State v. Fermenta ASC Corp.
| Decision Date | 04 January 1994 |
| Citation | 160 Misc.2d 187,608 N.Y.S.2d 980 |
| Parties | STATE of New York, Thomas C. Jorling as Commissioner of Environmental Conservation, County of Suffolk, David Harris, M.D., as Commissioner of the Department of Health Services of Suffolk County, Plaintiffs, v. FERMENTA ASC CORPORATION and SDS Biotech Corporation, Defendants. |
| Court | New York Supreme Court |
Robert J. Cimino, County Atty., Hauppauge, for the County of Suffolk.
Beveridge & Diamond, P.C., New York City, for defendants.
This action, brought by the Commissioner of the New York State Department of Environmental Conservation and the Commissioner of the Suffolk County Department of Health Services ("plaintiffs") in September 1989, seeks injunctive relief, damages and penalties with respect to groundwater contamination in Suffolk County by the herbicide dimethyl tetrachloroterephthalate and/or its metabolites. Plaintiffs seek summary judgment declaring that Defendants are liable for the creation of a public nuisance and a permanent injunction. Alternatively, plaintiffs request that the court issue a preliminary injunction. Defendant also seeks summary judgment as well as leave to amend its answer.
Dimethyl tetrachloroterephthalate, which is more commonly known as Dachtal or DCPA, is an herbicide that kills weeds and crabgrass. It is a synthetic organic chemical that was patented in 1960. Diamond Shamrock Corporation first registered pesticide products containing DCPA in 1958 with the Environmental Protection Agency ("EPA") pursuant to the Federal Insecticide, Fungicide and Rodenticide Act ("FIFRA") (7 U.S.C. § 136 et seq.).
In 1971 Diamond Shamrock registered DCPA with New York State, which pursuant to ECL 33-0701 and 1301(1)(a) requires that every pesticide used or sold in New York be registered with the Department of Environmental Conservation ("DEC") every two years.
On December 20, 1983 defendant SDS Biotech Corporation informed the New York State Department of Environmental Conservation that it had replaced Diamond Shamrock Corp. as the registrant for pesticides containing DCPA. SDS Biotech subsequently changed its name to Fermenta Plant Protection Company, Fermenta ASC Corporation and, most recently, ISK Biotech Corporation. These entities will be referred to collectively as "Fermenta".
DCPA performs its function in proximity to germinating seed on or right below the surface. DCPA has low solubility and apparently adheres to soil particles. However, once applied to the soil, DCPA first breaks down to monomethyl tetrachloroterephthalic acid ("MTCPA") and subsequently to tetrachloroterephthalic acid ("TCPA"). It is undisputed that TCPA does not occur naturally in the environment and that it is the metabolite Unlike DCPA, TCPA is highly soluble. According to Dr. Gary Eilrich, Fermenta's vice president of technology, TCPA is 10,000 times more soluble than DCPA which means that TCPA is very mobile in soils and is easily transported through soil by rain.
of DCPA. What is disputed, however, is whether DCPA is the sole parent of TCPA
The New York State Department of Health, which regulates drinking water systems (Public Health Law Sections 201 and 225) has promulgated regulations which are found at 10 NYCRR part 5, subpart 5-1. These regulations were amended in 1988 to establish general organic chemical standards for drinking water, and set a maximum contaminant level (MCL) of 0.05 milligrams per liter or 50 parts per billion ("ppb") for unspecified organic contaminants ("UOC"). This standard applies to TCPA, which is a UOC as defined by the regulations. Prior to 1988 50 ppb for UOC's was merely a guideline and not a standard.
In addition to the Health Department regulations, DEC also has promulgated regulations with respect to drinking water. DEC has classified the three aquifers on Long Island as class GA which is best used as a potable water supply (6 NYCRR 701.15). To protect this resource from degradation, DEC promulgated numerical standards for contaminants in class GA waters (6 NYCRR 703.5). The standard for TCPA in class GA waters is again 50 ppb.
According to William Spitz, an environmental geologist with DEC, the subsurface of Long Island is composed of mostly unconsolidated materials--gravel, sand, silt and clay. Given the porous nature of the subsurface, soluble pollutants are easily transported through the subsoils to the aquifer. Once the aquifer becomes contaminated it remains contaminated and the contamination spreads.
