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April 6, 1984


The opinion of the court was delivered by: GLASSER


GLASSER, United States District Judge:

 Plaintiff Jancyn Manufacturing Corporation ("Jancyn") brings this action challenging the constitutionality of Local Law No. 12 of 1980 (hereinafter "Local Law No. 12" or "Local Law 12-1980") *fn1" promulgated by defendant, the County of Suffolk, and known as "Local Law Prohibiting the Sale of Certain Cesspool Additives in the County of Suffolk." Jurisdiction is predicated on 28 U.S.C. §§ 1331 and 1332. *fn2" Plaintiff has alleged five causes of action as follows: (1) the local law deprives plaintiff of its civil rights in that it is unconstitutionally vague; (2) plaintiff is deprived of its civil right to sell certain of its produces in Suffolk County because the local law was enacted without authority by the defendant, and conflicts with and is superseded by Article 39 of New York's Environmental Conservation Law; (3) the local law is invalid due to defendant's failure to comply with the requirements of the New York State Environmental Quality Review Act; (4) enforcement of the local law denies plaintiff due process of law and is "wholly arbitrary and capricious," in that it prohibits the sale of plaintiff's products, yet permits the sale of other products containing the same compounds; and (5) defendant's failure to enforce the local law uniformly denies plaintiff equal protection and due process of law. For these reasons, plaintiff seeks a declaration that Local Law 12-1980 is null and void, an injunction against the enforcement of the local law, damages in the amount of $10,000,000 and a declaration that plaintiff may sell certain of its products in Suffolk County.

 Currently before me is plaintiff's motion for judgment on the pleadings as to its first two causes of action pursuant to Fed.R.Civ.P. 12(c) or, in the alternative, partial summary judgment on those two causes of action pursuant to Fed.R.Civ.P. 56(c). Defendant has oposed this motion and cross-moves for leave to amend its answer to add two affirmative defenses: that the complaint fails to allege sufficiently a violation of constitutional rights and that plaintiff's suit is barred by the doctrines of res judicata and collateral estoppel.Pursuant to Fed.R.Civ.P. 12(c), because "matters outside the pleadings have been presented to and not excluded by the court," plaintiff's motion shall be treated as one for summary judgment and disposed of as provided in Rule 56. For the reasons set forth herein, I abstain from deciding plaintiff's motion for summary judgment pending a determination as to plaintiff's second cause of action by the state court. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941) *fn3" In addition, defendant's motion to amend its answer to add the defense of failure to state a violation of constitutional rights is granted; as to the defense of collateral estoppel and res judicata, the motion to amend is denied.


 The material facts underlying the instant action are not in dispute. At the center of controversy is the unique nature of the water resources of Long Island, i.e., the Counties of Nassau and Suffolk. The groundwaters of Long Island have been federally designated as a "sole source acquifier;" that is, these counties possess an acquifier, or water table, that constitutes "the only or primary drinking water source for the area, and which, if contaminated, would create a significant hazard to public health." N.Y. Envtl. Conserv. Law § 15-0514 (1)(d) (effective on the 180th day after August 8, 1983).This situation exists because the groundwater of Long Island is replenished only by precipitation. The movement of precipitation through the soil to recharge the underground water table is slow and is, therefore, more susceptible to contamination on its way to the water table.

 In the instant dispute, Jancyn, a Georgia corporation, is engaged in the manufacture, sale and distribution of various products, including several cesspool additive products. Prior to and during the early part of 1980, plaintiff freely sold certain of its cesspool additive products in Suffolk County, including the formulas known as "Drainz" and "Super Strength Drainz."

 On or about April 8, 1980, the County Legislature of defendant Suffolk County enacted Local Law No. 12 to regulate the sale and use of cesspool products within the County. This law required approval by the County Commissioner of the Department of Health Services ("the Commissioner") prior to the sale or other distribution of cesspool additives in Suffolk County. The operative sections of the statute provide as follows:

 Section 3. Prohibition of Sale. No person shall sell, exchange, give, dispose of to another, offer or agree to do the same, any organic (chemicals) or (compounds) for the purposes of cleaning or unclogging sewer lines and/or individual sewage disposal systems unless approval is first obtained from the commissioner.

 Section 4. Prior Approval of Cesspool Additives Required. Before any cesspool additive is offered for sale in Suffolk County, approval must first be obtained from the commissioner by submitting scientific data which is considered satisfactory to the commissioner, demonstrating that the organic (chemicals) or (compounds) which is to be sold for the purposes of cleaning or unclogging sewer lines and/or individual sewage disposal systems will not adversely affect the groundwaters.

 (relevant portions emphasized). In addition to its requirment of prior approval by the Commissioner, the local law provides for criminal and civil penalties for violation of section 3 or 4, and permits the County to enforce the local law in any court of competent jurisdiction. *fn4" Plaintiff alleges that no specific standards or procedures for the use or sale of the regulated products were promulgated at the time of the enactment of the statute or when it was approved by the County Executive on May 8, 1980. *fn5" The law became effective August 12, 1980.

 Shortly after the enactment of Local Law No. 12, plaintiff and defendant engaged in a series of correspondence and interactions regarding the applicability of the law to plaintiff's products. On or about May 15, 1980, plaintiff requested approval from the Commissioner for the continued sale in Suffolk County of "Drainz" and "Super Strength Drainz" and submitted a list of the chemicals constituting these products.On Jun 9, 1983, the Commissioner wrote plaintiff's president, Richard W. Budd, directing plaintiff to comply with its burden of proving that its products would not "adversely affect the groundwaters," as required by section 4 of the new law. The letter stated in relevant part:

 If you wish to continue selling cesspool products in Suffolk County [after the effective date of the statute], you must submit information concerning your products in accordance with Section 4 of the law. . . . We asume that you have tested your (products) for effectiveness in unclogging cesspools. In carrying out that testing we further assume that you have collected information relating to the groundwater. It is the latter test results which will be needed to assess your (products) impact [sic] on the groundwater of Suffolk County and compliance with the law.

 The letter further advised plaintiff that an application form including the procedure for approval would soon be sent to all known manufactureres of cesspool additives. By letter dated July 23, 1980, the Department of Health Services supplied these manufacturers with an application for a permit to market the regulated products in Suffolk County. Neither the letter nor the accompanying application stated any specific standard for determination of the acceptability of any additive product. Rather, the letter reiterated the legislative effect that "the local law places the burden of proof on industry to assure that cesspool additives do not adversely affect our groundwaters." The Department also noted its reservaton of the right to reject any incomplete application forms. *fn6"

 On or about August 6, 1980, plaintiff submitted the required application to defendant.In early August 1980, plaintiff alleges that it also reformulated Drainz to eliminate certain ingredients previously criticized as suspected carcinogens and notified the defendant County as to such reformulation. *fn7" A meeting between the plaintiff and representatives of the defendant's Department of Health took place on August 20, 1980, at which the application was discussed. According to defendant, the application was incomplete, in that it did not contain sufficient data to assess the effect of plaintiff's products on the groundwaters of Suffolk County. Therefore, further information concerning biodegradability and toxicity of the chemical components of the products was requested. Plaintiff asserts that it was at the August 20 meeting that plaintiff was first informed that to be approved, the regulated products were subject to "additional requirements" such as biodegradability. *fn8" Soon thereafter, plaintiff supplied additional information to defendant which apparently still did not suffice for defendant to consider plaintiff's application. Therefore, plaintiff was advised in September 1980 to remove its products from the market in Suffolk County, and these products were subsequently prohibited after September 15, 1980. These products, however, were not prohibited for sale in Nassau County, which shares the same acquifier as defendant Suffolk County.

 On December 1, 1980, defendant's Department of Health Services granted plaintiff a six-month temporary permit to sell "New Concentrated Formula" Drainz and Super Strength Drainz in Suffolk County on condition that plaintiff perform and submit the results of a field test to demonstrate that these products would not adversely affect the groundwaters of the County. The Department informed plaintiff that such a time period would permit Jancyn, "if it so desired," "to perform a field study in Suffolk County to demonstrate that the parent compounds or their transformation products do not reach the groundwater." Id. On July 15, 1981, following the expiration of the temporary permit, plaintiff informed the Department of its conclusion that further testing of Drainz would be cancelled due to the expense of such testing. *fn9"

 During this period of interchange between plaintiff and defendant concerning the application of Local Law No. 12 to the sale or use of plaintiff's products in Suffolk County, the New York State Legislature enacted Article 39 of the State Environmental Conservation Law, N.Y. Envtl. Conserv. Law §§ 39-0101 - 39-0107 (hereinafter "ECL 39"). In enacting this statute, the legislature voiced its concern with the conservation of the groundwaters of Long Island shared by the defendant County when it enacted Local Law No. 12: "It is declared to be the public policy of this state to prevent the pollution of water resources in restricted geographical areas through the use of sewage system cleaners and additives by establishing a regulatory program restricting the use of such products." N.Y. Envtl. Conserv. Law § 39-0101.The statute defined "restricted geographical areas" as Nassau and Suffolk Counties, Id. at § 39-0103(5). The operative provisions of ECL 39 state:

 § 39-0105. Prohibition of sale and use

 1. No person shall distribute, sell, offer or expose for sale in restricted geographical areas any sewage system cleaner or additive containing any restricted mechanical [sic] matter in excess of one part per hundred by weight.

 2. No person shall use, introduce or apply or cause any other person to use, introduce or apply in any sewage system, surface waters, or groundwaters in restricted geographical areas any sewage system cleaner or additive containing any restricted chemical material in excess of one part per hundred.

 The state statute also specifically defined the "restricted chemical material" to be regulated therein. *fn10" ECL 39 became effective on September 28, 1980, nearly seven weeks after the effective date of Local Law No. 12. By letter dated October 23, 1980, the New York State Department of Environmental Conservation ("NYSDEC") informed plaintiff that Drainz and Super Strength Drainz were acceptable under ECL 39, which, as stated supra, applies only to Nassau and Suffolk counties. *fn11" Notwithstanding approval by the Department under ECL 39, however, certain of plaintiff's products continued ...

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