United States District Court, E.D. New York
For State of New York, Plaintiff: Jeanna E. Hussey, LEAD ATTORNEY, N.Y. State Office of the Attorney General, New York, NY; Joseph J. Zedrosser, LEAD ATTORNEY, N.Y. State Office of the Attorney General, New York, NY; Janice A. Dean, Office of the New York State Attorney General, New York, NY; Pedro Medina, New York State, Department of Law, Environmental Protection, New York, NY; Robert C. Schuwerk, New York State Office of the Attorney General, New York, NY; Todd D. Ommen, New York Attorney General's Office, New York, NY.
For Michael Adamowicz, III, individually and as trustee under a deed of trust for the benefit of Michael Adamowicz IV, Elizabeth M. Fraser, One Adams Blvd. Realty Corp., Defendants: Kenneth L. Robinson, Robinson & Associates, P.C., Syosset, NY.
For Rudy, also known as Rudolph P. Marconi, Rudy, Defendant, Cross Defendant, Cross Claimant: Frederick Eisenbud, LEAD ATTORNEY, Lamb & Barnosky, LLP, Melville, NY; Frederick Eisenbud, LEAD ATTORNEY, Law Office of Frederick Eisenbud, Commack, NY; Lilia Factor, Lamb & Barnosky, LLP, Melville, NY.
For One Adams Blvd. Realty Corp., Counter Claimant: Kenneth L. Robinson, LEAD ATTORNEY, Robinson & Associates, P.C., Syosset, NY.
For State of New York, Counter Defendant: Jeanna E. Hussey, LEAD ATTORNEY, N.Y. State Office of the Attorney General, New York, NY; Janice A. Dean, Office of the New York State Attorney General, New York, NY.
For Michael Adamowicz, III, individually and as trustee under a deed of trust for the benefit of Michael Adamowicz IV, Cross Defendant: Theodore W. Firetog, Law Offices of Theodore W. Firetog, Farmingdale, NY; Kenneth L. Robinson, Robinson & Associates, P.C., Syosset, NY.
For Elizabeth M. Fraser, One Adams Blvd. Realty Corp., Cross Defendants: Theodore W. Firetog, Law Offices of Theodore W. Firetog, Farmingdale, NY.
For Rudy, Cross Defendant, Counter Claimant: Frederick Eisenbud, LEAD ATTORNEY, Lamb & Barnosky, LLP, Melville, NY.
For Michael Adamowicz, III, individually and as trustee under a deed of trust for the benefit of Michael Adamowicz IV, Elizabeth M. Fraser, One Adams Blvd. Realty Corp., Counter Claimants: Theodore W. Firetog, LEAD ATTORNEY, Law Offices of Theodore W. Firetog, Farmingdale, NY.
For State of New York, Counter Defendant: Janice A. Dean, Office of the New York State Attorney General, New York, NY.
Tucker L. Melanç on, United States District Judge.
This is a cost-recovery action brought under § 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (" CERCLA" ). Plaintiff, the State of New York, seeks to recover costs incurred as a result of the investigation and cleanup of the National Heatset Printing Site (the " Site" ), a hazardous waste site located in Suffolk County, New York, and the Site's downgradient from Michael Adamowicz III, individually and as a trustee under a deed of trust for the benefit of Michael Adamowicz IV, Elizabeth M. Fraser, individually and as trustee under a deed of trust for the benefit of Bonnie Anne Fraser and as trustee under a deed of trust for the benefit of Mary Margaret Fraser, and as successor trustee under a deed of trust for Mary Adamowicz, One Adams Blvd. Realty Corp., National Heatset Printing Corp., and National Heatset, Inc.
II. History of the Proceeding from the Date Trial Commenced
This matter was tried before the Court as a bench trial on December 2-5 and December 9-12, 2013. At the close of trial, the Court advised the attorneys for the parties that it would issue a ruling as soon as practically possible after receipt of the attorneys' post-trial filings. [Trial Tr. 1471:22-1472:14, Dec. 12, 2013, Rec. Doc. 339; Rec. Doc. 330].
