Babylon Landfill Hazardous Waste Site – Responsible Parties Seek Contribution from Generators and Transporters

Environmental Law

 

On November 3, 2011, the Babylon Landfill Joint Defense Group (“JDG”), an association of potentially responsible parties (“PRPs”), filed a Complaint in the U.S. District Court, Eastern District of New York seeking contribution from other alleged PRPs [Babylon Landfill Joint Defense Group v. 1042 Collision Repairs, Inc., et al., CV11-5387 (“Babylon Landfill Contribution case”)]. In the Complaint, the JDG alleges the Defendants contributed to the disposal of hazardous substances at the Babylon Landfill and are liable under the Comprehensive Environmental Response Compensation & Liability Act (“CERCLA”). The Defendants, entities in the businesses of automotive repair and servicing, construction and demolition, hauling, carting, dry cleaning, printing, etc., are alleged to be generators and/or transporters of hazardous substances, as those terms are defined under CERCLA, and are, therefore, liable for the costs of cleanup of the landfill.

CERCLA was enacted by Congress in order to address the cleanup of properties heavily contaminated with hazardous wastes. CERCLA, also known as “Superfund,” established a large pool of money to finance the cleanup of such hazardous waste sites. CERCLA is a powerful federal environmental statute, which imposes strict, joint and several liability on PRPs, including generators and transporters of hazardous substances. Under the Act, the Defendants in the Babylon Landfill contribution case can be held liable regardless of actual fault and can be held responsible for the entire cost of cleanup.

The Babylon Landfill operated as a municipal landfill from approximately 1947 to 1993, and received a combination of municipal waste, commercial waste, construction/demolition waste, industrial waste, and cesspool scavenger waste. In 1993, the New York State Department of Environmental Conservation (“NYSDEC”) and the Town of Babylon entered into a Consent Order which mandated the Town conduct a Remedial Investigation and Feasibility Study (“RI/FS”) and select an appropriate remedy for the cleanup of the Site.

The Town implemented response measures at the Landfill Site to remedy the alleged release and/or threatened release of hazardous substances into the environment. The response costs incurred by the Town were reimbursed by the State of New York (“State”), including, but not limited to the cost of investigation, removal, remedial activity, and operation and maintenance.

The Plaintiffs in the Babylon Landfill Contribution case, prior to filing the Complaint, entered into a Consent Decree with the State, stating they have paid or will pay $3,400,000 to the State to settle the State’s response cost claims as alleged in an underlying cost recovery case brought by the State against the members of the JDG. Pursuant to the terms of the Consent Decree and under CERCLA 42 U.S.C. §§ 9607 and 9613, Plaintiffs seek cost-recovery and contribution from other PRPs for the costs incurred in the remediation of the Site.

The Plaintiffs in the Babylon Landfill Contribution case make three statutory claims under CERCLA for relief against the Defendants, including cost-recovery, contribution, and declaratory relief. The Plaintiffs also make claims under New York common law, including recovery for unjust enrichment and restitution, public nuisance, negligence, strict liability, and indemnification.

The allegations levied against the Defendants in this case will result in complex environmental litigation. The parties will have to assess the facts, apply the relevant law, and allocate the costs of cleanup. Experienced environmental counsel will be needed to navigate the complexities of this CERCLA litigation and to negotiate an allocation scheme reflecting the parties’ actual culpability.

For more information on CERCLA issues and litigation and the New York State Inactive Hazardous Waste Program, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani