case 2:06-cv-06650-erk-arl document 7 filed …...case 2:06-cv-06650-erk-arl document 7 filed...

Case 2:06-cv-06650-ERK-ARL Document 7 Filed 02/02/2007 of 49

Case 2:06-cv-06650-ERK-ARL Document 7 Filed 02/02/2007 of 49

s/Edward R. Korman

UNITED STATES DISTRICT COUR TEASTERN DISTRICT OF NEW YOR K XThe State of New York an dDenise M. Sheehan, as Commissioner of th eNew York State Department of Environmental Conservation ,

Plaintiffs ,vs.

CV 06 - 6650

Arthur M. Lane & Son, Inc ., Blackman PlumbingSupply Co ., Inc., Bulova Corporation, C.W. Pulver, Inc . ,Coca-Cola Enterprises Inc ., Colossal Carting Corp .d/b/a S&P Sanitation, Corwith's Auto-Body, Inc ., County ofSuffolk, Emil Norsic & Son, Inc., Hampton Jitney, Inc . ,HSBC USA, Inc., J.P. Morgan Chase & Co.,James H. Rambo, Inc., Kraft Foods Global, Inc., Long IslandLighting Company d/b/a LIPA/KeySpan Corporation ,Metropolitan Transportation Authority/Long Island RailRoad, Northrop Grumman Corporation, RadioShac kCorporation, Rite Aid of New York, Inc., Sears HoldingsCorporation, 7-Eleven, Inc ., Southampton College of LongIsland University, Southampton Hospital Association ,Southampton Union Free School District, Suburban AutoService Inc., Suburban Sanitation, Inc., Suffolk CementProducts, Inc., The Great Atlantic & Pacific Tea Co ., Inc . ,The Sag Harbor Industries, Inc . and Town of Southampton,

Defendants X

NATURE OF THE ACTIO N

I . The State of New York and Denise M . Sheehan, as Commissoner of the New Yor k

State Department of Environmental Conservation (NYSDEC) and as Trustee of its Natura l

Resources (together the State), by their attorney, Eliot Spitzer, Attorney General of the State o f

New York, bring this civil action pursuant to the Comprehensive Environmental Response ,

Compensation and Liability Act of 1980, 42 U .S .C . § 9601 et seq . (CERCLA), as amended, and

the common law . The State asserts, on information and belief, that as a result of the disposal of

hazardous substances, there has been a release of hazardous substances from a facility located a t

the intersection of Majors Path and Old Fish Cove Road in the Town of Southampton, Suffol k

County, State of New York, which site is known as the North Sea Municipal Landfill, or Inactive

Hazardous Waste Disposal Site No . 152052 (the Site). These hazardous substances hav e

contaminated the soil and groundwater at and in the vicinity of the Site and have threatened the

public health and the environment . On information and belief, Defendants owned or operated th e

Site or generated and/or transported hazardous substances that were disposed of at the Site. This

action seeks (a) recovery of over $4 million in past and future response costs incurred by the

State in response to the release and threatened release of hazardous substances into th e

environment at and from the Site, and (b) a declaration of each defendant's liability for futur e

response costs, natural resource damages, enforcement costs and interest, and oversight costs tha t

the State has incurred and may incur .

JURISDICTION AND VENUE

2. This Court has jurisdiction over the first cause of action, which arises under the law s

of the United States, pursuant to 28 U.S .C . § 1331, 28 U.S .C . § 2201 and 42 U .S .C .

§§ 9607 and 9613 . The Court has supplemental jurisdiction, under 28 U.S.C . § 1367, for the

remaining causes of action, which are based upon New York statutes and common law and aris e

out of a common nucleus of operative facts shared with the first cause of action . The Court also

has jurisdiction to enter a declaratory judgment under 28 U.S.C . §§ 2201 and 2202, as well as 42

U.S .C. § 9613 .

3. Venue is proper in this District pursuant to 42 U.S.C. § 9613(b) and 28 U.S.C. §

1391(b) because the threatened and actual releases of hazardous substances that give rise to thi s

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action occurred and/or are occurring in this District and the Site is located in this District .

THE PARTIE S

4. Plaintiff State of New York, as a body politic and a sovereign entity, brings this actio n

on behalf of itself and as parens patriae, trustee, guardian, and representative on behalf of al l

residents and citizens of New York, particularly those individuals who live in the vicinity of th e

Site and Suffolk County, New York .

5. Plaintiff Denise M. Sheehan, Commissioner of NYSDEC, and Trustee of New York

State's natural resources pursuant to CERCLA, 42 U .S .C . § 9607(f)(2)(b), brings this action t o

recover damages for injury to, or loss of the State's natural resources .

6. On information and belief, Defendant Town of Southampton (Town) owned an d

operated the Site between 1965 and 1995 and there was a release of hazardous substances from

the Site during the time the Town owned and operated the Site .

7. On information and belief, Defendants Colossal Carting Corp . d/b/a S&P Sanitation ,

Emil Norsic & Son, Inc ., and Suburban Sanitation, Inc . each transported industrial and other

wastes, which materials contained hazardous substances ; each selected the Site for disposal o f

such wastes ; and each disposed of those hazardous substances at the Site .

8. On information and belief, each of the remaining Defendants generated wastes which

contained hazardous substances, each arranged for the disposal of wastes containing hazardou s

substances, and wastes containing hazardous substances generated by each were disposed at th e

Site .

FACTS COMMON TOALL CLAIMS

9. The Site is comprised of landfill Cell #1 and certain former lagoons. Landfill Cell # 1

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was closed by the Town in 1985, and the lagoons were decommissioned by the Town in 1986 .

10. The Site was listed on the federal National Priority List ("NPL") in June 1986, an d

the State's Registry of Inactive hazardous Waste Disposal Sites based on the release of hazardou s

substances at and about the Site .

11. The Town entered into an Administrative Order on Consent with the United State s

Environmental Protection Agency (EPA) in March 1987 to perform a Remedial Investigation and

Feasibility Study (RI/FS) to determine the nature and scope of the contamination, and the

alternative remedies for cleaning up the Site.

12. The RI/FS Reports were completed by the Town, and a Proposed Remedial Actio n

Plan (PRAP) was released to the public, in September 1989 . Also in September 1989, a publi c

comment period and public meeting were held regarding the PRAP .

13. The RI/FS revealed two plumes of groundwater contamination, consisting of heavy

metals (including, but not limited to, cadmium, chromium, lead, iron and manganese), volatil e

organic compounds (including, but limited to, 1,1-dichloroethene, 1,2-dichloroethane ,

tetrachloroethene and trichloroethene), as well as ammonia, nitrate/nitrite and other pollutants .

In addition, soils and surface waters were found to be contaminated .

14. Following the RI/FS, the PRAP, and public comments, the remedy for the Site wa s

selected by the EPA, with the concurrence of the NYSDEC, in two Records of Decision (ROD )

issued in September 1989 and in February 1991 . The remedies selected included a lo w

permeability cap, installation of a fence around the perimeter of the landfill, deed restriction,

sludge/soil sampling of the former sludge lagoons (to confirm that no hazardous materials

presented a risk there), implementation of closure requirements under 6 NYCRR Part 360, an d

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long-term operation, maintenance, and monitoring of the groundwater .

15. The Town entered a second Consent Order with EPA to implement the remedia l

actions .

16. NYSDEC entered into a Consent Order and also a State Assistance Contract (SAC )

in December 1992 that provided over $3 .5 million in State funds for the Town's implementatio n

of the remedies . Pursuant to Environmental Conservation Law (ECL) §§ 27-1313(5)(g) and 52 -

0303, the Commissioner of NYSDEC is authorized to enter into an agreement with a

municipality implementing a remedial program at a municipally-owned inactive hazardous wast e

disposal site and to agree to reimburse up to 75% of the eligible costs incurred by th e

municipality in the course of the remedial program .

17. The State incurred additional response costs at the Site of approximately $1 . 5

million .

FIRST CLAIM FOR RELIE FCERCLA

18. The Site is a "facility" under CERCLA, 42 U .S .C. § 9601(9) .

19. Among the chemicals that were released and that threaten to be released into th e

environment from the facility are hazardous substances, which contaminated the environment,

including soils, surface waters, and groundwater, within the meaning of CERCLA, 42 U .S .C .

§§ 9601(14) and 9601(22) .

20. The release and threatened release of hazardous substances have caused the State t o

incur response costs for investigation, reimbursements to the Town, pursuant to the SAC ,

oversight, and related activities . The State will incur further response costs as defined i n

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CERCLA, 42 U.S .C. § 9601, for such reimbursements, monitoring, oversight and enforcement.

21. The response costs mentioned above are costs of removal or remedial action with th e

meaning of CERCLA, 42 U .S.C . §§ 9601(23), (24), (25), (31) and 42 U.S.C. § 9607(a). The

State is entitled to recover from responsible persons all response costs for remedial actions tha t

are not inconsistent with the National Oil and Hazardous Substances Pollution Contingency Plan ,

40 C.F.R. Part 300, under 42 U .S .C. § 9607 .

22. Pursuant to CERCLA, 42 U .S .C . § 9607(a), Defendants are liable as owners or

operators at the time of disposal, as current owners or operators, as transporters of hazardou s

substances who selected the Site for the disposal of these hazardous substances, and who di d

dispose of these hazardous substances at the Site, and/or as generators of materials containing

hazardous substances, which materials were disposed at the Site .

23. Each Defendant is strictly, jointly and severally liable to the State for past respons e

costs incurred by the State in response to the release or threatened release at and from the Site .

24. Pursuant to CERCLA, 42 U .S .C. §§ 9607 and 9613, each Defendant is strictly ,

jointly and severally liable for future response costs to be incurred by the State as a result of the

release or threatened release of hazardous substances at and from the Site .

25. The release of hazardous substances into the environment has caused injury to,

destruction of and/or loss of the natural resources of the State within the meaning of CERCLA ,

42 U.S .C. § 9607 .

26. Pursuant to CERCLA, 42 U .S.C. §§ 9607 and 9613, each Defendant is strictly ,

jointly and severally liable for any natural resource damages .

