German Flatts, Ilion Mohawk Joint Garbage, Metal & Refuse Disposal System v. Department of Environmental Conservation

113 A.D.2d 1017, 494 N.Y.S.2d 572, 1985 N.Y. App. Div. LEXIS 52635

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 1985
• Status: Published

Opinion

Determination unanimously confirmed and petition dismissed, without costs. Memorandum: Respondent’s determination that petitioner operated its landfill facility in contravention of ECL article 17 and 6 NYCRR part 360 is supported by substantial evidence in the record (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176; Matter of Haz-OWaste Corp. v Williams, 103 AD2d 1001). Engineers employed by respondent testified at the hearing that when they visited the site they observed leachate flowing into an adjacent creek and evidence indicating that petitioner was not providing daily cover of garbage (see, 6 NYCRR 360.8 [a] [3]; [b] [1] [vii] [c]). Moreover, the $1,500 civil penalty and directive that petitioners close the facility within a six-month period were not " ' "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” ’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233). (Article 78 proceeding transferred by order of Supreme Court, Herkimer County, Shaheen, J.) Present—Hancock, Jr., J. P., Callahan, Denman, O’Donnell and Schnepp, JJ.