Incorporated Vil. of Garden City v. Genesco, Inc.

• Decision Date: 27 January 2009
• Docket Number: No. 07-CV-5244 (JFB)(ETB).,07-CV-5244 (JFB)(ETB).
• Citation: 596 F.Supp.2d 587
• Parties: INCORPORATED VILLAGE OF GARDEN CITY, Plaintiff, v. GENESCO, INC. and Gordon-Atlantic Corp., Defendants.
• Court: U.S. District Court — Eastern District of New York

596 F.Supp.2d 587

INCORPORATED VILLAGE OF GARDEN CITY, Plaintiff, v. GENESCO, INC. and Gordon-Atlantic Corp., Defendants.

No. 07-CV-5244 (JFB)(ETB).

United States District Court, E.D. New York.

January 27, 2009.

COPYRIGHT MATERIAL OMITTED

Daniel Riesel, Sive, Paget & Riesel, P.C., Park Avenue, New York, NY, for Plaintiff.

Delight D. Balducci, Periconi, LLC, Christopher Joseph McKenzie, Michael G. Murphy, Stephanie Marie Haggerty, Beveridge & Diamond, P.C., New York, NY, Melissa Ballengee Alexander, Paul A. Alexis, Boult, Cummings, Conners & Berry P.L.C., Nashville, TN, for Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

Plaintiff, the Incorporated Village of Garden City ("plaintiff" or "the Village") brought this action on December 14, 2007 against Genesco, Inc. ("Genesco") and Gordon-Atlantic Corp. ("Gordon-Atlantic"), alleging that defendants bear responsibility for toxins released into the Village's water supply. Plaintiff asserts claims under the following federal laws: (1) the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. ("RCRA"); (2) the Safe Drinking Water Act, 42 U.S.C. §§ 300f et seq. ("SDWA"); and (3) the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq. ("CERCLA"). Plaintiff further asserts the following pendent claims under New York State common law: (1) private nuisance; (2) public nuisance; (3) trespass; (4) negligence; (5) indemnification; and (6) negligence per se. Jurisdiction over plaintiff's state law claims is appropriate pursuant to 28 U.S.C. §§ 1367(a) and 1391(b). Plaintiff seeks injunctive relief under RCRA, SDWA and its state common law claims of private and public nuisance, trespass and negligence, cost recovery under SDWA and CERCLA, and damages under all state law claims.

Defendants now move to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, defendants' motion is granted in part and denied in part.

I. BACKGROUND

A. The Facts

The following facts are taken from the complaint ("Compl.") and are not findings of fact by the Court, but rather are assumed to be true for purposes of deciding this motion and are construed in a light most favorable to plaintiff, the non-moving party.

The Village, a municipal corporation organized under the laws of the State of New York, delivers drinking, or "potable" water to an estimated 21,650 residents of Long Island from an aquifer which draws water from underground public supply wells. (Compl. ¶¶ 4, 9, 10.) Between approximately 1965 and 1969, a former subsidiary of Genesco operated a fabric cutting mill at 150 Fulton Avenue in Garden City Park, New York ("the Site"), a 0.8 acre parcel of land located directly upgradient of three of the public supply wells. (Id. at ¶¶ 5, 12.) The operations of the mill included a dry cleaning machine utilized to clean fabrics, which used significant amounts of tetrachloroethylene ("PCE"), a volative organic compound ("VOC") which is a toxic substance, hazardous waste and suspected carcinogen. (Id. at ¶¶ 2, 13.) The operations used an underground Class V injection well, as defined by 40 C.F.R. § 146.5(e), to inject wastes into the subsurface formation which included PCE. (Id. at ¶¶ 14, 15.) When Genesco's lease expired, it did not properly close the Site's injection well so as to prevent further contaminants from entering the well and into the underground source of Village drinking water. (Id. at ¶¶ 16-17.) Gordon-Atlantic, the current owner of the Site, has also failed to close the well. (Id. at ¶ 18.) Accordingly, PCE did then and continues to flow from the Site into the underground sources of drinking water at levels that violate the New York State Department of Health ("NYSDOH") primary drinking water standards and the New York State Department of Environmental Conservation ("NYSDEC") groundwater quality standards. (Id. at ¶ 19.)

