
    In the Matter of Mt. Hope Asphalt Corp., Also Known as Mount Hope Asphalt Corp., et al., Petitioners, v Michael Zagata, as Commissioner of the Department of Environmental Conservation, et al., Respondents.
    [669 NYS2d 874]
   —Proceeding pursuant to CPLR article 78, inter alia, to review so much of a determination of the Commissioner of the Department of Environmental Conservation as, inter alia, after a hearing, determined that the petitioners violated Environmental Conservation Law § 27-0707, 6 NYCRR 360-1.7, and Navigation Law §§ 173 and 175, and imposed penalties and fines against them, denied the application of the petitioner Mt. Hope Asphalt Corp., a/k/a Mount Hope Asphalt Corp., for a certificate to operate an afterburner, and revoked the permit of the petitioner Mt. Hope Asphalt Corp., a/k/a Mount Hope Asphalt Corp., to construct and test a rehydration chamber.

Adjudged that the determination is confirmed insofar as reviewed and the proceeding is dismissed, on the merits, with costs.

In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination (see, Matter of Pell v Board of Educ., 34 NY2d 222, 231). The petitioners’ contention that the determination of the Commissioner of the Department of Environmental Conservation (hereinafter the DEC) was not supported by substantial evidence is without merit. The testimony of the witnesses for the DEC established the facts necessary to sustain the charges that the petitioners had violated Special Conditions 4.B and 5.B of the permit, had discharged petroleum at the Mt. Hope facility in violation of the Navigation Law, and are unfit and unsuitable to hold DEC permits. The penalties imposed were not so disproportionate to the offenses committed as to be shocking to one’s sense of fairness (Matter of Pell v Board of Educ., supra).

We have reviewed the petitioners’ remaining contentions and find them to be without merit.

Altman, J. P., Friedmann, Krausman and McGinity, JJ., concur.  