Dennis Moran, the Chief Engineer of the Division of Environmental Quality in the Suffolk County Department of Health Services ("DHS"), states in his affidavit that he first learned in 1981 that Diamond Shamrock had undertaken, in conjunction with the Long Island Horticultural Research Laboratory, a groundwater sampling effort in Suffolk County with respect to DCPA or its metabolite, TCPA. Moran, upon requesting the results, was put in contact with Jerry Lucietta, a manager at Diamond Shamrock, who informed Moran that seven farm wells had been tested in 1979.
In 1980 Diamond Shamrock monitored on a monthly basis six private wells in Riverhead, Orient and East Marion for DCPA or TCPA. According to the report, which Moran received in 1982, of the seven farm wells three had detectable amounts of TCPA ranging from 1.05 to 569.5 ppb. The other well had a level of 96.3 ppb. Of the six private wells being monitored monthly, all six had detectable levels of TCPA ranging from .5 ppb to 891 ppb. Five of the six wells had levels greater than 50 ppb.
Since the testing was first conducted in 1979, several additional samplings were completed. Results of the 1982 sampling showed that 24 of the 155 wells had detectable levels of TCPA. Seven wells had TCPA levels in excess of 50 ppb, with the highest level being 1039 ppb in Sepenoski Farm Labor Camp in East Marion. The data also showed that two public water supply wells, the Reeves Beach Water supply well # 3 and the Browns Hills water supply well, had TCPA levels in excess of 50 ppb.
In March 1985, Fermenta agreed to analyze additional samples. From April to May of 1985, sixty-six samples from 32 locations were collected by DHS and sent to Fermenta. The results of this sampling showed that 12 of the 32 wells had detectable levels of TCPA, four of which exceeded 50 ppb. Whenever levels of TCPA in excess of DEC standards were discovered DHS notified the owners of the private wells and advised them to cease using their wells for drinking water. DHS also notified the public water suppliers and instructed them to not use the contaminated wells.
In 1987 more samples were collected from 15 private wells in eastern Suffolk County. These samples were analyzed for DCPA and its metabolites by Hazelton Laboratories in Madison, Wisconsin. DHS bore the cost of these analyses. The results of these tests showed that all fifteen wells had detectable levels of TCPA, five of which exceeded 50 After an unsuccessful meeting between state, county and Fermenta officials regarding remedial efforts, the state and county commenced this lawsuit in 1989. At the time 43 private wells were known to be contaminated, 15 of which had TCPA levels in excess of 50 ppb. In addition two public water supplies had levels above the standard.
ppb. A copy of the results was forwarded to Fermenta in April 1987
1991 sampling results showed that 131 out of 1679 wells had detectable limits. 50 of those wells had levels exceeding 50 ppb.
Plaintiffs in now moving for summary judgment seek a declaratory judgment and a mandatory injunction. More specifically, plaintiffs seek an order:
1) Declaring that the presence of the chemical TCPA in the groundwater and drinking water, in excess of standards promulgated by the State of New York constitutes a public nuisance for which the defendants are liable;
2) Directing defendants to undertake, subject to State and County oversight and approval, such studies as are necessary to determine the nature and extent of the TCPA contamination in Suffolk County, evaluate the feasibility of various remedial technologies that would achieve a permanent or long term solution to the contamination and implement and maintain the remedial technology selected by the State and County;
3) Directing Defendants, pending the implementation of such permanent or long term solution, to provide well-head treatment and/or alternative water supplies to those entities impacted by TCPA contamination;
4) Requiring defendants to recall products containing Dachtal or DCPA from commerce in Suffolk County; and
5) Entering judgment for all damages suffered by the plaintiffs and for all costs incurred by the plaintiffs.
In the alternative, plaintiffs seek a preliminary order pursuant to CPLR Section 6301 et seq.:
1) Directing defendants, pending the final resolution of this action, to take such measures as necessary, subject to the approval of the State and County, including well-head treatment and the provision of alternative water supplies, to ensure that all persons and entities affected by TCPA contamination are provided with potable water; and
2) Directing Defendants to recall products containing Dachtal or DCPA from commerce in Suffolk County.
Defendants cross-move for summary judgment in favor of defendants on the issue of liability and for an order pursuant to CPLR 3025 granting defendants leave to amend their answer to include the following affirmative defenses: 1) plaintiffs assumed the risk; 2) plaintiffs failed to mitigate damages; and 3) preemption of plaintiffs' claim by federal law.
Initially the Court must address that part of Fermenta's cross motion which seeks to amend its answer. The decision to grant or deny leave to amend pleadings is within the court's discretion (Edenwald Contracting Co. v. City of New York, 60 N.Y.2d 957, 471...
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