Flacke v. Onondaga Landfill Systems, Inc.

• Full Citation: Flacke v. Onondaga Landfill Systems, Inc., 514 N.Y.S.2d 689, 69 N.Y.2d 355, 507 N.E.2d 282 (N.Y. 1987)
• Decision Date: 31 March 1987
• Citation: 69 N.Y.2d 355,507 N.E.2d 282,514 N.Y.S.2d 689
• Parties: , 507 N.E.2d 282, 26 ERC 1717, 17 Envtl. L. Rep. 20,885 Robert F. FLACKE, as Commissioner of Environmental Conservation of the State of New York, Respondent, and Town of Onondaga, Intervenor, v. ONONDAGA LANDFILL SYSTEMS, INC., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 689

514 N.Y.S.2d 689

69 N.Y.2d 355, 507 N.E.2d 282, 26 ERC 1717,

17 Envtl. L. Rep. 20,885

Robert F. FLACKE, as Commissioner of Environmental

Conservation of the State of New York, Respondent, and Town of Onondaga, Intervenor, v. ONONDAGA LANDFILL SYSTEMS, INC., Appellant.

Court of Appeals of New York.

March 31, 1987.

Alan S. Burstein and William J. Leberman, Syracuse, for appellant.

Robert Abrams, Atty. Gen. (Douglas H. Ward, O. Peter Sherwood, Peter H. Schiff, James A. Sevinsky and Lawrence A. Rappoport, Albany, of counsel), for respondent.

Robert E. Wildridge, Syracuse, receiver pro se.

OPINION OF THE COURT

ALEXANDER, Judge.

The Commissioner of the Department of Environmental Conservation commenced this action to enforce his order requiring defendant Onondaga Landfill Systems, Inc. to prepare a plan containing certain conditions for the closure of, and to then permanently close according to the plan, a sanitary landfill operated in the Town of Onondaga. The plan was to include, among other conditions, the establishment of a fund to provide for the possible replacement of a polyvinylchloride membrane to be placed over the site to seal it and to prevent water from seeping through the landfill, picking up contaminants, and thus polluting the groundwater. Supreme Court deleted that requirement from the closure plan, but the Appellate Division modified by reinstating the condition, finding it consistent with the Department's regulations, supported by evidence in the record and reasonable under the circumstances. For the reasons that follow, we affirm the order of the Appellate Division, 113 A.D.2d 440, 496 N.Y.S.2d 866.

In 1977, Onondaga Landfill Systems, Inc. (OLSI) began to operate a sanitary landfill and applied to the Department of Environmental Conservation (DEC) for permits to operate as a solid waste management facility. The DEC denied OLSI's applications because the landfill failed to comply with DEC requirements set forth in 6 NYCRR part 360 and because the site's natural characteristics were unsuited for solid waste disposal, its bedrock consisting of porous limestone through which rain and other surface water, after saturating the solid waste, would seep and contaminate the groundwater. Accordingly, the Commissioner ordered OLSI to submit a plan for closure of the landfill within 30 days and to terminate operations within 90 days from the date of the order. The Commissioner's determination was confirmed (Onondaga Landfill Sys. v. Flacke, 81 A.D.2d 1024, 440 N.Y.S.2d 135). No closure plan was submitted, however; instead, OLSI continued to operate the landfill without a permit in defiance of the closure order.

The Commissioner thereafter commenced this action to compel OLSI to comply with the closure order (see, ECL 71-2727[2] ). Upon the Commissioner's application, Supreme Court appointed a temporary receiver (see, CPLR 6401) who was directed to supervise the landfill operation and to submit to the court and the Commissioner a plan for closing down the landfill in compliance with DEC regulations (6 NYCRR part 360). The receiver was further authorized to monitor OLSI's finances to insure that funds and assets were not diverted in an attempt to avoid the financial burden of effecting a proper closure, and to hire an engineering firm to assist in the preparation of a closure plan.

In June 1983, the engineering firm retained by the receiver submitted a preliminary plan to DEC, that, as pertinent here, provided for the capping of the landfill with a 20-mil polyvinylchloride membrane (PVC) sandwiched between two 12-inch layers of soil to prevent the penetration of surface water through the refuse pile and the ultimate contamination of the groundwater. Although expressing a preference for a considerably thicker PVC, one of 30-mil, DEC found the closure plan generally acceptable. Nevertheless, DEC indicated that it would approve the plan only if it provided for a program to monitor the integrity of the cap over its guaranteed life of 20 years, and the creation of an interest-bearing sinking fund to finance postclosure monitoring and a new PVC cap should a replacement become necessary after expiration of the guaranteed life. In response, the engineering firm incorporated in the proposed plan a provision for the establishment of such an account in the amount of $710,000.

The receiver sought Supreme Court approval of the revised plan although, in doing so, he expressed the view that the initial 20-mil PVC cap would provide greater impermeability and protection of the site than required by DEC regulations, that the need for replacement of the cap was not demonstrated and that substantial doubt existed as to OLSI's financial ability to comply with the sinking fund requirement. Moreover, the receiver, as did OLSI, questioned DEC's authority to impose conditions on the closure plan after having invoked the court's equity jurisdiction to effect closure.

Supreme Court determined that to the extent necessary to review DEC's determination, it would consider the receiver's motion as seeking article 78 review. Supreme Court rejected DEC's contention that, based upon its expertise, because of the marginal thickness and limited design life of the PVC membrane, the unsuitable nature of the site as a landfill and the substantial danger of groundwater contamination, the replacement cap and sinking fund requirements were reasonable and necessary. The court found the perceived necessity for a replacement of the PVC membrane unsupported by the record, "predicated upon speculation or, at best, a guess" and in excess of DEC's own minimum standards (see, 6 NYCRR 360.8). The court further found that OLSI lacked sufficient assets to finance a sinking fund, and that imposition of such a requirement not only would force premature and unsafe termination of the landfill, but under the circumstances, failed to accord "due regard to the economic and technological feasibilit of compliance by the owner, citing ECL 27-0703(1). Thus, the court concluded that imposition of the provisions for a replacement cap and sinking fund were arbitrary and capricious and therefore deleted them from the closure plan. ^* Finally, Supreme Court determined that although DEC commenced this action originally to enforce its closure order, enforcement of that order in accordance with its terms was no longer possible because of the lapse of time. Thus, DEC's action of requesting that the landfill be placed under receivership and that the court maintain "continuing jurisdiction" until closure was interpreted as having invoked the equity jurisdiction of the court. Supreme Court concluded that, under these circumstances, DEC had relinquished its authority over the closure of OLSI and therefore could not impose conditions upon the court's approval of the closure plan.

The Appellate Division modified the order of the Supreme Court by reimposing the condition that a fund be established to finance replacement of the PVC cap. The Appellate Division concluded that the DEC determination that a replacement for the PVC cap might be necessary and that the closure plan should contain a provision for such a replacement cap to be financed through creation of a sinking fund was fully supported by the record and was not arbitrary and capricious. Moreover, the court found that the regulations relating to closure set forth only minimal standards and expressly empowered the DEC to impose additional requirements (see, 6 NYCRR 360.8[b][1][xxi] ). Additionally, the Appellate Division found no support in the record for the lower court's conclusion that...