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Tuesday, June 18, 2024 | Back issues
Courthouse News Service Courthouse News Service

Manufacturer Still Faces Claims of Tainted Water

(CN) - The water-strapped town of New Windsor, N.Y., can move ahead with $30 million claims against a manufacturing plant that closed shop in 1994, a federal judge ruled.

Avery Dennison and its subsidiaries owned a 2.2-acre manufacturing plant in the Orange County community between 1956 and 1994, making metal office furniture, computer equipment and accessories.

The property lines of the land owned by the companies extended to more than double of the size of the plant itself.

Neighbors say the plant drenched that area with industrial, chlorinated solvents, which had leaked from two degreasing pits in the center of the plant and entered the soils, groundwater and bedrock of New Windsor.

In 1983, the U.S. Environmental Protection agency slapped the companies with a notice of violation, finding that the emissions from these solvents breached Clean Air Act limits and other state and federal laws.

The EPA classifies two of those chemicals, trichloroethane and dichloroethene, as suspected carcinogens.

Two years later, federal prosecutors sought $25,000 in penalties and injunctive relief in enforcement of the EPA's notice.

Though the plant closed in 1994, New York state investigators continued monitoring the effect of the pollution on the adjacent Little Falls Ponds area, wetlands located just past the plant's eastern border.

Three wells from these wetlands formerly supplied the town's drinking water, but they were decommissioned after New Windsor entered into a deal to buy Catskill Aqueduct water from New York City.

Conrad Geoscience Corp., a consultant hired by the town, found that the plume migrated into the wells.

According to the complaint, Avery always has denied contamination in the Little Falls Ponds groundwater. It allegedly refused to conduct any cleanup or testing outside their property lines.

Though New Windsor thought reactivating the wells would address recent water shortages, it has backed away from the plan based on the town engineer's advice about the alleged pollution.

New Windsor claims it now completely relies on increasingly expensive New York City water, which raises approximately $30,000 in excess charges to supply the town's roughly 25,000 residents.

If it does not find potable local sources, New Windsor estimates that it will need to spend $30 million over the next 20 years to prevent what it calls a "water emergency."

U.S. District Judge Cathy Seibel called town's claims plausible on Thursday, in 31-page order tossing Avery's motion to dismiss.

"Based on these factual allegations, I find it plausible that there is a high degree of risk not only of some contamination to Plaintiff's land, but also of adverse health effects to the people of New Windsor should they drink water from the Wells, and that the resulting harm is likely great," the order states.

Avery and its subsidiaries are still on the hook for strict liability and trespass claims, but it plans to fight the lawsuit.

"This ruling makes no finding on the facts or the merits of the lawsuit," Avery spokesman David Frail said. "It is simply a procedural ruling on Avery Dennison's motion for dismissal."

Frail laid out the basics of Avery's rebuttal:

"The facts found in Avery Dennison's investigation refute the allegations in the lawsuit," Frail said. "Since 1999, Avery Dennison has been participating in the New York State Department of Environmental Conservation's voluntary remediation program to address contamination discovered on its property in New Windsor. Our investigation clearly indicates that the contamination on the site has not affected the town's drinking water supplies. The claims in the suit involve wells that the town long ago stopped using for drinking water."

Kimberlea Rea, a Nyack attorney for the town, countered that the judge sent a clear message that she would not tolerate Avery's "procedural antics," and that the facts would find Avery caused the pollution.

"I think the judge sent a very clear message to Avery Dennison and the other Dennison defendants that their attempts to avoid liability for contaminating the town's water drinking water supplies, by using procedural antics, are not going to be tolerated," Rea told Courthouse News.

The parties will report for a conference on March 23.

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