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Southold, Town of - Ruling 2, October 5, 1993

Ruling 2, October 5, 1993


In the Matter of Alleged Violations of
Articles 23 and 27 of the Environmental
Conservation Law ("ECL") of the State
of New York and Parts 360 and 420 of
Title 6 of the Official Compilation of
Codes, Rules and Regulations of the State
of New York ("6 NYCRR") by the



DEC No. 1-4020

This matter involves alleged solid waste violations by the Town of Southold ("Respondent") with respect to landfills in Cutchogue and on Fishers Island, New York. On March 17, 1993, I issued rulings and set a schedule for additional submissions. They have since been received and are addressed in part by the rulings set out below.

Operation of the Fishers Island Landfill

In the amended complaint, dated May 23, 1991, it was alleged that the Respondent owns and operates a solid waste management facility on Fishers Island. This facility has since been identified as the Fishers Island municipal landfill, which is used for household solid waste.

The Department claims that this landfill was operated (1) since August 28, 1977, without a valid permit, and (2) after December 18, 1990, in violation of the Long Island Landfill Law (ECL Section 27-0704). Also alleged are other operating violations, some dating back to 1977.

The Respondent provided an answer in which it asserted various affirmative defenses. One of them (Affirmative Defense No. 18) was that the town does not own or operate the landfill. In my rulings of March 17, 1993, I ordered submissions on this issue, first from the Department and then from the Respondent.

The Department's papers consist of a letter, dated April 6, 1993, with various attachments. The Respondent has also provided a letter, dated June 11, 1993, accompanied by an affidavit from Scott Louis Harris, Southold town supervisor.

According to the parties' submissions, the town does not own or operate the municipal landfill on Fishers Island. The landfill is on property leased from a woman, Anne Pickett, by the Fishers Island Garbage and Refuse District. This district was created pursuant to a special act of the State Legislature (Chapter 69 of the Laws of 1952), which authorized the Southold Town Board (1) to create the district for that part of the town known as Fishers Island, and (2) to vest the operation, management and control thereof in a board of commissioners elected by the district's residents.

The town and the district signed an agreement in November, 1992, clarifying each other's duties for solid waste management. A copy of that agreement has been provided by the Department and is cited by supervisor Harris in his affidavit. According to the agreement, the district retains responsibility for the handling or disposal of all solid waste generated on Fishers Island. Also, it provides that the district continues to assume full managerial and financial responsibility for the maintenance and closure of the island's municipal landfill.

In its April 6, 1993 letter, the Department actually concedes that "the town itself does not operate the municipal landfill on Fishers Island. This landfill has been run for some time by a special refuse district. The district has ceased acceptance of waste at the landfill and is in the process of negotiating an Order on Consent with DEC."

A copy of a draft consent order, which the Department has sent to the district, has been provided by the Respondent. The draft order addresses the same violations, related to the Fishers Island landfill, as those that are charged in this matter against the town. The draft order contains language that the Fishers Island garbage and refuse district "operates or has operated . . . a municipal landfill, known as the "Pickett" landfill, since the creation of the district in approximately 1959. This landfill is approximately 13 acres in size. The landfill property is owned by Anne N. Pickett. Twelve acres of the site have been actively used as a landfill."

Regardless of what is alleged in the complaint, the Department does not now maintain that the Respondent operates or, for that matter, even owns the "Pickett" landfill on Fishers Island. Instead, its argument, as framed in its submission, is that the Respondent is "ultimately responsible" for the landfill pursuant to Article 13 of the state's Town Law. The Department finds that under Town Law provisions, the town retains responsibility for the district's activities, although my own reading of these provisions, as cited by Staff, indicates this is not the case: that, to the contrary, the district is autonomous, with powers that, absent the district's creation, would belong the Southold town board. [See Town Law Section 215; powers and duties of improvement district commissioners.]

The Department argues that "as the creator and overseer of the district, and the disburser of district funds, the town is responsible for the district's acts or omissions. The district acts as the agent of the Town, and the Town is vicariously liable for the district."

