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New York Pub. Interest Research Group v. Islip, Town of

ELR Citation: 18 ELR 21087
Nos. No. 29, 520 N.E.2d 517/27 ERC 1321/71 N.Y.2d 292, (N.Y., 02/11/1988)

The court holds the Long Island Landfill Closure Law (Closure Law) prohibits horizontal expansion but permits vertical expansion of a landfill, and that a consent order permitting ash disposal in the landfill is not an unlawful landfill expansion or an "action" under the State Environmental Quality Review Act (SEQRA). A Long Island town faced with limited landfill space and potential groundwater pollution signed a Department of Environmental Conservation (DEC) consent order permitting the town to increase the slope and maximum height of its landfill but otherwise requiring the town to cease accepting additional refuse. The Closure Law, limiting the construction of new and existing landfills, was enacted subsequent to the consent order. The court first holds that the word "expansion" in the Closure Law includes lateral but not vertical expansion of landfills. The Closure Law, by discussing "expansion" in terms of commencement and preparation of sites, implies that the word does not pertain to vertical expansion but does apply to new lateral areas adjacent to existing landfills. This interpretation is consistent with the DEC's interpretation of the Law. The Closure Law implementation guidelines, which define "expansion" as lateral expansion beyond the boundaries of existing landfills, are based on agency technical expertise, and are a reasonable reading of the statute. Moreover, prohibiting lateral expansion but allowing vertical expansion is consistent with the underlying purpose of the statute, which is to protect Long Island's sole source aquifer, phase out landfills, and encourage resource recovery. The court holds that the ash disposal permitted by the consent order is not a lateral expansion into a new area prohibited by the Closure Law. Affidavits show that the disposal site, prior to passage of the Closure Law, was a solid waste landfill. The court holds that the consent order is not subject to SEQRA review because the order is not an "action" that triggers the statute's application. The DEC has reasonably exercised its discretion in excluding enforcement proceedings, such as the consent order, from SEQRA review.

A dissent would hold that the order unlawfully permits an expansion and that the DEC is required by the Closure Law to first hold a public hearing and to make a finding that no other feasible means of waste management exists before permitting such expansion.

Counsel for Appellants
Eugene Wishod, Randall Weiner
New York Public Interest Research Group
9 Murry Street, New York NY 10007
(212) 349-6460

Counsel for Respondents
Guy W. Germano, Town Attorney
Town Hall
655 Main St., Islip NY 11751
(516) 224-0005

WACHTLER, C.J., and SIMONS and ALEXANDER, JJ., concur with HANCOCK, J.

KAYE, J., dissents and votes to reverse in a separate opinion in which BELLACOSA, J., concurs.

TITONE, J., taking no part.

Order affirmed, with costs.