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CECOS Int'l, Inc. v. Jorling

Citation: 19 ELR 20918
No. No. 87-CV-1186, 706 F. Supp. 1006/29 ERC 1150/(N.D.N.Y., 02/23/1989)

The court holds that amendments to the provisions of the New York State Environmental Conservation Law regulating the siting of hazardous waste disposal facilities do not violate the equal protection and due process rights of the owner of a commercial hazardous waste disposal facility. The amendments require the owner to obtain a certificate from the state siting board for its proposal to expand its facility. Under the prior siting law, the owner was exempt from this requirement under a grandfather exception. The court first declines to abstain from hearing the case. The court holds that it cannot abstain under the Pullman doctrine, since the state statute is unambiguous. The court holds that it cannot abstain under the Younger doctrine. Although there is an ongoing state administrative proceeding and New York's interest in safe hazardous waste disposal constitutes an important state interest, plaintiff would not have an opportunity to raise its constitutional claims in the state proceeding. The court holds that it cannot abstain under the Burford doctrine. Although the challenged statute is part of a unified and complex state regulatory scheme, a federal court decision would not disrupt state policy and the dominant issues are plaintiff's federal constitutional claims. The court holds that plaintiff's action against the New York Department of Environmental Conservation (DEC) is barred by the Eleventh Amendment. However, plaintiff's action against the Commissioner of the DEC is not barred, since this suit challenges the constitutionality of a state official's action and plaintiff seeks only prospective injunctive relief.

The court holds that the siting law does not violate plaintiff's equal protection rights. Plaintiff has failed to show that the statute's requirement for siting board approval of proposed expansions of commercial hazardous waste facilities, but not for noncommercial facilities, is not rationally related to any legitimate governmental purpose. Commercial facilities, motivated by profit, have a much stronger incentive to expand than noncommercial facilities. In addition, hazardous waste must be transported to commercial facilities, while noncommercial facilities generate and dispose of the waste on site. Further, the state legislature could have determined that two independent bodies should evalute the need for expansion of hazardous waste disposal facilities and the legislature could have decided to proceed one step at a time in requiring siting board approval. The court concludes that these justifications are all rationally related to the legislation's purposes of reducing environmental risk and assuring adequate disposal capacity. The court holds that plaintiff's claim that the siting law constitutes a taking in violation of due process is not yet ripe. The court cannot at this stage determine whether the law goes too far. The economic effect of the law's application on plaintiff's property will not be known until the siting board decides whether the facility owner qualifies for a certificate. The court holds that the law did not deprive the owner of any protected property rights. The owner's expectation of obtaining a permit under a given application process does not constitute a property interest entitled to due process protection.

Counsel for Plaintiffs
Warren S. Radler, Barbara Guibord, James P. Rigano
Rivkin, Radler, Dunne & Bayh
Ste. 4300, 30 N. LaSalle St., Chicago IL 60602
(312) 782-5680

Counsel for Defendants
Robert Abrams, Attorney General
Environmental Protection Bureau
Department of Law, Two World Trade Center, New York NY 10047
(212) 488-3313