New York v. Gen. Elec. Co.
| Decision Date | 31 March 2017 |
| Docket Number | No. 1:14-CV-747 (CFH),1:14-CV-747 (CFH) |
| Parties | STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, and JOSEPH MARTENS, as Commissioner of the New York State Department of Environmental Conservation, Plaintiffs, v. GENERAL ELECTRIC COMPANY, Defendant. |
| Court | U.S. District Court — Northern District of New York |
JOSEPH M. KOWALCZYK, ESQ.
MAUREEN F. LEARY, ESQ.
LISA M. BURIANEK, ESQ.
ROBERT M. ROSENTHAL, ESQ.
WILLIAM A. HURST, ESQ.
STEVEN C. RUSSO, ESQ.
STEVEN C. RUSSO, ESQ.
MEMORANDUM-DECISION AND ORDER
In this action1 by plaintiffs the State of New York, the New York State Department of Environmental Conservation ("DEC"), and Joseph Martens, as Commissioner of the New York State Department of Environmental Conservation (collectively, where appropriate, "the State") pursuant to Comprehensive Environmental Remediation, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601 et seq. to recover costs incurred responding to the release of hazardous substances at 51 and 53 Luzerne Road, Queensbury, New York.2 Presently pending is defendant General Electric Company's ("GE") motion for summary judgment seeking to dismiss the complaint in its entirety, Dkt. No. 46, and the State's competing motion for partial summary judgment as to liability, Dkt. No. 47. Both parties have opposed their opponents' motions.3 Dkt. Nos. 48, 49. Both parties have filed replies. Dkt. Nos. 56, 58. The State filed a counter-statement of facts and statement of additional facts inresponse to GE's motion for summary judgment. Dkt. No. 49. GE filed objections to both the State's statement of material facts in support of the State's motion for partial summary judgment and its counter-statement of facts/statement of additional facts. Dkt. Nos. 48-1, 57. For the reasons that follow, GE's motion for summary judgment is granted in part and denied in part, and the State's motion for partial summary judgment is denied.
The State commenced this action seeking recovery of costs under pursuant to CERCLA, 42 U.S.C. §§ 9601 et seq. and State common law for the alleged release of polychlorinated biphenyl ("PCB") which contaminated property at 53 Luzerne Road. See generally Compl. The State contends that, from 1952 to 1965, GE arranged for the disposal of scrap capacitors with Richard Alkes, the former owner of 53 Luzerne Road, who owned a scrap yard on the rear portion of the property.5 Compl. at 3. In June 1979, the State became aware that there was PCB contamination at 53 Luzerne Road. In August 1979, the Department of Health ("DOH") listed six residential properties in Queensbury as hazardous to human health - the 53 Luzerne Road property was not listed among these properties. Dkt. No. 49-1 at 6, 21.
In October 1979, following approval by the Environmental Protection Agency ("EPA"), the State, pursuant to an agreement with the DOH, City of Glens Falls, Warren County, and the Town of Queensbury, excavated materials amounting to approximately 13,000 cubic yards of waste from the rear portion of 53 Luzerne Road - the portion that contained the Alkes scrap yard - along with six residential properties. Dkt. No. 49-1 at 15. The State constructed a containment cell,6 referred to as the West Glens Falls PCB Facility, on 51 Luzerne Road,7 a nearby land parcel, and deposited capacitors8 and contaminated soil from 53 Luzerne Road and six nearby residential properties into the cell. Dkt. No. 47-9 at 12. The containment cell reached capacity before all of the PCB contaminated waste could be added; thus, the State was unable to remove all contaminated soils from 53 Luzerne. Dkt. No. 48-1 at 10. In 1981, the State, in agreement with Warren County, installed an "organic cap" over the portion of 53 Luzerne Road that was the location of the former Akles scrap yard because PCBs that remained were "volatilizing from this area at an unacceptable rate." Dkt. No. 46-3 at 297-98.
In 1980, the State released its first list of hazardous waste sites, "HazardousWaste Disposal Sites in New York State - First Annual Report," pursuant to the Inactive Hazardous Waste Disposal Site Act (L.1979, ch. 282), Environmental Conservation Law Article 27, Title 13 ("Act"), which required the State to "transmit a report to the Legislature and the Governor identifying every inactive hazardous waste disposal site." Dkt. No. 49-1 at 21-22.9 The Act also required the State to maintain required DEC to "maintain and make available the Registry - a document that has been available for public review since 1980 - for public inspection at each of its regional offices and sub offices." Id. at 22. In the First Annual Report, the containment cell was listed under classification code "E." Id. at 23-24. Sites listed under classification code E were defined as "remedial work is completed," "the need for scheduled surveillance and chemical analysis for a properly closed or maintained site." Id. The Act was amended in 1982, requiring the State to classify all hazardous waste sites in the Registry pursuant to a classification system it set out.10 Dkt. No. 49-1 at 26-27. In 1983, DEC listed the containment cell in its Annual Report as "Classification 4," which meant that the site was closed, but monitoring was needed. Dkt. No. 49-1 at 26. DE listed the containment cell under "Classification 4" from 1983 to 1990. Id. at 30.
