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18 ELR 21213 | Environmental Law Reporter | copyright © 1988 | All rights reserved Service Station Dealers of Greater New York, Inc. v. New York State Department of Environmental Conservation No. 10581-87 (N.Y. Sup. Ct. April 25, 1988)The court holds that the New York Department of Environmental Conservation (DEC) complied with the state Administrative Procedure Act (APA) and the State Environmental Quality Review Act (SEQRA) in issuing regulations requiring gasoline service stations to install Stage II vapor recovery systems. The federal Environmental Protection Agency (EPA) approved the DEC's proposal to revise its state implementation plan to incorporate the Stage II measures, which are designed to reduce ozone precursor emissions by capturing gasoline vapors at the pump nozzle. The court notes that petitioner is limited in this proceeding to procedural challenges to the DEC's adoption of the Stage II regulations, since petitioner failed to challenge EPA's approval of the regulations. The court holds that the DEC complied with the state APA by adequately considering alternatives to the Stage II system. The DEC rationally concluded that onboard controls were not a viable alternative, since the potential benefits of a proposed federal rule requiring onboard control will not assist the state in meeting its current duty to comply with the ozone standard. The DEC reasonably decided that an enhanced inspection and maintenance program is also not a workable option because such a program would not offset the emission reductions lost if the Stage II program is not implemented. The court holds that the DEC's conclusion that the Stage II regulations would not adversely affect the environment was not arbitrary and capricious under SEQRA. [Related decisions from federal court are published at 18 ELR 20106 and 20148.] Counsel for Petitioner Counsel for Respondents Hughes, J.: Memorandum Decision The motion of petitioner for leave to serve an amended petition will be granted, and the said amended petition will be dismissed, without costs. The motion of the respondents for a protective order will be denied as academic. Under the Clean Air Act (42 U.S.C. § 7401 et seq.), the United States Environmental Protection Agency (EPA) has established National Ambient Air Quality Standards (NAAQS). The states are required to meet these standards and to submit to EPA for review and approval a State Implementation Plan (SIP). Historically, the New York City metropolitan area has been unable to meet the NAAQS for ozone and carbon monoxide. New York State was given two five-year extensions to comply, with the last extension ending on December 31, 1987 (42 U.S.C. § 7501). To meet that deadline, the New York State Department of Environmental Conservation (DEC) submitted an amended SIP to EPA in January of 1984, which contained a commitment to require that gasoline service stations install Stage II vapor recovery systems. A Stage II recovery system is supposed to reduce ozone precursor emissions by capturing gasoline vapors at the gas pump nozzle and returning those fumes through a hose and pipe to the service station's underground tank. Adoption by DEC of the Stage II proposal in the amended SIP was preceded by a public hearing at which the problems and cost of the system, as well as alternatives, were debated. EPA approved the amended SIP and published it as a final rule on June 17, 1985. No proceeding was brought in any federal or state court at that time to challenge the rationality of requiring service stations to install the Stage II system. DEC proceeded to promulgate the regulations (6 NYCRR Part 230) necessary to require the installation of the Stage II system. On May 27, 1987, former Commissioner Williams issued his certificate of adoption amending 6 NYCRR Part 230, effective 30 days after filing. This article 78 proceeding ensued. In January of 1987, the respondent/intervenor Natural Resources Defense Council, Inc., commenced an action in federal district court arguing that DEC had failed to meet the timetables set forth in the 1984 SIP. In a decision dated September 9, 1987, United States District Court Judge Lasker granted summary judgment requiring full implementation of Stage II at large service stations by July 1, 1988, and at mid-size service stations by July 1, 1989 (Natural Resources Defense Council, Inc., et al. v. New York State Department of Environmental Conservation, et al., 668 F. Supp. 848 [18 ELR 20106]). By order dated April 22, 1987, Judge Lasker denied an application of the Petroleum Association of America and others to intervene in that action reasoning that: In essence, the proposed intervenors seek to challenge the implementation of Stage II of New York's SIP because they argue that it will be adverse to their economic interest. However, the decision to implement Stage II has already been made and is not at issue in this lawsuit. The questions which will be decided are, instead, solely whether the State of New York has unlawfully delayed implementation of the Stage II vapor recovery system and whether the State has a discretionary duty to implement this system forthwith. In affirming, the Second Circuit Court of Appeals stated: The decision to implement Stage II has already been made. Whether this strategy was a permissible way for New York to comply with the requirement of the Clean Air Act could have been raised in a petition under section 307(b) of the Act, 42 U.S.C. § 7607(b), for review of the action of EPA in approving New York's SIP. (Natural Resources Defense Council, Inc., et al. v. New York State Department of Environmental Conservation, et al., 834 F.2d 60, 61 [18 ELR 20148].) After the commencement of this proceeding, DEC moved to join Service Station Dealers of Greater New York, Inc., as a party to the federal action, contending that this article 78 proceeding was in reality an attack upon the inclusion of Stage II in the SIP and, therefore, the claims should be determined by the Federal District court enforcing the SIP. Counsel for Service Station Dealers convinced Judge Lasker that his clients' argument was not with the adoption of the SIP, including the requirement that New York State impose the Stage II gasoline vapor recovery system but, rather, dealt simply with procedural irregularities in how the rules were adopted (see Exhibit 36 to petitioner's reply affidavits). As a result, Judge Lasker denied the motion to join (see Appendix 1 of petitioner's memorandum of law). Consequently, in this proceeding, the petitioner will not be permitted to argue the wisdom of imposing the Stage II system, but