III. Duty of the Trial Judge in a Proceeding Tried to the Court
In any bench trial, the trial judge has to evaluate the credibility of the testifying witnesses, the witnesses' demeanor, any previous inconsistent statements by a witness, as well as the explanation for any such inconsistent statements. The United States Supreme Court has stated that " trial judges have the unique opportunity to consider the evidence in the living courtroom context, while appellate judges see only the cold paper record." Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 438, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996) (internal quotation marks omitted). The United States Court of Appeals for the Second Circuit has stated that " the full flavor of a hearing cannot be sensed from the sterile sheets of a transcript." ABC, Inc. v. Stewart, 360 F.3d 90, 100 (2d Cir. 2004) (internal quotation marks omitted). The record will reflect that the Court questioned each witness that testified extensively and that all non-party witnesses, with the exception of expert witnesses, were sequestered during the course of trial. The Court's findings of fact that follow are in no small part based on the trial judge's view of the credibility of the witnesses, based on their trial testimony and demeanor at trial, as well as the documentary evidence and the explanation of, or reconciliation of, any inconsistent statements made by a witness during his or her trial testimony or previous inconsistent statements, written or oral, made by a witness.
The Court also notes that due to the layout of the courtroom in which the trial was conducted the trial judge was seated between approximately three and nine feet from each witness as the witness testified.
IV. Order of Witnesses' Testimony and the Court's View of Witnesses' Credibility
The first witness to testify was Robert Seyfarth (" Seyfarth" ), a former employee of the Suffolk County Department of Health Services (" SCDHS" ). The Court found Seyfarth to be knowledgeable and credible and his testimony to be generally consistent. The second witness to testify was Jeffrey Dyber (" Dyber" ), an environmental engineer at the New York State Department of Environmental Conservation (" DEC" ) who oversaw the investigation and remediation of the Site. The Court found Dyber to be knowledgeable and meticulous and his testimony to be consistent. The third plaintiff's witness to testify was Dr. Charles McLane (" McLane" ), who was tendered as and accepted by the court as an expert in the field of groundwater flow system analysis and fate and transport of chemical contaminants in subsurface water and soil. The Court found McLane to be professional in answering all questions asked of him whether by plaintiff's counsel, defendants' counsel, or the Court. The Court also found McLane to be knowledgeable and candid, and his testimony to be credible. The fourth witness to testify was Charles Sosik (" Sosik" ), defendants' expert who was tendered as and accepted by the Court as an expert in the field of hydrogeology, the investigation and remediation of hazardous substances and the fate and transport analysis of contaminants in the soil in groundwater. The Court found Sosik
to be less than well prepared and less than fully credible and candid. The Court also found his testimony to be evasive and overly and unnecessarily conditional. The fifth witness to testify was defendant Michael Adamowicz III (" Adamowicz" ), individually and on behalf of One Adams Blvd. Realty Corp. (" OABRCorp" ), as its President. The Court found Adamowicz's testimony to be generally credible, although not particularly relevant to issues before the Court. Michael Pavone (" Pavone" ), a former foreman and operator of the printing presses at National Heatset Printing (" NHP" ), Rudolph Marconi (" Marconi" ), a former officer and employee of NHP, Chittababu Vasudevan (" Vasudevan" ), a former Director of the DEC Remediation Bureau, and John Helmeset (" Helmeset" ), a retired environmental engineer at DEC, testified by deposition in lieu of live testimony. Thus, all the Court had before it were the deposition transcripts and was in effect, as it relates to the testimonies of Pavone, Marconi, Vasudevan, and Helmeset, in the same position as an appellate court reviewing a transcript.
V. Findings of Fact
In any trial, civil or criminal, there are two types of evidence the trier of fact may consider: direct evidence, such as testimony of an eye witness, and indirect or circumstantial evidence, the proof of circumstances that tends to prove or disprove the existence or nonexistence of certain other facts. The law makes no distinction between direct and circumstantial evidence. The Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Civil Procedure 52(a). In some instances, a finding of fact may also be a mixed conclusion of law and in other instances a conclusion of law may include findings of fact.
a. Procedural History of the Case
1. Plaintiff filed this action to recover costs pursuant to CERCLA § 107(a) on June 14, 2002, against Michael Adamowicz III, individually and as trustee under a deed of trust for Michael Adamowicz IV; Elizabeth M. Fraser; Mary Adamowicz, as trustee under a deed of trust for Bonnie Ann Fraser and Mary Margaret Fraser; OABRCorp; National Heatset Printing Corp. (" NHPC" ); National Heatset Inc. (" NHI" ); and Rudolph Marconi. [Rec. Doc. 1].
