In this hybrid CPLR Article 78 proceeding/declaratory judgment action, the petitioner, SANITARY DISTRICT NO.1, TOWN OF HEMPSTEAD (hereinafter referred to as the "DISTRICT"), seeks judgment, inter alia, compelling the respondents, THE STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION, JOHN PAVACIC as Regional Permit Administrator of the STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and ELLIOT SPITZER, the then Attorney General of the STATE OF NEW YORK (hereinafter collectively referred to as the "DEC"), to resume review and processing of the DISTRICT's application to renew its permit "to operate a recyclable materials handling, separation and recovery facility and refuse transfer station (hereinafter referred to as the Facility')". The DEC opposes the petition and interposes two (2) counterclaims. The petition and counterclaims are determined as follows:

The verified petition/complaint alleges, inter alia, that, " & lbrac;b & rbrac;y letter dated February 15, 2006, the Office of the Attorney General, by Assistant Attorney General Lisa Feiner, Esq., informed the DISTRICT that & lbrac;w & rbrac;e have learned that the District is violating state law by not operating a source separation recycling program for residences or business within the district as required by General Municipal Law § 120-aa'". (DISTRICT's Exhibit "G"). The petition/complaint further alleges that, " & lbrac;b & rbrac;y letter dated August 28, 2006, the DEC advised the District that it determined that Sanitary District No. 1 is not conducting source separation of [*2]recyclables as anticipated and required under . . . the Permit . . . & lbrac;and & rbrac; the failure to implement a source separated recycling program as described in the permit application is a violation of the aforementioned Permit and both state and local law'" (DISTRICT's Exhibit "J").

The petition/complaint additionally alleges that the August 28, 2006 letter "notified the District that the processing and review of the DISTRICT's application for renewal of the Permit was suspended pursuant to 6 NYCRR Part 621.3 & lbrac;e & rbrac;, which provides that & lbrac;p & rbrac;rocessing and review of an application may be suspended with written notice to the applicant if an enforcement action has been commenced or is commenced against the applicant for alleged violations of law related to the activity for which the permit is sought or for alleged violations of the ECL & lbrac;Environmental Conservation Law & rbrac; . . .' related to the facility or site" (emphasis as provided). The petition/complaint also alleges that, " & lbrac;b & rbrac;y letter dated December 1, 2006, the District demanded that the DEC resume the review and processing of the Permit Renewal Application & lbrac;but & rbrac; & lbrac;t & rbrac;he DEC has failed and refused to do so" (DISTRICT's Exhibit "M").

The petition/complaint asserts three (3) causes of action. The first, mandamus to compel, alleges, inter alia, that " & lbrac;c & rbrac;ontrary to the statement in the DEC's letter dated August 28, 2006, suspending the processing and review of the District's Permit Renewal Application pursuant to 6 NYCRR Part 621.3 & lbrac;e & rbrac;, the District is not now nor has it ever been, subject to an enforcement action nor has it received a notice of violation from the DEC relative to the Facility or Permit". This cause of action further alleges that " & lbrac;b & rbrac;ased on the fact that no enforcement action has been or is commenced, the DEC is without jurisdiction to suspend review of the District's permit renewal application pursuant to 6 NYCRR Part 621.3". The DISTRICT seeks "a judgment compelling the DEC to review and process its Permit Renewal Application in accordance with applicable law and regulations".

The second cause of action (mandamus to review), alleges, inter alia, that " & lbrac;c & rbrac;ontrary to the determination set forth in the August 28, 2006 letter, at all times since the issuance of the Permit, for the past 11 years, the District has operated the Facility under the Supervision of the DEC monitor, in compliance with the terms thereof, including the operation of a recycling program as described in the permit application". This cause of action further alleges that "the determination that the District is operating the Facility in violation of the terms of its Permit is made in violation of lawful procedure, is affected by an error of law, is arbitrary and capricious and an abuse of discretion and must be annulled".

