www.rivkinradler.com June 10, 2002   This article is reprinted with permission from the June 10, 2002 issue of The New York Law Journal NLP IP Company. Further duplication without permission is prohibited. All rights reserved.   NEW YORK LAW JOURNAL - LONG ISLAND APPELLATE REVIEW Examining Asbestos, Pesticide Notice and Other Environmental Matters This article was co-written with Charlotte A. Biblow, Esq.   By: Evan H. Krinick     [Editor's Note: Evan H. Krinick, a partner in the Litigation & Appeals Practice Group of Uniondale's Rivkin Radler LLP, regularly represent clients in litigation and appeals in environmental matters. He may be reached at evan.krinick@rivkin.com.]   Environmental issues are important on Long Island and, as such, frequently are the subject of litigation -- and appeals. In fact, in recent weeks, the Appellate Division, Second Department, has issued several significant decisions on a wide range of environmental matters in lawsuits filed in Long Island courts. One case arose after certain property owners conducted sand mining on their property without a permit. The New York State Department of Environmental Conservation required the owners to reclaim or restore the affected land. However, allegedly due to their delays in restoring the land, their neighbors, over about three years, restored much of the affected land. Subsequently, the neighbors filed suit against the property owners to recover in quantum meruit and to enforce mechanic's liens. Suffolk County Supreme Court Justice William L. Underwood, Jr., vacated the liens and the neighbors appealed. The Second Department affirmed, pointing out that to maintain and enforce a mechanic's lien under Lien Law Section 3, a plaintiff must demonstrate that a defendant consented to the work performed on its property. The consent required by the Lien Law, the appellate court observed, is not mere acquiescence and benefit, but must be an affirmative act or course of conduct establishing confirmation. In this case, the Second Department found that the property owners had not consented to the work, but instead had persistently objected to the neighbors' restoration of the land. Because the neighbors had failed to raise a triable issue of fact with regard to the property owners' lack of consent, the Second Department concluded that Justice Underwood had correctly granted the property owners' motion to vacate the mechanic's liens.[1] Asbestos New York State law regulates "asbestos transfer stations" as defined under 6 NYCRR 360-1.2(b)(172). There is an exemption from having to comply with these stringent requirements. Facilities at which materials that consist of "leak proof, closed containers of solid waste from vehicle to vehicle . . . for the purpose of consolidating loads for shipment to an authorized disposal or treatment facility" are not covered by these rules. These rules were at the heart of another recent case,[2]where New York State sought to enjoin the operation of an alleged asbestos transfer station by Asbestos Transportation Co., Inc., until it was in compliance with all applicable state statutory requirements. Suffolk County Supreme Court Justice W. Bromley Hall denied the state's motion for a preliminary injunction, granted the defendant's cross-motion for summary judgment dismissing the complaint, and dismissed the complaint. The state appealed, arguing that the company did not fall within the exemption as it was packaging the asbestos in nonsolid containers. In response, the company asserted that it was in compliance with the federal statute regarding the packing, repacking, and handling of hazardous materials during transportation[3]and that the federal regulation preempted the more stringent state regulation. The appellate division ruled that Justice Hall correctly determined that the federal statute preempted the state's requirements. Therefore, it concluded, Justice Hall properly found that the defendant was not operating an asbestos transfer station. Pesticide Notification An interesting question of standing was at the heart of appeals from decisions by both Suffolk and Nassau County Supreme Courts that the Second Department decided together.[4] The cases stemmed from the August 2000 amendment to the Environmental Conservation Law that included Section 33-1004, relating to neighbor notification of the application of pesticides for counties or cities that opt to make the state law effective in their jurisdiction. The county legislatures adopted local laws to that effect, and the laws were challenged in separate proceedings by registered commercial pesticide businesses on the ground that the counties had failed to comply with the procedural and substantive requirements of the State Environmental Quality Review Act (SEQRA).[5] When the appeals reached the Second Department, the appellate court pointed out that to establish standing for a SEQRA-based challenge, petitioners must show, among other things, that they would suffer an environmental injury that is in some way different from that of the public at large. The appellate court found that the petitioners in these cases failed to meet their burden of demonstrating that they suffered an environmental injury that was in some way different from that of the public at large. Although their allegations were pharsed in terms of potential environmental harm, the appellate court noted that "it is clear that the only injury alleged is a potential economic one." The Second Department conceded that the presence of an economic motive will not defeat standing so long as environmental impacts also are alleged, but emphasized that in this case the motives alleged by the petitioners were solely economic in nature and were not sufficient to establish standing. The Second Department also determined that the counties did not have to comply with SEQRA prior to adopting the local laws because the state legislature "clearly and unambiguously set forth the requirements" for adoption of the local laws in ECL 33-1004. All that was required, the appellate court concluded, was a public hearing and adoption of the provisions of the law in their entirety; SEQRA compliance was not necessary. Pine Barrens Although the landmark Long Island Pine Barrens Protection Act was signed into law nearly a decade ago, the Pine Barrens continues to generate environmental litigation and appeals. For example, Matter of Long Island Pine Barrens Society, Inc. v. Town Board of the Town of East Hampton[6]was an appeal of a challenge to various approvals for sundry unrelated developments in Suffolk County. Suffolk County Supreme Court Justice Howard Berler denied the petition and dismissed the proceeding, and the Second Department affirmed on standing grounds. According to the appellate court, the individual petitioners had not met their burden of establishing their standing to sue. The court noted petitioners had failed to indicate how the proposed land uses would cause them to suffer an injury in fact, different from that suffered by the public at large, within the zone of interest that SEQRA was intended to protect. Moreover, the Second Department continued, the "organizational" petitioners similarly lacked standing because they had failed to demonstrate that one or more of their individual members would have standing to sue. The appellate court reached the same result in Matter of Long Island Pine Barrens Society, Inc. v. Supervisor of Town of East Hampton[7]and Matter of Long Island Pine Barrens Society, Inc. v. Supervisor of Town of East Hampton.[8] Another Pine Barrens-related matter that reached the Second Department[9]began as a challenge to a decision by the Town Board of the Town of Riverhead granting a zoning change and site approval for the development of property in Baiting Hollow. In this case, the Second Department agreed with the petitioners' contention that, under the circumstances presented here, the town board had improperly segmented the SEQRA review process. The Second Department noted that the rezoning at issue was an integral part of a residential golf development but the Environmental Impact Statement (EIS) submitted by the developer and accepted by the town board discussed only the environmental impacts anticipated from the golf course. Although the developer proposed to build up to 333 houses in conjunction with this golf course, the Second Department noted, the developer did not specify the number or locations of these residential buildings in its EIS, with the consequence that their environmental impacts remained unexplored. According to the appellate court, the town board was obligated to consider the environmental concerns raised by the entire project at the time of the rezoning application, and its failure to do so violated SEQRA. In addition, the Second Department continued, the town board violated SEQRA by failing to consider a "no action" alternative to the proposed development.[10]In the appellate division's view, the board also did not sufficiently consider mitigation measures[11]in that, among other things, it refused to explore a purely organic system of maintaining the golf course at issue. Indeed, the Second Department pointed to the fact that although development of the golf course, alone, required the removal of nearly half of a large woodland area, the board denied that the project would have any adverse environmental impact, and insisted that no mitigation measures of any sort were required. Under these circumstances, the appellate court concluded, the board had failed to take a "hard look" at the proposed project under SEQRA. - top - NOTES: [1] Zimmerman v. Carlson, 2002 N.Y. App. Div. Lexis 4156. [2] State of New York v. Asbestos Transportation Company, Inc., 2001 N.Y. App. Div. Lexis 13176. [3] 49 U.S.C. Section 5125(b)(1)(B). [4] Matter of Nature's Trees, Inc. v. County of Suffolk, 2002 N.Y. App. Div. Lexis 3505; Matter of Nature's Trees, Inc. v. County of Nassau, 2002 N.Y. App. Div. Lexis 3507; see, also, Matter of Blue Lawn, Inc. v. County of Westchester, 2002 N.Y. App. Div. Lexis 3506. [5] ECL article 8. [6] 2002 N.Y. App. Div. Lexis 3683. [7] 2002 N.Y. App. Div. Lexis 3729. [8] 2002 N.Y. App. Div. Lexis 3682. [9] Matter of Long Island Pine Barrens Society, Inc. v. Town Board of Town of Riverhead, 2002 N.Y. App. Div. Lexis 269. [10] 6 NYCRR 617.9(5)(v). [11] 6 NYCRR