
    In the Matter of George A. Robinson & Co., Inc., Petitioner, v Langdon Marsh, as Acting Commissioner of New York State Department of Environmental Conservation, et al., Respondents.
    [643 NYS2d 849]
   Determination unanimously annulled on the law without costs and petition granted. Memorandum: In this CPLR article 78 proceeding, transferred to this Court by Supreme Court, petitioner seeks, pursuant to ECL 27-1313 (4), to annul the determination of the New York State Department of Environmental Conservation (respondent), which found that petitioner’s property was an inactive hazardous waste disposal site that constituted a significant threat to the environment. Petitioner contends that respondent’s determination, which is contrary to the findings of the Administrative Law Judge who conducted an extensive hearing and issued a lengthy report, is not supported by substantial evidence. We agree.

It is undisputed that, at the time of the hearing in this matter, the regulations enacted to implement ECL 27-1313 (3) (a) had been declared invalid (see, Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation, 75 NY2d 88). Thus, there were no regulations then in effect that defined the critical statutory language "significant threat to the environment” (ECL 27-1313 [3] [a]). "[M]ore than the mere presence of hazardous waste — which is always potentially hazardous — must be proven before a 'significant threat’ declaration under this regulatory scheme can be justified” (Matter of New York State Superfund Coalition v New York State Dept. of Envtl. Conservation, supra, at 93). Upon our review of the record, we agree with the finding of the Administrative Law Judge that the record is insufficient to support a conclusion that hazardous waste on the site constitutes a significant threat to the environment. Thus, under the circumstances of this case, we conclude that respondent’s determination is not supported by substantial evidence in the record (see generally, 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176), and we grant the petition. (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Monroe County, Kehoe, J.) Present — Lawton, J. P., Fallon, Callahan, Doerr and Davis, JJ.  