SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ORLEANS
------------------------------------------------------------------- 
THE STATE OF NEW YORK and ERIN M. CROTTY 
as COMMISSIONER of the NEW YORK
STATE DEPARTMENT OF ENVIRONMENTAL 
CONSERVATION,

Plaintiffs,    VERIFIED COMPLAINT

-against-

DIAZ CHEMICAL CORPORATION,

Defendant.
----------------------------------------------------------------------

Plaintiffs the State of New York and the New York State Department of Environmental Conservation (together, the "State"), by Eliot Spitzer, Attorney General of the State of New York, for their complaint against Defendant Diaz Chemical Corporation ("Diaz") allege as follows:

Preliminary Statement

  1.   The State brings this action to enjoin Defendant’s maintenance of a public nuisance caused by its operation of a chemical manufacturing plant located at 40 Jackson Street in the Village of Hamlin, NY (the "Diaz Plant").  The State’s first and second causes of action are based on a public nuisance, pursuant to common law and state air pollution regulations, created by an explosion and release of 2-chloro-6-fluorophenol, toluene, and other chemicals including other chlorinated phenolic mixtures from the Diaz Plant on January 5, 2002 ("January 2002 Explosion") that resulted in widespread dispersion of chemicals and noxious fumes in the Village of Holley.  Following the explosion, local residents have experienced adverse physical effects associated from exposure to the noxious odors and toxic chemicals released from the Diaz Plant, including headache, nausea, vomiting, constriction of the throat and chest, difficulty in breathing, bloody nasal discharge, eye irritation, and loss of appetite.  Because the January 2002 Explosion contaminated backyards, garages, and cars, and caused the interiors of nearby homes to become permeated with chemicals and noxious odors, at least fifteen families were forced to evacuate their homes and take refuge in motels. As of the date of this complaint, most of these families should not return to their homes due to chemical contamination from the January 2002 Explosion.

   2.   The State’s third and fourth causes of action are based on Diaz’s maintenance of a public nuisance, under common law and state air pollution regulations, at its plant through a history of recurring spills and releases, resulting in frequent noxious fumes, toxic emissions, and contamination of soil and groundwater in and around the Diaz Plant.  Since Diaz began operating in Holley in about 1974, hundreds of citizen odor complaints have been lodged against the company.  Local residents have suffered adverse physical effects from the noxious odors and toxic emissions including severe headaches, nausea, vomiting,  constriction of the throat and chest, difficulty in breathing, bloody nasal discharge, eye irritation, kidney pain, and loss of appetite, and have had their daily activities curtailed and interrupted by odors and emissions from the Diaz Plant. 

3.       The State’s fifth cause of action is based on Diaz’s maintenance of a public nuisance through its conduct of abnormally dangerous activities at its plant, in that Diaz transports, stores, and uses hazardous chemicals in close proximity to a residential neighborhood, creating a high risk of harm to neighboring people, land and personal property.

4.   The State’s sixth cause of action is that the history of recurring spills and releases at the Diaz Plant, including the January 2002 Explosion, constitute repeated illegal acts and persistent illegality in the carrying on, conducting or transaction of business in violation of Executive Law § 63(12).

  5.   The State seeks injunctive relief affirmatively requiring Diaz to remediate all contamination caused by the January 2002 Explosion, including contamination at the Diaz Plant and contamination inside and around homes and other structures, lots, driveways, streets, and all other areas affected by the January 2002 Explosion. The State also seeks an order permanently enjoining Diaz from operating the Diaz Plant as a public nuisance, requiring Diaz to install and maintain pollution control devices to control odorous emissions and unplanned releases, and requiring Diaz to implement maintenance and safety procedures to prevent further releases or spills at the Diaz Plant and protect the public health, safety, and welfare from all aspects of Diaz’s operations.

