CECOS Intern., Inc. v. Jorling, 38
| Decision Date | 04 January 1990 |
| Docket Number | No. 38,D,38 |
| Citation | 895 F.2d 66 |
| Parties | , 58 USLW 2409, 20 Envtl. L. Rep. 20,428 CECOS INTERNATIONAL, INC., and Niagara Recycling, Inc., Plaintiffs-Appellants, v. Thomas C. JORLING, as Commissioner of the New York State Department of Environmental Conservation, and the New York State Department of Environmental Conservation, Defendants-Appellees, City of Niagara Falls, County of Niagara, Great Lakes United, LaSalle and Niagara Demand, Campaign to Save Niagara, Ecumenical Task Force of the Niagara Frontier, and Society to Oppose Pollution in Towns, Defendants-Intervenors-Appellees. ocket 89-7310. |
| Court | U.S. Court of Appeals — Second Circuit |
James B. Rather, Uniondale, N.Y. (Steven Brock, Rivkin, Radler, Dunne & Bayh, Uniondale, N.Y., of counsel, Barbara Guibord, Katten Muchin & Zavis, Chicago, Ill., of counsel), for plaintiffs-appellants.
Stuart Miller, Asst. Atty. Gen., State of N.Y., New York City (Robert Abrams, Atty.Gen., State of N.Y., John J. Privitera, Asst. Atty. Gen., New York City, of counsel), for defendants-appellees.
Michael B. Gerrard, New York City (Philip Weinberg, Berle, Kass & Case, New York City, of counsel), for defendants-intervenors-appellees, City of Niagara Falls and County of Niagara.
Brent K. Olsson, New York City (Milbank, Tweed, Hadley & McCloy, New York City, of counsel), filed letter brief for defendants-intervenors-appellees, Great Lakes United, LaSalle and Niagara Demand, Campaign to Save Niagara, Ecumenical Task Force of the Niagara Frontier, and Soc. to Oppose Pollution in Towns.
Before KAUFMAN, CARDAMONE, and FRIEDMAN, * Circuit Judges.
The present appeal involves, among other issues, a constitutional challenge to a newly amended state law governing the expansion of commercial hazardous waste facilities in New York. The expansion of such a facility arouses considerable public concern, as is evident from the number of citizens' organizations intervening in this litigation. It is a truism that producing today's modern goods creates a negative trade-off to the better life these items afford because the by-products of their manufacture often constitute hazardous waste materials. This appeal presents another episode in the voluminous litigation between waste management facilities, operators and state regulators over what regulations should apply and "in whose backyard" the additional facilities are to be sited.
Plaintiffs, CECOS International, Inc. and Niagara Recycling, Inc. (collectively CECOS), appeal from a judgment dated February 23, 1989 in the United States District Court for the Northern District of New York (McCurn, J.), dismissing their complaint under 42 U.S.C. Secs. 1983 and 1988 (1982) seeking a declaratory judgment that amendments to Sec. 27-1105 of the New York State Environmental Conservation Law (ECL) violated the Due Process and Equal Protection Clauses of the United States Constitution by requiring CECOS to obtain siting board approval for an expansion. CECOS Int'l, Inc. v. Jorling, 706 F.Supp. 1006 (N.D.N.Y.1989). The district court denied CECOS' motion for summary judgment on their claims, and instead granted the cross-motion for summary judgment made by defendants, Thomas C. Jorling, Commissioner of the New York State Department of Environmental Conservation (Commissioner), and the New York State Department of Environmental Conservation (DEC). We affirm.
CECOS has been operating a commercial hazardous waste landfill on a 385 acre site in Niagara County, New York since 1976. It operates one of only two such landfill operations in New York. The other is run by SCA Chemical Services, Inc. (SCA). Together CECOS and SCA handle 80 percent of the 280,000 tons of hazardous waste annually produced in New York, and also process much of the 100,000 tons transported annually into that state from other states. Presently, all of the five CECOS landfills, referred to as Secure Chemical Management Facilities, are filled to capacity and are no longer operational. The last facility, Facility No. 5, was filled in mid-1988.
Because of the time that elapses between the application for and the issuance of a final permit to operate a landfill, CECOS in 1984 began developing a sixth landfill, Secure Chemical Residue Facility No. 6 (Facility No. 6), and submitted an initial application for its approval on May 1, 1985. The DEC responded with a series of Notices of Incomplete Information and requests for additional information needed to satisfy state regulations. After two years during which CECOS invested in excess of seven million dollars in the new landfill, the DEC indicated that the application for Facility No. 6 was complete, and it thereupon issued a draft permit on February 25, 1987. An adjudicatory hearing was then commenced by the DEC before an Administrative Law Judge (ALJ), who continued the hearing until the late summer of 1987 pending the parties' submission of briefs on the issue of whether the siting law, as originally enacted, exempted CECOS from siting board review.
During this period, New York State Assembly Bill 7835-C, which amends the sections of the ECL governing the siting of new hazardous waste disposal facilities, was passed by both houses of the New York State Legislature. Under the old law, CECOS was not required to obtain a Certificate of Environmental Safety and Public Necessity from a siting board because it fell within a grandfather exception granted operators seeking to expand an existing facility. The newly passed amendments eliminate commercial land disposal facilities, such as CECOS, from the grandfather exception and specifically require it to obtain a certificate. N.Y.Envtl.Conserv.Law Sec. 27-1105(2)(d) (McKinney 1989). 1
The new siting law also establishes four exceptions to the certificate requirement, including one for the expansion of non-commercial landfills--landfills which, unlike CECOS, dispose of hazardous wastes generated at the site of the facilities. N.Y.Envtl.Conserv.Law Sec. 27-1105(2)(b) (McKinney 1989). 2 SCA also lost the grandfather exception, and it too is required to obtain a certificate under the amended law. In response to the New York State Legislature's passage of the new siting law, the ALJ suspended the adjudicatory hearing and remanded CECOS' application to the DEC to determine what additional information CECOS would be required to submit to complete its application under the new amendments, assuming that the Governor would sign them into law. Notice of the suspension of the hearing was contained in a memorandum dated July 21, 1987. On August 4, 1987 Governor Cuomo signed the amendments into law.
In order to resume the state administrative hearing on Facility No. 6, CECOS resubmitted its application on that facility in November 1987 including a request for a certificate from the siting board. The administrative hearing was reopened on March 29, 1988, a public statement hearing and an issues conference were held on March 30, 1988 and at that time the ALJ issued a ruling on the issues that would be covered in the actual adjudicatory hearing, which ultimately was held from August 3 through November 25, 1988. On August 21, 1989 after submission of posthearing and reply briefs and additional information was added to the record, the ALJ issued his recommendation that the siting board and Commissioner grant CECOS a certificate and permit for Facility No. 6. These documents have not been issued as of the date of this opinion.
About a month after the July 21, 1987 suspension, CECOS instituted this action in the United States District Court for the Northern District of New York on August 24, 1987 seeking a preliminary injunction barring the defendants, the DEC and its Commissioner, from enforcing the new siting law. CECOS sought, in addition, a judgment declaring that the amendments violated the Fourteenth Amendment's Due Process and Equal Protection Clauses. 706 F.Supp. at 1008. At oral argument, CECOS acknowledged that a preliminary injunction was not essential and agreed to convert its action into one for summary judgment. The district court granted the motions of the following parties to intervene as defendants: Great Lakes United, LaSalle and Niagara Demand, Campaign to Save Niagara, Ecumenical Task Force of the Niagara Frontier, and Society to Oppose Pollution in Towns (the concerned citizens' organizations), and the City of Niagara Falls and the County of Niagara (the municipal defendants).
On February 23, 1989 the district court granted defendants' cross-motion for summary judgment. With respect to the jurisdictional questions before it, the district court declined to abstain on the basis of the Pullman, Younger, or Burford doctrines and determined that the action against the DEC--but not the action against the Commissioner--was barred by the Eleventh Amendment. 706 F.Supp. at 1013, 1019, 1023, 1024. As to CECOS' constitutional challenges to the new siting law, the trial court decided that the law did not offend either the Equal Protection or the Due Process Clauses. Id. at 1028-29. This appeal, on the issues of Younger abstention and equal protection, followed.
We are asked to decide whether the district court properly exercised jurisdiction
and whether the new siting law is preempted by federal law or violative of the Equal Protection and Commerce Clauses of the United States Constitution. Because neither the preemption nor Commerce Clause contentions were pleaded or argued to the district court, we decline to hear these issues on appeal. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 37, 96 S.Ct. 2882, 2902, 49 L.Ed.2d 752 (1976); Ansol Co. v. Uniroyal, Inc., 448 F.2d 872, 886 (2d Cir.1971).
We turn to appellees' argument that the district court should have abstained from exercising jurisdiction. To begin, federal courts have an unflagging obligation to...
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