Schmidt, J.,
concurs in part and dissents in part and votes to annul the determination dated April 15, 1999, and remit the matter to the respondents for further proceedings consistent herewith with the following memorandum, in which Friedmann, J., concurs. I find the determination by the Commissioner to be arbitrary and capricious and one which deprived the petitioner Al Turi Landfill, Inc., of the equal protection of the law. Accordingly, I respectfully dissent. It is apparent from the record that Al Turi’s application for a landfill expansion permit was treated differently by the Department of Environmental Conservation (hereinafter the DEC) than other applications submitted by similarly-situated applicants. Accordingly, I would annul the Commissioner’s determination and remand the subject application to the DEC for further proceedings.
A decision of an administrative agency, which neither adheres to its own prior precedent nor indicates its reason for reaching a different result on essentially the same facts, is arbitrary and capricious (see, Matter of Field Delivery Serv. [Roberts], 66 NY2d 516). An agency’s stated reasons for reaching a different result on similar facts cannot be frivolous and must be reasonable based on the evidence in the record (see, Matter of Fitzgerald, 262 App Div 393; G. J. & S. Pizza v McLaughlin, 78 AD2d 653). An agency’s failure to provide a valid and rational explanation for its departure from its prior precedent mandates a reversal, even though there may be substantial evidence in the record to otherwise support the determination (see, Matter of Field Delivery Serv., supra, at 520). In order to have precedential effect, the prior decision must have “sufficient factual similarity” with the application pending before the agency (see, Matter of Field Delivery Serv., supra, at 521). Here, the denial by the DEC of the petitioner’s application for a landfill expansion permit is inconsistent with a number of agency precedents and the reasons offered for these departures have no rational basis in the record.
The denial of the petitioner’s permit is a clear departure from the precedent established by the DEC in Matter of A-1 Compaction Corp., Decision of the Commissioner, June 22, 1994. There the operator of a solid waste facility, with a problematic environmental record, was granted renewal of its solid waste management permit despite Federal convictions of both the corporate entity and its sole shareholder on charges of bribery and conspiracy in connection with operation of the solid waste management facility. As demonstrated by the record, the respondents in A-1 Compaction Corp. (hereinafter A-1) also violated various DEC solid waste operating regulations and had illegally operated an unpermitted landfill for many years. Despite this record, A-1 was granted a renewal of its solid waste permits upon a finding by the DEC that A-1’s record didn’t “demonstrate an extraordinary potential for future compliance problems.”
Turning to the application at bar, the Commissioner’s specified reasons for not following the A-1 precedent, when subjected to close analysis, are irrational. The Commissioner attempted to distinguish the criminal convictions in the A-1 case as being less serious than those at bar, concluding that the bribery and conspiracy counts of which the parties in A-1 were convicted did not involve the deceit and untruthfulness inherent in the tax-related convictions of the Al Turi parties. This explanation is unreasonable on its face and attempts to draw an arbitrary distinction between these offenses. The crime of bribery, by its very nature of furthering self-interest at the expense of society, necessarily goes to the heart of dishonesty and untrustworthiness (see, People v Torres, 110 AD2d 794, 795). Furthermore, the Commissioner’s reliance upon the greater penalties imposed in the Al Turi criminal case, without more, fails to justify the denial of a solid waste permit. The DEC has made no showing of any rational correlation between the length of the prison sentence or size of the monetary fine and the considerations necessarily bearing on the denial or approval of a permit. There is also no logical basis to equate the size of a penalty with the trustworthiness of the applicant to comply with the terms of a solid waste permit. The further lack of any rational basis for the decision is demonstrated by the uncontroverted evidence of A1 Turi’s substantial history of compliance with environmental regulations when contrasted with the poor record of the A-1 operation in complying with those regulations.
