In the Matter of the Application of National Fuel Gas Distribution Corp., Petitioner,
New York State Department of Environmental Conservation and New York State Department of Health, Respondents.
This case is not published in a printed volume and its disposition appears in a table in the reporter.
Phillips Lytle LLP, Attorneys for Petitioner.
Kevin M. Hogan and David P. Flynn, Esqs., of counsel.
Andrew M. Cuomo, Attorney General of the State of New York, Attorneys For Respondent
Maureen F. Leary and David A. Munro, Esqs., of counsel.
Henry F. Zwack, J.
In this CPLR Article 78 proceeding, petitioner asserts that respondents improperly selected a remedial program and also challenges two of the six components of the remedial program. Respondents oppose the petition, asserting that the petition fails to state a claim and also that petitioner failed to exhaust administrative remedies by failing to previously raise certain issues during the administrative proceeding.
Oral argument was held on January 8, 2008 and at that time the Court rejected a Reply Memorandum of Law from petitioner, filed on December 31, 2007 and denied a motion by respondents to file sur-reply papers. The return date of this proceeding was November 30, 2007 and although the oral argument was held subsequent to the return date, this did not change the return date.
At issue in this proceeding is the remedial program related to the former Gastown manufactured gas plant (MGP) site ("site") in the Town of Tonawanda, in Erie County. The site consists of approximately 3.5 acres and is located in a small industrial area. The site is bordered by the Tonawanda Creek to the north, an active railroad line to the west and south, and the Gastown Sportsman's Club ("Club") to the east. Residential property is located west of the railroad and east of the Club. Gas manufacturing activities were conducted at the site commencing in approximately 1884 and continued, at least periodically, through 1921. Coal tar, which is reportedly associated with gas manufacturing activities, is the principal contaminant at the site. It is noted in the record that coal tar from manufactured gas plants such as the one at issue is fluid and has the consistency of vegetable oil, facilitating migration of the coal tar from its original location. The coal tar is also referred to as a non-aqueous phase liquid (NAPL).
The Tonawanda Gas Light Company initially operated the plant at the site, and then the plant was operated by Niagara Light, Heat and Power Company in 1900, and then by Republic Light, Heat and Power Company in 1919. In the Record of Decision (ROD), dated March 2007, respondents identify petitioner as a potentially responsible party, as the corporate successor to Tonawanda Gas Light Company. Petitioner notes in the petition that it does not concede that it succeeded to the liabilities of Tonawanda Gas Light Company.
In March 1993, coal tar entered a basement sump at Gastown Sportsman's Club, a private club located east of the site. Respondent New York State Department of Environmental Conservation (DEC)'s spill response unit conducted an investigation and performed remedial actions from 1993 through 1996 in the vicinity of the Club.
In 1998, the site was referred to DEC's Hazardous Waste Remediation Unit after benzene was found in a sample from the Club's basement sump.
In January 2001, DEC issued a Site Investigation Report (SI Report) for the site, which found that a remedial investigation/feasibility study ("RI/FS") was required in order to "fully delineate the nature and extent of the contamination" and to "select a long term remedial action." DEC retained Earth Tech Northeast, ...