These arguments find no support in the Town Law or in the special act that created the district, the intent of which was to give the island control of its own solid waste disposal. When the district was created, control shifted from the town board to district commissioners elected by the island's residents. With the shift of control went a shift of responsibility.

The Department argues that the town remains liable under a theory of respondeat superior, based on the district being the agent or servant of the town. That is not how the district operates, as shown by the law, and confirmed by the affidavit of Supervisor Harris.

According to the Harris affidavit, the district is autonomous, separate and independent from the town. It hires its own employees and its commissioners fix and implement its budget. The town has no say in the district's governance or affairs and merely acts as the district's revenue collector.

There is nothing in the Department's submission that demonstrates that the Respondent, Town of Southold, is responsible for or in charge of the Fishers Island municipal landfill. In fact, the law suggests just the opposite, that the landfill is run by the district, with no town control. I lack authority to dismiss those charges bearing upon the Fishers Island landfill. However, I am recommending that they be dismissed, since the town should not be held liable for a landfill it does not operate.

My dismissal recommendation will be confirmed in my final hearing report, which shall be subject to the Commissioner's review. In the meantime, I will hear no further evidence on the Fishers Island landfill. All charges bearing on its operation shall be disregarded, and the only facility considered shall be the Cutchgoue landfill, which is operated by the Respondent.

Other Affirmative Defenses

In my rulings of March 17, 1993, I reserved decision on the Department's motion to dismiss several of the affirmative defenses that were alleged by the Respondent. I allowed the Respondent to submit an amended answer and provided the Department an opportunity to renew its dismissal motion if an amended answer was filed.

The Respondent has since submitted an amended answer, dated June 11, 1993. By papers dated July 2, 1993, the Department renewed its dismissal motion. The Respondent answered this motion with papers dated August 5, 1993, and the Department filed a reply affirmation dated August 19, 1993.

My rulings are listed below for each affirmative defense, as pled in the Respondent's answer:

- - The Department is barred from proceeding as to any alleged violations of Part 360 purportedly occurring prior to January 2, 1984 under the doctrines of res judicata and collateral estoppel.

The Department's enforcement hearing procedures require that the Respondent's answer contain a statement of any facts which constitute the grounds for an affirmative defense [6 NYCRR 622.5(c)]. No such facts were alleged in the Respondent's original answer; therefore, the Respondent was directed either to supplement the answer or have this defense dismissed.

As amended, the answer now states that certain of the complaint's allegations were resolved "in whole or in part" by two consent orders previously entered into by the parties: one dated May 16, 1979, and the other dated January 25, 1984. Copies of these consent orders are attached to the Department's original dismissal motion.

The May 16, 1979 consent order addresses "various violations of Part 360 of 6 NYCRR" which the Department "alleges that it has documented." The nature of these violations is not specified and the number of violations is unclear. There is no reference to a complaint or inspection document. It is not known when the violations are alleged to have occurred. It is not even clear what facility is referred to, although it appears to be a landfill, since a compliance schedule, attached to the order, refers to a cover stockpile which the Respondent is required to make available "on the landfilling area proper."

The Respondent contends that certain of the Part 360 violations that are pled in this complaint, which are alleged to have continued since August 28, 1977, were resolved "in whole or in part" by the 1979 consent order. This is properly raised as an affirmative defense since it goes beyond a denial of the complaint's allegations. Whether it is true it is premature to say, given the consent order's ambiguity.

The January 25, 1984 consent order states in a "WHEREAS" clause that "6 NYCRR Part 360.8 sets forth the requirements for solid waste management of a landfill" and continues, in the next clause, that the Department "alleges that the Respondent caused or permitted to be caused, the operation of a landfill in violation of operating requirements." A settlement is outlined, but it is not clear what or how many violations are being resolved. Again, there is no reference to a complaint or inspection document. It is clear that the matter relates to a landfill but it is never mentioned by name or location.

The Respondent notes that the complaint alleges violations of 6 NYCRR 360.8 for a continuous period since August 28, 1977. It says these violations were resolved "in whole or in part" by the 1984 consent order. Again, this is a proper affirmative defense since it goes beyond a denial of the complaint's allegations. Here, too, it is premature to say whether the Respondent is correct, given the complaint's ambiguity.

