Seggos v. Datre

• Decision Date: 25 January 2022
• Docket Number: 17-CV-2684 (MKB)
• Citation: Seggos v. Datre, 17-CV-2684 (MKB) (E.D. N.Y. Jan 25, 2022)
• Parties: BASIL SEGGOS, as Commissioner of the New York State Department of Environmental Conservation and Trustee of New York State's Natural Resources, and the STATE OF NEW YORK, Plaintiffs, v. THOMAS DATRE, JR., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

BASIL SEGGOS, as Commissioner of the New York State Department of Environmental Conservation and Trustee of New York State's Natural Resources, and the STATE OF NEW YORK, Plaintiffs, v. THOMAS DATRE, JR., et al., Defendants.

No. 17-CV-2684 (MKB)

United States District Court, E.D. New York

January 25, 2022

MEMORANDUM & ORDER

MARGO K. BRODIE, UNITED STATES DISTRICT JUDGE

PlaintiffsBasil Seggos, as Commissioner of the New York State Department of Environmental Conservation(the “DEC”), and the State of New York commenced this action on May 4, 2017, against two categories of Defendants - “Operator/Transporter Defendants, ” who allegedly transported construction waste containing hazardous substances from construction sites to Roberto Clemente Park in Brentwood, New York (the “Park”), and “Arranger Defendants, ” who either (1) allegedly acted as brokers between the construction site operators and Operator/Transporter Defendants for the removal and disposal of waste or (2) were allegedly contractors or subcontractors at the construction sites where the waste was generated - asserting claims pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq.,New York Real Property Actions and Proceedings Law § 841 and New York common law.(Compl. ¶¶ 5-43, Docket EntryNo. 1.)Plaintiffs contend that Defendants transported and then dumped “tens of thousands of tons” of construction and demolition debris containing hazardous materials at the Park.(Id.¶ 1.)Following a lengthy procedural history discussed further below, which includes Judge Sandra J. Feuerstein's August 5, 2019 Order directing that all other issues in this case be stayed until the Court decided the timeliness of Plaintiffs' CERCLA claim, (Order dated Aug. 4, 2019(the “August 2019 Order”), ^[1]Docket EntryNo. 386), twelve Defendants move for partial summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on the grounds that Plaintiffs' CERCLA claim for natural resource damages is time-barred as a matter of law.^[2](Defs.' Mem. in Supp. of Defs.' Mot. (“Defs.'Mem.”), Docket EntryNo. 415-42;Defs.' Reply in Supp. of Defs.' Mot (“Defs.'Reply”), Docket EntryNo. 415-93.)Plaintiffs oppose the motion.(Pls.' Mem. in Opp'n to Defs.' Mot. (“Pls.'Opp'n”), Docket EntryNo. 415-44.)

For the reasons set forth below, the Court denies Defendants' motion.

I.Background

The following facts are undisputed unless otherwise noted.^[3]a. Factual background

i. DEC structure and protocol

The DEC consists of several branches.The Division of Law Enforcement(the “DLE”) is the law enforcement branch and consists of a force of New York State police officers made up of investigators and Environmental Conservation Officers (“ECOs”).(Defs.' 56.1¶ 8.)DLE officers are trained to identify potential solid waste and solid waste violations.(Id.¶ 9.)Investigation of a potential solid waste violation, including illegal dumping of solid waste, typically begins with a DLE officer or personnel from the DEC's Division of Material Management(“DMM”) visiting the site.(Id.¶ 17;Pls.' 56.1¶ 17.)Officers typically photograph the site to document violations and make an initial assessment of whether there is a potential solid waste violation.(Defs.' 56.1¶ 17.)DLE officers then consult with DMM's environmental engineers, who characterize the nature of the material.(Pls.' 56.1¶ 9;Defs.' 56.1¶ 18.)DMM engineers are aware of visual indicators of hazardous substances in solid waste.(Defs.' 56.1¶ 22.)The material then undergoes chemical analysis.(Id.¶ 18.)To perform chemical analysis, the solid waste must be sampled.^[4](Id.¶ 32.)

The timing for scheduling the chemical sampling varies, but this is typically done in the range of one to three weeks “at the latest.”(Defs.' 56.1¶ 19(quoting Dep. of Lt. Frank Lapinski, former Investigative Lieutenant with the Bureau of Environmental Crime Investigations (“BECI”) division of the DLE (“Lapinski Dep.”) 34:16-23, 105:14-24, annexed to Pls.'Opp'n as Ex. 4, Docket EntryNo. 415-49).)Chemical testing results can be obtained within seven days of submission to the lab.(Id.¶ 34.)In 2013 and 2014, the DEC had the ability to sample soil for hazardous substances.(Id.¶ 33.)Items can be tested for asbestos by putting those items underneath a microscope.(Id.¶ 35.)Whether those items contain asbestos can be determined in a single day.(Id.)

