Niagara Recycling, Inc. v. Town of Niagara

Decision Date13 November 1981
Citation83 A.D.2d 316,443 N.Y.S.2d 939
PartiesNIAGARA RECYCLING, INC., Newco Waste Systems, Inc., W.L.R. Chemical Waste Realty, and Cecos International, Inc., Appellants-Respondents, v. The TOWN OF NIAGARA, Respondent-Appellant.
CourtNew York Supreme Court — Appellate Division

Duke, Holzman, Yaeger & Radlin, Buffalo, for appellants-respondents; Emanuel Duke, Buffalo, of counsel.

Robert P. Merino, Niagara Falls, for respondent-appellant; Rita Hager, Niagara Falls, of counsel.

Before DILLON, P. J., and HANCOCK, CALLAHAN, DOERR and SCHNEPP, JJ.

HANCOCK, Justice:

Plaintiffs appeal from an order denying their motion for a preliminary injunction (CPLR 6301) in a declaratory judgment action in which they attack the constitutionality of Local Law No. 8 adopted by the Niagara Town Board on November 25, 1980 entitled "Solid Waste Management Facility, Incineration, Recycling, and Landfills Law of the Town of Niagara." Defendant town cross-appeals from the denial of its cross-motion for a preliminary injunction to compel compliance with Local Law No. 8 and from the court's dismissal pursuant to CPLR 3211 (subd. a, par. 4) of its counterclaim in which it seeks to enjoin plaintiffs permanently from continuing to conduct their operations in alleged violation of various permit conditions and building code and zoning ordinance provisions. In a related CPLR article 78 proceeding commenced by these plaintiffs involving the same local law, we have dismissed their petition seeking to annul the action of the Town Board in enacting the legislation because of the town's alleged noncompliance with the provisions of the State Environmental Quality Review Act (SEQRA) (ECL, §§ 8-0101-8-0117) and the regulations adopted thereunder (6 NYCRR 617.1-617.19) in issuing a Determination of Nonsignificance and in failing to prepare and file an Environmental Impact Statement (Matter of Niagara Recycling v. Town Bd. of Town of Niagara, 83 A.D.2d 335, 443 N.Y.S.2d 951).

I.

Local Law No. 8 establishes a complex regulatory mechanism under which the Town Board is given authority to grant or deny permits for facilities within the town for waste disposal and management operations. The requirements established by the local law are stated to be in addition to the complex system of existing regulations governing the licensing of such facilities under the ECL; all relevant sections of article 27 of the ECL and of 6 NYCRR Part 360 pertaining to such facilities are expressly made a part of the local law.

Under the enactment, permits are required for the continued operation and for the enlargement or modification of existing facilities as well as for the approval of new facilities. The procedural requirements for permit applications and Town Board approval essentially duplicate those established for licensing by the Department of Environmental Conservation (DEC) under 6 NYCRR 360.2 and 360.3. Thus, for example, an applicant must provide engineering plans, reports and specifications prepared by a professional engineer, property boundary surveys, a topographical map, a hydrogeological report and a detailed plan for the closure of the facility including a restoration plan satisfying ten separately enumerated criteria. The application must be accompanied by any data required by SEQRA (e. g., Environmental Impact Statements required for such facilities as proposed actions under ECL 8-0109 and 6 NYCRR Part 617) and each applicant must "demonstrate that the facility will not have an adverse impact upon the environment of the Town of Niagara, town-wide fire protection, town-wide sewer, water and public utilities, local traffic conditions, local land use and planning, and the Town Board and Planning Board shall approve an application only after careful consideration of the above criteria and requirements" (Local Law No. 8 of the Town of Niagara, Article VII, subd. 3, par. I).

Under other sections of Local Law No. 8, public hearings must be conducted on each permit application (Article VI, subd 3), a $500 application fee is required (Article VII, subd 3, par H) and provisions are made for conditioning the issuance of permits upon the posting of performance bonds, restoration bonds, and penalty bonds and upon the securing of liability insurance in amounts satisfactory to the town (Article VIII, subd 1, pars A, B, C, D). The Town Board is given the discretion to appoint an on-site agent to monitor a permittee's operation (Article XIII, subd 1).

