The State Of N.Y. v. Solvent Chem. Co. Inc, No. 83-CV-140WTC.

CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
Writing for the CourtJOHN T. CURTIN,
Citation685 F.Supp.2d 357
Docket NumberNo. 83-CV-140WTC.
Decision Date26 January 2010
PartiesThe State of NEW YORK, Plaintiff, v. SOLVENT CHEMICAL COMPANY, INC., and ICC Industries, Inc., Defendants/Third-Party Plaintiffs, v. Olin Corporation and E.I. du Pont de Nemours & Company, ThirdParty Defendants.

685 F.Supp.2d 357

The State of NEW YORK, Plaintiff,
v.
SOLVENT CHEMICAL COMPANY, INC., and ICC Industries, Inc., Defendants/Third-Party Plaintiffs,
v.
Olin Corporation and E.I. du Pont de Nemours & Company, ThirdParty Defendants.

No. 83-CV-140WTC.

United States District Court,
W.D. New York.

Decided: Jan. 26, 2010.


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Jaeckle, Fleischmann & Mugel, LLP (Dennis P. Harkawik, Esq.; CHarles D. Greico, Esq.; and Brenda J. Joyce, Esq., of Counsel), Buffalo, New York, for Solvent Chemical Company, Inc.

Irwin F. Roth, Esq., New York, New York, for ICC Industries, Inc.

Husch Blackwell Sanders LLP (Michael H. Wetmore, Esq., and Joel B. Samson, Esq., of Counsel), St. Louis, Missouri, for Olin Corporation.

Cohen & Grigsby, P.C. (Daniel M. Darragh, Esq., of Counsel), Pittsburgh, Pennsylvania, for E.I. du Pont de Nemours & Company.

MEMORANDUM OF DECISION

JOHN T. CURTIN, District Judge.

In this action, originally brought in 1983 by the State of New York against the Solvent Chemical Company, Inc. ("Solvent"), and its parent company, ICC Industries, Inc. ("ICC"), pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., the court conducted a non-jury trial on issues pertaining to the liability and equitable allocation of responsibility for costs incurred in remediating environmental contamination at Solvent's property located at 3163 Buffalo Avenue in Niagara Falls, New York; adjacent property owned by the Olin Corporation (referred to as the "Olin Hot Spot" or simply, the "Hot Spot"); and Gill Creek, which flows through both Olin's property and neighboring property owned by the E.I. du Pont de Nemours & Company ("DuPont"). The following constitutes the court's findings of fact and conclusions of law with regard to these issues, in accordance with Rule 52 of the Federal Rules of Civil Procedure, 1 based on the trial testimony and exhibits (including designated deposition testimony of 24 witnesses not appearing at the trial), the parties' post-trial submissions and arguments, and the court's prior rulings.

I. FACTUAL AND PROCEDURAL SUMMARY

A. The Three Neighboring Facilities

The geographical area of concern in this case involves relatively contiguous parcels of property comprising three chemical manufacturing plant sites located in the

[685 F.Supp.2d 362]

midst of a sprawling heavy industrial area along the northern shore of the Niagara River in the City of Niagara Falls. The court's analysis begins with a brief description of the three sites and the historical operations conducted there.

1. The Solvent Site

Solvent's property at 3163 Buffalo Avenue comprises 5.7 acres situated generally between the Olin chemical manufacturing plant site on the west, and the DuPont chemical manufacturing plant site on the east and south. It is bordered directly by Buffalo Avenue to the north, Adams Avenue to the south, DuPont Drive to the west, and a vacant parcel owned by DuPont to the east. Gill Creek, which flows from north to south through the Olin and DuPont plant sites, is located about 400 feet west of the 3163 Buffalo Avenue property (see December 1996 Record of Decision ("ROD"), Solvent Exhibit ("S-") 1012).

The manufacturing facility at the 3163 Buffalo Avenue address was originally built and operated by DuPont during World War II under a contract with the United States government to make "impregnite," a chemical compound developed to treat Army uniforms for protection against exposure to poison gas. The plant was reactivated between 1951 and 1953 by the Hooker Electrochemical Company for impregnite production during the Korean conflict. The City of Niagara Falls purchased the site in 1972 and sold it to Solvent (id.).

