Flacke v. Onondaga Landfill Systems, Inc.

• Decision Date: 13 March 1985
• Citation: 127 Misc.2d 984,487 N.Y.S.2d 651
• Parties: Robert F. FLACKE, Commissioner of Environmental Conservation of the State of New York, Plaintiff, v. ONONDAGA LANDFILL SYSTEMS, INC., Defendant. Town of Onondaga, Plaintiff-Intervenor.
• Court: New York Supreme Court

Page 651

487 N.Y.S.2d 651

127 Misc.2d 984

Robert F. FLACKE, Commissioner of Environmental Conservation

of the State of New York, Plaintiff, v. ONONDAGA LANDFILL SYSTEMS, INC., Defendant.

Town of Onondaga, Plaintiff-Intervenor.

Supreme Court, Special Term,

Onondaga County.

March 13, 1985.

Robert Abrams, Atty. Gen. by Douglas H. Ward, Asst. Atty. Gen., for plaintiff, Robert F. Flacke.

Hiscock & Barclay, Syracuse (Alan S. Burstein and Robert Barrer, Syracuse, of counsel), for defendant, OLSI.

Costello, Cooney & Fearon, Syracuse (Raymond R. D'Agostino, Syracuse, of counsel), for Town of Onondaga.

Ali, Pappas & Cox, P.C., Syracuse (C. Andrew Pappas, Syracuse, of counsel), for SWDA.

Robert E. Wildridge, Syracuse, for receiver.

DECISION AND ORDER

JOHN P. BALIO, Justice.

The plaintiff Commissioner seeks an injunction restraining the defendant from interfering with administrative inspections of defendant's landfill. The Commissioner also seeks the imposition of civil penalties for prior interference with the inspection process. The defendant Onondaga Landfill Systems, Inc. (OLSI) has cross-moved for a modification of prior orders of this Court regarding the date for closure of the landfill, tipping fees, and the powers of the Receiver, as well as an order directing the resolution of post-closure monitoring. This Decision applies only to the injunctive and penal relief sought by the Commissioner on the original motion.

FACTUAL BACKGROUND

OLSI has operated a sanitary landfill in the Town of Onondaga (southwest of the City of Syracuse) since 1977. The property encompasses some 145 acres, of which 65 acres are actually used for the deposit of waste, and is situated near the Town of Camillus boundary. OLSI's application for a permit to operate a landfill was denied in 1979. However, because it receives and deposits waste from numerous municipalities within Onondaga County (including the City of Syracuse), OLSI has since 1980, been permitted to lawfully conduct landfill operations pursuant to various Orders of this Court. On July 6, 1984, the Court approved a plan requiring closure of the landfill on or before October 31, 1985. Under the plan, OLSI continues to operate designated portions of the landfill until the final closure date.

Since 1977, the State Department of Environmental Conservation (Department) has inspected this landfill twice a month or less frequently. More recently, the inspections have been physically performed on the Department's behalf by employees of the Onondaga County Department of Health, Division of Environmental Sanitation. Beginning on July 30, 1984, Mark E. Van Valkenburg, the County inspector, performed what have been described as "twice daily" inspections. Essentially, Van Valkenburg arrived at the site in the morning, usually by 10:00 a.m., left the site for lunch, returned after lunch and remained until 3:00 p.m., when the gates closed to outside traffic. On November 5, 1984, Joseph Tripoli, the President of OLSI, told the inspector that he would no longer permit "twice daily" inspections, but would allow inspections twice a month. Subsequent attempts to inspect were rebuffed by OLSI. Eventually, the parties temporarily agreed to weekly inspections, and this Court directed a continuance of weekly inspections pending determination of this motion.

Initially, the plaintiff sought an administrative search warrant for inspections at the landfill. That application was withdrawn. OLSI then commenced an action in the United States District Court for the Northern District of New York seeking a judgment that New York's inspection statute is unconstitutional. During pendency of the federal action, this motion was instituted. The District Court, in a well-reasoned opinion, then dismissed the federal action based upon the abstention doctrine (See Onondaga Landfill Systems, Inc. v. Williams, No. 84-CV-1637 (January 29, 1985)), thereby permitting this application to continue. Although the abstention doctrine is rarely applied, District Judge McCurn concluded that this Court should have the first opportunity to interpret the inspection statute in the context of a constitutional challenge.