will be limited to its procedural attacks. Petitioner's procedural challenges are that the respondents did not comply with the State Administrative Procedure Act by considering reasonable alternatives to the Stage II system, and acted arbitrarily and capriciously in issuing a determination that the Stage II regulations would not have a significant adverse effect upon the environment. The two alternatives advanced by the petitioner are: (1) a requirement that automobile manufacturers install in all new automobiles an onboard system whereby gasoline vapors escaping from the gas pump nozzle wouldbe captured; and (2) that DEC adopt an enhanced inspection and maintenance program that would result in the same pollution reduction that would occur from implementation of Stage II. Petitioner contends that sections 202-a and 202-b of the State Administrative Procedure Act required DEC to consider alternative approaches, including onboard controls and enhanced inspection and maintenance, which it failed to do. The Third Department recently held that the State Administrative Procedure Act "only requires 'substantial compliance' with the procedural rule-making provisions of . . . article 2" (Matter of Industrial Liaison Comm. of Niagara Falls Area Chamber of Commerce v. Williams, 131 A.D.2d 205, 211). Respondents argue that they have substantially complied with the State Administrative Procedure Act. Specifically, respondents contend that there was no viable alternative to consider at the time the regulations were promulgated. They argue that New York State does not have the power to require automobile manufacturers to install onboard gasoline vapor controls and that EPA has not adopted a final rule so doing. Furthermore, the proposed EPA rule concerning onboard controls will not go into effect until two or more model years after the final rule is adopted, and the process of older cars without the controls being replaced with the newer models will take years to complete. Consequently, DEC concluded that onboard controls were not a viable present alternative to the Stage II program, especially in view of the federally imposed deadline for compliance. Considering EPA's history of indecision upon the issue of the Stage II system versus onboard controls, it was rational for the respondents to determine that EPA might never promulgate a final rule requiring onboard controls. Moreover, it was reasonable to decide that whatever benefits onboard controls might yield years down the road, those benefits would not assist the State of New York in meeting its current duty to comply with the NAAQS. It was simply not a viable alternative. As to enhanced inspections and maintenance being an alternative, the respondents point out that such a program is already provided for in the State's 1984 SIP, and the two programs are companions, not alternatives. DEC stresses that its Division of Air Resources has determined that an enhanced inspection and maintenance program would not offset the emission reductions lost if the Stage II program is not implemented. Certainly, it is reasonable for the commissioner and DEC to believe their own Division of Air Resources and thereby decide that enhanced inspection and maintenance is not a workable option. DEC's determinations are "entitled to great weight, especially where, as here, it is in an area requiring specialized, scientific knowledge" (Town of Hempstead v. Flacke, 82 A.D.2d 183, 187, 188). Such a determination will be upheld "unless petitioner can demonstrate that it is . . . without foundation in fact or reason," which this petitioner has failed to do (Matter of Ludlow's Sanitary Landfill v. New York State Dept. of Envtl. Conservation, 112 A.D.2d 8, 9). Petitioner's remaining contention is that respondents acted arbitrarily and capriciously in issuing a determination that the Stage II regulations would not adversely affect the environment. Petitioner argues in the second cause of action of the amended petition that the negative declaration was irrational because DEC failed to consider reasonable alternatives to Stage II such as an onboard system or enhanced inspection and maintenance. Furthermore, petitioner argues that New York's adoption of Stage II regulations could lead the EPA not to adopt onboard controls, and enhanced inspection and maintenance are not present viable alternatives to implementation of Stage II. Furthermore, EPA has directed those states already implementing Stage II to go forward, despite the EPA's own consideration of onboard controls. Consequently, this is no reasonable basis to find that following the instructions of EPA might adversely affect the environment. DEC and EPA are in the business of protecting the environment, and their determination that rules enacted by them to that end will benefit, rather than hurt, the environment should be accorded deference. Petitioner has failed to make its case that respondents did not comply with the State Environmental Quality Review Act. For all these reasons, the petition as amended will be dismissed. Judgment Petitioner, having commenced this proceeding seeking a judgment annulling regulations promulgated by respondents at 6 NYCRR Part 230, effective June 27, 1987 and as amended March 2, 1988, and the matter having come to be heard before me at the above stated term of court, NOW, upon reading and filing the Amended Verified Petition, with Exhibits, dated January 28, 1988, respondents' Answer to the Amended Petition, with Exhibits, dated February 3, 1988, intervenor-respondent's Objection in Point of Law, Answer and Supplemental Affidavit, with Exhibits, dated January 24 and February 4, 1988, petitioner's Reply Affidavit, with Exhibits, dated [18 ELR 21215] February 3, 1988, and respondents' Supplemental Affidavit, with Exhibits, dated February 3, 1988, and Petitioner having appeared by Whiteman, Osterman and Hanna (Philip Gitlen, Esq., of counsel) in support of the Amended Petition, and respondents having appeared by Robert Abrams, Attorney General of the State of New York (Michael J. Moore, Assistant Attorney General, of counsel) and intervenor-respondent having appeared by Eric A. Goldstein, Esq. (William Buzbee, Esq., of Counsel), both in opposition thereto, and the court having issued a Memorandum Decision dated April 25, 1988, a copy of which is annexed hereto and made a part hereof, NOW upon motion of Robert Abrams, Attorney General of the State of New York, attorney for respondents, it is ORDERED, ADJUDGED and DECREED that the Amended Petition be and hereby is DISMISSED, without costs. 18 ELR 21213 | Environmental Law Reporter | copyright © 1988 | All rights reserved |