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STATE OF NEW YORK
SUPREME COURT

COUNTY OF LIVINGSTON

ORDER
Index No. 1215-2000
Hon. Raymond E. Cornelius

In the Matter of the Application of

BATH PETROLEUM STORAGE INC. and E.I.L. PETROLEUM, INC.,

Petitioners,

For a Judgment pursuant to Article 78 of the Civil Practice Law & Rules


-against-

THE NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION, and
COMMISSIONER JOHN P. CAHILL,

Respondents.


Petitioners, Bath Petroleum Storage Inc. and E.I.L. Petroleum, Inc., by their attorneys, John J. Privitera, Esq. and Jerry W. Boykin, Esq., having timely commenced a Special Proceeding by Verified Petition under CPLR Article 78 seeking to vacate and annul the December 8, 1999 denial by Respondent, New York State Department of Environmental Conservation, of Petitioners' application for the renewal of its State Pollution Discharge Elimination System ("SPDES") permit to discharge wastewater from its liquefied petroleum gas storage facility in the Town of Bath, Steuben County, which denial was affirmed by Respondent Commissioner Cahill through a decision on behalf of the Commissioner and Respondent New York State Department of Environmental Conservation (DEC) by Deputy Commissioner Carl Johnson on November 6, 2000, and this Article 78 Proceeding having regularly come on to be heard before the Honorable Raymond E. Cornelius, without a jury, at the Livingston County Courthouse, 2 Court Street, Geneseo, New York on the 27th day of March, 2001, and the proofs of both parties having been adduced and their respective counsel having been heard, and after due deliberation having been held thereon and a decision of this Court having been made therein on or about August 27, 2001, which is incorporated by this reference, directing the entry of an order as hereinafter provided:

IT IS HEREBY ORDERED:

1. The November 6, 2000 administrative decision of Deputy Commissioner Carl Johnson of Respondent, New York State Department of Environmental Conservation is vacated in its entirety as arbitrary and capricious; and,

2. The December 8, 1999 denial of Petitioners' application for SPDES Permit renewal is vacated and annulled in its entirety; and,

3. The Petitioners' application for SPDES Permit renewal was a complete application, based on the materials possessed by Respondent DEC, the initial application for renewal of the permit, as well as supplemental submissions to Respondent DEC, and since the activity sought to be renewed was an activity of a continuing nature, Petitioners are entitled to the safe harbor provisions of State Administrative Procedures Act (SAPA) § 401(2) such that the terms and conditions of the SPDES permit that was the subject of Petitioners' application have not expired and thus SPDES permit no. NY-00042478 is continued on its existing terms in accordance with SAPA § 401(2) and this Court grants complete relief under Petitioners' first cause of action of the Verified Petition; and,

4. This matter is remanded to Respondents for purposes of an issues conference, and, thereafter, an adjudicatory hearing to be conducted by an Administrative Law Judge, other than Administrative Law Judge P. Nicholas Garlick, in conformity of this Court's decision of August 27, 2001, thus granting complete relief to Petitioners under the second cause of action of the Verified Petition; and,

5. The issues raised in Petitioners' third cause of action are remanded for consideration by the new Administrative Law Judge assigned to this matter to conduct the issues conference and adjudicatory hearing consistent with this Court's decision of August 27, 2001, in full resolution of the matters raised by Petitioners' third cause of action; and,

6. Petitioners' fourth and fifth cause of action are dismissed for failure to state a claim upon which relief can be granted.

ENTER: 21 September 2001

 

Hon. Raymond E. Cornelius
Justice of the Supreme Court

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