State v. Ferro

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

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

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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.

[189 A.D.2d 1019] 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...