Jancyn Mfg. Corp. v. Suffolk County

• Court: New York Court of Appeals
• Writing for the Court: SIMONS; WACHTLER
• Citation: 71 N.Y.2d 91,524 N.Y.S.2d 8,518 N.E.2d 903
• Parties: , 518 N.E.2d 903, 27 ERC 1369 JANCYN MANUFACTURING CORP., Respondent, v. COUNTY OF SUFFOLK, Appellant.
• Decision Date: 21 December 1987

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524 N.Y.S.2d 8 71 N.Y.2d 91, 518 N.E.2d 903, 27 ERC 1369 JANCYN MANUFACTURING CORP., Respondent,
v.
COUNTY OF SUFFOLK, Appellant. Court of Appeals of New York. Dec. 21, 1987.

Martin Bradley Ashare, Co. Atty., Hauppauge (Frederick Eisenbud, Riverhead, of counsel), for appellant.

A. Thomas Levin and Joseph Jaspan, Garden City, for respondent.

OPINION OF THE COURT

SIMONS, Judge.

Plaintiff, the manufacturer of a cesspool additive known as "Drainz," a product which contains chlorinated hydrocarbons, commenced this action seeking a declaration that Suffolk County Local Law No. 12 of 1980 was invalid because it was superseded by ECL article 39. Local Law No. 12 prohibits the sale of cesspool additives, defined to include any organic chemical or compound used for cleaning or unclogging sewer lines or sewage disposal systems, without prior approval by the Suffolk County Commissioner of the Department of Health Services (Local Law No. 12 §§ 2, 3). In order to secure the county Commissioner's approval, the person seeking to offer a particular additive for sale must submit scientific data demonstrating to the Commissioner's satisfaction that the product "will not adversely affect the groundwaters" (§ 4). The local law became effective August 13, 1980.

Six weeks later, on September 28, 1980, article 39 of the ECL, entitled "Sewage

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System Cleaners and Additives Used in Restricted Geographical Areas," became law (L.1980, ch. 732, § 5). The State law prohibits the sale and use of certain sewage system cleaning additives in Suffolk and Nassau Counties (ECL 39-0103, 39-0105) and empowers the State Commissioner of Environmental Conservation to promulgate regulations requiring manufacturers of these products to submit information regarding their chemical components and the nature and extent of research concerning their effects, if any, on groundwater (ECL 39-0107). ¹ The Commissioner is also empowered to prohibit or restrict the sale and use of a product containing any ingredient other than one of the specified restricted chemical materials, where the Commissioner finds, after investigation and hearing, that such ingredient "is likely to have a dangerous, deleterious or injurious effect upon the public health or environment" in the restricted geographical areas (ECL 39-0107 ). Both the State law and the previously enacted local law seek to prevent contamination of the water resources of Long Island by regulating the flow of cesspool additives into its water supply--i.e., the Magothy acquifer, recognized by Local Law No. 12 to be a sole source acquifer (Local Law No. 12 § 1; ECL 39-0101; see also, L.1980, ch. 732, § 1 ). The issue presented is whether Local Law No. 12 is invalid either because it is in conflict with or has been preempted by ECL article 39. For the reasons that follow, we hold that it is not invalid. I

In 1980, plaintiff sought the approval of the State Commissioner of Environmental Conservation for the sale of its products, "Drainz" and "Super Drainz," in Suffolk and Nassau Counties. By letter dated October 23, 1980, the Department of Environmental Conservation replied in relevant part as follows:

"Article 39 places the basic responsibility for determining whether sale of a sewage system cleaner or additive is or is not prohibited in Nassau or Suffolk County, on the manufacturer. Based on information you have supplied to this Department, and Nassau County Department of Health analysis of one can of your product, it would appear that your new formulations of Drainz and Super Drainz are not prohibited from sale under Article 39. However, these products have not yet been approved for sale in Suffolk County in accordance with Local Law 12-1980.

"You have indicated that the new formulations will be identified by a 'sunburst' symbol on each can. Therefore, barring future Department findings to the contrary, the new formulations of Drainz and Super Drainz may be sold in Nassau County (and in Suffolk County, if and only if approved for sale by that County in the future ), if the containers are identified by the 'sunburst' symbol". (Emphasis applied.) In June 1981, seeking to enforce Local Law No. 12, Suffolk County prohibited the sale of both "Drainz" and "Super Drainz." Plaintiff commenced an action in Federal District Court alleging that Local Law No. 12 deprived it of due process of law and that it conflicts with and was superseded by article 39 of the ECL and was therefore invalid. District court abstained from deciding plaintiff's motion for summary judgment pending resolution in State court of the "preemption" issue raised in the Federal complaint (583 F.Supp. 1364). Plaintiff then commenced the present action ² and after cross motions for summary judgment were made, Supreme Court denied plaintiff's motion, granted defendant's cross motion and dismissed the complaint, thereby sustaining the validity of Local Law No. 12 (126 Misc.2d 463, 482 N.Y.S.2d 676). The court determined that the Legislature, in enacting article 39, had not clearly manifested an intent to occupy the entire field of sewage system cleaners and additives. It deemed significant that: (i) ECL

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39-0105 prohibits only the use of certain amounts of restricted chemical material; the legislation does not touch on other areas of potential restriction as does the local law in question; (ii) the Legislature has not adopted a comprehensive and detailed regulatory scheme with respect to sewage system cleaners and additives; and (iii) exclusive jurisdiction with respect to cesspool cleaners and additives has not been vested in the Commissioner under article 39, as evidenced, in part, by the conclusion of the Department of Environmental Conservation, the agency primarily responsible for the administration of the article, that there was no preemption. Local Law No. 12, the court concluded, had not been preempted by ECL article 39 (126 Misc 2d, at 467-468, 482 N.Y.S.2d 676).

A divided Appellate Division reversed, granted plaintiff's motion for summary judgment, and remitted the matter to Supreme Court for entry of an appropriate judgment declaring Local Law No. 12 to be invalid. Stating that it did not reach the question of whether the local law had been preempted by article 39, the majority determined that although Local Law No. 12 "does not expressly conflict with the provisions of ECL article 39 * * * the local law is inconsistent with its State counterpart and is, therefore, invalid." (125 A.D.2d 641, 644, 509 N.Y.S.2d 855.) The majority advanced two grounds in support of its determination: (1) "by permitting further limitations upon the use of sewage system cleaning products, in effect, create'a situation where what would be permissible under the State law becomes a violation of the local law' " ( id., at 644, 509 N.Y.S.2d 855, quoting Wholesale...