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State v. Schenectady Chems., Inc.

ELR Citation: 13 ELR 20550
Nos. No. 144654, 459 N.Y.S.2d 971/117 Misc. 2d 960, (N.Y. Sup. Ct., 02/18/1983)

The court rules that plaintiff has stated a cause of action in public nuisance against defendant chemical company for water pollution resulting from the disposal of chemical wastes at the Loeffel dump site 15 to 30 years ago. Plaintiff may seek abatement and punitive damages. The court denies plaintiff's asserted cause of action based on statutory permit requirements, holding that "discharge" under statutory law does not include the gradual migration through permeable soil and ground and surface water of wates disposed of before the state required permits. The court also finds no basis for plaintiff to recover investigative costs, which were incurred in performance of its statutory obligations, or attorneys fees from defendant. However, the court rules that plaintiff can seek recovery in nuisance against defendant for past disposal actions that are now creating a hazard to public health and safety. A non-landowner can be liable for creation of a public nuisance on land of another. The court rules that liability is joint and several. Furthermore, the three-year statute of limitations is no bar to suit because the continuous migration of waste materials results in a public nuisance accruing anew each day. The court rules that plaintiff has standing to bring a nuisance action to protect private as well as public waters. It holds that the relief sought is not speculative and the complaint alleging eight separate causes of action is not in error. The court rules that plaintiff need not join other alleged tortfeasors because joint and several liability applies in nuisance. Also, the state-of-the-art defense is not grounds for dismissal of public nuisance claims, because fault is not a necessary element. Also not grounds for dismissal are defendant's alleged agreements with a licensed, private contractor for disposal of the wastes. Whether defendant's contractor was licensed is an unresolved factual question and the principal can be liable for the acts of a licensed contractor under a variety of circumstances. Finally, the court refuses to grant motions to strike and correct matter in the complaint or to change venue.

Counsel for Plaintiff
Catherine R. McCabe, James A. Sevinsky, Ass't Attorneys General
The Capitol, Albany NY 12224
(518) 474-7330

Counsel for Defendant
Richard E. Roberts
Higgins, Roberts, Beyerl & Coan
502 State St., Schenectady NY 12305
(518) 374-3399