Between 1986 and 1996, the Nassau County Department of Health ("NCDOH") and the Nassau County Department of Public Works ("NCDPW"), along with the NYSDEC, investigated the area within and around the Site to determine the source of VOC impact to a number of area supply wells; these investigations concluded that the Site was a source of VOC contamination of the aquifer from which the Village draws its drinking water. (Id. at ¶¶ 23-25.) Since 1996, such investigations have been overseen primarily by the NYSDEC and the United States Environmental Protection Agency ("EPA"). (Id. at ¶ 23.) In connection with the initial investigation, Genesco retained an environmental consulting firm which conducted further investigation into the PCE contamination; as a part of that inquiry, the NYSDEC, the NYSDOH and Genesco documented that Genesco released a substantial amount of PCE into the environment from the dry cleaning machine and associated injection well at the Site. (Id. at ¶¶ 26-27.) Genesco has further submitted reports to the NYSDEC demonstrating that, as a result of the use and disposal of PCE on the Site, the soil, soil vapors, groundwater and sediments at the Site have been heavily contaminated by PCE, which has impacted the supply wells. (Id. at ¶¶ 28-29.)

In May of 1993, the NYSDEC placed the Site on the Registry of Inactive Hazardous Waste Disposal Sites in New York State and designated it as a "Class 2" site, meaning that hazardous wastes disposed of therein present a significant threat to public health or the environment, warranting action. (Id. at ¶¶ 30-31.) The NYSDEC identified Genesco as a Potentially Responsible Party ("PRP") under CERCLA and entered into an Administrative Order on Consent ("Consent Order") with Genesco that required it to perform a Remedial Investigation and Feasibility Study ("RI/FS") and permitted it to design and implement an Interim Remedial Measure ("IRM") if necessary. (Id. at ¶¶ 32-33.) Genesco has not admitted liability nor committed to any permanent remedial measures. (Id.)

On April 1, 1998, the EPA placed the Site on the National Priority List ("NPL") under CERCLA. (Id. at ¶ 34.) Between August 1998 and December 2001, Genesco conducted an IRM to remove contaminants from the injection well and installed a soil-vapor extraction system to address residual soil contamination. (Id. at ¶ 35.) In November of 2005, the NYSDEC and EPA approved Genesco's RI/FS. (Id. at ¶ 36.) In or about 2007, the EPA assumed management responsibility for the Site investigation and remediation from the NYSDEC and announced a proposed interim remedial plan ("Interim Plan") in February of 2007 that called for the installation of a groundwater extraction and treatment system, the application of chemical oxidation technology, and improving the wellhead treatment for Supply Well Nos. 13 and 14, with an estimated total cost of approximately $10,700,000. (Id. at ¶¶ 37-39.)

Because NYSDOH and NYSDEC regulations prohibit PCE concentration in groundwater at levels exceeding five parts per billion ("ppb") and the Village's Supply Well water concentration levels exceed that figure, the Village has installed, at its own expense, treatment systems to ensure that PCE is removed from the drinking water and that the water meets federal and state drinking water standards. (Id. at ¶¶ 42-48.) To date, no governmental entity has commenced any administrative or judicial enforcement proceeding or action compelling defendants to properly close the injection wells or remove, remediate or control ongoing PCE contamination at the Site, which allegedly continues to threaten the environment as well as the public health. (Id. at ¶¶ 54-56.) According to the complaint, absent remediation, the PCE contamination will migrate to additional public potable water supplies unequipped to treat it until the contamination can no longer be effectively treated. (Id. at ¶¶ 57-61.)

In order to address the PCE contamination at the Site, the Village has hired professionals to assess the contamination, installed a water treatment system and upgraded the technology therein, at a cost in excess of $2,500,000. (Id. at ¶ 62.) The Village estimates that the present day value of past and potential future costs could exceed $41,000,000. (Id. at ¶ 63.) Neither defendant has agreed to reimburse the Village for costs incurred or assume responsibility for effectuating a permanent solution to the contamination. (Id.)

By letter dated December 18, 2006, the Village placed defendants on notice that it intended to sue them as past or present owners or operators of the Site under 42 U.S.C. § 6972(b), as well as pursuant to the SDWA's citizen suit provision for causing an underground injection of contaminants and failing to properly close the injection well. (Id. at ¶¶ 64-65.) On or about November 15, 2006, the Village and Genesco executed a tolling agreement, which has since been extended, by which the parties agreed that for purposes of any applicable statute of limitations, the action was commenced on November 27, 2006¹ and any statutorily required waiting period after citizen suit notice was served was satisfied prior to the commencement of that action. (Id. at ¶ 66.)

In September of 2007, the EPA issued a Record of Decision ("ROD") which selected an interim remedy for part of the site designated as Operable Unit 1. (Id. at ¶ 68.) The interim remedy involves the partial remediation of the groundwater utilizing an extraction and treatment system in conjunction with the application of a chemical oxidation in the vicinity of the original PCE source area, as well as an evaluation of the well-head treatment system installed by the Village at the supply wells. (Id.) The ROD estimated that costs over a thirty-year period will total approximately $10,700,000. (Id.)

B. Procedural History

Plaintiff filed its complaint on December 14, 2007. On April 23, 2008, defendants moved separately to dismiss the complaint. Plaintiff responded on June 23, 2008. Defendant Genesco submitted its...