Waste Management of New York, LLC's (WMNY) application for the Parkway Phase III Expansion ( "Project") sought to expand its High Acres Landfill ("Landfill") an additional 144.3 acres of landfill operations, consisting of 138.5 acres for a new landfill in the Town of Macedon; 5.8 acres^[FN1] future wedge expansion ("Wedge Expansion") located in the Town of Perinton and, once the base of both the new Macedon landfill and the Wedge Expansion are fully completed, a raising up to a height of 100 feet approximately 90 acres on the top of the Landfill ("Vertical Expansion"). The New York State Department of Environmental Conservation ("DEC") reviewed the application, which was a modification of an existing Part 360 Permit, as a single undertaking. The application, which did not seek to site a new landfill in Perinton or to build a waste to energy ("WTE") facility, was reviewed by DEC for nearly three years. On March 14, 2008 the DEC granted a modification of the Landfill's NYSDEC Permit, which will expire on July 8, 2013.^[FN2] The DEC also issued a Freshwater Wetlands Permit and a Water Quality Certification Permit. A Title V Air Facility Permit will be required prior to the start of the project's construction.

The Perinton Town Board adopted the State Environmental Quality Review Act ("SEQRA") findings nearly four years after the application was submitted. Those determinations, as well as the decisions of the Town Board, Planning Board and Zoning Board of Appeals, came after complete reviews of an extensive record and six public meetings. The original application was revised after a public scoping session with DEC.

The Supplemental Final Environmental Impact Statement ("SFEIS") identified and addressed all areas of potential environmental impact. The Perinton Town Board, Zoning Board of Appeals and Planning Board granted the necessary approvals for the Wedge Expansion which constitutes approximately 3% of the previously approved footprint in Perinton. The request for Town approval of the Vertical Expansion was withdrawn. By so doing, these boards determined that the Wedge Expansion in Perinton would not have any significant adverse environmental impacts.

To petitioner's counsels' credit, the petition exhaustively analyzes and challenges the DEC's environmental review and the resulting approvals for the Project. Petitioner, which the court finds has standing to maintain this proceeding, also challenges the determinations made by Perinton's Town Board, Zoning Board of Appeals and Planning Board. The petitioner does not challenge any of the Town approvals issued for the 138.5 acres for a new landfill in Macedon, [*2]which contains 96% of the Project's area.^[FN3]

Over the past 10 months, this court has read, reread and read again the hundreds of pages of submissions by the parties, heard and reviewed the April 1, 2010 oral argument, accessed the 33,000 pages of documents returned to the court by the respondents and reviewed written answers to questions the court submitted to the parties. Having so done, there are three primary issues which need be addressed:

1. Article 78 considerations.

The Court finds that except for the DEC permitting the Vertical Expansion in Perinton, the determinations made by the various governmental entities were rational and supported by substantial evidence. They were not made in violation of lawful procedures nor affected by any errors of law. They were not arbitrary, capricious or abusive of discretion.^[FN4] There also is no merit to the petition's allegations that conflicts on the Perinton Conservation Board render the various Town approvals invalid. The determinations of the DEC and the Town cannot be nullified simply because the petitioner disagrees with the result or would like greater immediate consideration given to WTE^[FN5]. Consistent with ECL§27-0106, a WTE facility would be preferred to a landfill, a position not lost on the DEC^[FN6]. However, it is not the court's prerogative to chose among alternatives.^[FN7]

[*3]2. Segmentation.

Petitioner argues that by deferring the air pollution issues related to the Title V Air Permit modification SEQRA review, the DEC engaged in illegal segmentation and failed to meet the SEQRA literal compliance standard. The DEC persuasively counters that "...a full SEQRA review of air impacts was deferred because such a deferral was determined to be more environmentally protective."^[FN8] and it is more environmentally sound to analyze the air impacts closer in time to commencement of the project. Since the expansion is expected to commence in about 2014, but no earlier than 2012, the DEC determined it would be difficult to create models that would accurately reflect ambient conditions at that time. "Moreover, the Federal PSD permit requires data collection close to the time of project construction and it makes sense to use the same data for the Federal and State permit reviews."^[FN9] Accordingly, petitioner's request to annul the DEC review process for failure to meet the SEQRA literal compliance standard is denied.

3. The Vertical Expansion approval.

The DEC's most recent ECL§27-0106 analysis is 17 years old and may not be based on current technologies. This analysis may become even more outdated should the DEC approved Vertical Expansion go on line more than ten years in the future as claimed by petitioner. Not unmindful of this, the March 14, 2008 permit reserves to the DEC "the right to modify, suspend or revoke this permit" on the grounds of "newly discovered material information or a material change in environmental conditions, relevant technology or applicable law or regulations since the issuance of the existing permit". However, should the Vertical Expansion, which was withdrawn and is not even before the requisite Perinton boards, not begin within ten years, there would be a violation of 6 N.Y.C.R.R.§360-1.11(d).^[FN10]

Counsel for DEC correctly points out that "[a]dministrative proceedings should not be a game or a forum to engage in unjustified obstructionism by making cryptic and obscure reference [*4]to matters that ought to be' considered."^[FN11] Although the court must be concerned with whether the DEC considered utilization of alternative technologies to landfilling, more problematic is the timing of that consideration vis a vis commencement of a Vertical Expansion in Perinton.

As above, not only has the DEC properly determined that another (i.e. air) approval should be considered with information closer in time to commencement of the project, but also the technology to control those emissions is undetermined.^[FN12] Given the decision by DEC that it was premature to issue the Title V Air permit at this time, it is arbitrary for the DEC to disregard that reasoning and issue, a possible decade in advance of construction, the solid waste permit for a massive unapproved Vertical Expansion.^[FN13]

At this point in time, an analysis of conditions that may well be affected by imponderables for the next ten years, is based on inherently incomplete (i.e. not yet substantial) information. DEC's position that present approval of the Vertical Expansion was needed for "considerable planning, forethought and capital", is subordinate to WMNY and the Perinton community benefitting from future technologies and any changes in the law. As the DEC pointed out "... permit modification would best be reviewed closer to the time of construction because, inter alia, additional contemporaneous data will yield a more environmentally protective result."^[FN14] "Current conditions at and around the Landfill, including changes in area population and industry, can be more accurately assessed closer to the time of construction."^[FN15] It could be in Perinton's best interest to thoroughly investigate, understand and take advantage of the benefits of future technology and law appropriate to the size^[FN16] of the Vertical Expansion. The Town of Perinton should consider a Vertical Expansion only after the DEC does an updated and thorough analysis consistent with ECL§27-0106 and the then available technology. [*5]

Otherwise, the DEC's findings and the resolutions of the various Town boards were sufficiently based on the extensive record before them. The involved agencies took a hard look at the potential environmental impacts, reviewed the submissions, sought input from the public and incorporated the public's comments into the process. The ultimate determinations were rational, lawful and not arbitrary, capricious or abusive of discretion. Accordingly, the petition is dismissed other than this court declaring that the DEC approval of the Vertical Expansion in the Town of Perinton is deferred until such time that the Vertical Expansion is ready to be commenced, approved by the requisite town boards and findings are made consistent with the then existing law and technology.^[FN17]

Petitioner's request for an award of attorneys' fees pursuant CPLR Article 86 is denied in that the court finds that the position of the DEC was substantially justified.

Submit Order.

November 17, 2010

at Rochester, New York

HONORABLE JOHN J. ARK, JSC