Solvent operated the chemical manufacturing plant at 3163 Buffalo Avenue from approximately 1974 to 1978. Its primary business function was to purchase lower grades of mixed chlorinated benzene material from other manufacturers or suppliers and refine this material into commercial grade products, such as various technical and refined grades of chlorinated benzenes and zinc chloride solutions. See State of New York v. Solvent Chemical Co., Inc., 218 F.Supp.2d 319, 323-24 (W.D.N.Y.2002); see also S-6040. This process involved the handling, storage, production, and use of several chemicals including benzene, chlorobenzene (also referred to as "monochlorobenzene"), 1, 2dichlorobenzene, 1, 3-dichlorobenzene, 1, 4dichlorobenzene, 1, 2, 4-trichlorobenzene, 1, 2, 3-trichlorobenzene, petroleum products containing toluene, xylenes, ethylbenzene, and benzene, and zinc (DuPont Exhibit ("D-") 14, 213; Trial Transcript ("Tr.") 9/26/07, Item 14232 at 109). Solid residues from the refining process were accumulated in steel drums and disposed of off-site by approved waste disposal contractors (see Item 1328 (3/24/06 Decision and Order) at 43-44; see also S6052; Tr. 1423 at 24-26).

The Record Chemical Co., later known as Recochem, Inc., and its president, Joseph Kuchar, also operated the plant at the Solvent Site for a short period during the first three months of 1978 in order to ascertain the plant's chlorinated benzene production capacity in anticipation of Recochem's purchase of Solvent's assets, which never materialized (see Item 1328 at pp. 68-69).3 Between approximately 1980 and

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1983, two separate entities named Frontenac Environmental Services, Inc., leased a portion of the Site and used it as an unlicensed hazardous and industrial waste storage and transfer facility (D-14, p. 1-6). During that period of time, approximately 610, 000 gallons of liquid chemical wastes, including chlorinated aliphatic solvents perchloroethene ("PCE") (29, 920 gals.), trichloroethene ("TCE") (114, 565 gals.), 1, 1, 1-trichloroethane (495 gals.), methylene chloride (1, 100 gals.), chloroform, and carbon tetrachloride, as well as unspecified quantities of chlorinated and non-chlorinated waste products such as "halogenated solvents, electroplating sludge, spent pickle liquor, acid and caustic wastes, paint sludge, cyanides, etc." (S-1012, p. 3), were managed or stored at the Site (D-91, 213; S-6053, 6054; Tr. 1423 at 26-27; Tr. 1425 at 61-63).

2. The Olin Site

Olin's Niagara Falls facility, located directly west of the 3163 Buffalo Avenue property, consists of two plants: Plant 1, which comprises six acres located west of Chemical Road; and Plant 2, which comprises sixteen acres located between Chemical Road to the west and Gill Creek to the east (S-4113). The area of Plant 2 between Alundum Road to the west, Buffalo Avenue to the north, Adams Avenue to the south, and Gill Creek to the east, is known as the "ARGC Area." Olin also owns the property between Gill Creek and DuPont Drive directly adjacent to the 3163 Buffalo Avenue Property (S-4121; Tr. 1430 at 51, 62; Tr. 1433 at 81). Gill Creek runs from north to south through the Olin property and the DuPont property directly to the south, and empties into the Niagara River (Olin Exhibit ("0-") 431).

Olin or its predecessors have engaged in the production of various chemical products at the Niagara Falls facility continuously since 1897, with principal emphasis on electrolytic production of chlorine and caustic soda from sodium chloride (rock salt) using various modifications of the mercury cell/chlor-alkali process (0-223; S-4113; Tr. 1420 at 114, 121-22). Mercury cell operations historically took place at both Plants 1 and 2, but were confined to Plant 2 for the last 30 years of chlor-alkali production, which ceased entirely in 1991 (0-223).

Olin also manufactured the pesticide benzene hexachloride ("BHC"), also known as hexachlorocyclohexane, in the southern portion of the ARGC Area of Plant 2 from 1950 to 1956 (S-4121; Tr. 1413 at 30-31; Tr. 1430 at 52, 62-63). By-products of Olin's BHC production included trichlorobenzene, pentachlorobenzene, and hexachlorobenzene (Tr. 1413 at 31-35, 39-41; Tr. 1430 at 119-123, 136). During this sixyear period of operation, Olin generated approximately 4.5 million pounds of BHC and 5.5 million pounds of trichlorobenzene annually (Tr. 1413 at 38-41; S-6045). Olin's BHC production ended in 1956 when the manufacturing plant was destroyed in an explosion (S-4016; Tr. 1440 at 12-13).

3. The DuPont Site

From approximately 1896 to the present day, DuPont or its predecessors have owned and operated a chemical manufacturing facility situated on a 52-acre site located directly south of the Olin Site, and generally south and southwest of the Solvent Site (D-187; S-6014). During a 50year period between 1925 and 1975, DuPont manufactured various chlorinated aliphatic compounds there (among other chemical products), including trichloroethene ("TCE"), tetrachloroethene (a/k/a perch loroethylene or "PCE"), cis-l, 2-dichloroethane, chloroform, 1, 1, 2, 2-tetrachloroethane ("1, 1, 2, 2-TCA"), vinyl chloride, methylene chloride, and dichloroethene

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(Tr. 1413 at 16-17, 20-22; S-6039, 3024, 3025).