  6.   The State also seeks an order that Diaz pay restitution for lodging, meal and other living expenses to families who were displaced by the January 2002 Explosion.
Jurisdiction and Venue

  7.          This Court has jurisdiction pursuant to Environmental Conservation Law (“ECL”) §§ 71-2103 and 71-2107, and Judiciary Law § 140-b.

8.   Venue is proper in Orleans County pursuant to CPLR §503(a) and (c) because Defendant has a principal place of business in that county. 

Parties

   9.   Plaintiff the State of New York is a body politic and sovereign entity which brings this action on behalf of itself and, as  parens patriae, on behalf of all residents and citizens of the State, particularly those residents and citizens residing in the area of the Village of Holley, New York in the vicinity of the Diaz Plant.

10.   Plaintiff  Erin M. Crotty  is Commissioner of the New York State Department of Environmental Conservation (“DEC”), an agency of the State of New York charged with protecting the environment and natural resources of the State pursuant to the ECL. 

11.   Defendant Diaz is, upon information and belief, a corporation organized under the laws of the State of New York, with a principal place of business located at 40 Jackson Street, Hamlin, NY.
Statutory and Regulatory Framework

A. Air Pollution Control Act

12.   The federal Clean Air Act, 42 U.S.C. §§ 7401 et seq., establishes a regulatory scheme for the protection, regulation, and enhancement of the nation’s air resources.  Pursuant to section 109 of the Act, 42 U.S.C. § 7409, the United States Environmental Protection Agency (“EPA”) established primary and secondary national ambient air quality standards (“NAAQS”) for a number of air pollutants. 

13.   The NAAQS are levels of pollution in the ambient air the attainment and maintenance of which, in the judgment of EPA, based on scientific criteria and allowing an adequate margin of safety, are required to protect the public health.  42 U.S.C. § 7409(b).

  14.   Section 107 of the Clean Air Act, 42 U.S.C. § 7407, provides that individual states have primary responsibility for assuring compliance with the NAAQS within their boundaries.  Each state must submit to EPA for approval a state implementation plan (“SIP”) which specifies the manner in which the state will ensure attainment of the NAAQS by the statutory deadlines set forth in the Act.

15.    As part of New York’s SIP, ECL Articles 3 (general powers and duties) and 19 (Air Pollution Control Act) authorize DEC to regulate, among other things, stationary sources of air contamination within the State as part of the State’s efforts to ensure attainment of the NAAQS.  The Air Pollution Control Act was enacted to safeguard the air resources of the state from pollution by controlling or abating existing air pollution and preventing new air pollution.  ECL § 19-0105.

16.   Pursuant to ECL § 19-0301(1)(a), DEC is empowered to promulgate regulations for "preventing, controlling or prohibiting air pollution."

17.   Pursuant to ECL § 19-0301(1), DEC has promulgated air pollution control regulations at, inter alia, 6 NYCRR Part 211.2, which provides that “no person shall cause or allow emissions of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration which are injurious to human, plant or animal life or to property, or which unreasonably interfere with the comfortable enjoyment of life or property.  Notwithstanding the existence of specific air quality standards or emission limits, this prohibition applies, but is not limited to, any particulate, fume, gas, mist, odor, smoke, vapor, pollen, toxic or deleterious emission, either alone or in combination with others.”

18.    Pursuant to ECL § 71-2103, any person who violates any provision of ECL Article 19 or any code, rule or regulation promulgated pursuant thereto shall be liable, in the case of a first violation, for a penalty of not less than two hundred fifty dollars nor more than ten thousand dollars for said violation and an additional penalty of not to exceed ten thousand dollars for each day during which such violation continues.  In the case of a second or any further violation, the liability shall be for a penalty not to exceed fifteen thousand dollars for said violation and an additional penalty not to exceed fifteen thousand dollars for each day during which such violation occurs.  The aforementioned penalties are recoverable in an action brought by the Attorney General.  ECL § 71-2103(2). 

