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Supreme Court, New York County, November 15, 2006
APPEARANCES OF COUNSEL
Paul Hastings Janofsky & Walker LLP, New York City (James E. Berger, David J. Freeman and Sarah E. Hagans of counsel), for petitioner. Eliot Spitzer, Attorney General (Lisa F. Garcia, Robert Emmet Hernan and Norman Speigel of counsel), for respondent.
OPINION OF THE COURT
Judith J. Gische, J.
Petitioner is the owner and developer of real estate located at 377 Greenwich Street, New York, New York. It brings this CPLR article 78 petition to challenge an October 5, 2005 decision by the New York State Department of Environmental Conservation (DEC) denying its application to participate in the Brownfield Cleanup Program (BCP). DEC opposes the petition.
As part of its opposition, DEC included affidavits from Daniel C. Walsh (DEC Chief of [*2]Region 2 Hazardous Waste Remediation Program), Dale Desoymers (DEC Director of Division of Environmental Remediation) and Timothy DeMeo (DEC Environmental Engineer with the Bureau of Spills Prevention and Response). Petitioner has separately moved to exclude these affidavits from consideration by the court. DEC opposes the motion.
The petition and the motion are consolidated for consideration and disposition in this decision.
I. The DEC Determination
The owner is in the process of constructing a luxury 80-room hotel and 100-seat restaurant at the property. In July 2004 it filed an application with the DEC to participate in the Brownfield Cleanup Program. On October 5, 2005 it received notification that its application had been denied. The denial concluded that the property did not meet the statutory definition of a "brownfield site." The denial stated in relevant part:
"In determining whether the property constituting this application fits within the statutory definition of a brownfield, the Department reviewed your application package dated July 2004 and all supplementary materials, including the results of the supplemental investigations submitted in December 2004 and January 2005. The Department also reviewed the application materials in conjunction with the Department's revised eligibility criteria published in March 2005. Among other things, the Department considered the past uses of the property, including use as a parking garage, a parking lot, and as eight residential structures with some retail space. Furthermore, the Department considered that the design and financing for this project were approved by July 2003, prior to discovery of any contamination and prior to the passage of the brownfield statute in October 2003.
"In addition, the Department looked at the levels of contamination reported to the Department, which were, in the aggregate, relatively low; at the increase in development costs attributable to the environmental concerns in relation to the total cost of development and the value of the property; and the past uses which did not include processes which generate hazardous substances. Based on all these considerations, taken together with all the environmental data and all the statutory eligibility factors, set forth in the Brownfield Cleanup Program eligibility criteria, the Department has determined that the reuse or redevelopment of this property was not complicated by the presence or potential presence of contamination."
The validity of this decision is now being challenged.
II. The Applicable Statutes
Effective October 7, 2003, the New York State Legislature passed the Brownfield Cleanup Program Act (BCPA). It is contained in sections 27-1401 to 27-1431 of the Environmental Conservation Law. Broadly speaking, the purpose of the legislation is to encourage the voluntary cleanup of hazardous waste sites and ultimate restoration of such sites to productive use, including restoration to the tax rolls. (Weinberg, Practice Commentaries, McKinney's Cons Laws of NY, Book 17

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