The third cause of action for a declaratory judgment, alleges, inter alia, that " & lbrac;t & rbrac;he District's existing program achieves the statutory goal of General Municipal Law § 120-aa and is a compatible practice pursuant to Article 6 of Chapter 28 of the Town Code of the Town of Hempstead". The DISTRICT seeks "a declaration that it is not in violation of GM & lbrac;L & rbrac; & lbrac;General Municipal Law & rbrac; § 120-aa and that the Facility is and has been operated in a manner consistent with the terms of its Permit and applicable law".

The respondents have asserted two (2) counterclaims in their answer. The first counterclaim alleges, inter alia, that " & lbrac;p & rbrac;ursuant to ECL § 71-2703, the State is entitled to an injunction preventing the District from further operation of the Facility in violation of the Permit & lbrac;and that & rbrac; the District should be assessed civil penalties of up to $7,500.00 for each violation of the Permit and an additional $1,500.00 for each day the violation has continued". The second counterclaim alleges, inter alia, that "t & rbrac;he District is a municipality that is mandated by GML § 120-aa (a) (2) to adopt a local law or ordinance requiring its residents to source separate [*3]recyclables for which economic markets exist for alternate uses & lbrac;and that & rbrac; & lbrac;t & rbrac;he District has not adopted a law or ordinance requiring its residents to source separate paper, metals, glass and plastic". This counterclaim further alleges that " & lbrac;t & rbrac;he District should be enjoined to adopt an ordinance requiring its residents to source separate paper, at minimum, metals, glass and plastic, and to implement that ordinance within 90 days of the Court's determination of this counterclaim in favor of the DEC".

The resolution of this Article 78 proceeding/declaratory judgment action essentially turns on the interpretation to be given to the provisions of GML § 120-aa, which is entitled: "Source separation and segregation of recyclable or reuseable materials". Subdivision 1 provides as follows:

The legislature hereby finds that it is in the public interest, in order to further the purposes of the state policy on solid waste management articulated in section 27-0106 of the environmental conservation law, for a municipality to adopt a local law or ordinance to require the source separation and segregation of recyclable or reuseable materials from solid waste.

Subdivision 2 provides, in relevant part, as follows:

Pursuant to the authority of this section, no later than September first, nineteen hundred ninety-two, a municipality shall adopt such a local law or ordinance to require that solid waste which has been left for collection or which is delivered by the generator of such waste to a solid waste management facility, shall be separated into recyclable, reuseable or other components for which economic markets for alternate uses exist.

The Court of Appeals has stated that "the construction given statutes and regulations by the agency responsible for their administration, if not irrational or unreasonable, should be upheld." (Howard v Wyman, 28 NY2d 434, 322 NYS2d 683, 271 NE2d 528 & lbrac;C.A. 1971 & rbrac;; see, also, Steck v Jorling, 219 AD2d 727, 631 NYS2d 727 & lbrac;2nd Dept. 1995 & rbrac;).

The DEC states in its memorandum of law that, " & lbrac;i & rbrac;n 1988, the New York State Legislature, recognizing the need to reduce the environmental burdens created by solid waste disposal, amended General Municipal Law § 120-aa to mandate that all municipalities in the State enact a law or ordinance requiring the implementation of a source-separation recycling program by no later than September 1, 1992". It is further stated that, " & lbrac;i & rbrac;n a source separation recycling program, residents, business and other waste generators separate recyclable material, such as paper, metal, glass and plastic, from their regular garbage and put these recyclables out or deliver them separately for collection. The municipality then receives from its residents clean, uncontaminated recyclables to sell directly or to deliver to a recyclables processor for sale, and thus reduces the economic and environmental burdens of incinerating or landfilling them".

In the DISTRICT's memorandum of law, counsel argues that the respondents' interpretation of GML §120-aa "ignores the fact that the statute does not explicitly require all residents and businesses to source separate. It simply requires that recyclables be separated". Counsel further argues that "the statute is written in the disjunctive. The waste can either be separated at the time it is left for collection or prior to delivery to a solid waste management facility". Counsel points out that " & lbrac;i & rbrac;n this case, the District separates the recyclables and delivers the source separated materials to the Town for disposal". It is the DISTRICT's position [*4]that the cost of specialized compartmentalized pickup equipment, additional personnel to operate same, insurance costs, and the risk factor of additional personnel and equipment would exceed the cost of the Facility itself separating recyclable materials.