19.   In addition, it is the duty of the Attorney General, upon the request of the Commissioner of DEC, to bring an action for an injunction against any person violating a provision of ECL Article 19 or any rule or regulation promulgated pursuant thereto.  ECL § 71-2107.
B. Executive Law § 63(12)

 20.   Executive Law § 63(12) provides that “[w]henever any person shall engage in repeated fraudulent or illegal acts, or otherwise demonstrate persistent fraud or illegality in the carrying on, conducting or transaction of business, the attorney general may apply, in the name of the people of the state of New York, on notice of five days, for an order enjoining the continuance of such business activity or of any fraudulent or illegal acts, and directing restitution and damages and, in an appropriate case, cancelling any certificate filed under and by virtue of the provisions of the provisions of section four hundred forty of the former penal law or section one hundred thirty of the general business law, and the court may award the relief applied for or so much thereof as it may deem proper.”

Facts

A.  Diaz Plant and Operation

21.   On information and belief, Defendant purchased the Diaz Plant site in or about 1974. Prior to its purchase and conversion to a chemical plant by Diaz, the plant was an apple-processing facility.

22.   At all times relevant hereto, Diaz has owned and operated the Diaz Plant in Holley.

23.    On information and belief, Diaz manufactures speciality chemicals for use in agricultural and pharmaceutical industries. 

24.    On information and belief, some of the chemicals utilized by Diaz in its operations are extremely hazardous to human health and can cause, among other things, irritation of the eyes and skin, nasal irritation, and irritation of the respiratory tract. In particular, 2-chloro-6-fluorophenol is a hazardous waste pursuant to the Resource Conservation and Recovery Act, 42 U.S.C.§§6901 et seq., due to its corrosivity, and is considered hazardous in transportation by United States Department of Transportation.  Other chemicals used in Diaz’ operations such as nitric acid, sulfuric acid, potassium hydroxide and ammonia are chemicals that are strong acids or caustic materials  capable of causing immediate harm or death if exposure is of sufficient magnitude and duration.

 25.   Residential properties are located adjacent to and directly across Jackson Street from the Diaz Plant. Some homes are less than 100 feet from Diaz facilities.

       B.  January  2002 Explosion at the Diaz Plant

26.      On January 5, 2002 at about 10:45 P.M., hot chemicals in a reactor vessel at Diaz exploded through a rupture disk resulting in the release to the atmosphere of various hazardous chemicals in liquid and vapor form, including, on information and belief, 2-chloro-6-fluorophenol, 2,4-dichloro-6-fluorophenol, toluene, and other chemicals.

27.    A corrosive spray of chemicals from the release contaminated neighboring properties, homes and vehicles. Fumes and odors from the explosion permeated homes and vehicles in the Village of Holley and were noticeable in the Village of Hilton, approximately 12 miles from Holley.

28.   Area residents called 911 to report a terrible odor in their homes and physical symptoms such as burning eyes.  Approximately fifteen families were forced from their homes,  leaving personal effects and seeking shelter in motels or the homes of relatives. Some left their homes that night, others, based on Diaz’ representation that the release was not a hazard, stayed in their homes until the next day, when they too fled their homes to take shelter at area motels. One man wanted to evacuate, but believing that his wife would not survive in the fumes outside and stayed at home until the next day, when he and his wife were evacuated to a motel in Brockport, New York.

 29.     Scientific literature demonstrates that two of the chemicals released during the January 2002 Explosion - 2-chloro-6-fluorophenol and toluene - can cause a variety of acute (short-term) and chronic (long-term) health effects, depending on exposure duration and concentration. 

30.   2-chloro-6-fluorophenol is a member of a class of chemicals called chlorophenols.  According to a 1999 federal Agency for Toxic Substance and Disease Registry report (the "ATSDR Report"), chlorophenols have a strong medicinal taste and odor, and can be tasted in water and smelled in air at very low concentrations.  Chlorophenols are absorbed rapidly through the skin and enter the body if they are ingested. 

31.       Exposure to chlorophenols at high levels can cause adverse or negative health effects.  According to the ATSDR Report, the major effects from exposure to high levels of chlorophenols are to the liver and the immune system.  Some chlorophenols (for example, 2,4,6-trichlorophenol) have been shown to cause leukemia in rats and liver cancer in mice, suggesting that some chlorophenols may be carcinogens. The chlorophenols as a group have been classified by the International Agency on Research for Cancer as a group 2B carcinogen (probable human carcinogen).  This classification is based on limited evidence of carcinogenicity in humans exposed during the production of chlorophenoxy herbicides and sufficient animal evidence of carcinogenicity for 2,4,6-trichlorophenol. 

 32.    According to the ATSDR report, skin and eye contact of animals with chlorophenols can cause severe injuries, which are greatest with exposure to mono- and dichlorophenols.  The signs of severe skin injury include redness, swelling, scabbing, and scar formation.   High levels of chlorophenols given to pregnant female rats in drinking water have tended to reduce the number of their newborn animals and to decrease the weights of their newborn.  One animal study found exposure to chlorophenols delayed hardening of some bones in the offspring. 

 33.  According to a Material Safety Data Sheet dated January 7, 2002, provided by Diaz for  2-chloro-6-fluorophenol (a major component of the January 2002 Explosion) the chemical is hazardous and can cause serious health effects, including redness or irritation of the skin, eyes or nasal passages; it causes harm through inhalation, ingestion or skin contact. 

 34. Toluene, another component of the January 2002 Explosion, is a solvent that can affect the brain and central nervous system and cause headaches, sleepiness, impaired ability to think clearly after exposure to high concentrations, nausea, and kidney damage.

  35.  On information and belief, residents exposed to the January 2002 Explosion suffered severe headaches, nausea, vomiting,  constriction of the throat and chest, difficulty in breathing, bloody nasal discharge, skin burns and irritation, eye injury and irritation, kidney pain and loss of appetite, and have had their daily activities curtailed. They have had to stay in motels without their personal effects, eat all of their meals in restaurants, make arrangements to care for pets, take children to school, and have had their lives disrupted in countless other ways. 

36.  On information and belief, these displaced residents are still unable to return to their homes because of persistent odors or recurrence of physical symptoms associated with the January 2002 Explosion, including headaches, skin burns, skin and eye irritation, and a lingering metallic taste. 

  C.  History of Other Releases at the Diaz Plant

37.  Diaz’ operation of its plant has resulted in numerous other explosions and spills causing the release of hazardous chemicals into the environment and has spread noxious odors in the neighborhood near the Diaz Plant. At least five previous incidents, like the January  2002 Explosion, involved releases through a rupture disk (a device designed to break when a certain pressure is exceeded):

a)   In or about January 1977, a reactor vessel exploded, resulting in the release of about one thousand pounds of nitric acid and sulfuric acid into the air through a rupture disk. These chemicals can cause burns, inability to swallow, mucous membrane burns, abdominal pain, respiratory distress, shock and renal failure. This release covered a three to five acre area. Area residents reported burning eyes and skin, and a stinging sensation in their throats. Children playing in the snow experienced burning eyes. Diaz had to pay for repainting cars damaged by the release. The DEC Spill Report regarding this incident mentions a similar incident in 1976.

b)      In or about July 1990, a reactor vessel exploded, resulting in the release of a herbicide, lactofen, and nitrogen.

c)      In or about December 1991, a reactor vessel exploded resulting in the release of a mixture of sulfuric and nitric acids  into the air through a rupture disk. These chemicals can cause burns, inability to swallow, mucous membrane burns, abdominal pain, respiratory distress, shock and renal failure. Nearby residents were told to remain in their homes with the windows shut. Following this release, the Office of the Attorney General, in a letter dated March 23, 1992, asked Diaz to implement a program to minimize or eliminate risks of off-site release incidents "in a manner that is credible and restores some confidence to the community that the chemical plant is operating in a safe and environmentally sound manner."

d)        In or about March 1995, a reactor vessel exploded resulting in the release of  m-bromofluorobenzene into the air through a rupture disk. Nearby residents complained of odors from this release. If inhaled,  m-bromofluorobenzene is harmful and may be fatal if swallowed. Health effects include headache, nausea, gastrointestinal disturbances and blindness.

e)         In or about July 1997, a reactor vessel exploded, resulting in the release of three hundred pounds of potassium hydroxide, methanol, m-bromofluorobenzene and tetraethyl ammonium bromide into the air through a rupture disk. Potassium hydroxide is an alkaline caustic capable of inflicting more serious injury than acid, and tetraethyl ammonium bromide can cause impairment of speech and swallowing, eye injury, sudden lowering of blood pressure, and associated vascular collapse.  (See description of effects of m-bromofluorobenzene in paragraph “d” above).

38.   On information and belief, the above releases could have been prevented or minimized by using readily available safety and control devices. 

39.     In addition to the above incidents involving releases through rupture disks, other releases of hazardous material, on information and belief affecting nearby residents, have occurred at the Diaz Plant as reported to State officials on or about the following dates:

a)      July 7, 1977 - Release of trifluralin herbicide resulting in the formation of a large orange-brownish cloud emanating from many openings in the plant which the wind pushed towards the west.  Trifluralin can give rise to polar metabolites that may contaminate drinking water.  Trifluralin has been shown to cause eye irritation, nausea, dizziness, headache, fever or chills, and muscle aches or weakness. Some lower, "technical" grades of trifluralin could contain potent carcinogenic compounds.

b) January 29, 1985 - Ammonia release resulting in complaints from neighbors. Ammonia is a highly irritating corrosive material that causes burns, blistering, severe irritation of the respiratory tract, broncho spasm, pulmonary edema, and respiratory arrest.

c) March 15, 1985 - Chlorine release from tank. Chlorine is a gas at room temperature and a liquid while under pressure. Inhalation causes respiratory irritation with coughing, labored breathing and possible death from suffocation. Medical conditions affected by exposure to chlorine include emphysema, bronchitis, asthma, and other respiratory diseases.

d) April 16, 1985 - Unknown amounts of bromoacetophenone released into the air. No information on this substance is readily available.

e ) August 12, 1985 - A 55 gallon drum of hexane overflowed. Between 20 and 50 gallons entered the storm sewer on Jackson Street. Hexane is a solvent with a mild hydrocarbon odor.  Exposure can occur by  inhalation, ingestion or dermal contact and can cause irritation of the respiratory tract, skin, and eyes, and defatting of skin.  Narcotic effects are possible at high exposures.

f) September 25, 1986 - Dimethyl sulfoxide gas released due to scrubber problem. Dimethyl sulfoxide is a colorless liquid that is harmful if swallowed, inhaled or absorbed through the skin.  The vapor is irritating to the eyes, mucous membranes and upper respiratory tract.  It can cause skin irritation, and allergic respiratory and skin reactions. It is considered a sensitizer, and also may cause sleep disturbances, and gastrointestinal effects. 

g) October 1986 - Nitric and sulfuric acid spill. Holley Fire Department called to help neutralize acid. These chemicals can cause burns, inability to swallow, mucous membrane burns, abdominal pain, respiratory distress, shock and renal failure.

h) October 1986 - Ethyl chloro propane spill resulting in complaints from  neighbors of odors in homes. No toxicological information on this substance is readily available.

i) December 1986 - Orange bromine from storm sewer pipe spilled into Sandy Creek. Bromine is a dense, dark red, fuming corrosive liquid.  Although bromine will not burn, it is a strong oxidizer and can react violently with many materials creating fire hazards. Bromine in liquid or vapor form is irritating and corrosive to body tissues on contact. It can be especially hazardous to the eyes and respiratory tract.  There is danger of delayed respiratory failure, pulmonary edema and pneumonia which may result after heavy vapor exposure. Existing dermatitis or respiratory system problems may be aggravated by exposure to bromine.

