Flacke v. Onondaga Landfill Systems, Inc.

113 A.D.2d 440, 496 N.Y.S.2d 866, 1985 N.Y. App. Div. LEXIS 52941
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 20, 1985
StatusPublished
Cited by4 cases

This text of 113 A.D.2d 440 (Flacke v. Onondaga Landfill Systems, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flacke v. Onondaga Landfill Systems, Inc., 113 A.D.2d 440, 496 N.Y.S.2d 866, 1985 N.Y. App. Div. LEXIS 52941 (N.Y. Ct. App. 1985).

Opinion

OPINION OF THE COURT

Denman, J.

The Commissioner of the Department of Environmental Conservation (DEC) challenges an order of Supreme Court which approved a plan submitted by a court-appointed receiver for closure of a landfill operated by the Onondaga Landfill Systems, Inc. (OLSI), but deleted a provision which DEC had made a condition of its approval. The DEC would require a $710,000 interest-bearing fund to be established to provide for postclosure monitoring and maintenance and possible replacement of a polyvinylchloride (PVC) membrane which is to be placed over the site in order to prevent leachate from filtering through the landfill and contaminating the groundwater. The court found that such requirement was not economically feasible, not required by the regulations or the factual circumstances presented and that therefore such requirement was arbitrary and capricious. We find, to the contrary, that the condition imposed by the DEC is consistent with its regulations, supported by expert opinion, reasonable under the circumstances and economically feasible.

HISTORY OF THE LANDFILL

OLSI purchased the landfill site in 1977 and applied for a permit to operate. The Commissioner denied the permit and ordered OLSI to submit plans for closing the landfill because [442]*442of its noncompliance with applicable regulations. He found that the placing of refuse directly on the site’s limestone bedrock instead of on the required five-foot layer of fill meant that water from the landfill would not be purified before leaching through to the water table and thus that continued operation threatened to contaminate the groundwater. We found that determination to be supported by substantial evidence (Onondaga Landfill Sys. v Flacke, 81 AD2d 1024).

When OLSI made no attempts at closure, DEC commenced this action to enforce its order. On DEC’s motion the court appointed a temporary receiver to wind down the landfill operation, to prepare and submit to the court and the Commissioner a closure plan consistent with applicable regulations and to close the landfill as soon as enough funds were accumulated to finance closure. The receiver retained an engineering firm to design a closure plan and, in June 1983, such plan was submitted to the DEC. Among other things, the plan called for installation of a 20-mil PVC membrane to cap the 65-acre landfill, such cap to be encased between two 12-inch layers of fill in order to prevent or minimize groundwater contamination. The DEC found the plan to be generally acceptable but recommended that a 30-mil membrane be used, that a program be implemented to monitor the integrity of the cap, and that plans be made for replacement of the cap at the end of its life, which it estimated to be 20 years. DEC also recommended that a study be made of the possibility of financing closure, at least in part, with royalties from the sale of methane gas recovered from the property. Subsequently, the engineers submitted a revised plan incorporating the cap replacement and postclosure monitoring recommendations and providing for establishment of a $710,000 sinking fund to finance the costs. Of that $710,000, $383,000 was estimated to be the cost of cap replacement and $327,000 the cost of annual maintenance. The engineers proposed that such costs be financed by the estimated $400,000 annual net proceeds from the sale of methane gas. The Commissioner approved the plan subject to the conditions that cap replacement and monitoring for 20 years be accepted and that a sinking fund for those purposes be established.

The receiver moved for an order approving this revised closure plan. Supporting his motion were the affidavits of the receiver and the engineers stating that the plan complied with the DEC’S landfill regulations and that imposition of the replacement cap condition was not unreasonable. Neverthe[443]*443less, the receiver posited that the initial cap would probably be sufficient, that there were insufficient funds in court-established accounts to finance cap replacement and that the additional projected costs might delay closure. OLSI opposed the motion, arguing that it did not have sufficient funds for the $710,000 required to fund the monitoring, maintenance and cap replacement, and contended that the DEC had no authority to impose those conditions upon the court-appointed receiver’s closure plan.

The DEC urged the court to approve the plan incorporating its conditions, arguing, on the basis of its expertise and as supported by various writings in the field, that monitoring and cap replacement were necessary. It contended that the proposed PVC cap was of marginal thickness and had a design life of only 20 years, that many factors could result in its failure, that the DEC in particular and the industry in general had limited experience with the use of such caps, that the site was extremely unsuitable for disposal of solid waste, that any leachate would contaminate the groundwater, that this potential would exist beyond the 20 years of the cap’s estimated life, and that the provision for establishment of a sinking fund to finance cap replacement was therefore reasonable.

Treating the receiver’s motion as though it were a CPLR article 78 proceeding for review of an agency determination, the court found the Commissioner’s determination that cap replacement was necessary to be unreasonable, arbitrary and capricious, based on speculation, in excess of the requirements of the DEC’s own regulations, and unmindful of the economic feasibility of the proposal. It therefore approved the closure plan including the 20-year monitoring provision, but deleted the requirement for replacement of the PVC cap and the sinking fund needed to finance it. Subsequently, the parties agreed on a plan to finance the cost of a 20-year monitoring program. Thus the only issue to be determined is the propriety of the court’s deletion of the requirement of cap replacement and establishment of a fund for that purpose.

DEC JURISDICTION

Both defendant and the receiver maintain that the DEC relinquished jurisdiction over the final plan for closure when it acceded to the order by which the court assumed continuing jurisdiction and appointed a receiver to oversee the closing of [444]*444the landfill operation. That position is refuted by the terms of the order which required the receiver to prepare and submit to the court and to the Commissioner a plan for closure and specifically provided "for review and approval by the Department” and "[implementation of] the plan as approved.”

Even if the court had concurrent jurisdiction with the DEC for approval of the plan, the court must accede to the decision of the Commissioner under the doctrine of primary jurisdiction. Under that doctrine, the courts will not resolve a question within the jurisdiction of an administrative agency where the issue demands special knowledge and expertise and where it is essential to have uniformity of ruling in carrying out the purposes of the regulations the agency is administering. "Where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues 'beyond the conventional experience of judges’ * * * the court will 'stay its hand until the agency has applied its expertise to the salient questions’ ” (Engelhardt v Consolidated Rail Corp., 756 F2d 1368, 1369).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Williams v. Weiner
42 A.D.3d 901 (Appellate Division of the Supreme Court of New York, 2007)
Blossom View Nursing Home v. Novello
5 A.D.3d 1056 (Appellate Division of the Supreme Court of New York, 2004)
Lee Oil Co. v. Jorling
190 A.D.2d 1072 (Appellate Division of the Supreme Court of New York, 1993)
Niagara Falls Sightseeing By Sheridan, Inc. v. Penn Advertising, Inc.
163 A.D.2d 861 (Appellate Division of the Supreme Court of New York, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
113 A.D.2d 440, 496 N.Y.S.2d 866, 1985 N.Y. App. Div. LEXIS 52941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/flacke-v-onondaga-landfill-systems-inc-nyappdiv-1985.