My ruling is not to dismiss the res judicata defense, as pled by the Respondent (Affirmative Defense No. 17). The Respondent has done what it was expected to do: It has now alleged facts to support its contentions, and has specified those allegations that it claims were settled previously. If the Respondent is correct, res judicata would certainly apply, as the doctrine basically states that one cannot relitigate what has already been resolved.

The Department contends that the 1984 consent order did not "resolve" Part 360 violations that were then pending since it required the Respondent to submit a report showing how it would comply with Part 360 and giving dates for the commencement and completion of work (the nature of which is not specified). This contention is rejected since it is precisely the point of a consent order to resolve issues of potential liability. This is part of the bargain the parties make, to avert a hearing on these matters.

The Department also contends that the defense should be dismissed since the Respondent has not alleged supporting facts. Again, I disagree, since the facts are now alleged, although the consent orders, by themselves, don't clearly resolve the issues raised by the Respondent.

Finally, the Department cites the Commissioner's decision in Matter of Richard K. Steck, Gerald Philbin, et al. [Case No. 1-1251, Decision and Order, October 25, 1990]. In that matter, which related to a construction and demolition debris site, the Commissioner said (at page 2 of the decision) that the res judicata effect of a prior consent order "is properly given solely to the violations set forth and acknowledged therein. Absent any explicit term stating such, the consent order cannot be found to address any and all liability incurred to the date of execution."

The Steck matter differs from this one since in Steck, the consent order, by its terms, addressed two violations, which were specified by type (odor, lift height) and date. The Commissioner ruled, in essence, that without explicit language to that effect, the consent order could not be read to have settled other violations predating its execution.

Unlike in Steck, the consent orders here address no particular violations. Dates and types of violations are not specified. Standing alone, the consent orders don't indicate what was being resolved. But clearly something was being resolved, so it remains to be determined what that was.

My ruling is that the defense of res judicata shall be heard and decided prior to taking evidence on the charges, since it would be pointless to litigate matters that already have been decided. The parties shall pre-file affidavits from people who know what violations of Part 360 were alleged and resolved in the aforementioned consent orders. These affidavits may be based upon personal involvement in the negotiation of the orders or review of the parties' files. The affidavits shall incorporate all relevant documentation, including correspondence between the parties.

The Respondent shall have the burden of proof, since its claim is raised as an affirmative defense. But my ruling is that the Department shall file first, since it wrote the orders, and since in its papers submitted to date, it has never actually said what the orders relate to. The Department shall ensure I receive any affidavits it wants to have considered within two weeks of the date of these rulings. The Respondent shall then have another two weeks to ensure my receipt of its own affidavits.

The Department's motion that I dismiss the Respondent's defense of res judicata is hereby denied.

- - Throughout the years in question [from 1977 forward], the Respondent filed numerous engineering reports, plans, studies, and other documents in compliance with applicable statutory and regulatory requirements.

In my rulings of March 17, 1993, I reserved decision on this claim (Affirmative Defense No. 2), allowing the Respondent an opportunity to amend its answer with a statement of facts it intends to establish, and citations to all charges that are alleged to be affected. The Respondent has done so and the Department has renewed its dismissal motion on grounds that documents filed by the Respondent were not in compliance and therefore were not approved.

The Department's motion to dismiss this affirmative defense is hereby denied, reserving to hearing questions of legal compliance. As noted in my prior rulings, the Respondent may attempt to bring into the record any documents it believes are a defense to any charge, either upon cross-examination of the Department's witnesses or as part of its own case, after the Department has rested. As documents are brought forth, I will hear any objections the Department may have, including objections on grounds of relevance.

- - With full knowledge of the existing conditions at the Cutchogue landfill, the Department authorized its ongoing operation.

I ruled previously that this claim (Affirmative Defense No. 3) was too vague to consider, ordering the Respondent to amend its answer with a statement of facts it intends to establish, and a citation to the charges to which this defense relates. The Respondent now claims that the Department authorized landfill operations by virtue of permits that were issued, consent orders that were signed, and advice to the town that its continued operation of the landfill would be in compliance with the law. Although it is not explicitly stated, this defense appears to relate to a charge that the landfill has operated since 1977 without a Part 360 permit.

In its motion to dismiss, the Department acknowledges having issued several permits, but claims they did not authorize activities that are the subject of this complaint. The Department says any authorization to operate the landfill pursuant to consent orders was lost when those orders were violated. The Department denies having advised the town that the landfill operations were legal and says that its activities in relation to the landfill (for instance, inspecting it, and training its operators) did not have the legal effect of authorizing landfill activities.

The Department has moved that I dismiss this defense as meritless. It would be premature to do so absent development of a record. The Respondent shall have an opportunity to develop its defense, either by cross-examination of Department witnesses, or through its own case, to be heard after the Department has rested.

- - The Department is barred from maintaining this proceeding on the grounds of estoppel.

Under the equitable doctrine of estoppel, a party is barred from asserting a right by virtue of its wrongful or negligent conduct, such conduct inducing reliance by a party (1) that is entitled to rely on it and (2) that changes its position to its detriment or prejudice. A ruling on this claim (Affirmative Defense No. 4) was previously reserved as the Respondent had not alleged facts to support it.

The Respondent now claims that the Department, having earlier authorized landfill activities, is now estopped from alleging these activities were illegal. This is a cognizable defense, although basically the same as the one preceding it.

The Respondent also claims that the Department failed to act in a timely manner (or, in some cases, at all) with regard to submittals that it made, which made it impossible for the Respondent to comply with Part 360. This is not truly an estoppel defense, and is addressed below, where it was pled correctly.

The Department's motion to dismiss the Respondent's estoppel defense is denied. This defense shall be heard as part of the Respondent's case, after the Department has rested.

- - The Department's inaction and arbitrary conduct has made compliance with ECL Article 27 and 6 NYCRR Part 360 impossible.

- - The arbitrary conduct of the Department has prevented the Respondent from implementing in a timely fashion alternatives and additions to its present solid waste management facilities and has prevented the Respondent from implementing its Solid Waste Management Plan in a timely fashion.

These affirmative defenses (Nos. 11 and 12, as pled in the answer) rely on the same factual contentions as other defenses addressed by these rulings. They raise in appropriate language what the Respondent has misstated as an estoppel defense.

In its motion to dismiss, the Department denies any inaction and says its conduct was not arbitrary. It says that when papers were filed, they were reviewed in a prompt manner, and if they were approvable, they were approved. The Department claims that the Respondent did whatever it pleased, with or without the Department's approval.

With its reply affirmation, the Department has filed an affidavit from Robert Mitrey, its Region 1 solid waste engineer. Its basic point is that the Department has been responsive to the town, and that it does not withhold approvals for any reason other than a failure to satisfy statutory requirements.

Whether this is true or not needs to be aired at hearing, and not resolved on the pleadings. It is premature to judge these defenses on their merits; they must be heard since, if they can be proved, relief can be granted. As issues of fact are raised, the Department's motion to dismiss is denied.

Other Pending Matters

There are two other matters now pending before me.

  1. Under a cover letter dated June 11, 1993, the Department has provided me a list of documents responsive to a request made by the Respondent, but as to which the Department asserts various privileges against disclosure.
  2. Under a cover letter dated April 7, 1993, the Respondent has filed a motion for a protective order with regard to the Department's notice to produce documents, which is dated August 8, 1991. The Department has filed an affirmation of counsel, dated June 11, 1993, opposing this motion.

These matters will be addressed in other rulings. As to them, no further submissions are requested at this time.

Edward Buhrmaster
Administrative Law Judge

Dated: October 5, 1993
Albany, New York

TO: Frank Isler, Esq.
Smith, Finkelstein, Lundberg, Isler and Yakaboski
456 Griffing Avenue, P.O. Box 389
Riverhead, New York 11901 Mary Carpentiere, Esq.
NYSDEC - Region 1
SUNY Campus, Building 40
Stony Brook, New York 11790-2356

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