The Court finds the argument of the DISTRICT's counsel to be without merit. The DISTRICT's Facility is clearly not the source (i.e., generator) of the waste material; rather, it is a solid waste management facility within the meaning of the statute. The plain meaning of GML §120-aa is that recyclable and reuseable materials must be separated from solid waste before they are delivered to the DISTRICT's Facility. Therefore, the Court finds that the DEC's construction of GML §120-aa is neither irrational nor unreasonable and will be upheld.

The meaning of the term "municipality" used in GML § 120-aa warrants some discussion. The Appellate Division, Second Department, has stated that " & lbrac;t & rbrac;he term municipality' appears in dozens of statutes, and many of those statutes contain their own definition of the term. While some statutes limit the definition of municipality' to counties, cities, towns, and villages & lbrac;examples omitted & rbrac;, other statutes define the term much more broadly" (Jericho Water District v One Call Users Council, Inc., 37 AD3d 136, 826 NYS2d 658 & lbrac;2nd Dept. 2006 & rbrac;). In this case, GML § 120-aa does not contain a definition of the term "municipality".

§2 of the GML does define the term "municipal corporation" as including "only a county, town, city and village". Similarly, § 66 (2) of the General Construction Law (GCL) defines "municipal corporation" as including "a county, city, town, village and school district". However, the Appellate Division, Second Department, stated in Jericho that " & lbrac;t & rbrac;he terms municipalities' and municipal corporation & lbrac;s & rbrac;,'. . . are not necessarily interchangeable & lbrac;and that & rbrac; & lbrac;i & rbrac;t is not appropriate to look at the definition of municipal corporation' (appearing in an article of the General Construction Law entitled Classification of Corporations and Definitions') to discern the meaning of the term municipalities,' while disregarding the numerous New York statutes that define municipality'". Jericho Water District v One Call Users Council, Inc., supra .

Even though the General Municipal Law does contain a general definition for the term "municipal corporation" (GML § 2), it does not contain a general definition of the term "municipality". Both terms are defined, however, in other sections with limited application (e.g., GML & dblsecmk; 77-b & lbrac;1 & rbrac; & lbrac;a & rbrac;, 239-h & lbrac;2 & rbrac;, 502 & lbrac;2 & rbrac;). Therefore, it is not appropriate to equate the general definition for "municipal corporation" contained in GML § 2 with the term "municipality" used in §120-aa. As analyzed in the Jericho Water District case, the Legislature used the term "municipality" without defining it thus, making the term ambiguous. In Jericho Water District, the Appellate Division, Second Department, stated that " & lbrac;w & rbrac;here such an ambiguity exists in a statute, it becomes & lbrac;the court's & rbrac; duty to construe the statute, as best it can, to effectuate the Legislature's intent (see, McKinney's Cons Laws of NY, Book 1, Statutes § 92 & lbrac;a & rbrac;; Matter of Tompkins County Support Collection Unit v Chamberlin, 99 NY2d 328, 335)". (Jericho Water District v One Call Users Council, Inc., supra . at p 140).

In the case at bar, the Legislature's intent is expressed in GML § 120-aa itself. Subdivision 1 reads as follows:

The Legislature hereby finds that it is in the public interest, in order to further the purposes of the state policy on solid waste management articulated in section 27-0106 of the environmental conservation law, for a municipality to adopt a local law or ordinance to require [*5]the source separation and segregation of recyclable or reuseable materials from solid waste.