On November 28, 1989, DuPont entered into an Order on Consent with the New York State Department of Environmental Conservation ("DEC") requiring DuPont to perform certain remedial activities at its facility so as to "eliminate or mitigate, to the greatest extent practicable, the release and migration of contaminants into the environment" (D-106, p. 2). On January 3, 1990, the DEC issued a Record of Decision ("ROD") outlining the remedial action for the DuPont facility. This remedy consists of a series of pumping wells in the shallow groundwater zone running along an east-west axis of the DuPont facility south and west of the Solvent Site, and a production well on Olin's property for control in the deeper groundwater zones west of Gill Creek (see S-3021 at 15; see also Tr. 1432 at 118-19; Tr. 1442 at 66). There is no control of...

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    • United States
    • U.S. District Court — Northern District of New York
    • July 11, 2011
    ...interplay between the various provisions permitting recovery of hazardous waste response costs. New York v. Solvent Chem. Co., Inc., 685 F. Supp. 2d 357, 422 (W.D.N.Y. 2010). Despite the statute's shortcomings, courts have attributed two primary goals to CERCLA, including to 1) encourage ti......
  • SOLUTIA INC. v. McWANE INC., Civil Action No. 1:03-cv-1345-PWG.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • July 2, 2010
    ...claims under § 107 notwithstanding that the federal government had § 107 claims pending against them); New York v. Solvent Chem. Co., 685 F.Supp.2d 357, 425-28 (E.D.N.Y.2010) (allowing a party that had incurred cleanup costs pursuant to consent decree following a suit brought by the State u......
  • New York State Elec. & Gas Corp. v. Firstenergy Corp., Civil Action No. 3:03–CV–0438 (DEP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • September 7, 2011
    ...interplay between the various provisions permitting recovery of hazardous waste response costs. New York v. Solvent Chem. Co., Inc., 685 F.Supp.2d 357, 422 (W.D.N.Y.2010). Despite the statute's shortcomings, courts have attributed two primary goals to CERCLA, including to 1) encourage timel......
  • MPM Silicones, LLC v. Union Carbide Corp., Docket No. 17-3468(L), 17-3669(XAP)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 23, 2020
    ...costs would be premature." Solvent Chemical , 664 F.3d at 24 (emphasis in original); see also New York v. Solvent Chemical Co., Inc. , 685 F. Supp. 2d 357, 455–56 (W.D.N.Y. 2010) (declining to allocate future costs for lack of sufficient data, and because regulators were "still considering ......
  • Request a trial to view additional results
23 cases
  • N.Y. State Electric & Gas Corp. v. Firstenergy Corp., Civil Action No. 3:03-CV-0438 (DEP)
    • United States
    • U.S. District Court — Northern District of New York
    • July 11, 2011
    ...interplay between the various provisions permitting recovery of hazardous waste response costs. New York v. Solvent Chem. Co., Inc., 685 F. Supp. 2d 357, 422 (W.D.N.Y. 2010). Despite the statute's shortcomings, courts have attributed two primary goals to CERCLA, including to 1) encourage ti......
  • SOLUTIA INC. v. McWANE INC., Civil Action No. 1:03-cv-1345-PWG.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • July 2, 2010
    ...claims under § 107 notwithstanding that the federal government had § 107 claims pending against them); New York v. Solvent Chem. Co., 685 F.Supp.2d 357, 425-28 (E.D.N.Y.2010) (allowing a party that had incurred cleanup costs pursuant to consent decree following a suit brought by the State u......
  • New York State Elec. & Gas Corp. v. Firstenergy Corp., Civil Action No. 3:03–CV–0438 (DEP).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • September 7, 2011
    ...interplay between the various provisions permitting recovery of hazardous waste response costs. New York v. Solvent Chem. Co., Inc., 685 F.Supp.2d 357, 422 (W.D.N.Y.2010). Despite the statute's shortcomings, courts have attributed two primary goals to CERCLA, including to 1) encourage timel......
  • MPM Silicones, LLC v. Union Carbide Corp., Docket No. 17-3468(L), 17-3669(XAP)
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 23, 2020
    ...costs would be premature." Solvent Chemical , 664 F.3d at 24 (emphasis in original); see also New York v. Solvent Chemical Co., Inc. , 685 F. Supp. 2d 357, 455–56 (W.D.N.Y. 2010) (declining to allocate future costs for lack of sufficient data, and because regulators were "still considering ......
  • Request a trial to view additional results

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