DEP) on January 10, 2000, which were issued in connection with the proposed project by respondent NYC Energy, L. L. C. (NYCE) to construct, install and operate a 79.9 megawatt floating power generator barge (the NISA Project) which is to be anchored in the Wallabout Channel at the Brooklyn Navy Yard, Brooklyn, New York.
Respondent John P. Cahill, as the Commissioner of the DEC, and the DEC (hereinafter collectively referred to as DEC) move for an order dismissing the petition as time barred in accordance with CPLR 7804 (f) and the two-month statute of limitations set forth in Environmental Conservation Law § 19-0511 (2) (b). DEP moves for an order dismissing petitioners' challenge to its issuance of the CND on grounds that the claim is time barred in accordance with CPLR 7804 (f) and the four-month
statute of limitations set forth in CPLR 217 (1).L astly, by its answer, NYCE asserts among its affirmative defenses that to the extent petitioners are challenging DEC's issuance of the Air Permit, the proceeding is barred by ECL 19-0511 (2) (b), and to the extent petitioners are challenging DEP's issuance of the CND, the proceeding is barred by CPLR 217 (1).
Facts and Background:
DEP served as lead agency for the coordinated review of the NISA Project pursuant to the State Environmental Quality Review Act (SEQRA; ECL art 8), 6 NYCRR part 617 and its counterpart the New York City Environmental Quality Review Act (43 RCNY ch 6, Executive Order 91). In the course of its environmental review, DEP issued three CND's for the NISA Project. Each subsequent CND incorporated various project changes and superceded the earlier declaration. The last CND was issued by DEP on January 10, 2000, which declared that any adverse environmental impacts associated with the NISA Project would not be significant, and therefore an environmental import statement (EIS) would not be required. The CND was published on January 19, 2000, and notice was given of a 30-day public comment period which ended on February 18, 2000.
The permitting phase for the project then ensued. The NISA Project involves two combustion gas turbines. Thus, air emissions from the operation of the gas turbines required NYCE to apply for and obtain air pollution control permits from DEC pursuant to ECL article 19. On December 18, 2000, DEC issued NYCE the Air Permit which was effective and final and binding ...