For higher-level crimes, it is standard for ECOs to cede control of investigations to BECI officers.(Pls.' Counter-Stmt.¶ 13.)

ii.Contents of waste and debris

Construction waste from New York City typically contains hazardous substances.(Defs.' 56.1¶ 1)Indeed, the majority of the soil in New York City contains hazardous substances, including semi-volatile organic compounds (“SVOCs”), metals, and pesticides.(Id.¶ 2.)Metals that are commonly found in soil in New York City include lead, chromium, nickel, copper, zinc, and cadmium.(Id.¶ 3.)Construction and demolition (“C&D”) debris from construction waste in New York City typically contains hazardous substances unless they have been removed.(Id.¶ 7.)Dumping C&D debris in a public park constitutes a solid waste violation.(Id.¶ 10.)Dumping solid waste can be a crime even if the material does not contain hazardous substances.(Pls.' Counter-Stmt.¶ 5.)Hazardous substances are distinct from hazardous waste.(Id.¶ 6.)

The presence of C&D debris in solid waste, when comingled with other materials, could be an indicator that the waste contains hazardous substances.(Defs.' 56.1¶ 23.)Abnormal coloration or odor is an indication that the material could potentially be contaminated.(Id.¶ 24.)

Coloration in soil that is not typical is another indicator of the presence of hazardous substances in C&D debris.(Id.¶ 25.)Chemical odors, such as the smell of petroleum or a musky smell, can also indicate the presence of hazardous substances in C&D debris.(Id.¶ 26.)Observation of asbestos-containing material or suspected asbestos-containing material in solid waste indicates that the waste may contain hazardous substances.(Id.¶ 27.)Asbestos is listed as a hazardous substance in CERCLA regulations (40 C.F.R. § 302.4) and the DEC's list of hazardous substances (6 NYCRR § 597.3).^[5](Id.)The presence of unrecognizable debris - pulverized, crushed material - also indicates that the waste is potentially chemically contaminated.(Id.¶ 28.)If solid waste is unrecognizable, the waste has to be tested for the presence of any chemical contamination through chemical analysis.(Id.¶ 31.)

Defendants contend that DLE officers are aware of visual indicators of C&D debris, such as the presence of multi-colored fines or slag.^[6](Id.¶ 20.)Plaintiffs contend that fines and slag are potential indicators of chemical contamination, not C&D.(Pls.' 56.1¶ 20.)iii.July 2013 Sage Street Site investigation

On July 26, 2013, in response to an anonymous complaint, Pappachan Daniel, an environmental engineer with the DMM, visited a site at 1625 Islip Avenue in Central Islip, located at Islip Avenue and Sage Street(the “Sage Street Site”).(Defs.' 56.1¶ 36.)The Sage Street Site is about 1.5 miles from the Park.(Id.)At the Sage Street Site, Daniel found waste consisting of C&D debris, including concrete, asphalt, and bricks mixed with soil.(Id.¶ 38.)These materials had been illegally disposed of without a permit or authorization.(Id.)Daniel could not access the site directly but took pictures of the waste materials he observed and of a license plate of a truck parked at the Sage Street Site.(Id.¶ 37.)The C&D debris from the Sage Street Site was “overflowing onto the sidewalks and into the neighboring areas.”(Id.¶ 39(quoting Dep. of ECO Jeffrey Hull, who at the relevant times was a DEC ECO of New York Region 1, which encompasses the relevant area in this action (“Hull Dep.”) 61:9-16, annexed to Pls.'Opp'n as Ex. 3, Docket EntryNo. 415-48).)By this time, the DEC was familiar with non-moving DefendantThomas Datre, Jr., who had committed prior environmental violations and who was then the subject of a criminal investigation undertaken by the Suffolk County District Attorney(the “SCDA”).(Id.¶ 40.)

On July 29, 2013, Peter Scully, Regional Director of DEC Region 1, recognized a truck in one of Daniel's photographs of the Sage Street Site as a truck that belonged to a company owned by Datre.(Id.¶ 41.)On September 5, 2013, Daniel returned to Sage Street and observed a truck unloading materials.(Id.¶ 42.)During the visit, Daniel met with Christopher Grabe, who introduced himself as being hired by the property manager to clean the site.(Id.)By September 10, 2013, the DEC was aware of a connection between Grabe and Datre involving the Sage Street Site.(Id.¶ 43.)That same day, Scully suggested that the DLE interview Grabe, Datre, and the property owner.(Id.)

Multiple pictures of the Sage Street Site from 2013 show an open gate to the fence surrounding it.(Id.¶ 49.)In the fall of 2013, the DLE attempted to gain access to the Sage Street Site by the owner's consent by planning to serve a Notice of Violation.(Id.¶ 44.)The DLE was unable to serve the property owner with the Notice.(Id.)The DEC asked the SCDA to issue a search warrant for the Sage Street Site, but its request was denied.(Id.¶ 45.)Because the DEC did not have access to the site, (id.¶ 48), the DEC did not sample or test the waste of the Sage Street Site until in or after May of 2014, (id.¶ 47).

On May 1, 2014, Detective Ted Severino, who was assigned to the SCDA's Environmental Crimes Unit, found two pieces of “transite shingle” that spilled out onto Sage Street from the...