State v. Schenectady Chemicals, Inc.

• Decision Date: 18 February 1983
• Citation: 117 Misc.2d 960,459 N.Y.S.2d 971
• Parties: , 13 Envtl. L. Rep. 20,550 The STATE of New York, Plaintiff, v. SCHENECTADY CHEMICALS, INC., Defendant.
• Court: New York Supreme Court

Page 971

459 N.Y.S.2d 971

117 Misc.2d 960, 13 Envtl. L. Rep. 20,550

The STATE of New York, Plaintiff, v. SCHENECTADY CHEMICALS, INC., Defendant.

Supreme Court, Rensselaer County.

Feb. 18, 1983.

Robert Abrams, Atty. Gen. of N.Y., Albany, for plaintiff; Catherine R. McCabe, and James A. Sevinsky, Asst. Attys. Gen., Albany, of counsel.

Higgins, Roberts, Beyerl & Coan, P.C., Schenectady, for defendant; Richard E. Roberts, Schenectady of counsel.

HAROLD J. HUGHES, Justice:

The court must decide if the State, either by statute or common law, can maintain an action to compel a chemical company to pay the costs of cleaning up a dump site so as to prevent pollution of surface and ground water when the dumping took place between 15 to 30 years ago at a site owned by an independent contractor hired by the chemical company to dispose of the waste material.

The amended notice of motion seeks: (1) dismissal of the complaint pursuant to CPLR 3211; (2) correction and striki of matter from the complaint under CPLR 3024 (a) and (b); and (3) a change of venue from Rensselaer to Albany County. Dismissal under CPLR 3211 is sought upon a myriad of grounds, including failure to state a cause of action. Prior to an examination of the complaint's allegations, a review of the rules appurtenant to such a dismissal motion is appropriate. Unless a motion to dismiss for failure to state a cause of action is converted to one for summary judgment, which has not been requested or granted here, the court's inquiry is limited to the allegations of the complaint as strengthened by any affidavits offered to preserve it (Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 389 N.Y.S.2d 314, 357 N.E.2d 970). Factual assertions in a defendant's affidavit which contradict the allegations of the complaint must be disregarded. "[A]ll factual allegations of the complaint are assumed to be true and are to be most liberally construed in favor of the pleader" (Bervy v. Hotaling, 88 A.D.2d 735, 736, 451 N.Y.S.2d 863).

The amended complaint contains the following factual assertions. The action is brought by the State in its role as guardian of the environment against Schenectady Chemicals, Inc. with respect to a chemical dump site located on Mead Road, Rensselaer County, New York (hereinafter referred to as the "Loeffel site"). Since 1906 Schenectady Chemicals has manufactured paints, alkyl phenols and other chemical products, a byproduct of which is waste, including but not limited to phenol, benzene, toluene, xylene, formaldehyde, vinyl chloride, chlorobenzene, 1,2 dichlorobenzene, 1,4 dichlorobenzene, trichloroethylene, chloroform, ethyl benzene, nethylene chloride, 1,1 dichloroethane, 1,2 dichloroethane, trans-1,2 dichloroethylene, lead, copper, chromium, selenium, and arsenic. These chemical wastes are dangerous to human, animal and plant life, and the defendant was so aware. During the 1950's until the mid-1960's the defendant disposed of its chemical wastes by way of contract with Dewey Loeffel, or one of Mr. Loeffel's corporations. Mr. Loeffel made pick-ups at the defendant's manufacturing plants and disposed of the material by dumping directly into lagoons at the Loeffel site, and in some instances by burying the wastes. It is alleged that with knowledge of the danger of environment contamination if its wastes were not properly disposed, and knowing of Loeffel's methods, Schenectady Chemicals: (1) hired an incompetent independent contractor to dispose of the wastes; and (2) failed to fully advise Loeffel of the dangerous nature of the waste material and recommend proper disposal methods.

It is alleged that the Loeffel site is approximately 13 acres of low-lying swamp land located in a residential-agricultural area in Rensselaer County with surface soil consisting mainly of gravel and sand. The ground water beneath the site is part of an aquifer which serves as the sole source of water for thousands of area residents and domestic animals. The site drains into two surface streams, one a tributary of the Valatie Kill, and the other a tributary of Nassau Lake. During the period in question approximately 46,300 tons of chemical wastes were deposited at the Loeffel site, of which 17.8%, or 8,250 tons, came from defendant. The other material was generated by General Electric Company and Bendix Corporation and has been so inextricably mixed with defendant's as to become indistinguishable.