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SECOND CLAIM FOR RELIE FUNJUST ENRICHMENT AND RESTITUTION

27. At times relevant hereto, Defendants had and continue to have a duty and obligatio n

to the public to investigate the scope of and abate completely and permanently the contaminatio n

described herein, and to alleviate the harm and risk of harm resulting from the contamination .

28. Defendants have failed to perform their duties and obligations in such circumstances .

29. The State has the duty and obligation to protect the public health and th e

environment and to remediate Inactive Hazardous Waste Disposal Sites pursuant to ECL §§ 3-

0301, 27-1301 et seq., and other environmental and public health laws of the State .

30. Because of Defendants' failure to perform their duties and obligations, the State ha s

had to investigate the scope of and abate the chemical contamination at and near the Site at th e

State's expense .

31. In taking the action and incurring the expenses set forth herein, the State has

performed duties and obligations owed by Defendants .

32. The actions taken and expenses incurred by the State were necessary to ensure th e

health, safety and well-being of the public and the environment of the State .

33. Defendants have been unjustly enriched by the State's performance of these dutie s

and obligations owed by Defendants .

34. The State is entitled to restitution from Defendants for the expenses incurred by it i n

performing Defendants' duties and obligations .

35. The State has no adequate remedy at law .

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THIRD CLAIM FOR RELIEFINDEMNIFICATIO N

36. Defendants are liable to the State for the costs of investigating and remediating th e

Site, pursuant to CERCLA and the common law of public nuisance and restitution .

37. By reason of the State's payments for the costs of investigation and remediation o f

the Site, the State obtained by operation of law an implied right to indemnification against th e

Defendants, and each of them, in the amount of such payments .

38. As a result, the State is entitled to judgment against the Defendants, and each of

them, for all costs which the State has incurred or will incur at the Site .

FOURTH CLAIM FOR RELIE FPUBLIC NUISANCE

39. The release of hazardous substances from the Site and their presence in th e

environment, including groundwater, at and in the vicinity of the Site constitute a continuin g

public nuisance .

40. Defendants participated in the creation of this continuing public nuisance at and i n

the vicinity of the Site .

41. The State incurred costs to abate the public nuisance at this Site.

42. Defendants are liable to the State under the common law of public nuisance and th e

New York Real Property and Proceedings Law, Section 841, for all costs, damages, and expenses

arising from the State's abatement of this public nuisance .

PRAYER FOR RELIE F

WHEREFORE, the State requests judgment in its favor and against each Defendant upo n

each claim and, further, requests that this Honorable Court enter judgment against eac h

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Defendant :

1. Declaring each Defendant to be strictly, and jointly and severally, liable to the Stat e

under CERCLA for, and awarding to the State, all costs and expenses, including interest ,

attorneys' fees and other costs of enforcement, incurred by the State in responding to the releas e

or threat of release of hazardous substances at the Site, and damages to the State's natura l

resources .

2. Declaring each Defendant to be strictly, and jointly and severally, liable to the Stat e

under CERCLA for all future response costs and expenses, including interest, attorneys' fees an d

other costs of enforcement, to be incurred by the State in responding to the release or threat o f

release of hazardous substances, and future damages to the State's natural resources .

3. Declaring each Defendant strictly, and jointly and severally, liable to the State for eac h

Defendant's unjust enrichment as a result of the State's actions ; awarding the State restitution for

its costs incurred at the Site; and, declaring each Defendant to be strictly, and jointly an d

severally liable to the State for all future costs and expenses, including interest, attorneys' fee s

and other costs of enforcement to be incurred by the State in responding to the release or threat o f

release of hazardous substances, and damages to the State's natural resources .

4. Declaring each Defendant strictly, and jointly and severally, liable to the State for th e

costs of abating the public nuisance at and about the Site ; awarding the State restitution of it s

costs incurred at the Site, and declaring each Defendant to be strictly, and jointly and severall y

liable to the State for all future costs and expenses, including interest, attorneys' fees and othe r

costs of enforcement to be incurred by the State in responding to the release or threat of releas e

of hazardous substances, for abatement of the public nuisance, and damages to the State's natura l

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resources .

5 . Ordering such other and further relief, in law or in equity, as the Court deems just an d

proper .

Dated : New York, New Yor kDecember i

, 2006

ELIOT SPITZERAttorney General of the State of New YorkAttorney for Plaintiffs

By : 1-- /IA,ROBERT EMMET HERNAN (RH-2652 )Assistant Attorney GeneralNew York State Department of La wEnvironmental Protection Bureau120 Broadway, 26th Fl .New York, New York 1027 1(212) 416-846 1

Of Counsel :

Larry S . Eckhaus, Esq .Division of Environmental Enforcemen tNew York State Department of Environmental Conservation625 BroadwayAlbany, New York 12233-5500(518) 402-9516

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Case 2:06-cv-06650-ERK-ARL Document 10 Filed 04/23/2007 Page 1 of 17

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