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Case 2:06-cv-06650-ERK-ARL Document 7 Filed 02/02/2007 Page 1 of 49
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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
2
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
3
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
4
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
5
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 .
6
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 .
7
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
8
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
9
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
10
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