The Town Board (within 60 days following the receipt of a completed application or such longer period as may be agreed upon with the applicant) after conducting the public hearing "shall either approve the application and issue the appropriate permit or disapprove the application" (Local Law No. 8 of the Town of Niagara, Article VI, subd 1). With respect to applications for facilities in operation as of the effective date of the local law, a permit shall be issued only if the applicant has "demonstrated that said facility has complied with the standards of operation as set forth in the Environmental Conservation Law and Part 360 NYCRR and this Local Law and all town laws; otherwise, such permit shall be denied and the facility shall thereafter accept no new wastes but shall have ninety (90) days to cease operations and complete restorative measures" (Local Law No. 8 of the Town of Niagara, Article VI, subd 2, par A). The Town Board may approve a permit for a proposed new facility "only if the proposed construction thereof is demonstrated to be in accordance with the terms of a DEC issued construction and operating permit" and if "the submitted engineering data and construction plans have been approved by the Town Engineer, Building Inspector, or the Town's Consulting Engineers and after the Board and applicant have complied with the dictates of the Environmental Quality Review Act of the State of New York (SEQRA)" (Local Law No. 8 of the Town of Niagara, Article VI, subd. 2, pars. B, C). The public hearing must be held within 60 days of the receipt of a completed application.

The effect of the local law is to create a parallel regulatory and licensing system to be implemented by the Town Board and to be co-extensive with that administered by the DEC under ECL article 27 and by the Environmental Protection Agency under the Federal Resource Conservation and Recovery Act of 1976 (U.S. Code, tit. 42, ch. 82). Under Local Law No. 8 the Town Board must, before issuing a permit, make its own independent determination that an applicant has complied not only with town laws but with the many relevant procedural and substantive dictates of ECL article 27 and the regulations adopted thereunder pertaining to approval and licensing by the DEC for waste disposal and management facilities. Thus, the local law permits the Town Board to deny a permit upon its own finding that the applicant has not sufficiently demonstrated compliance with the standards of ECL article 27 and 6 NYCRR Part 360 even though the DEC, upon the identical information and data, might find sufficient compliance with the statute and its own regulations for the same facility and issue a permit.

Plaintiffs Cecos International, Inc. (Cecos) and Newco Waste Systems, Inc. (Newco) maintain extensive commercial facilities in the Town of Niagara for waste treatment and management operations on land leased from plaintiffs Niagara Recycling, Inc. and W.L.R. Chemical Waste Realty. Cecos operates facilities for the treatment and disposal of chemical wastes including waste water treatment facilities, drying beds, secure chemical management facilities and secure sludge management facilities. Newco uses the leased property as a sanitary landfill and for a scrap metal recycling facility. Pursuant to the procedures detailed in title 7 of article 27 of the ECL and 6 NYCRR Part 360, plaintiffs made application to the DEC for a permit for the conduct of their various existing waste treatment and disposal activities. After extensive hearings and based upon the detailed data concerning the construction, operation, maintenance, functioning and future closure of the facilities operated by Newco and Cecos, the DEC granted an operating permit on October 27, 1979 which was amended in certain particulars by a modifying permit on July 31, 1980. In addition, Cecos has obtained a permit from the federal Environmental Protection Agency covering certain operations for the treatment and disposal of hazardous wastes. These permits, currently in effect, impose numerous conditions and safeguards on plaintiffs' activities requiring, among other things, the posting of performance bonds in the principal sum of $4,160,510 covering pre-closure and post-closure monitoring and maintenance of the various facilities, the establishment of trust funds in the principal sum of $2,296,000 to further assure the secure closure of the facilities and the obtaining of liability insurance covering the operations with a combined policy limit of $21,000,000. It appears that the areas covered by the permits have been used for the disposal of general refuse and industrial and chemical waste since their acquisition from Union Carbide Corporation by Niagara Recycling, Inc. in 1972 and used for several years prior thereto by Union Carbide Corporation as a site for the disposal of its own chemical sludges and industrial wastes as well as wastes of various outside businesses.

The facilities operated by Cecos at the site for treatment and disposal of industrial and hazardous wastes serve most of the major industries in Erie and Niagara Counties as well as numerous smaller industries. Approximately 550,000 tons of hazardous waste material are generated annually by Cecos' industrial customers in Erie and Niagara Counties representing 42% of the hazardous waste produced annually in the entire state of New York. The only other facility fully licensed by state and federal authorities for secure land disposal of...

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