IN THE MATTER OF TOWN OF MARILLA AND TIMOTHY J. SCOTT, PETITIONERS-APPELLANTS,
STANLEY E. TRAVIS, TRAV-CO FARMS, SUSTAINABLE BIOPOWER, LLC, AND NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, RESPONDENTS-RESPONDENTS.
RICHARD E. STANTON, BUFFALO, FOR PETITIONERS-APPELLANTS.
BEACH PLLC, PITTSFORD (JOHN A. MANCUSO OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS STANLEY E. TRAVIS, TRAV-CO FARMS, AND
SUSTAINABLE BIOPOWER, LLC.
T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MEREDITH G.
LEE-CLARK OF COUNSEL), FOR RESPONDENT-RESPONDENT NEW YORK
STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION.
PRESENT: WHALEN, P.J., SMITH, CENTRA, TROUTMAN, AND SCUDDER,
from a judgment (denominated judgment and order) of the
Supreme Court, Erie County (John L. Michalski, A.J.), entered
October 13, 2015 in a proceeding pursuant to CPLR article 78.
The judgment, among other things, consolidated two separate
proceedings and dismissed the consolidated proceeding.
hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.
Respondent Sustainable BioPower, LLC, and its predecessor in
interest, quasar energy group, LLC (collectively, BioPower),
applied to respondent New York State Department of
Environmental Conservation (DEC) for a solid waste facility
management permit (Permit), which would allow it to store the
end product of wastewater and other waste treatment processes
that BioPower conducted in two existing anaerobic digestion
facilities. That end product, trade named equate, would
eventually be used as an agricultural fertilizer. BioPower
sought permission to store the equate in an existing
million-gallon manure storage tank on a farm, until it could
be transported and used as fertilizer. After petitioner Town
of Marilla declined to seek lead agency designation for
purposes of the State Environmental Quality Review Act
([SEQRA] ECL art 8), the DEC designated itself as lead
agency. After reviewing the application and seeking further
information and increased detail regarding the proposal, the
DEC issued a negative declaration of environmental
significance. Next, after seeking more information from
BioPower, seeking public comment, and considering the
comments received, the DEC granted the Permit. Petitioners
commenced separate CPLR article 78 proceedings, each seeking
to annul the negative declaration and the determination to
grant the Permit. Petitioners now appeal from a judgment
that, inter alia, consolidated the proceedings and dismissed
the consolidated proceeding. We affirm.
contend that the DEC erred in granting the Permit based on
its improper interpretation of the procedures set forth in
its applicable regulations. "Our review of an agency
determination that was not made after a quasi-judicial
hearing is limited to consideration of 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" (Matter of Harpur v
Cassano, 129 A.D.3d 964, 965, lv denied 26
N.Y.3d 916; see CPLR 7803 ). Here, petitioners
contend that the DEC's determination to issue the Permit
was "made in violation of lawful procedure"
(Harpur, 129 A.D.3d at 965), because the DEC's
regulations mandate that any application for a permit be
accompanied by a report signed, stamped and certified by an
engineer, containing certain specific information, including
wind maps, topographical maps showing streams and elevations,
and other detailed environmental data (see 6 NYCRR
part 360), and the application for the Permit did not include
some of those items. We reject that contention.
is well settled that an agency's failure to follow
procedural provisions that are merely directory rather than
mandatory in nature will not warrant annulling a subsequent
determination unless the challengers show that substantial
prejudice resulted from the agency's noncompliance"
(Matter of Dudley Rd. Assn. v Adirondack Park
Agency, 214 A.D.2d 274, 279, lv dismissed in part
and denied in part 87 N.Y.2d 952; see Matter of
Syquia v Board of Educ. of Harpursville Cent. Sch.
Dist., 80 N.Y.2d 531, 535-536). Here, the record
regarding the DEC's determination of the application for
the Permit establishes that the DEC obtained and reviewed all
of the information that petitioners contend should be
included in the engineering report, and that BioPower's
engineers certified, signed and stamped all of the
information presented in support of the application. In
addition, the DEC established that it already possessed much
of the information that petitioners claim was omitted from
the application, including wind and topographical maps.
Furthermore, the evidence in the record establishes that the
process took more than a year, during which the DEC made
several requests for additional information, documentation,
or engineering certification from BioPower, and that all the
requested information was provided. Thus, Supreme Court
properly dismissed the petitions insofar as they sought to
vacate the Permit because petitioners established no
prejudice from the DEC's failure to insist that BioPower
and its predecessor put all the information into a single
report. In addition, the DEC's interpretation of its
regulation is entitled to deference inasmuch as it
"involves knowledge and understanding of underlying
operational practices or entails an evaluation of factual
data and inferences to be drawn therefrom" (Kurcsics
v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459; see
Matter of Lighthouse Pointe Prop. Assoc. LLC v New York State
Dept. of Envtl. Conservation, 14 N.Y.3d 161, 176).
with respect to the procedural rules governing determinations
pursuant to SEQRA, it is well settled that a lead agency must
strictly comply with SEQRA's procedural mandates, and
failure to do so will result in annulment of the lead
agency's determination of significance (see Matter of
King v Saratoga County Bd. of Supervisors, 89 N.Y.2d
341, 347; Matter of Pyramid Co. of Watertown v Planning
Bd. of Town of Watertown, 24 A.D.3d 1312, 1313, lv
dismissed 7 N.Y.3d 803). Here, however, a review of the
extensive record demonstrates that the DEC complied with the
procedural requirements of SEQRA in determining that the
issuance of the Permit would have no significant adverse
environmental impacts and in issuing the negative
declaration. At the DEC's request, BioPower prepared part
one of a full environmental assessment form (EAF), which
included a comprehensive report prepared by BioPower's
engineers that identified and reviewed in detail the areas of
environmental concern relevant to the storage of equate in
the existing manure tank, including possible odor emissions,
mitigation of the effects of accidental discharges, and
traffic. Later, again pursuant to the DEC's request,
BioPower prepared portions of parts two and three of the EAF.
The DEC concluded that the EAF was properly completed, and we
agree inasmuch as it "contain[s] enough information to
describe the proposed action, its location, its purpose and
its potential impacts on the environment" (6 NYCRR 617.2
[m]). We have considered petitioners' remaining
contentions concerning the DEC's compliance with
SEQRA's procedural mandates, and we conclude that they
are without merit.
as here, "an agency has followed the procedures required
by SEQRA, a court's review of the substance of the
agency's determination is limited" (Matter of
Eadie v Town Bd. of Town of N. Greenbush, 7 N.Y.3d 306,
318). "It is well established that, in reviewing the
substantive issues raised in a SEQRA proceeding, [a] court
will not substitute its judgment for that of the agency if
the agency reached its determination in some reasonable
fashion' " (Matter of Kaufmann's Carousel v
City of Syracuse Indus. Dev. Agency, 301 A.D.2d 292,
304, lv denied99 N.Y.2d 508). Upon conducting such
a review, contrary to petitioners' contention, we
conclude that the DEC properly "identified the relevant
areas of environmental concern, took a ...