CLAIMED BASIS OF RELIEF

The Commissioner seeks an injunction and the imposition of civil penalties pursuant to sections 71-2703(1) ¹ and 71-2727(2) ² It is the Commissioner's position that the State's inspection statute, ECL § 3-0301(2)(g) ³ and the Commissioner's regulations, specifically 6 NYCRR § 360.1(j) ⁴ authorize the Department to inspect a landfill whenever inspection is deemed necessary by the Department; that the Department has considered twice-daily inspections required by the facts of this case; that the statutory and regulatory scheme is constitutional; and that the inspections do not constitute a search because OLSI has no reasonable expectation of privacy.

of the Environmental Conservation Law (ECL).

The defendant contends that the Department's inspection request is unconstitutionally overbroad; that an inspection constitutes a search; that both the statute and regulation authorizing the inspection are facially unconstitutional; that unlimited inspections of this landfill violate defendant's right to equal protection of the laws; and that an improper motive underlies the inspection request, to wit: that frequent inspections are sought by the Onondaga County Legislature, not the Department.

Additionally, defendant claims that the plaintiff has failed to demonstrate the statutory prerequisites for an injunctive relief. The Court disagrees. To obtain an ECL § 71-2703 injunction, it is not necessary to demonstrate the customary prerequisites to the granting of a preliminary injunction under the CPLR--reasonable likelihood of success on the merits, irreparable harm, and a balancing of the equities. Plaintiff seeks a permanent statutory injunction, not a temporary restraint, and the statute simply requires a showing that the respondent is violating a provision of Title 3 ⁵ or 7 of ECL Article 27 or a rule or regulation promulgated pursuant to those statutory provisions. See 12 Carmody-Wait 2d, N.Y. Practice, § 78:4.

EXPECTATION OF PRIVACY

A search in the constitutional sense does not occur unless and until the government invades an interest in which a person has a reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. To prove the existence of such a privacy interest, a person must demonstrate an actual, or subjective, expectation of privacy in the area invaded by the government and that this expectation is one that society would regard as reasonable. Id. at p. 361, 88 S.Ct. at 516 (HARLAN, J., concurring).

The Department contends that OLSI has no reasonable expectation of privacy from an administrative inspection of its landfill because (1) OLSI has no right to operate a landfill, (2) the landfill is an open field, and

(3) landfills are a highly regulated industry under the Colonnade-Biswell ⁶ rule.

(a) Right to Operate.

On numerous occasions, the Department has claimed that OLSI has no right to operate a landfill and is doing so illegally. It is true that OLSI has no administrative permit to operate a landfill. However, the defendant does have this Court's "permit" to operate the landfill, a permit that was requested by the parties to this action, including the Commissioner, as well as interested municipalities and public authorities. The Court's "permit" is stronger than an administrative permit because the Department lacks the power to unilaterally revoke it. OLSI's operation is, therefore, lawful, and although many of its powers have been restricted or controlled, it is operating a landfill pursuant to Court Order and is entitled to whatever privacy interests may be held by such a commercial enterprise.

(b) "Open Fields" Claim.

The open fields doctrine announced in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed.2d 898, and recently followed in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214, does not apply to this particular application for two reasons. First, the Department seeks to enjoin OLSI from interfering with inspections for an indefinite period of time in the future. Since an owner's subjective expectation of privacy at the time of the search is a critical part of the privacy test, the Court cannot project now the precise nature of future expectations nor objectively measure the reasonableness of the expectations. ⁷ Second, the Court cannot say that landfill operations are not entitled, as a matter of law, to some expectation of privacy recognizable as reasonable by society. A commercial facility may have constitutionally protected privacy interests, particularly concerning enclosed structures and perhaps open areas immediately adjacent. See Dow Chemical Co. v. United States, 749 F.2d 307 (6th Cir.1984), revg. 536 F.Supp. 1355, where the Court of Appeals concluded that the open areas of a chemical manufacturing plant did not enjoy an expectation of privacy from aerial observation but reached no conclusion as to the reasonableness of Dow Chemical's subjective expectation of privacy from ground level intrusions. Moreover, neither the statute nor regulation at issue limit the scope of inspection. The inspection conceivably could include books and records (see 6 NYCRR § 360.8[a][18] ), water and toilet facilities (see 6 NYCRR § 360.8[a][12] ), and shelters for mobile equipment (see 6 NYCRR § 360.8[a][14] ). The Department's routine inspection report requires an examination of available equipment, and OLSI maintains a garage and storage facilities for its equipment. Clearly, the statute and rules authorize inspection of areas that are not "open fields". Equally as clear, an owner would have a reasonable expectation of privacy in these private areas.

(c) The Colonnade-Biswell Rule.

New York's regulation of sanitary landfills, though not deeply rooted in our history ⁸ (see, for comparison, ...