The Town of Hempstead has adopted an ordinance to comply with the statute (i.e., Chapter 128, Article VI, of the Code of the Town of Hempstead). § 128-67 (D) of the Town Code provides that " & lbrac;i & rbrac;ndependent sanitary districts & lbrac;i.e., like SANITARY DISTRICT #

1 & rbrac; and incorporated villages located within the geographical boundaries of the town should adopt or implement similar laws or regulations to comply with this Article and New York State law".

There is nothing to indicate that the Legislature intended to exclude independent Sanitary Districts in the State from the mandate of the statute. Indeed, such a construction would be contrary to the purposes of the State-wide policy expressed in ECL § 27-0106 and GML § 120-aa., which is likewise reflected in § 128-66 of the Code of the Town of Hempstead. Consequently, the Court holds that an independent Sanitary District, such as Sanitary District #

1 of the Town of Hempstead, is a "municipality" within the meaning of GML § 120-aa and, as such, must comply with the statute.

Based on the foregoing, the first cause of action of the petition is resolved against the DISTRICT. §621 (e) of 6 NYCRR provides, in relevant part, as follows:

Processing and review of an application may be suspended by written notice to the applicant if an enforcement action has been or is commenced against the applicant for alleged violations of the ECL or other environmental laws administered by the department at the facility or site that is the subject of the application. The alleged violations may be related to the activity for which the permit is sought or to other provisions of law administered by the department.

Enforcement proceedings have now been commenced against the DISTRICT in the form of the counterclaims asserted in the respondents' answer. Therefore, the DEC is authorized under 6 NYCRR § 621 (e) to suspend the processing and review of the DISTRICT's permit renewal application until the enforcement counterclaims are resolved. The fact that the DEC suspended processing and review prior to asserting the counterclaims is no longer relevant.

Counsel for the DISTRICT argues that "the DEC is not entitled, by its own admission, to enforce the provisions of General Municipal Law § 120-aa. It is the DISTRICT's position that the attempt to assert an enforcement action by way of a counterclaim in this hybrid action-proceeding is a nullity and the DEC must be compelled to resume review of the District's Permit because it has no enforcement power with respect to GML § 120-aa". The Court disagrees. The Attorney General has the authority to enforce GML § 120-aa, either on his own initiative or at the request of the DEC. §71-2727 of the ECL provides in relevant part, as follows:

2. The attorney general, on his own initiative, or at the request of the commissioner, may initiate any appropriate action or proceeding to enforce any provision of article 27 or 71 or any rule or regulation promulgated thereto and any order issued or penalty assessed pursuant to this title.

Furthermore, § 63 of the Executive Law provides in relevant part, as follows:

The attorney-general shall:

1. Prosecute and defend all actions and proceedings in which the state is interested, and [*6]have charge and control of all legal business of the departments and bureaus of the state, or of any office thereof which requires the services of attorney or counsel, in order to protect the interest of the state, . . . .

Consequently, there is statutory authority for the respondents' assertion of the enforcement counterclaims.

Counsel for the DISTRICT additionally argues that the DEC should be estopped from asserting the two (2) counterclaims. The Court of Appeals has made clear that estoppel against a government agency is foreclosed " in all but the rarest cases'." (NY State Med. Transps. Ass'n v Perales, 77 NY2d 126, 564 NYS2d 1007, 566 NE2d 134 & lbrac;C.A. 1990 & rbrac;, quoting Matter of Parkview Assocs. v City of New York, 71 NY2d 274, 282, cert den 488 US 801; see, also, 57 NY Jur2d, Estoppel, Ratification, and Waiver & dblsecmk; 44, 46). This is not one of those rare cases. The Court also notes that the DISTRICT was apparently created by the Hempstead Town Board pursuant to L 1928, ch 516, and is a political subdivision of the State, as is the Town of Hempstead. It would have to be a very extreme case before the Court would even consider the application of the doctrine of equitable estoppel to prevent the State from enforcing its public policy over one of its political subdivisions.