In the fall of 1980, GE paid $320,000 to the State to contribute toward the cost ofthe cleanup of 53 Luzerne Road. Dkt. No. 49-1 at 24. In Spring 1980, a clay cap was installed on the containment cell. Id. at 14. GE pumped and treated the leachate in the containment cell from the containment cell from 1980 to 1985. Id. at 17. In 1985 or 1986, the State updated the existing clay cap of the containment cell to a poly vinyl chloride liner with a twenty-year life expectancy. Id. at 12. In 1986, the State became the record owner of 51 Luzerne Road. Id. at 18. Also in 1986, the State listed 53 Luzerne Road in the Registry of Inactive Hazardous Waste Disposal Sites ("Registry") for the first time.11 Dkt. No. 49-1 at 21. In 1987, the State listed the rear portion of 53 Luzerne Road as the "Luzerne Road Site" in the Annual Report, with AMG Industries as the owner. Id. at 37. In March or April of 1990, the "Luzerne Road Site" was "delisted" from the Registry, and merged as an "operable unit" of the Luzerne Road site.12 Dkt. No. 49-1 at 37. From 1991 to 2000, the annual reported referred to the "Luzerne Road Site" as a "remedial action" that had been "completed[,]" that "[a]dditional investigation is needed[,]" and that "[g]roundwater contamination" is possible." Dkt. No. 46-4 at 4-5.
In 1991, the State sought to change the acceptable leachate elevation level in the containment cell from two to ten feet. Dkt. No. 49-1 at 42. Between August 1989 and March 1991, the leachate level dropped from 10.6 feet to 9.2 feet. Dkt. No. 49-1 at 43. In March 1995, the leachate level of the containment cell was measured to be 7.2 feet. Id. at 44. In June 1995, the State informed the EPA that the containment cell wasleaking. Id. Also in June 1995, the State sent GE a letter informing GE that the State was pumping PCB-contaminated ground water from the containment cell and identifying GE as a party potentially responsible for the contamination. Id. at 44-45. In February 1996, GE informed the State that the containment cell was the State's responsibility, and not GE's. Id. at 46. In the 1996,13 the State changed the description of the containment cell listed in the Registry.14
In 2002, the State issued a Remedial Investigation Report/Feasibility Study ("RI/FS") of the containment cell. Rosenthal Dec. Exh. 48 at 1. The RI/FS characterized the containment cell as "a cell to temporarily store the PCB-containing soils." Dkt. No. 49-1 at 49 (citing Rosenthal Dec. Exh. 49 at 2). In December 2004, the State issued a Proposed Remedial Action Plan ("PRAP") which divided the clean upactions into three operable units - operable unit 1 ("OU1"), the initial excavation of 53 Luzerne Road, the Alkes Site, in 1979; operable unit 2 ("OU2"), the containment cell on the rear portion of 51 Luzerne Road and the "surface souls on the rest of the 51 Luzerne Road property, and the back lot of the 53 Luzerne Road property"; and operable unit 3 ("OU3"), the subject of the PARP and PCB groundwater plume. Dkt. No. 49-1 at 50. The PARP proposed a remedy for OU2, and listed various alternatives for soil and groundwater treatment. Id. The PARP recommended soil alternative 4, which it defined as "consist[ing] pf excavation and thermally treating contaminated soils that exceed the remedial action objective for PCBs of 1 ppm in the surface soils and 10 ppm in the subsurface soils." Id.
In March 2005, the State issued a record of decision ("ROD"), selecting soil alternative four - which allowed for off-site treatment, and groundwater alternative 2. Dkt. No. 49-1 at 51 (citing Rosenthal Decl. Exh. 52 at 19). The ROD estimated the total cost of the selected remedy to be $22.255 million. Dkt. No. 49-1 at 51-52. In December 2007, the State rejected the sole bid it received for the option selected in the ROD. Dkt. No. 49-1 at 54. In February 2008, the State issued an Explanation of Significant Differences ("ESD"), choosing a treatment option different from that set forth in the ROD - excavation and off-side disposal of waste containing PCBs higher than 50 ppm in an approved landfill. Dkt. No. 49-1 at 54. The ROD did not mention any off-site treatment or disposal. Id. The combined cost of...
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