j) January 18, 1987 - 3000 pounds of bromine spilled when a tank ruptured at the weld seam. (See description of bromine in paragraph i above). 

k) March 19, 1987 - 1500 gallons of process water and sludge discharged to Sandy Creek.

l) April 1987  - Chlorination process malfunction. Neighbors complained of odors.

m) July 13, 1988 - 100 gallons triethylamine spilled. Triethylamine is a colorless liquid which is harmful if ingested, inhaled or absorbed through the skin.  It causes burns and is extremely destructive to tissue of mucous membranes and upper respiratory tract, and eyes and skin.  Inhalation may be fatal as a result of spasm, inflammation and edema of the larynx and bronchi, chemical pneumonitis and pulmonary edema.  Other target organs include the central nervous system, liver, kidneys and heart. 

n) March 30, 1989 - Estimated 800 gallons of acetic anhydride spilled from a broken valve. Acetic anhydride is a colorless liquid which is harmful if swallowed, inhaled or absorbed through the skin.  It is extremely destructive to tissue of the mucous membranes and upper respiratory tract, and eyes and skin. Inhalation may be fatal as a result of spasm, inflammation and edema of the larynx and bronchi, chemical pneumonitis and pulmonary edema. Symptoms of overexposure include burning sensation, coughing, wheezing, laryngitis, shortness of breath, headache, nausea and vomiting.

o) December 14, 1989 - 200 gallons of CBTL spilled. No toxicological information on this substance is readily available.

p) February 21, 1990 - Spill of unknown chemical.

q) August 1990 - Release of chlorine gas resulting in odor complaints from neighbors 200 -300 feet from the Diaz Plant. (See description of chlorine gas in subparagraph “c” above). 

r) November 12, 1990 - Spill of 300 gallons of para-chlorobenzotrifluoride, ferric chloride anhydrous and dichlorobenzotrifluoride.  Para-chlorobenzotrifluoride is a clear liquid with an aromatic odor.  It may cause irritation of skin and of the gastrointestinal tract, respiratory irritation and central nervous system effects. Symptoms of exposure include nausea, headache, dizziness, red eyes, blurred vision, fatigue, vomiting, and unconsciousness. Ferric chloride anhydrous is a greenish black granular solid. Ingestion exposure can cause severe liver and kidney damage.  Skin or eye contact may cause severe irritation or burns.  Inhalation may cause respiratory irritation.

s) January 19, 1991 - Bromine spill. (See description of bromine in subparagraph i above). 

t) June 26, 1991 - Unknown quantity of sulfuric and nitric acid flushed with 71,000 gallons of waster into the Holley sewer system. (See description of these acids in subparagraph “g” above).

u) September 1991 - Bromine spill. (See description of bromine in subparagraph “i” above.)

v) September 1991 - Dimethyl sulfoxide formed mercaptan, causing an odor  release. Methyl mercaptan and other mercaptans are colorless gases with a smell like rotten cabbage.  Exposure to very high levels has resulted in coma, anemia, internal bleeding, and death. 

w) August 6, 1992 - Spill of 25 gallons of dibromobenzene. Toxicological information from experimental animal exposures suggest that the compound is toxic to the liver. 

x) 1993 - Spill of 50 gallons of acetic acid. Acetic acid is a corrosive acid with a pungent odor that can cause irritation and burns to the eyes, skin, respiratory tract and gastrointestinal tract. Ingestion results in burns to the mouth, throat, and gastrointestinal tract.  Chronic exposure may lead to delayed effects including scarring and infection of the liver and kidneys. 

y) 1994 - Spill of 100 pounds of ammonia. (See description in subparagraph “b” above.)

  z) June 28, 1995 - spill of 300 pounds of 3, 4-dimethoxytoluene. No Material Safety Data Sheet  is readily available for this material.

aa) October 1999 - A bromine cylinder ruptured spilling approximately one hundred pounds of bromine to concrete which vaporized in the air and necessitated evacuation of the Diaz Plant. (See description of bromine in subparagraph i above).

