Cecos Intern., Inc. v. Jorling, 87-CV-1186.

• Decision Date: 23 February 1989
• Docket Number: No. 87-CV-1186.,87-CV-1186.
• Citation: 706 F. Supp. 1006
• Parties: CECOS INTERNATIONAL, INC. and Niagara Recycling, Inc., Plaintiffs, 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, and 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.
• Court: U.S. District Court — Northern District of New York

706 F. Supp. 1006

CECOS INTERNATIONAL, INC. and Niagara Recycling, Inc., Plaintiffs, 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, and 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.

No. 87-CV-1186.

United States District Court, N.D. New York.

February 23, 1989.

COPYRIGHT MATERIAL OMITTED

Rivkin Radler Dunne & Bayh, Chicago, Ill. (Warren S. Radler, Barbara Guibord, James P. Rigano, of counsel), Sugarman Wallace Manheim & Schoenwald, Syracuse, N.Y. (Charles Manheim, Timothy J. Perry, of counsel), for plaintiffs.

Robert Abrams, Atty. Gen. of the State of New York, Environmental Protection Bureau, New York City (Stuart Miller and John J. Privitera, Asst. Atty. Gen., of counsel), for Jorling and N.Y.S. Dept. of Environmental Conservation.

Milbank Tweed Hadley & McCloy, New York City (Joseph S. Genova, Brent K. Olsson, of counsel), for Concerned Citizens Organization.

Berle Kass & Case, New York City (Michael Gerrard, of counsel), for Niagara Co. and City of Niagara Falls.

MEMORANDUM-DECISION AND ORDER

McCURN, Chief Judge.

On August 24, 1987, plaintiffs, CECOS International, Inc. and Niagara Recycling, Inc. (collectively referred to herein as "CECOS"), commenced the present action seeking a declaratory judgment that § 27-1105 of the New York State Environmental Conservation Law ("ECL"), as amended on August 4, 1987 ("the new siting law"), violates the due process and equal protection clauses of the fourteenth amendment. Complaint at p. 9, par. 1. CECOS is also seeking a declaratory judgment that the new siting law constitutes a taking without just compensation in violation of the fifth and fourteenth amendments to the United States Constitution. Id. CECOS is further seeking to have this court preliminarily and permanently enjoin defendants, Thomas C. Jorling, as Commissioner of the New York State Department of Environmental Conservation, and the New York State Department of Environmental Conservation ("the state defendants") from enforcing and applying the new siting law to it. Id. at p. 9, par. 2.

Finally, in addition to declaratory and injunctive relief, CECOS is seeking an award of monetary damages. Id. at p. 10, par. 3. Since the initial filing of the complaint and the order to show cause, however, CECOS has changed its position. Specifically, in its first reply memorandum of law¹ CECOS explicitly stated that it is not seeking monetary damages or other retrospective relief. Plaintiff's Reply Memorandum of Law I at p. 2. In addition, CECOS emphasized that change in position by further advising the court that it is not pursuing its claim for monetary damages. See, Letter from Warren S. Radler (September 25, 1987).

On September 10, 1987, this court heard oral argument on a motion to preliminarily enjoin the state defendants from enforcing the new siting law as to CECOS. At oral argument, CECOS conceded that there was less urgency for the issuance of a preliminary injunction than it had originally anticipated. Therefore, at the court's suggestion and with the agreement of the parties, the court converted the Order to Show Cause seeking a preliminary injunction to a motion for summary judgment under Fed. R.Civ.P. 56. Following oral argument, the parties were then given an opportunity to present additional memorandums of law to the court.

On September 10th, 1987, the court also considered two motions to intervene pursuant to Fed.R.Civ.P. 24. In particular, 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") moved to intervene as party defendants in this action. Similarly, the City of Niagara Falls and the County of Niagara ("the municipal defendants") also moved to intervene as defendants. The court granted both motions to intervene. The municipal defendants submitted a memorandum of law, whereas the concerned citizens organizations have simply adopted the various memorandums of law submitted by the other defendants.

The court has carefully considered all of the memoranda of law, the supplemental letters of counsel, and the voluminous exhibits submitted with respect to this summary judgment motion, and following constitutes the court's decision.