2. The case was originally assigned to United States District Judge Denis R. Hurley and reassigned to United States District Judge Sandra L. Townes on September 7, 2004. [ECF Entry dated Sept. 7, 2004]. It was reassigned to the trial judge on October 11, 2012. [ECF Entry dated Oct. 11, 2012].
3. On July 16, 2004, defendant Mary Adamowicz was removed as a party as a result of her death. Elizabeth
Fraser was substituted as her successor trustee (referred to hereinafter in her individual and trustee capacities as " Fraser" ). [Rec. Doc. 43].
4. On January 31, 2006, Judge Townes entered a default judgment against NHI and NHPC (collectively, the " NHP defendants" ) ruling that they are jointly and severally liable under CERCLA § § 107(a)(2) and 113(g)(2), and 42 U.S.C. § § 9607(a)(2) and 9613(g)(2) for all past and future response costs incurred or to be incurred by plaintiff at the Site. [Rec. Doc. 141 at 2].
5. On March 30, 2011, Judge Townes granted summary judgment in favor of plaintiff on the issue of liability against Adamowicz and Fraser, in their individual capacities and as trustees, and OABRCorp (collectively, the " OAB defendants" ), after determining that plaintiff had established the following elements of its CERCLA claim: (1) OAB defendants are responsible persons [Rec. Doc. 222 at 24-28, 42]; (2) the Site, including the leaching pool, overflow pool, pipe, slab area beneath the building, and the drum storage area, is a facility [ Id. at 14-15]; (3) there has been a release or threatened release of hazardous substances at the Site [ Id. at 16-17]; and (4) plaintiff incurred costs responding to that release (5) that were not inconsistent with the National Contingency Plan (" NCP" ). [ Id. at 17-21].
6. Judge Townes also ruled that the OAB defendants are not entitled to apportionment of liability and, thus, are jointly and severally liable to plaintiff with the NHP defendants, for plaintiff's past and future response costs at the Site. [ Id. at 32-34].
7. On January 30, 2012, Judge Townes approved a Consent Decree which resolved all claims brought by plaintiff against Marconi, the operator of the Site, for the sum of $10,000. [Rec. Doc. 248].
8. Pursuant to Judge Townes' March 30, 2011, ruling, the only matters left for trial were " whether -- or to what extent -- [the OAB and NHP] Defendants should bear the costs associated with hazardous material detected downgradient from the Site " and the total costs for which OAB and NHP defendants are liable under CERCLA. [Rec. Doc. 222 at 37, 43 (emphasis added); see also Rec. Doc. 272 at 13].
9. The Site is located at One Adams Boulevard in the Hamlet of Farmingdale, Town of Babylon, Suffolk County, New York. [Rec. Doc. 318 ¶ 1].
10. The Site is 4.5 acres in area and contains one industrial building. [Rec. Doc. 318 ¶ 2].
11. Prior to the construction of the industrial building at the Site in or around 1972, no industrial activity was conducted at the Site. [Adamowicz, Trial Tr. 1395:5-12, Dec. 11, 2013, Rec. Doc. 338].
12. A leaching pool is located on the north-northeast side of the industrial building, between the building and the
Long Island Rail Road tracks. [Seyfarth, Trial Tr. 103:17-104:11, Dec. 2, 2013, Rec. Doc. 346; Pl.'s Ex. 67 at KR003114-15]. A pipe leads from the building to near this leaching pool, which is also connected to an adjoining overflow pool by a pipe. [Pl.'s Ex. 21; Rec. Doc. 318 ¶ 15].
