PVS CHEMICALS INC NEW YORK v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

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Supreme Court, Appellate Division, Fourth Department, New York.

Matter of PVS CHEMICALS, INC. (NEW YORK), Appellant, v. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Respondent.

Decided: December 31, 1998

Present:  GREEN, J.P., PINE, WISNER, CALLAHAN and BOEHM, JJ. Blair and Roach (David L. Roach, of counsel), Tonawanda, for petitioner-appellant. Dennis C. Vacco, Attorney General (Peter H. Schiff, Lisa Burianek, Timothy Hoffman, of counsel), Buffalo, for respondent-respondent.

 Petitioner appeals from a judgment dismissing its petition challenging the issuance of a positive declaration (6 NYCRR 617.2[ac] ) by respondent.   Supreme Court properly held that “the issuance of a positive declaration is not final agency action subject to CPLR article 78 review” (Matter of Rochester Tel. Mobile Communications v. Ober, 251 A.D.2d 1053, 1054, 674 N.Y.S.2d 189).   A positive declaration requiring the preparation of a draft environmental impact statement is merely a preliminary step in the decision-making process under the State Environmental Quality Review Act (ECL art. 8) and therefore not ripe for judicial review (see, Matter of Rochester Tel. Mobile Communications v. Ober, supra, at 1054, 674 N.Y.S.2d 189, citing Matter of Town of Coeymans v. City of Albany, 237 A.D.2d 856, 857, 655 N.Y.S.2d 172, lv. denied 90 N.Y.2d 803, 661 N.Y.S.2d 179, 683 N.E.2d 1053).   Moreover, petitioner did not sustain an actual, concrete injury by the issuance of a positive declaration.   Further agency proceedings may render the disputed issue moot or academic, and therefore the agency action being challenged does not constitute a definitive position (see, Matter of Essex County v. Zagata, 91 N.Y.2d 447, 454, 672 N.Y.S.2d 281, 695 N.E.2d 232).

Judgment unanimously affirmed with costs.

MEMORANDUM: