New York State Department of Environmental Conservation v. Damico , 130 A.D.2d 974 ( 1987 )

Order unanimously reversed, on the law, without costs, and petition granted. Memorandum: Respondent owns an inactive hazardous waste site in Spencerport, New York. In 1985, the Department of Environmental Conservation (DEC) advised respondent that its agents intended to enter the site to conduct a field inspection and investigation to enable it to classify the site, pursuant to ECL article 27. When the DEC agents arrived, respondent and his counsel refused them entrance to the site. Petitioner moved, by order to show cause, for an order compelling respondent to allow DEC agents access to the property. Special Term denied the application. We reverse.

The DEC is authorized by law to inspect, investigate and take samples to enable it to classify each site according to its relative priority, and respondent has conceded as much (see, ECL 27-1305 [4] [a], [b] [l]-[5]; 27-1309 [3], [4]).

We decline to reach respondent’s claim that ECL article 27 is unconstitutional as applied because it could require him to pay for the expenses of the investigation if the DEC finds threatening hazardous wastes on the site. Because no investigation has occurred and no classification has yet been assigned to respondent’s site, this challenge to the statutory scheme is premature. (Appeal from order of Supreme Court, Monroe County, Kennedy, J.—environmental conservation.) Present— Doerr, J. P., Boomer, Pine, Balio and Davis, JJ.