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Grace Disposal & Leasing, Ltd. v. Flacke

Citation: 10 ELR 20388
No. No. 79 Civ. 3078, 3897 (RLC), (S.D.N.Y., 10/08/1979)

The court refuses to grant a preliminary injunction vacating a New York Department of Environmental Conservation (DEC) order denying Grace Disposal and Leasing, Ltd. (Grace) a permit to continue operation of a sanitary landfill in the Town of Warwick. DEC refused to issue the permit because Grace refused to perform certain soil and water tests, arguing that the major construction work required to conduct them would be an unreasonable investment in light of the fact that no permit was then assured. DEC responded that such data were essential for a determination of compliance with the New York Environmental Conservation Law (ECL), a condition precedent to issuance of the permit.

Grace applied for injunctive relief pending disposition of its challenge to the constitutionality of the ECL and certain DEC rules and regulations. Though the court concludes that Grace will indeed suffer irreparable harm in being forced to go out of business unless the DEC order is stayed, it finds that plaintiff fails to meet the second part of the two-pronged test that precedes a grant of injunctive relief, having demonstrated neither a likelihood of success on the merits nor, alternatively, a balance of hardships in its favor and the existence of serious questions of law. Plaintiff misconstrues the Contract Clause, U.S. CONST. art. I, § 10, cl. 6, in alleging that DEC's denial of a permit unconstitutionally disabled it from fulfilling its waste disposal contracts, since the clause is not intended as an absolute prohibition of government action affecting private agreements. Second, the application of ECL and DEC regulations to preexisting operations does not constitute an ex post facto law because only present and future behavior is affected. Third, the financial burden of compliance with reasonable regulations such as those at issue has not been viewed by the courts as a compensable taking. Fourth, Grace presented no evidence to support its allegation that the DEC was guilty of equal protection violations in selectively applying testing and sampling requirements. Fifth, there was no basis for plaintiff's claim of due process violations in the adjournment of DEC's permit hearing following Grace's refusal to provide test data since plaintiff never requested a hearing on the necessity of such tests.Sixth, Grace's contention that the appointment of a DEC employee as hearing officer violated due process in combining judicial and prosecutorial functions is precluded both by the Supreme Court decision in Winthrow v. Larkin, 421 U.S. 35 (1975) and by the fact that the DEC was not acting in its investigatorial capacity during the hearing. Finally, Grace failed to sustain its burden of proof in alleging that the DEC administrative law judge and solid waste engineer were biased in their treatment of the company.

In addressing the alternative criteria for issuing a preliminary injunction, the court finds that the case does not pose serious and substantial questions of law. DEC officials complied with New York law in following statutory provisions that were reasonably related to the stated objective of the ECL. Second, the balance of hardships does not tip decidedly in Grace's favor since continued operation of the landfill might irreparably damage the town environment. Moreover, any uncertainty about the extent of such hardship is due to Grace's own failure to comply with DEC requests, and the company should not be allowed to take advantage of its own obstructionist tactics.

The full text of this opinion is available from ELR (14 pp. $2.00, ELR Order No. C-1214).

Counsel for Plaintiff
John F. Martin
342 Madison Ave., New York NY 10017
(212) 279-6995

Counsel for Defendants
John G. Proudfit, Ass't Attorney General; Robert Abrams, Attorney General
Two World Trade Center, New York NY 10047
(212) 488-4141

Mark A. Chertok
Winer, Neuberger & Sive
425 Park Ave., New York NY 10022
(212) 421-2150

Carter, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]