The second cause of action is resolved against the DISTRICT as well. The standard of review in a proceeding in the nature of mandamus to review is "whether the agency determination was arbitrary and capricious or affected by an error of law". (Scherbyn v Wayne-Finger Lakes Bd. of Coop. Ed. Servs., 77 NY2d 753, 570 NYS2d 474, 593 NE2d 562 & lbrac;C.A. 1991 & rbrac;). The August 28, 2006 letter (DISTRICT's Exhibit "J") reads in relevant part, as follows:

The New York State Department of Environmental Conservation ( Department') has determined that Sanitary District No. 1 is not conducting source separation of recyclables as anticipated and required under permit 1-2820-01335/00001 (the Permit'), previously issued by the Department.

Relevant to this cause of action is Special Condition No. 1 of the Permit (DISTRICT Exhibit "B"), which reads as follows:

The Permittee, Five Towns Recycling Co., Inc., must strictly conform to the provisions of the Permit; 6 NYCRR Part 360, Five Towns Recycling Co., Inc. Application for a Permit to Operate a Recyclables Materials Handling, Separation and Recovery Facility & Refuse Transfer Station,' prepared by Cameron Engineering, P.C. dated May 1994, and all related reports and correspondences, approved by the Department.

Thus, the Permittee was required to conform to the provisions of both the Permit and the Permit Application. (DISTRICT's Exhibit "A").

The Assistant Attorney General points out certain language appearing in Section 1.1 of the Permit Application. On page one it is stated that: "Newspapers are collected separately by the District . . . ." On page four it is stated that: "The Five Towns Facility will enable the District to expand its recycling program to include glass, plastics and metals in addition to newspaper to meet and exceed the State's goal". Since the DISTRICT has not implemented procedures for the source separation of recyclable and reuseable materials, the DEC's [*7]determination that the DISTRICT was "not conducting source separation of recyclables as anticipated and required" under the Permit is not arbitrary or capricious or erroneous as a matter of law.

As to the third cause of action, the DISTRICT is not entitled to the declaratory judgment sought. While the DISTRICT has adopted an ordinance (Exhibit "B" to Reply Affirmation of Laurel R. Kretzing, Esq.) that seems to comply with GML § 120-aa (see Article III thereof), Section 101.2 of Article I negates that compliance. Section 101.2 reads in relevant part as follows:

The District finds that: . . .

C. The District, as a rear-yard collection District has determined that the District Facility when operational will best serve the goal of enhanced recycling and, at the same time, reduce the total cost of processing solid waste material by eliminating the cost of specialized compartmentalized pick-up equipment, additional personnel to operate the same, insurance costs, and, the risk factor of additional personnel and equipment on the roadways.



The respondents are, therefore, granted judgment instead declaring that the DISTRICT has violated GML § 120-aa(2) (a) by not adopting an ordinance requiring that "solid waste left for collection or which is delivered by the generator of such waste to a solid waste management facility, shall be separated into recyclable, reuseable or other components for which economic markets for alternate uses exist". The respondents are further granted judgment declaring that the DISTRICT has been operating the Facility in a manner not consistent with the terms of the Permit Application and Permit.

Turning to the counterclaims, counsel for the DISTRICT requests that the counterclaims be severed and states that "the District should be given an opportunity to conduct discovery followed by an evidentiary hearing". This request is granted. Questions of fact have been raised as to the existence of "economic markets" as defined in GML § 120-aa (2) (a) for various waste materials. The counterclaims are hereby severed and shall continue as a separate plenary action. The parties may conduct discovery, if they be so advised.

ORDERED, that the parties shall appear for a Preliminary Conference on October 16, 2007, at 2:30 P.M. in Differentiated Case Management Part (DCM) at 100 Supreme Court Drive, Mineola, New York, to schedule all discovery proceedings. A copy of this order shall be served on all parties and on DCM Case Coordinator Richard Kotowski. There will be no adjournments, except by formal application pursuant to 22 NYCRR §125.

All further requested relief not specifically granted is denied.

Submit judgment on notice as to the causes of action in the petition.

Dated: August 10, 2007

_________________________

William R. LaMarca, J.S.C. [*8]

TO:

sanitarydistrict-stateofnydec,#

01/art78