As published in the September issue of the Suffolk Lawyer
On August 27, 2015, Newsday reported that Baykeeper, an environmental group, intends to commence a lawsuit against the New York State Department of Environmental Conservation (“DEC”) and National Grid because the effluent from the Northport power plant is killing millions of fish each year. The article notes that the DEC’s permit for the power plant expired in 2011, “but under state rules it can operate while its application is reviewed.”
The referenced “state rules” are the subject of this article, but the focus is on clients you may have who require permits from the DEC, not the potential lawsuit discussed in the Newsday article. If your clients have such permits, they are issued for finite periods of time and require renewals, or they lapse. Whether the renewal application is timely filed and sufficient may be of critical importance to your client.
Section 401(2) of the State Administrative Review Act (“SAPA”) states:
- When a licensee has made timely and sufficient application
for the renewal of a license or a new license with reference
to any activity of a continuing nature, the existing license
does not expire until the application has been finally
determined by the agency, and, in case the application is
denied or the terms of the new license limited, until the
last day for seeking review of the agency order or a later
date fixed by order of the reviewing court, ….
“License” includes permits.[1]
Why is it important that your client’s DEC permit continue until a determination is made? First, of course, is the obvious reason that the permit will lapse upon the expiration date of the permit if renewal has not been granted. If DEC does not promptly make a determination, the old permit will continue to authorize the permit holder to operate if a timely and sufficient renewal application was filed.[2] More importantly, however, is that the DEC’s Uniform Procedures permit the Department to suspend permit review if there is an outstanding enforcement action. See 6 NYCRR §621.3(e). Thus, if your client has made “timely and sufficient” application for renewal of the DEC permit, the expiring permit will continue in effect even if the enforcement action is not resolved until after the expiration date of the permit.[3]
An enforcement hearing is commenced by service of a Notice of Hearing and Complaint. 6 NYCRR §622.3. For a period of years, Region 1 of the DEC took the position that service of a Notice of Violation commenced an enforcement action for purposes of invoking its right to suspend permit review. This position left permit holders in an impossible negotiating position when they tried to resolve DEC’s alleged violations. Without a Notice of Violation and Complaint, they had no administrative vehicle to challenge the validity of the violations alleged in the Notice of Violation, and their permit would expire unless they had filed a timely and sufficient renewal application.[4]
“Timely renewal” turns on the type of DEC permit in question. Permits for Hazardous Waste Management Facilities, Solid Waste Management Facilities, Air Permits, and Remedial Action Plans require that the renewal application be submitted 180 days before permit expiration in order to be timely. All other permit renewals must be submitted at least 30 days before expiration.[5]
The protection of SAPA §401(2) also requires that the application be “sufficient.” DEC defines a “sufficient application for renewal” to mean “properly completed application forms, supplemental information and plans required by specific program regulations for renewing permits, and identification of any material changes in regulated operations or environmental conditions at the permitted facility or site.” 6 NYCRR §621.2(ad). Requirements for specific DEC permit applications can be found at 6 NYCRR §621.4.
Failure to provide all required information does not necessarily deprive the applicant of the protection against the permit lapsing while renewal applications are being considered. The DEC is required to notify the applicant whether the application is complete or incomplete within 60 days for permits delegated by the Federal Government (generally, RCRA, Clean Water Act, and certain Clean Air Permits),[6] and within 15 days for all other permits.[7] If DEC fails to meet these deadlines, the application is deemed to be complete.[8] While DEC may still require additional information from the applicant,[9] SAPA §401(2) will preclude the permit for which renewal is sought from expiring prior to DEC’s determination.[10]
The moral is: call your clients, find out if they have DEC permits, and make sure they file timely and sufficient applications for renewal.
[1]SAPA §102(4): “‘License’ includes the whole or part of any agency permit, certificate, approval, registration charter, or similar form of permission required by law.”
[2] See, e.g., Riverkeeper Inc. v. Crotty, 28 A.D.3d 957 (3rd Dep’t 2006) (Timely application by power plant for SPDES permit renewal; DEC did not make a determination. Permit good for five years. Riverkeeper challenged the DEC’s failure to make a determination ten years after the original application expired. Court ruled SAPA §401(2) authorized the power plant to continue operating lawfully, and Riverkeeper’s claim that the DEC’s failure to make a determination five years after the original renewal would have expired provided a basis to compel DEC to act was dismissed on statute of limitations grounds).
[3] One exception to this is SAPA§401(3), which authorizes the agency to immediately suspend a permit if it finds that “public health, safety, or welfare imperatively requires emergency action” and the agency provides a prompt hearing to determine the propriety of the suspension.
[4] Although beyond the scope of this article, treating a Notice of Violation as commencement of an enforcement action for purposes of suspending permit review should be considered an unconstitutional deprivation of the permittee’s right to Due Process.
[5] 6 NYCRR §622.11(a)(1).
[6] 6 NYCRR §621.2(g).
[7] 6 NYCRR §621.6(c)(1 and 2).
[8] 6 NYCRR §621.6(h).
[9] 6 NYCRR §621.6(h) goes on to state: “Nothing in this Section …precludes the department from requesting additional information in accordance with section 621.14(b) of this Part.”
[10] See, e.g., Jamaica Recycling Inc. v. New York State Department of Environmental Conservation, 308 A.D.2d 538 (2d Dep’t 2003).