40.   On information and belief, fugitive emissions from the Diaz Plant - odors escaping from sources inside the Diaz Plant that are not emitted through permitted release points - create frequent chemical odors in the Village of Holley that adversely affect daily activities and cause annoyance and discomfort to those subjected to these odors.

41.    Defendant has allowed and continues to allow emissions of air contaminants from the Diaz Plant of a quantity, characteristic or duration that unreasonably interferes with the comfortable enjoyment of life or property. Homes and yards are adversely impacted. On information and belief, at times, residents have to "make a run" between their homes and automobiles because the odors are so noxious and irritating. Outdoor recreational activities must be limited. Children’s activities have been curtailed, and people in the affected area are deprived of the use and enjoyment of their homes and property.

42.  In or about 1992, approximately 350 residents signed a petition addressed to Diaz and the Village of Holley Board of Trustees, reciting a history of 35 spills at the Diaz Plant and seeking enforcement of Village ordinances to protect public health, safety and welfare. (Editor's note: Nothing was done.)

43.  On information and belief, Diaz stores, uses and transports, or causes to be transported, various chemicals such as nitric acid, sulfuric acid, and bromine, that could cause serious injury or death. These chemicals are stored and used immediately adjacent to a residential neighborhood. The center of the Village of Holley is, based on prevailing southwest winds, downwind from the Diaz Plant. On information and belief, tanker trucks carrying these chemicals travel through Holley and pass through residential neighborhoods to reach the Diaz Plant, and railroad cars, similarly carrying large volumes of these dangerous chemicals, are unloaded at the Diaz Plant. This transport of hazardous chemicals through and near residential neighborhoods creates a threat of a release that could injure human health.

FIRST CAUSE OF ACTION:
PUBLIC NUISANCE: JANUARY 2002 EXPLOSION 

 44.   The January  2002 Explosion caused and/or contributed to the creation and maintenance of a public nuisance, in that chemicals released as result of the explosion offend, interfere with, and cause damage to the public in the exercise of rights common to all, and injure  the property, comfort, health, safety, and environment of a substantial number of persons. 

45.   Diaz’s acts and omissions at the Diaz Plant resulting in the January 2002 Explosion caused and/or contributed to the creation and maintenance of the public nuisance.

46.   Diaz has failed to abate the public nuisance despite having actual knowledge of the conditions creating said nuisance.

47.   Plaintiffs have no adequate remedy at law for the public nuisance created and maintained by Diaz.

SECOND CAUSE OF ACTION:
VIOLATION OF ECL ARTICLE 19 AND 6 NYCRR PART 211.2: 
JANUARY 2002 EXPLOSION

 48.   Defendant is a "person" within the meaning of ECL §19-0101(1) and 6 NYCRR § 200.1(bk).

 49    The January 2002 Explosion caused or allowed emissions of air contaminants to the outdoor atmosphere of a quantity, characteristic or duration injurious to human, plant or animal life or to property, or unreasonably interfering with the comfortable enjoyment of life or property, in violation of 6 NYCRR § 211.2.

THIRD CAUSE OF ACTION:
PUBLIC NUISANCE: RECURRING SPILLS AND RELEASES 

50    Defendant has operated and continues to operate the Diaz Plant in a manner that offends, interferes with, and causes damage to the public in the exercise of rights common to all and that injures the property, comfort, health, safety, and environment of a substantial number of persons through the recurring spills and releases at the Diaz Plant.

 51    Defendant’s acts and omissions at the Diaz Plant resulting in recurring spills and releases have caused and/or contributed to the creation and maintenance of the public nuisance.

 52    Diaz has failed to abate the public nuisance caused by its operation of the Diaz Plant, despite having actual knowledge of the conditions creating said nuisance.

