State v. Ferro

• Decision Date: 21 January 1993
• Citation: 189 A.D.2d 1018,592 N.Y.S.2d 516
• Parties: STATE of New York, et al., Respondents, v. Nicholas S. FERRO, et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 516

592 N.Y.S.2d 516

189 A.D.2d 1018

STATE of New York, et al., Respondents, v. Nicholas S. FERRO, et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division Third Department.

Jan. 21, 1993.

Raymond A. Kelly, Jr., Albany, for appellants.

Robert Abrams, Atty. Gen. (Maria Semidei-Otero, of counsel), Albany, for respondents.

Before WEISS, P.J., and LEVINE, MAHONEY, CASEY and HARVEY, JJ.

CASEY, Justice.

Appeal from an order of the Supreme Court (Connor, J.), entered October 25, 1991 in Greene County, which, inter alia, partially granted plaintiffs' motion for summary judgment.

Plaintiffs commenced this action in July 1989 alleging three causes of action: (1) that defendants operated a solid waste management facility in violation of the facility operating requirements contained in 6 NYCRR 360-7.1 and 360-7.10; (2) that defendants violated the closure and postclosure requirements of 6 NYCRR 360-1.14(w) and 360-7.11; and (3) that defendants created a public nuisance. Plaintiffs sought, inter alia, injunctive relief, restitution, damages and civil penalties pursuant to ECL article 71. Defendants' answer contains three affirmative defenses: (1) that the facility was constructed, maintained, operated and closed pursuant to the regulations then in effect and, therefore, is not subject to the new regulations relied upon by plaintiffs; (2) that plaintiffs are estopped from maintaining the action as a result of the conduct of the Department of Environmental Conservation (hereinafter DEC) in approving and overseeing defendants' operation of the facility; and (3) that plaintiffs have engaged in selective and discriminatory enforcement.

This action was commenced after DEC's investigation of complaints of odors revealed high concentrations of hydrogen sulfide emissions from the facility which were causing a variety of health problems. The parties attempted to settle the action by implementing an odor abatement plan pursuant to which defendants constructed a charcoal filter system. The odor problems persisted, however, due to defendants' failure to maintain the system. Plaintiffs ultimately elected to resume prosecution of this action and moved for summary judgment.

In support of their motion, plaintiffs submitted evidence that defendants were responsible for the emission of untreated hydrogen sulfide gases into the air, which caused upper respiratory ailments and nose and eye irritation in area residents. An affidavit of a DEC senior sanitary engineer also alleges that defendants refused to repair cracks in the clay cap covering the site, refused to provide information regarding their efforts to maintain the charcoal filter system, did not treat or remove leachate found at the site and did not submit the necessary information to obtain DEC approval of a final closure plan. As a result of these and other deficiencies, defendants were alleged to have violated a number of regulations contained in 6 NYCRR 360-1.1 et seq., effective December 31, 1988, which replaced 6 NYCRR former 360.1 et seq.

In opposition to plaintiff's motion, defendants did not deny the substantive allegations regarding the emission of hydrogen sulfide gases, the existence of leachate at the site and other deficiencies. Instead, defendants presented evidence that in April 1988 they contacted Mark Mateunas, a DEC region 4 senior sanitary engineer, regarding the requirements for opening, operating, maintaining and closing a construction and demolition debris landfill (hereinafter referred to as a C & D landfill). According to defendants, Mateunas advised them that a C & D landfill could be operated for a one-year exemption period under the regulations then in existence, that DEC would monitor the debris being brought into the landfill, that the only closure requirement was a two-foot clay cap covering the site, and that if the site ceased operations prior to December 31, 1988 it would not be subject to the new regulations. Defendants allege that in reliance upon these assurances they accepted construction and demolition debris at the site beginning in April 1988 and ceased operating the site on October 3, 1988.

Supreme Court concluded that, as a matter of law, defendants ¹ failed to properly close the landfill under the former regulations, citing 6 NYCRR former 360.8(a)(21), and are, therefore, subject to the requirement of the current regulations. Defendants were found to be in violation of several of the current regulations and to have maintained a public nuisance. Based upon these findings, defendants were directed to treat and remove all leachate from the site, and to develop and implement a final closure plan approved by DEC. Defendants were directed to pay restitution in the amount of $42,150, and based upon the continuing violations of the current regulations penalties in the amount of $3,645,000 were imposed on defendants pursuant to ECL 71-1929. Defendants appeal.

We reject defendants' contention that their estoppel and discriminatory enforcement defenses raised questions of fact which precluded summary judgment. "[E]stoppel may not be invoked against a governmental agency to prevent it from discharging its statutory duties" (Matter of E.F.S. Ventures Corp. v. Foster, 71 N.Y.2d 359, 369, 526 N.Y.S.2d 56, 520 N.E.2d 1345). Although it has been suggested "that exceptions to the general rule may be warranted in 'unusual factual situations' to prevent injustice" (id.), we are of the view that this is not a case in which estoppel may be imposed to prevent plaintiffs from seeking to enforce applicable regulations and to abate a public nuisance (see, Matter of New York State Med. Transporters Ass'n v. Perales, 77 N.Y.2d 126, 130-131, 564 N.Y.S.2d 1007, 566 N.E.2d 134). Defendants' vague and conclusory allegations that other facilities have not been subjected to the same treatment by DEC are patently insufficient to support a claim of discriminatory enforcement (see, Matter of Cannon v. Urlacher, 155 A.D.2d 906, 907, 547 N.Y.S.2d 495).

As to plaintiffs' public nuisance cause of action, we are of the view that plaintiffs met their burden as the proponent of the motion for summary judgment by submitting evidence of emissions of hydrogen sulfide gases into the air from defendants' site, which adversely affect the health of area residents exposed to those emissions, and evidence of leachate containing PCBs at the site, which threatens to...