WHITE PLAINS, NY — In a case involving decades of mercury contamination by a chemist operating a makeshift lab out of his garage in a residential neighborhood in Rye Brook, the United States has filed a civil lawsuit against E.I. Dupont De Nemours and Company, D & D Salvage Corporation, Oxy USA Inc., and W.A. Baum Company, Inc. and has simultaneously filed a consent decree settling the lawsuit. In the complaint, brought pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601-9675 — commonly known as the Superfund statute — the United States alleged that the Defendants arranged for the disposal or treatment of mercury by Port Refinery, Inc., a mercury refining business in the Village of Rye Brook, New York, which led to releases of mercury into the environment. The consent decree provides for a combined payment of $1,412,255 by the Defendants for costs incurred by EPA in conducting clean-up activities at the site.
The site is located in a residential neighborhood in Rye Brook, and includes the parcel of land known as the Source Property located at 55 Hillandale Road, the buildings and other structures located or formerly located on the property, and the properties adjacent to the property where mercury came to be located.
Until approximately 2000, the Source Property was owned by Edmund and/or Norma Barbera.
The New York Times reported on the case in 1993 including the wife of the chemist who portrayed her and herself as a victims.
Mr. Barbera admitted to processing 20,000 pounds of mercury a year at the site for two decades but claimed the mercury on and in his property came from a nearby wetlands. He also admitted to allowing 100 pounds of mercury to leak into the soil through a hole in the foundation of his garage.
Soil from neighboring properties tested at 20-50 parts per million of mercury. On Barbera’s property the level was 1,000 parts per million of mercury. Investigators found mercury “oozing from parts of the garage.”
“They can never repay us for what they took from us “, Mrs. Barbera said, describing how backhoes ripped up her backyard, including her vegetable garden, her rosebushes, the pump house for their pool and a stable adjoining their garage. “Their worried about contaminating other people while they’re killing us.”
The Source Property consisted of approximately 0.7 acres of land and, until they were removed by EPA, a two-story residence, a swimming pool with a poolside cabana structure, a shed, and a two-story garage with a small basement.
See detailed History below.
U.S. Attorney Audrey Strauss said: “DuPont, D & D, Oxy, and W.A. Baum contributed to contamination in a residential community by arranging for the treatment or disposal of over 7,000 pounds of toxic mercury, and now each is paying a share of the costs that EPA had to incur to clean up this site. This Office will continue to hold responsible parties accountable for their share of the costs at the site.”
EPA Acting Regional Administrator Walter Mugdan said: “EPA is recovering more than $1.4 million that the Agency spent to clean up mercury pollution released in the Village of Rye Brook, and that is good news for taxpayers as we are holding the polluter responsible for the cost. The funds can be put back into the Superfund to assist with cleanup of other sites. This case shows that EPA can take immediate action to protect people while still holding polluters responsible by recovering some of the money down the road. We don’t have to choose between protecting people and taking appropriate legal action — they go hand-in-hand.”
As alleged in the complaint filed yesterday in White Plains federal District Court, each of the Defendants arranged for Port Refinery’s treatment or disposal of used, surplus, or scrap mercury and mercury-containing materials at the Site. Port Refinery’s treatment and processing of mercury sent by the Defendants and other parties led to extensive releases of mercury into the environment, necessitating two separate clean-up actions by EPA. In connection with the second clean-up, EPA incurred costs at the Site for investigative and removal activities, including, among other things, excavating and disposing of more than 9,300 tons of mercury-contaminated soil from the site.
In the consent decree filed yesterday, the Defendants admit and accept responsibility for the following:
- EPA has determined that from the 1970s through the early 1990s, Port Refinery engaged in, among other things, the business of mercury reclaiming, refining, and processing.
- Port Refinery operated in the Village of Rye Brook out of a two-story garage bordered by private residences on its south, east, and west sides.
- EPA has determined that Port Refinery took virtually no environmental precautions or safety measures during its mercury refinement process.
- EPA has determined that Port Refinery released a significant amount of mercury into the environment, contaminating the Site.
- EPA has determined that mercury from the Defendants’ mercury-containing products was comingled at the Site and contributed to the mercury released into the environment.
Moreover, in the consent decree, each Defendant admits and accepts responsibility for directly or indirectly delivering mercury to Port Refinery as follows:
- DuPont delivered 3,291 pounds of mercury, which included virgin, unused, scrap, used, and contaminated mercury, to Port Refinery during Port Refinery’s period of operations.
- D & D delivered 2,150 pounds of scrap mercury to Port Refinery during Port Refinery’s period of operations.