Similarly, the Commissioner has failed to offer a reasonable rationale for the DEC’s failure to follow the precedent established in Matter of Modern Landfill, Order on Consent, July 17, 1995. Contrary to the DEC’s arguments, the record demonstrates that the petitioner has established that the facts in the Modern Landfill case are sufficiently similar to the facts at bar to permit it to be considered an established precedent. In Modern Landfill, the DEC accepted a trust arrangement under a consent order with the landfill operator, on a set of facts strikingly similar to those at bar. Modern Landfill’s sole shareholder was convicted on Federal racketeering charges for engaging in a pattern of bribing local public officials which, as noted above, are crimes involving “dishonesty and untruthfulness.” The DEC was able to satisfy its concerns about Modern Landfill’s fitness to hold a solid waste permit by accepting a trust agreement, with DEC and Federal oversight, which effectively removed the principal from control of the landfill facility. While A1 Turi’s principals assert they are fit to hold the DEC permit, they have nevertheless proposed an almost identical trust arrangement, agreeing to place their ownership interests in trust, under the same independent oversight found acceptable in Modern Landfill.
The DEC has rejected this proposal, the Commissioner stating that the proposal failed to alleviate the concerns of the DEC about A1 Turi’s conduct. The justification offered for rejection of the Modern Landfill precedent, was first, that Modern Landfill predated the current Commissioner’s tenure, and second, that the burden of monitoring the trust in this case would be “extraordinary,” amounting to a “practical impossibility” if DEC staff were expected to police the trust. These conclusory and unsupported contentions, arguably based on the DEC’s experience with the Modern Landfill trust agreement, have absolutely no evidentiary basis in the record. It appears that the responsibilities of the DEC staff in monitoring a trust agreement are relatively minor and of infrequent occurrence; approval of trustees and successor trustees, approval of amendments that may be proposed to the trust agreement, and consent over any proposed corporate mergers. The petitioner has noted that any of the additional provisions requiring oversight by DEC were included in the draft agreement at the specific request of DEC staff. In short, the Commissioner has offered no rational basis to justify such a cursory and unreasoned rejection of the Modern Landfill trust precedent.
Finally, the arbitrary and capricious nature of the Commissioner’s decision in this case is demonstrated by his recent decision in the case of Matter of Application for Permits to Operate a Solid Waste Mgt. Facility, the Towpath Envtl. & Recycling Ctr., Interim Decision of the Commissioner, May 15, 2000. In the Towpath determination, decided after rejection of the A1 Turi permit application, the Commissioner overruled the finding of an Administrative Law Judge and determined that no adjudicable issue had been raised regarding the applicant’s fitness to hold permits, despite its problematic record of environmental compliance. Following the issues conference, the Administrative Law Judge found the applicant, Waste Management of New York, had been cited and fined for numerous environmental violations at its various solid waste facilities and further documented the myriad violations and large monetary penalties imposed on its corporate parent and affiliates. Nevertheless, the Commissioner concluded that these violations did not raise an adjudicable issue, stating that he was basing this determination on the applicant’s long involvement as a DEC permittee; the sufficient length of time that had elapsed since the violations; the inclusion in the draft permit of conditions designed to address the DEC’s compliance concerns; and the lack of proof that the employees responsible for the prior violations would have any substantial role in the proposed project.
It is clear that each of the mitigating factors the Commissioner deemed significant in the Towpath case are equally applicable to Al Turi and its principals. The record amply demonstrates the applicability of these same factors to the A1 Turi petitioners, including their long history and generally pos itive environmental record as a DEC permittee, the rehabilitation of the petitioner after the prior criminal acts, and the trust agreement proposal which would effectively remove the culpable individuals from any future role in the expanded facility. It appears that the standard applied by the DEC in other determinations, i.e., whether the criminal violations and/or compliance problems are so severe and pervasive that the grant of the permit on any terms is too risky (see, Matter of Laidlaw Envtl. Servs., Decision of the Commr., June 28, 1994; see also, Matter of A-1 Compaction Corp., supra; Matter of SES Brooklyn Co., L. P., Interim Decision of the Commr., Sept. 9, 1993) has been abandoned here. The DEC has failed to provide a valid and rational basis for its departure from established precedent, thereby rendering the Commissioner’s decision arbitrary and capricious. Even though the majority has found substantial evidence in the record to otherwise support the Commissioner’s determination, the departures from established precedent mandate a reversal. Accordingly, I would annul the determination and remit the matter for further proceedings.
