Appeals panel gives Lindenhurst chance in court to reduce recycling tonnage

An appeals court decision on a years-long lawsuit against a recycling company has given Lindenhurst Village officials a chance to make their case again in court for reducing the amount of material the company processes.

The decision, issued last month by the Appellate Division of the state Supreme Court, disagreed with a state Supreme Court justice's December 2017 denial of the village's request to bring One World Recycling back to the company's original 370-ton daily limit.

One World, which abuts a residential neighborhood, in 2009 began using a long-dormant rail spur for transporting commercial waste to be processed, as well as construction and demolition debris.

Neighbors have been upset about what they said are loud noises, foul odors and dust resulting from One World’s operations and fire officials expressed safety concerns about the nearby cross gate remaining down during company operations.

The company had a state Department of Environmental Conservation permit to process 370 tons per day but after superstorm Sandy in 2012 the DEC granted the company an emergency permit for 1,100 tons a day. Years later, the DEC changed One World's permit to 500 tons.

The village in April 2016 filed a lawsuit seeking to get the company back to the 370 daily tonnage and noted the nuisance issues. In its defense, One World stated that only the DEC could establish tonnage and that in citing nuisances the village had not considered "whether these harms also are the result of the other industries in the area."

State Supreme Court Justice Gerard Asher, now retired, sided with One World, stating that he did not have the authority to issue an injunction against One World, that only the DEC can regulate tonnage and that the village failed to show "clear and convincing evidence" of the nuisances from One World.

But the appeals court said the state Supreme Court in fact had the authority to intervene and Lindenhurst could go forward with seeking a permanent injunction enforcing the 370-ton limit.

If the village can prove nuisances from the higher tonnage it is processing and that One World is operating in violation of village zoning code, "then the Village may well be entitled to permanent injunctive relief as an appropriate remedy" the appeals panel wrote.

"Essentially the village had lost the case in its entirety and this ruling by the appellate division is a game changer because it reverses that finding," said village attorney Gerard Glass.

One World attorney Lisa Perillo declined to comment, citing the pending litigation.

Glass said, by ruling, the lower court can preempt the DEC and the village can argue nuisances as a result of the higher tonnage.

The appeals judges "reversed the lower court on both grounds that essentially gutted our theories in this litigation," Glass said.

By Denise M. Bonilla

denise.bonilla@newsday.comdenisebonilla

Denise Bonilla has worked at Newsday since 2003 and covers the Town of Babylon, including the villages of Lindenhurst and Amityville.