- Oxy sold 190 pounds of surplus mercury and mercury-containing materials to a third-party scrap dealer during Port Refinery’s period of operations, and EPA has determined that those surplus mercury and mercury-containing materials came to be located at the Site.
- W.A. Baum delivered 1,425 pounds of “dirty” mercury to Port Refinery during Port Refinery’s period of operations.
Pursuant to the consent decree, the Defendants will pay a total of $1,412,255 in costs incurred by EPA, consisting of $658,639 to be paid by DuPont, $430,352 to be paid by D & D, $38,031 to be paid by Oxy, and $285,233 to be paid by W.A. Baum.
This lawsuit is the United States’ sixth lawsuit against responsible parties to recover clean-up costs for the second clean-up at the Site. With this settlement, the United States has recovered a total of $2,382,137 from responsible parties.
The consent decree will be lodged with the District Court for a period of at least 30 days before it is submitted for the Court’s approval, to provide public notice and to afford members of the public the opportunity to comment on the consent decree.
This case is being handled by the Office’s Environmental Protection Unit. Assistant U.S. Attorney Anthony J. Sun is in charge of the case.
The complaint contains a detailed history:
The site is located in a residential neighborhood in Rye Brook, and includes the parcel of land known as the Source Property located at 55 Hillandale Road, the buildings and other structures located or formerly located on the property, and the properties adjacent to the property where mercury came to be located.
The Source Property consisted of approximately 0.7 acres of land and, until they were removed by EPA, a two-story residence, a swimming pool with a poolside cabana structure, a shed, and a two-story garage with a small basement.
Until approximately 2000, the Source Property was owned by Edmund and/or Norma Barbera.
Until approximately 1991, the Source Property was the site of Port Refinery, a then-existing New York corporation that was owned and operated by Edmund Barbera.
The Source Property was bordered by private residences on its south, east, and west sides. A private, multi-family complex borders the Source Property on its north side. Blind Brook high school is located approximately 1⁄4 mile from the Source Property. A hospital and numerous commercial enterprises and residences are also located within approximately one mile of the Source Property.
For approximately twenty years prior to 1991, Port Refinery was engaged in the business of mercury reclaiming, refining, and other processing. Port Refinery advertised itself in metal industry trade publications as a processor of mercury “scrap” and “residue.” Used or scrap mercury and scrap materials containing mercury (collectively, “scrap mercury”) have impurities that render them useless for common commercial and industrial purposes. To attain the levels of purity needed for commercial and industrial uses of mercury, scrap mercury must be processed to remove impurities. The processing of scrap mercury to render it suitable for commercial or industrial use results in a waste by-product that contains mercury, which must be disposed of. The processing of scrap mercury described above also changes scrap mercury’s physical and chemical character by removing impurities.
Each of the Defendants arranged for the sale and the transport of scrap mercury for treatment or disposal that came to be located at the Site either directly or through a third- party scrap dealer.
Between 1974 and 1981, DuPont arranged for the sale and transport of 3,291 pounds of mercury to Port Refinery for treatment or disposal. DuPont collected surplus mercury no longer needed in its operations to be sold in the secondary scrap metals market. Although this material included some virgin mercury, much of it was classified by DuPont as “scrap”, “used,” or “contaminated” with a specified substance (such as “dirt,” “grit,” and “sulphur”). DuPont sold most of the mercury at a significantly discounted price compared to the then-prevailing market rate for commercial-grade mercury, with many sales priced at between 13% and 62% of the commercial-grade market rate. Based on its experience in the chemical industry, DuPont knew or should have known that “scrap,” “used,” and “contaminated” mercury required treatment to have any commercial value.
In 1984 and 1985, D & D arranged for the sale and transport of a total of 2,150 pounds of what it classified as “scrap” mercury to Port Refinery for treatment or disposal. Some of the mercury was sold at a price 10% below the lowest market price for commercial mercury at the time. D&D knew or should have known that Port Refinery was in the business of treating mercury and would treat the “scrap” mercury received from D & D.
In 1990, Oxy sold and arranged for the transport of 190 pounds of mercury to a third-party scrap dealer, who ultimately transported the mercury to Port Refinery for treatment or disposal. Oxy sold the mercury at a price 72% below the then-prevailing market rate for commercial grade mercury. Oxy knew or should have known that this low-value non- commercial grade mercury required treatment to have any commercial value.
