New York Law Review

New York Public Interest Research Group v. Town of Islip, 71 N.Y.2d 292 (1988): Defining Landfill Expansion Under Environmental Law

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71 N.Y.2d 292 (1988)

The term “expansion” in the Long Island Landfill Closure Law (ECL 27-0704) refers to lateral, not vertical, increases in landfill size, and an order on consent entered in an enforcement proceeding is exempt from SEQRA review.

Summary

This case addresses whether modifying a consent order to allow a steeper slope and increased height at an existing landfill constitutes an “expansion” under the Long Island Landfill Closure Law and whether such modification requires compliance with the State Environmental Quality Review Act (SEQRA). The Court of Appeals held that “expansion” refers to lateral, not vertical, increases in landfill size and that the consent order was exempt from SEQRA as it was part of an enforcement proceeding. This decision clarifies the scope of environmental regulations concerning landfill modifications and the applicability of SEQRA exemptions.

Facts

The Town of Islip operated the Blydenburgh Landfill since 1927. In 1980, the DEC issued a consent order requiring the Town to cease accepting refuse except for contouring and capping the landfill with a slope of 1 foot vertically to 6 feet horizontally. A 1987 consent order modified this, allowing a steeper slope (1 foot to 3 feet) and raising the maximum height to 300 feet. The order also permitted the burial of ash in area F. NYPIRG and the Board of Education challenged the 1987 order, arguing it violated the Long Island Landfill Closure Law (ECL 27-0704) and SEQRA.

Procedural History

NYPIRG commenced a CPLR article 78 proceeding to annul the May 12, 1987 consent order. The Supreme Court dismissed the petition. The Appellate Division unanimously affirmed the dismissal, holding that ECL 27-0704(3) does not encompass vertical expansions and that the order was exempt from SEQRA. The case was appealed to the New York Court of Appeals.

Issue(s)

1. Whether the modifications to the consent order, allowing a steeper slope and increased height, constitute an “expansion” of an existing landfill under ECL 27-0704(3), thus requiring a public hearing and a finding that no other feasible means of solid waste management is available.

2. Whether the consent order is subject to SEQRA requirements, or whether it falls under the exemption for “enforcement proceedings or the exercise of prosecutorial discretion” as defined in ECL 8-0105(5)(i).

Holding

1. No, because the term “expansion” in ECL 27-0704(3) refers to lateral, not vertical, increases in landfill size. The court reasoned that the statute’s language regarding “site preparation” indicates a focus on horizontal expansion.

2. No, because the consent order was entered in an enforcement proceeding and thus falls within the SEQRA exemption under ECL 8-0105(5)(i).

Court’s Reasoning

The court reasoned that “expansion” in ECL 27-0704(3) should be interpreted in its statutory context and in accordance with the statute’s purpose. The court found that the statute’s reference to “site preparation” indicated a focus on lateral expansions, as vertical expansions would not require new site preparation. The court deferred to the DEC’s interpretation of “expansion” as referring only to lateral extensions, citing the agency’s technical expertise. The court noted that the DEC consistently applied this interpretation. The court also considered the underlying purpose of the Long Island Landfill Closure Law, which is to protect Long Island’s aquifer and transition to resource recovery. The court concluded that the DEC’s interpretation was consistent with this purpose, as the DEC believed vertical expansions posed a lesser threat of leachate formation than lateral expansions.

Regarding SEQRA, the court deferred to the DEC’s determination that the consent order was part of an enforcement proceeding, noting the history of enforcement efforts related to the landfill. The court cited the DEC’s regulation defining “exempt action” as including “civil or criminal enforcement proceedings” (6 NYCRR 617.2[q][1]). The court emphasized the Commissioner’s authority to take “such remedial measures as may be necessary or appropriate” (ECL 71-2727[1]).

The dissenting opinion argued that the term “expansion” should be given its ordinary meaning, which includes both lateral and vertical growth. The dissent argued that the consent order materially altered the landfill’s capacity and should have been subject to a public hearing and a finding that no other feasible means of waste management was available. The dissent also questioned the DEC’s assertion that vertical expansions pose a lesser threat to groundwater, citing the Town’s own environmental impact statement that raised concerns about erosion and increased nuisances from vertical expansions.

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