Diamond v. Peter Cooper Corporations
| Decision Date | 08 December 1970 |
| Citation | 317 N.Y.S.2d 40,65 Misc.2d 82 |
| Parties | , 2 ERC 1220 Henry L. DIAMOND, Commissioner of Environmental Conservation of the State of New York, Plaintiff, v. PETER COOPER CORPORATIONS, Defendant. |
| Court | New York Supreme Court |
Louis J. Lefkowitz, Atty. Gen., of the State of New York (Francis J. Keehan, Asst. Atty. Gen., of counsel), for plaintiff.
Phillips, Lytle, Hitchcock, Blaine & Huber, Buffalo (Robert M. Hitchcock, Buffalo, of counsel), for defendant.
This action was instituted on February 23, 1970, pursuant to Article 12--a of the Public Health Law, to enforce the provisions of that law pertaining to air pollution and the regulations issued pursuant thereto. Subsequent to the joinder of issue, and on April 4, 1970, the plaintiff served a motion for summary judgment. On April 17, 1970, the return day of the motion, the defendant consented to the entry of an order and judgment which, among other things, decreed that it should abate air pollution at its Gowanda plant by the installation of certain equipment and the conversion of two large boilers from coal firing to oil firing in accordance with plans and specifications which had been approved by the plaintiff. A time schedule for the required conversion was set forth in the order, and it was further decreed that after June 15, 1970, the defendant should operate all combustion installations so as to comply at all times with Parts 186 and 191 of the New York State Rules for Air Pollution Control.
The order and judgment of April 17, 1970, granted a further 'conditional judgment' which was to become absolute in the event the defendant failed to perform or comply with the provisions of the first decretal paragraph, which has been described above. This 'conditional judgment' reiterates in more detail the restraints against violation of Parts 186 and 191 of the New York State Rules for Air Pollution Control, directs the installation of air-cleaning devices and conversion of equipment and fuel and ultimately directs the discontinuance of the operation of fuel-burning equipment until such time as it has been corrected to the satisfaction of the plaintiff.
On June, 12, 1970, upon motion of the defendant, the order and judgment of April 17, 1970, was modified by extending the deadline of compliance to July 19, 1970. This modification was based on a showing of a failure upon the part of the defendant's suppliers to meet delivery schedules and upon a representation upon the part of the defendant that the equipment was then on hand. The order and judgment, as modified at the behest of the defendant, contained the following provision:
The instant proceeding was brought on by an order to show cause dated August 19, 1970, wherein the plaintiff seeks an order directing that the defendant immediately cease and abate the emission of smoke, fly-ash and soot, the shade, appearance or contents of which are in violation of the aforementioned Parts 186 and 191 of the Rules and, in addition, seeks the assessment of monetary penalties for such violations. Although the prayer for relief in the moving papers requests a direction for the complete cessation of the operation of fuel-burning equipment, this part of the prayer for relief was abandoned upon the argument of the motion.
The plaintiff's motion is supported by a voluminous affidavits designed to show that since July 19, 1970, the defendant has violated Section 191.2 of the Rules by permitting the emission of smoke having a density darker than No. 1 on the Ringelmann chart and that the defendant during this same period has violated Part 186.1 of the Rules by permitting an air-contamination source to cause air pollution, which is defined as 'the presence in the outdoor atmosphere of one or more air contaminants in quality, of characteristics and of a duration which is injurious to human, plant or animal life or to property or which unnecessarily interfere with the comfortable enjoyment of life and property throughout the state or throughout such areas of the state as shall be affected thereby.'
The defendant counters the plaintiff's claims with respect to the violations of Section 191.2 () by a recitation of the steps taken by the defendant to install new equipment and convert combustion systems from coal to oil pursuant to plans approved by the plaintiff and at an expense of some $300,000 to the defendant. Although the majority of the Ringelmann violations are disputed, it is conceded that at least one very serious violation was occasioned due to the malfunctioning of the new equipment and the negligence of the defendant's employees on August 8, 1970. The balance of the alleged violations are attributed to start-up problems and the faulty calibrations of the new instrumentation. Nonetheless it is clear that from July 19, 1970, through August 30, 1970, there occurred a series of violations of Section 191.2 which did not fall within the exceptions contained in Section 191.3 respecting breakdowns, tube blowing and the starting of new fires.
The defendant's opposing affidavits repeatedly advance the 'in terrorem' argument that if full compliance with the decree (to which the defendant freely consented) is required, the result will be the termination of its operations and the consequent economic collapse of the Gowanda community. There is expressed, however, the hopeful prediction that the newly installed equipment will shortly bring...
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Durand v. Board of Co-op. Educational Services, Second Supervisory Dist., Westchester County
... ... Cement Company, 26 N.Y.2d 219, 309 N.Y.S.2d 312, 257 N.E.2d 870; Diamond v. Allegheny Ludlum Industries, Inc., 67 Misc.2d 854, 324 N.Y.S.2d 658; ... Mobil Oil Corp., 65 Misc.2d 75, 316 N.Y.S.2d 734; Diamond v. Peter Cooper Corps., 65 Misc.2d 82, 317 N.Y.S.2d 40). Assuming pollution were ... ...