From January to August 1980, W.A. Baum sent eight shipments of what it described as “dirty” mercury to Port Refinery for which it paid a processing fee for treatment, after which the mercury was returned to W.A. Baum for use in its operations. In a final transaction in August 1980, W.A. Baum arranged for the sale and transport to Port Refinery of 1,425 pounds of “dirty” mercury contaminated with mercury oxide, rendering the mercury unsuitable for W.A. Baum’s blood pressure apparatuses. Based on its prior dealings with Port Refinery, W.A. Baum knew that Port Refinery was in the business of treating mercury and that Port Refinery would treat the “dirty” mercury received from W.A. Baum.
As a result of Port Refinery’s business operations relating to reclaiming, refining, and processing scrap mercury, including the disposal of the waste those processes created, the structures at the Source Property as well as soil, surface water, and groundwater at the Site became extensively contaminated with mercury.
To address the release or threatened release of mercury, EPA conducted a first removal between 1991 and 1996. Over the course of the First Removal, EPA discovered (i) mercury vapor inside the garage on the Source Property, (ii) mercury in and on the structures, including the walls, the floors, the window sills, and the ceiling beams, on the Source Property, and (iii) mercury in the soils and sediments of both the Source Property and the Affected Properties. As part of the First Removal, EPA undertook a response activities that included (i) fencing the Source Property to restrict public access to it, (ii) soil sampling, (iii) removing and disposing of contaminated soils and other materials from the Source Property and the Affected Properties, (iv) demolishing the contaminated garage building and the contaminated pool cabana structure, and (v) restoring the properties from which contaminated soils and other materials had been removed. The United States incurred over $6.4 million of response costs during the course of the First Removal.
On November 14, 1996, the United States commenced a civil action in this Court,
seeking recovery of the costs that the United States had incurred during the course of the First Removal. The United States sought recovery of its costs from the owners/operators of the Site and from the parties who arranged for the disposal or treatment of hazardous substances at the Site.
From approximately June 1997 to approximately May 2002, the United States entered into six separate consent decrees in connection with the First Removal.
DuPont, D & D, and W.A. Baum were parties to the lawsuit and resolved their liability for the First Removal in a third partial consent decree, entered on March 29, 1999. This third partial consent decree contains a covenant not to sue by the United States as to response costs incurred through August 30, 1998, only, and does not prevent the United States from suing to recover any response costs it incurred after that date.
Oxy was party to the lawsuit and resolved its liability for the First Removal in a fourth partial consent decree, entered on June 9, 2000. This fourth partial consent decree contains a covenant not to sue by the United States as to response costs incurred through November 18, 1999, only, and does not prevent the United States from suing to recover any response costs it incurred after that date.
In approximately April 2004, EPA received a report of mercury in or around a
paved area near the Source Property. Prior to receiving this report, EPA was not aware of any remaining mercury at the Site.
Following its receipt of the April 2004 report, EPA initiated a second removal at the Site, which included soil sampling and excavation and disposal of mercury-contaminated soil. EPA’s soil sampling results indicated that the mercury contamination detected in April 2004 had originated from the Source Property.
Subsequently, EPA discovered two sub-surface vaults on the Source Property that contained numerous empty bottles, cylinders, and other laboratory containers. These containers had been used to transport and handle mercury.
During the course of the Second Removal, EPA conducted numerous activities, including, among other things (i) excavating and disposing of more than 9,300 tons of mercury- contaminated soil from the Site; (ii) installing air and water filtration systems for residences on the Source Property and a nearby Affected Property; (iii) removing the two sub-surface vaults located on the Source Property containing mercury-contaminated containers; (iv) removing contaminated pond sediments; (v) demolishing the residence on the Source Property; (vi) cleaning up the underground pipes at the Source Property; (vii) compensating the current residents of the Source Property for the demolition of their residence; (viii) backfilling the excavated land; (ix) restoration work; and (x) air and water sampling and analysis.
The Second Removal was conducted in response to releases or threatened releases of mercury, a CERCLA hazardous substance at the Site, and constitutes a response action within the meaning of Section 101(25) of CERCLA, 42 U.S.C. § 9601(25).
The United States’ costs of the Second Removal were not inconsistent with the National Contingency Plan (the “NCP”), 40 C.F.R. Part 300.
The Second Removal cost the United States more than $7 million.
The United States has subsequently sued seventeen other responsible parties for
costs incurred in the Second Removal, see United States v. Jacob Goldberg & Son, Inc., et al., No. 10 Civ. 3237 (CS); United States v. Monroe Iron & Metal Co., Inc., et al., No. 17 Civ. 6217 (VB); United States v. Steel of W. Va., Inc., No. 18 Civ. 1661 (KMK); United States v. Columbia Gas Transmission LLC, No. 19 Civ. 2490 (KMK); United States v. Cytec Industries, Inc., No. 20 Civ. 6916 (NSR).