The complaint alleges that over the years the chemical wastes have migrated into the surrounding air, surface and ground water contaminating at least one area drinking well and so polluting, or threatening to pollute, the area surface and ground water as to constitute an unreasonable threat to the public well-being and a continuing public nuisance. As a result, the Department of Environmental Conservation (DEC) developed a plan to prevent further migration of chemical wastes from the site, and General Electric and Bendix have agreed to pay 82.2% of the costs thereof. Defendant's refusal to pay its portion of the clean-up costs gives rise to this suit.

After alleging the foregoing factual background the State sets forth eight specific causes of action in the amended complaint, as follows: (1) defendant is presently violating section 17-0501 of the Environmental Conservation Law by directly or indirectly discharging illegal waste material into the ground waters surrounding the Loeffel site through the ongoing migration of the pollutants; (2) defendant is in violation of section 17-0501 by polluting the surface waters in the same manner as the ground water; (3) through the continuing migration of chemical wastes into surrounding ground and surface waters the defendant is in violation of sections 17-1701, 17-0803 and 17-0807 of the Environmental Conservation Law which prohibit pollutant discharge without a DEC permit; (4) by permitting the disposal of its waste in the manner described, the defendant has contributed to the creation and maintenance of a public nuisance; (5) the generation and disposal of the chemical wastes described in the complaint constitutes an ultra-hazardous activity rendering defendant strictly liable for the resultant public nuisance; (6) the defendant negligently permitted the creation and maintenance of a dangerous public nuisance by selecting an incompetent contractor and not properly supervising the disposal process or warning of the dangers of the resultant nuisance; (7) through intentional acts and omissions, the defendant contributed to the creation and maintenance of the continuing public nuisance complained of; and (8) failing to abate the nuisance, thus causing DEC to incur $85,087 in investigatory and administrative expenses.

The relief sought is: (1) on the first, second and third causes of action, statutory fines in the amount of $10,000 per day for each day of the violations and an injunction prohibiting further violations; (2) on the fourth through seventh causes of action sounding in public nuisance, a judgment directing defendant to abate the nuisance (by payment of 17.8% of the remedial plan or otherwise) and $1,000,000 in compensatory damages and $1,000,000 in punitive damages for polluting the air, water and land resources of the State of New York; (3) restitution on the eighth cause of action in the sum of $28,360; and (4) attorney's fees.

To allege a statutory cause of action the pleader must assert a statute imposing a duty upon the defendant, breach thereof, and that the plaintiff is among the class authorized to bring the action (see Motyka v. City of Amsterdam, 15 N.Y.2d 134, 139, 256 N.Y.S.2d 595, 204 N.E.2d 635; Sanchez v. Village of Liberty, 49 A.D.2d 507, 510, 375 N.Y.S.2d 901, mod. 42 N.Y.2d 876, 397 N.Y.S.2d 782, 366 N.E.2d 870, mod. and app. dsmd. 44 N.Y.2d 817, 406 N.Y.S.2d 295, 377 N.E.2d 748). The first and second causes of action allege that defendant violated section 17-0501 of the Environmental Conservation Law which provides: "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". The third cause of action is premised upon violations of sections 17-1701, 17-0803 and 17-0807. Section 17-1701 expired on September 1, 1973 (see L.1973, ch. 801, § 17) and cannot serve as the basis of this action. The remaining two sections were enacted in 1973 (L.1973, ch. 801), and essentially prohibit pollutant discharges without a permit. Violations of any of the statutes subjects the offender to civil fines of up to $10,000 per day for each day the violation continues.

The decisive question in determining whether the conduct described in the complaint charges defendant with breach of the cited statutes is whether the term "discharge" should be construed to encompass the gradual migration of pollutants through permeable soil and ground and surface water from the original dumpsite into the surrounding environs. In other words, while no doubt Loeffel committed a "discharge" when he initially dumped the chemicals, can it be said that the slow spread of the pollutants over a thirty-year period through the migration process constitutes each day anew a chemical "discharge" attributable to defendant and subjecting it to statutory fines for failing to possess a permit? The court holds that it does not. It would be ludicrous to expect someone to apply for, much less receive, a permit to allow long-ago dumped chemical wastes to continue to spread through natural processes. The purpose of the statutes is to prevent, through the threat of significant fines, the dumping of chemical wastes by persons not licensed to do so. That purpose would not be served by extending the statutes to the present situation. The complaint fails to charge defendant with a "discharge" of chemical wastes as that term is used...