JUNE 2010

United States sues metal dealers and recyclers for mercury releases

The United States Attorney for the Southern District of New York, Preet Bharara, and Judith Enck, the regional administrator of the United States Environmental Protection Agency (EPA), announced that the United States filed a civil complaint in Manhattan federal court against eight defendants, seeking recovery of more than $7 million in response costs that the EPA has incurred since April 2004 in connection with the clean-up of mercury at the Port Refinery Superfund Site in the Village of Rye Brook in Westchester County, New York.

The Complaint alleged that the defendants – Jacob Goldberg & Son, Inc.; Kearny Scrap Metal Company; Leonard Sherman d/b/a L&B Metals; L&B Metals, Inc.; Levin & Sons, Inc.; Vincent A. Pace Scrap Metals, Inc.; PSC Metals, Inc.; and PSC Metals-New York, LLC (collectively, the “Defendants”) – are liable to the United States for the EPA’s response costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the Superfund statute, which was passed by Congress to help accomplish the cleanup of hazardous waste sites around the country and to require those responsible for pollution to pay the costs of cleanup, because they arranged for treatment or disposal of mercury, a CERCLA hazardous substance, at the Site.

According to the Complaint filed in Manhattan federal court:

The Defendants were involved in the metal industry as dealers, producers or recyclers, and sold scrap mercury to Port Refinery, Inc., to be refined at the site. Scrap mercury they sold had no commercial use until it was refined and purified, and the process of refining scrap mercury inevitably resulted in mercury-containing wastes. Between the 1970s and 1991, Port Refinery was engaged in the business of refining scrap mercury and reselling the refined, commercial-grade mercury for use in dentistry and electronics. During the course of refining and purifying scrap mercury, Port Refinery caused mercury or wastes containing mercury to be spilled or discarded, or otherwise released at the site.

From 1991 to 1996, the EPA conducted an initial clean-up of mercury at the site. In November 1996, the United States sued the owners of Port Refinery and other responsible parties, including the Defendants or their predecessors, to recover under CERCLA the costs that the EPA incurred for the initial clean-up of the Site. The United States settled the 1996 CERCLA action and received more than $2.4 million. In the settlement agreements signed by Defendants or their predecessors, the United States specifically reserved its right to seek additional clean-up costs incurred at the Site subsequent to those settlements.

In April 2004, residents in a private housing complex adjacent to the Port Refinery site discovered mercury alongside a walkway. The EPA immediately began an emergency action to respond to this new mercury release. Since April 2004, the EPA has undertaken a variety of investigative and removal activities at the site, including: Testing air, water and soil at the Site for mercury contamination; excavating and disposing of more than 9,300 tons of mercury-contaminated soil from the Site; installing air and water filtration systems for residences at the Site; cleaning up the underground pipes; and demolishing a residence that had significant mercury contamination.

The Defendants are liable for the costs that the EPA has incurred after April 2004, because they “arranged for treatment or disposal” of mercury at the Site. The Complaint seeks $7,062,969 in response costs that the EPA has incurred to date in connection with the recent response actions. The Complaint also seeks a judgment declaring that Defendants are liable for any future costs to be incurred by the EPA in connection with the Site.