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January 16, 1996

DISTRICT OF COLUMBIA, et al., Defendants.

James Robertson, United States District Judge

The opinion of the court was delivered by: ROBERTSON

Plaintiff Tri-County Industries, Inc., a Maryland corporation in the business of removing underground fuel storage tanks and remediating contaminated soil, alleges that the District of Columbia, and various of its agents acting in their official capacities, illegally suspended the building permit and air quality permit issued to Tri County for the construction of a soil remediation facility. Tri-County asserts claims under 42 U.S.C. § 1983 for violation of its due process rights and for unconstitutional impairment of contract. Tri-County also asserts common law claims. Before the Court are Tri-County's motion for partial summary judgment and the motion of defendants to dismiss or for summary judgment.

 I. Background

 In July 1992, Tri-County applied to D.C.'s Department of Consumer and Regulatory Affairs (DCRA) for the permits necessary to build and operate a new soil remediation facility at 2115 Bryant Street, N.E. *fn1" On December 11 of the same year, DCRA's Environmental Regulation Administration (ERA) issued an air quality operating permit that was to be valid upon the issuance of a building permit. On December 22, ERA notified Tri-County that the soil remediation project could proceed without the filing of an environmental impact statement, but that the "project is still governed by all other applicable District and Federal laws and regulations and will be subject to normal reviews during the permitting and construction process." On February 26, 1993, DCRA issued building permit No. B378978, permitting Tri-County to renovate a warehouse to accommodate the soil remediation plant.

 On September 7, 1993, when the warehouse renovation work was in progress and Tri-County was awaiting the delivery of its soil remediation equipment, ERA issued a citation charging Tri-County with occupying the site as a soil remediation facility -- storing 500 tons of contaminated soil at the site -- without a certificate of occupancy. The citation required payment of a $ 500 fine within fifteen days. Tri-County did not pay the fine.

 Two days later, on September 22, DCRA posted a "stop work order" at the plant site. *fn2" On October 15, DCRA sent a letter to Tri-County requesting more information about the proposed plant and its potential environmental impact on the community. Tri-County did not respond.

 On December 6, having received no response from Tri-County, DCRA rescinded the air quality permit and environmental approval letter issued on December 11 and December 22, 1992. DCRA also notified Tri-County that it would move to revoke the building permit (after procedures and a hearing in accordance with local law), and that Tri-County must immediately remove all contaminated soils from the site.

 Tri-County sought no relief from the suspension of the building permit on September 20, or the stop work order of September 22, or the DCRA request for more information on October 15, or the rescission and revocation actions of December 6. Nor did Tri-County seek administrative or judicial review of any of these actions. Instead, Tri-County takes the position today that the September 20, 1993, suspension rendered the project economically unfeasible. Tri-County filed this action on September 20, 1994.

 II. Due Process

 The complaint alleges that defendants' September 20 suspension of the building permit and its December 6 rescission of the environmental approval violated the procedural and substantive due process guarantees of the United States Constitution. The undisputed facts provide no support for those allegations, however, and defendants are entitled to summary judgment on plaintiff's due process claims.

 a. Substantive due process

 Neither the Supreme Court nor the Court of Appeals for this Circuit has enunciated an objective standard for deciding which governmental lapses are substantive due process violations redressable under 42 U.S.C. § 1983. The Court of Appeals has said, however, that "a plaintiff must at least show that state officials are guilty of grave unfairness in the discharge of their legal responsibilities" and that "only a substantial infringement of state law prompted by personal or group animus, or a deliberate flouting of the law that trammels significant personal or property rights qualifies for protection under § 1983." Silverman v. Barry, 269 U.S. App. D.C. 327, 845 F.2d 1072, 1080 (D.C. Cir. 1988). Moreover, "inadvertent errors, honest mistakes, agency confusion, even negligence in the performance of official duties, do not warrant redress under this statute." Id. The Silverman court cited with approval a First Circuit decision holding that "purposeful, malicious action" is a prerequisite to a substantive due process claim. See Ortega Cabrera v. Municipality of Bayamon, 562 F.2d 91, 103 (1st Cir. 1977).

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