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
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.