BACKGROUND

CECOS operates of a solid waste management facility on approximately 385 acres near Niagara Falls. Belmore Affidavit (9/8/87) at pars. 3 & 5. That solid waste consists of both hazardous and non-hazardous waste. Id. at par. 3. CECOS is engaged in landfill activity at the Niagara Falls site, as well as operating a wastewater treatment facility. Tarnawskyj Affidavit (8/21/87) at par. 5. According to Peter Tarnawskyj, CECOS' Project Manager, the landfill activity is CECOS' principal source of income at that site. Id. at par. 5. Presently there are four Secure Chemical Management Facilities ("SCMF") (landfills) at the Niagara Falls site, all of which are filled to capacity and can no longer be used. Id. at par. 6. In addition, there is another SCMF (No. 5), which CECOS projected would be out of capacity in June, 1988.² Id. at 33; DiLibero Affidavit (8/21/87) at pars. 3 and 4.³ (Whether CECOS' projection was correct is not known to the court.)

In the past it has taken a long time to finalize a permit application to build and operate a hazardous waste disposal unit and to obtain the final permit, thus CECOS began the process of developing the sixth landfill known as Secure Chemical Residue Facility No. 6 ("SCRF 6") in 1984, shortly after SCMF 5 began operating. Id. at pars. 7 and 8. It took CECOS approximately two years and an investment in excess of seven million dollars, but finally, in February of 1987, the Department of Environmental Conservation ("DEC") issued a notice pursuant to § 70-0109 of the New York Environmental Law indicating that the application for SCRF 6 was complete.⁴Id. at par. 23, and exhibit O thereto. As provided for under state regulations, after a notice of complete application has been issued, along with a draft permit, the DEC may conduct a public hearing process, which may include an adjudicatory hearing. See, 6 N.Y.Comp.Codes R. & Regs. tit. 6, § 624 et seq. (1985).

On June 2, 1987, that adjudicatory proceeding commenced with a Public Statement Hearing. Id. at par. 25. On June 3, 1987, the Administrative Law Judge ("ALJ") held an issues conference and decided to continue the hearing to determine the proper issues for adjudication. Id. at par. 28. Specifically, the ALJ instructed the parties to brief the issue of whether the old siting law required that CECOS' proposal be reviewed by a siting board. Drew Affidavit (9/4/87), Exhibit 2 thereto. During that time the parties, including CECOS and the DEC staff, began conducting informal discovery, anticipating that the hearing would reconvene in the late summer of 1987. Id.

Coincidentally, in the interim, on August 4, 1987, Governor Cuomo signed into law Assembly Bill 7835-C. That Assembly Bill amended some sections of the ECL, which govern the siting of new hazardous waste disposal facilities. Several provisions of that legislation are at the heart of this lawsuit.

Prior to the siting law amendments, CECOS was not required to obtain a Certificate of Environmental Safety and Public Necessity ("certificate") because under the previous siting law there was a "grandfather exception." The grandfather exception expressly exempted those, such as CECOS, seeking to expand existing facilities, from having to obtain a separate siting certificate.⁵ The DEC specifically determined that the SCRF 6 was exempt under the old siting law, and the regulation thereto. Tarnawskyj Affidavit, Exhibit S thereto. Now, the effect of the new siting law is to eliminate CECOS from that grandfather exception. Specifically, the new siting law provides, in part:

Notwithstanding the provisions of subdivision one of this section, the following industrial hazardous waste treatment, storage and disposal facilities shall not be subject to the provisions of this title:....

(d) Additional facilities, other than land disposal facilities, to be located at the site of an existing facility, the operation of which will be substantially similar to that of the existing facility with respect to the mode of waste management and the type and quantity of hazardous waste being managed.

N.Y.Envtl.Conserv.Law § 27-1105(2)(d) (McKinney Supp.1989) (emphasis added). Therefore, because CECOS is a land disposal facility seeking to expand its existing facility by the construction of SCRF 6, it is no longer exempt from the siting board requirements.

In addition, the new siting law provides, in part:

After the publication of siting criteria pursuant to subdivision one of section 27-1103 of this title, no person may commence construction or operation of the following industrial hazardous waste treatment, storage and disposal facilities, hereinafter referred to as "facility", without having received a certificate of environmental safety and public necessity from the facility siting board as hereinafter provided: (a) any new off-site facility;

(b) any new commercial facility, wherever situated;

(c) any new incineration facility, wherever situated;

(d) any new land disposal facility, wherever situated; and

(e) any expansion, wherever situated, of the aggregate land disposal capacity of an existing land disposal facility.

N.Y.Envtl.Conserv.Law § 27-1105(1)(a)-(e) (McKinney Supp.1989). Thus, under § 27-1105(1)(e), existing land disposal facilities, such as CECOS, are expressly eliminated from the former grandfather exception, and are required to obtain siting board approval.

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