LEHIGH PORTLAND CEMENT COMPANY, APPELLANT, v. NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION, RESPONDENT.
87 N.Y.2d 136, 661 N.E.2d 961, 638 N.Y.S.2d 388
December 5, 1995
3 No. 255 (1995 NY Int. 272)
Decided December 5, 1995
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This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Victor M. Meyers, for Appellant.
Lawrence A. Rappoport, for Respondent.
SMITH, J.:
The issue presented on this appeal is whether a declaratory judgment
action was properly dismissed on the ground that plaintiff failed to
exhaust administrative remedies. We conclude that the dismissal was
improper because, in this case, the pursuit of administrative remedies
would have been futile. Accordingly, we modify the order of the
Appellate Division and remit this declaratory judgment action to the
trial court for a determination on the merits of plaintiff's
complaint.
Between August and November 1992, plaintiff submitted petitions to the
Department of Environmental Conservation ("DEC") pursuant to DEC's
Beneficial Use Determination ("BUD") program. The petitions sought
permission to use waste materials as substitutes for raw materials in
plaintiff's cement manufacturing processes. Upon the fulfillment of
certain conditions, the BUD program permits the storage and use of
solid waste materials, without a solid waste management facility
permit, if those waste materials are incorporated into a marketable
product, i.e., "beneficially used" (see, 6 NYCRR 360-1.15, formerly 6
NYCRR 360-1.2). Otherwise, the management, disposal and storage of
nonhazardous solid waste may be handled only by solid waste management
facilities. These facilities are subject to extensive regulation (see,
6 NYCRR part 360).
In March and July of 1993, plaintiff sent two demand letters to DEC
stating that six of its pending BUD petitions would be deemed approved
pursuant to the Uniform Procedure Act ("UPA") unless DEC issued
determinations on the petitions within five working days. The UPA
provides specific time frames in which the DEC must notify permit
SNIPPETS:
LEHIGH PORTLAND CEMENT COMPANY, APPELLANT, v.
ENVIRONMENTAL CONSERVATION, RESPONDENT.
This opinion is uncorrected and subject to revision before publication in the New York
The issue presented on this appeal is whether a declaratory judgment action was properly
we modify the order of the Appellate Division and remit this declaratory judgment action to
plaintiff submitted petitions to the Department of Environmental Conservation pursuant to
Upon the fulfillment of certain conditions, the BUD program permits the storage and use of
In March and July of 1993, plaintiff sent two demand letters to DEC stating that six of its
The NYCRR applies UPA time frames to permit applications relating to the collection,
Both DEC responses were signed by DEC's Chief Permit Administrator.
After receiving DEC's reply letters, plaintiff commenced this declaratory judgment action in
As a result of these consultations, I affirmed the Department's longstanding position that
Plaintiff argues that the State Administrative Procedure Act does not require the pursuit of
Generally, "one who objects to the act of an administrative agency must exhaust available
In New York Institute, we affirmed the dismissal of plaintiff's declaratory judgment
In Matter of Kirk v Bahou (73 AD2D 770, affd 51 NY2d 867) petitioners sought the annulment of
Even if we assume that the Chief Permit Administrator could not set agency policy, nothing
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