State v. Schenectady Chemicals, Inc.

• Decision Date: 26 July 1984
• Citation: 479 N.Y.S.2d 1010,103 A.D.2d 33
• Parties: STATE of New York, Respondent-Appellant, v. SCHENECTADY CHEMICALS, INC., Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 1010

479 N.Y.S.2d 1010

103 A.D.2d 33

STATE of New York, Respondent-Appellant, v. SCHENECTADY CHEMICALS, INC., Appellant-Respondent.

Supreme Court, Appellate Division Third Department.

July 26, 1984.

Robert Abrams, Atty. Gen., Albany (Patricia Martinelli, Albany, of counsel), for respondent-appellant.

Higgins, Roberts, Beyerl & Coan, Schenectady (William P. Willig, Schenectady, of counsel), for appellant-respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and MIKOLL, JJ.

OPINION FOR MODIFICATION

WEISS, Justice.

This action was initiated by the State to abate a nuisance allegedly occasioned by the contamination of a presently inactive waste disposal site, owned by one Dewey Loeffel, on Mead Road in the Town of Nassau in Rensselaer County (hereafter the "Loeffel site"). From the 1950s through the mid 1960s, defendant, a manufacturer of various chemical products, contracted with Loeffel for disposal of a variety of chemical waste by-products (see State of New York v. Schenectady Chems., 117 Misc.2d 960, 961, 459 N.Y.S.2d 971). Loeffel allegedly disposed of these wastes by simply pouring them into the surface water, or on the ground, or by dumping or burying containers made of steel, fiber or other degradable components. Essentially, it is charged that these pollutants have migrated through the soil and contaminated and/or pose a continued threat of contamination of the underlying groundwaters which are utilized as a source of water by neighboring communities. During the relevant period, Loeffel disposed of wastes at this site generated by defendant and at least two others, General Electric Corporation and the Bendix Corporation. While these wastes are inextricably mixed, the State approximates that some 8,250 tons, or 17.8% of the total wastes deposited, are attributable to defendant. Both General Electric and Bendix have signed consent orders requiring their participation in a remedial plan, pursuant to which each generator will bear its proportionate share of cleaning up the site. Defendant's refusal to participate in this plan has given rise to the instant lawsuit.

The amended complaint sets forth eight specific causes of action, including three statutory causes of action for violation of the Environmental Conservation Law, four causes of action sounding in public nuisance and a cause of action for restitution of expenses incurred in the investigation of the subject site. Responding to defendant's CPLR 3211 motion to dismiss the complaint, Special Term, in a comprehensive opinion (117 Misc.2d 960, supra, 459 N.Y.S.2d 971), dismissed the restitution and statutory causes of action, but sustained the causes of action for nuisance. Both parties have appealed. ¹

In its first two causes of action, the State essentially alleged that the continued, gradual migration of chemical wastes through the soil and into the surface and ground waters in the nearby environs constitutes a violation of ECL 17-0501, which reads as follows:

1. It shall be unlawful for any person, directly or indirectly, to throw, drain, run or otherwise discharge into such waters organic or inorganic matter that shall cause or contribute to a condition in contravention of the standards adopted by the department pursuant to section 17-0301 (emphasis added).

Special Term rejected this contention on a finding that the term "discharge" did not "encompass the gradual migration of pollutants through permeable soil and ground and surface water from the original dump site into the surrounding environs" (State of New York v. Schenectady Chems., supra, p. 964, 459 N.Y.S.2d 971). Plaintiff argues that Special Term misconstrued the purpose of the statute in assuming it was designed merely to prevent ongoing unlicensed disposal activities. Instead, plaintiff urges that the statute is result oriented and prohibits the contamination of State water, not simply certain types of present activities from which contamination might result, and thus applies to continued migration of pollutants. In our view, Special Term properly limited application of the statute. The general term "discharge" should be read to embrace activities similar to the specific terms before it (see McKinney's Cons.Laws of N.Y., Book 1, Statutes, § 239). Those terms, "throw", "drain" and "run", connote some active human conduct, as opposed to a mere seepage over the course of time. Additionally, the statute speaks to a "discharge into such waters", which indicates a direct introduction of pollutants into the waters, rather than a migration of pollutants from the soil. Contrary to plaintiff's contention, the phrase "directly or indirectly" modifies the word "person", thereby extending coverage of the statute to one acting through intermediaries. We do not read the phrase as referring to an indirect contamination of State waters, i.e., by migration through the soil. By its terms then, ECL 17-0501 does not embrace a gradual migration of pollutants (see, generally, State Dept. of Environmental Protection v. Exxon Corp., 151 N.J.Super. 464, 376 A.2d 1339).

We find support for this conclusion in the legislative history of ECL 17-0501, the substance of which has been on the books since at least 1949 (L.1949, ch. 666, § 1; see, also, Matter of Town of Waterford v. Water Pollution Control Bd., 5 N.Y.2d 171, 182 N.Y.S.2d 785, 156 N.E.2d 427). The statute previously included the phrase "allowed to seep" as a manner of discharge. In 1961, this phrase was deleted without explanation in an act designed to consolidate responsibility for water pollution control (L.1961, ch. 490, § 5). The language was not replaced upon enactment of ECL 17-0501 (L.1972, ch. 664, § 2). We deem the omission as purposeful (see McKinney's Cons.Laws of N.Y., Book 1, Statutes, §§ 73, 422, 423). While the phrase "allowed to seep" may have been supportive of the State's argument (see United States v. Price, 523 F.Supp. 1055, 1071, affd. 688 F.2d 204), its omission is indicative of a legislative intent to exclude such manner of pollution from the scope of ECL 17-0501. Additionally, recent enactment of hazardous waste legislation, making provision for the cleanup of inactive hazardous waste sites (see ECL art. 27, tit. 13) and for redress against responsible parties, impliedly evinces a legislative recognition that ECL 17-0501 is not a mechanism for resolving the dilemma occasioned by seepage from inactive sites (see L.1982, chs. 853-858). ² From the foregoing, we conclude that the gradual migration of pollutants from an inactive site does not constitute a "discharge" within the scope of ECL 17-0501 and that the State's first two causes of action were properly dismissed.

We further agree with Special Term's refusal to dismiss the causes of action sounding in nuisance. In reviewing a CPLR 3211 motion to dismiss, we deem the allegations of the complaint to be true and accord them every favorable inference (MacDonald v. Howard, 91 A.D.2d 1119, 1120, 458 N.Y.S.2d 331). Affidavits may properly be considered (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635, 389 N.Y.S.2d 314, 357 N.E.2d 970). We do not hesitate in recognizing that the seepage of chemical wastes into a public water supply constitutes a public nuisance (Copart Inds. v. Consolidated Edison Co. of N.Y., 41 N.Y.2d 564, 568, 394 N.Y.S.2d 169, 362 N.E.2d 968; State of New York v. Monarch Chems., 90 A.D.2d 907, 456 N.Y.S.2d 867; Amax, Inc. v. Sohio Ind. Prods. Co., 121 Misc.2d 814, 469 N.Y.S.2d 282). Plaintiff submitted an affidavit of a professional engineer stating that the wastes deposited at the Loeffel site are hazardous and migratory, and that, absent proper containment measures, they will likely contaminate the surrounding environment. At least one nearby resident has been forced to discontinue use of water from his well. These conditions provide a sufficient predicate to support the complaint. Moreover, we are not persuaded by any of defendant's arguments to insulate it from liability. The Attorney-General is clearly authorized on behalf of the State to commence legal proceedings to abate a public nuisance (see State of New York v. Monarch Chems., 111 Misc.2d 343, 347, 443 N.Y.S.2d 967, mod. 90 A.D.2d 907, 456 N.Y.S.2d 867; see, generally, 17 Carmody-Wait 2d, N.Y.Prac.,...