13. The ground beneath the Site consists of sand, gravel, silt, and clay that overlay bedrock. These sediments are divided into three aquifers: the Upper Glacial Aquifer, the Magothy Aquifer, and the Lloyd Aquifer. The Upper Glacial Aquifer extends from ground surface to approximately 70 feet to 85 feet below ground surface (" bgs" ). A layer of clay, referred to as Gardiner's Clay, is at the bottom of the Upper Glacial Aquifer. The Magothy Aquifer extends from the bottom of the Gardiner's clay to the top of another layer of clay, referred to as Raritan Clay. The Magothy Aquifer is a part of the Long Island Aquifer, which is designated a sole source aquifer by the United States Environmental Protection Agency. Below the Magothy Aquifer is the Lloyd Aquifer. [Dyber, Trial. Tr., 388:1-12, Dec. 3, 2013, Rec. Doc. 344; McLane, Trial Tr. 780:19-783:16, Dec. 5, 2013, Rec. Doc. 343].
14. The Site's downgradient, that is the direction that groundwater flows, is in a south-southeast direction. [Dyber, Trial Tr., 406:13-18, 414:3-19, Dec. 3, 2013, Rec. Doc. 344; McLane, Trial Tr. 783:21-25, Dec. 5, 2013, Rec. Doc. 343; McLane, Trial Tr. 962:18-965:18, Dec. 9, 2013, Rec. Doc. 336].
15. The Suffolk County Water Authority (" SCWA" ) Albany Avenue Well Field (" AAWF" ) is a public supply of wells approximately 6,500 feet downgradient from the Site. [Dyber, Trial Tr., 432:10-13, Dec. 3, 2013, Rec. Doc. 344; Dyber, Trial Tr. 451:1-17, Dec. 4, 2013, Rec. Doc. 345].
16. The AAWF draws water from 419 to 509 feet bgs, a depth located in the Magothy Aquifer. [Pl.'s Ex. 76 at KR002645].
17. There are several private drinking wells farther south and southeast of the AAWF, including: 411 Atlantic Street, located approximately 2,000 feet southeast from the AAWF; 7 Howard Street, located approximately 2,500 feet south-southeast or southeast of the AAWF; and 12 Edmunds Place, located approximately 3,000 feet south of the AAWF. [Dyber, Trial Tr. 438:9-440:25, Dec. 3, 2013, Rec. Doc. 346; Dyber, Trial Tr. 569:25-572:5, Dec. 4, 2013, Rec. Doc. 344; Dyber, Trial Tr. 670:17-674:16, Dec. 5, 2013, Rec. Doc. 345; Pl.'s Ex. 40 at 021682].
18. Perchloroethylene (" PCE" ), also known as " perc" and " tetrachloroethylene," is the principal contaminant of concern at the Site. [Dyber, Trial Tr. 385:22-386:2, Dec. 3, 2013, Rec. Doc. 344; Pl.'s Ex. 15 at S013682]. Dichloroethylene (" DCE" ) and trichloroethylene (" TCE" ) are degradation products of PCE. [McLane, Trial Tr.
779:16-23, Dec. 5, 2013, Rec. Doc. 343; Court Ex. 1]. PCE, DCE, and TCE are volatile organic compounds (" VOCs" ). [Pl.'s Ex. 51 at S040000].
19. The groundwater standard for PCE, as set by the DEC, is less than or equal to five parts per billion (" ppb" ). [Dyber, Trial Tr. 401:19-402:9, Dec. 3, 2013, Rec. Doc. 344].
20. The recommended soil cleanup objective of PCE in the 1990s, as set by the DEC, was 1.4 parts per million. [Dyber, Trial Tr. 398:6-399:1, Dec. 3, 2013, Rec. Doc. 344].
c. Owners of the Site
21. In 1972, Michael Adams Co., Inc. acquired title to the Site. [Rec. Doc. 318 ¶ 3].
22. On November 3, 1972, Michael Adams Co., Inc. transferred title of the Site to Adamowicz, Fraser, and Mary Adamowicz. [Rec. Doc. 318 ¶ 4].
23. On or about August 8, 1990, Adamowicz, Fraser, and Mary Adamowicz conveyed title of the Site to One Adams Blvd. Realty Co., a partnership in which defendants Adamowicz and Fraser were partners. [Rec. Doc. 318 ¶ 7].
24. In 1996, One Adams Blvd. Realty Co. conveyed title of the Site to defendant OABRCorp, its current owner. [Rec. Doc. 318 ¶ 9].
25. Defendants Adamowicz and Fraser are the sole shareholders, officers, and directors of ...