Port Washington Landfill Joint Defense Group Cost Recovery

Environmental Law

 

In the last several weeks, the Port Washington Landfill Joint Defense Group (“JDG”), an association of potentially responsible parties (“PRPs”), has delivered another round of demand letters to companies and small businesses on Long Island seeking contribution for costs associated with the investigation and remediation of the Port Washington Landfill pursuant to the federal Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”). The State of New York is seeking to recover from the JDG its past and future response costs expended during its investigation, remediation, and monitoring of the Port Washington Landfill Superfund Site (the “Site”).

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, businesses that had their wastes sent or that hauled waste to the Port Washington Landfill can be held liable regardless of actual fault and can be held responsible for the entire cost of cleanup.

The Port Washington Landfill is a 54-acre municipal landfill that was operated by the Town of North Hempstead from 1973 until September 1983. The landfill received a combination of industrial waste, residential and commercial waste, and construction/demolition waste. During the operation of the landfill, volatile organic compounds (“VOCs”) were disposed of at the Site, creating a significant environmental condition that resulted in the closure of nearby public water supply wells. In 1990, the New York State Department of Environmental Conservation (“NYSDEC”) and the Town of North Hempstead entered into a Consent Decree which mandated that the Town implement the remedial actions selected in the 1989 Record of Decision (“ROD”).

The Town implemented response measures at the Site to remedy the alleged release and/or threatened release of hazardous substances into the environment. Pursuant to the New York State 1986 Environmental Quality Bond Act, the Town was reimbursed by the State of New York (the “State”) for three quarters of the allowable response costs, including, but not limited to the cost of investigation, removal, remedial activity, and operation and maintenance.

The State has sought $20 million in its cost recovery from the Port Washington Landfill JDG. Pursuant to CERCLA 42 U.S.C. §§ 9607 and 9613, once the Port Washington Landfill JDG pays the State its costs incurred in the remediation of the Site, the JDG may seek cost-recovery and contribution from other PRPs. Therefore, the Port Washington Landfill JDG can attempt to recovery monies from any entities that may have disposed of waste at the Port Washington Landfill.

Parties have until August 31, 2012, to respond to the Port Washington Landfill JDG demand for settlement. After that date, parties who have not responded and settled with the JDG will likely be sued by the JDG in litigation similar to the pending lawsuit concerning the Babylon Landfill. (Please see Babylon Landfill Hazardous Waste Site – Responsible Parties Seek Contribution from Generators and Transporters Blog Post on Nov. 17, 2011)

Unfortunately, despite the fact that the landfill closed nearly three decades ago, under the strict, joint and several liability provisions of CERCLA, the JDG can still seek contribution from other PRPs. Ignoring this notice will not mitigate the problem and will likely lead to greater costs. Parties who have received a letter from the JDG should seek guidance from experienced environmental legal counsel concerning this demand.

For more information on the Port Washington Landfill and CERCLA issues, please contact Miriam Villani or Jason Kaplan.

Posted by Miriam Villani