 53    Plaintiffs have no adequate remedy at law for the public nuisance created and maintained by Diaz.

FOURTH CAUSE OF ACTION:
VIOLATION OF ECL ARTICLE 19 AND 6 NYCRR PART 211:
RECURRING SPILLS AND RELEASES

 54    Defendant’s operation of the Diaz Plant in a manner that results in recurring spills and releases has caused or allowed, and continues to cause or allow, emissions of air contaminants to the outdoor atmosphere of such quantity, characteristic or duration injurious to human, plant or animal life or to property, or unreasonably interfering with the comfortable enjoyment of life or property in violation of 6 NYCRR § 211.2.

FIFTH CAUSE OF ACTION:
PUBLIC NUISANCE: ABNORMALLY DANGEROUS ACTIVITY

 55    Defendant has operated and continues to operate the Diaz Plant in a manner that offends, interferes with, and causes damage to the public in the exercise of rights common to all and that injures the property, comfort, health, safety, and environment of a substantial number of persons through engaging in abnormally dangerous activities.

56    Defendant’s acts and omissions at the Diaz Plant have caused and/or contributed to the creation and maintenance of the public nuisance in that the health and safety of people and property in the area of the Diaz Plant are subject to risk of serious or fatal harm from chemicals stored, used, manufactured, and transported at the Diaz Plant.

57    Defendant has failed to abate the public nuisance caused by its abnormally dangerous activities at and related to the Diaz Plant, despite having actual knowledge of the conditions creating said nuisance.

 58    Plaintiffs have no adequate remedy at law for the public nuisance created and maintained by Diaz.

SIXTH CAUSE OF ACTION:
VIOLATION OF EXECUTIVE LAW § 63(12)

 59    The history of recurring spills and releases at the Diaz Plant, including the January 2002 Explosion, constitute repeated illegal acts and persistent illegality in the carrying on, conducting or transaction of business in violation of Executive Law § 63(12).

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment against Defendants as follows:
A. As relief for the First and Second Causes of Action:

1. Holding Diaz liable for creation and maintenance of a public nuisance caused by the January 2002 Explosion;

2. Granting injunctive relief requiring Diaz to submit a plan to the State for remediating the chemical contamination caused by the January 2002 Explosion including contamination at the Diaz Plant and contamination inside and around homes and other structures, lots, driveways, streets, and all other areas impacted by the January 2002 Explosion, and, on approval by the State, implement such plans on the schedule established.

B.  As relief for the Third, Fourth and Fifth Causes of Action: 

1. Holding Diaz liable for operating and maintaining the Diaz Plant in such a manner as to cause a public nuisance;

2.  Granting injunctive relief as follows:
(a) permanently enjoining Defendant from operating the Diaz plant in a manner that constitutes a public nuisance, including but not limited to directing Defendant to submit to this Court an environmental audit of the Diaz Plant operations, to be performed by a qualified consultant acceptable to and approved by Plaintiffs, by a date certain, including a process safety review, unplanned release mitigation enhancement, environmental management systems audit and best management practice plans; and

(b) directing Defendant to prepare and submit a plan for operating in compliance with the recommendations made in the documents listed in the previous paragraph to this Court for approval by a date certain and, when approved, to implement such plan.

C.  As relief for the Sixth Cause of Action:

1.  Granting injunctive relief as specified in paragraphs A.2 and B.2, above; and 

2. Ordering Diaz to pay restitution for lodging, meal and other living expenses to families who were displaced by the January 2002 Explosion; and

D. Such other and further relief as the Court deems just and proper.

Dated: March 8, 2002                   ELIOT SPITZER
Buffalo, New York                  Attorney General of the State of New York
Attorney for Plaintiffs

_______________________________
LINDA E. WHITE          ASSISTANT ATTORNEY GENERAL
of Counsel
Statler Towers
107 Delaware Avenue
Buffalo, New York 14202
(716) 853-8466
 

Neither the author nor the webmaster has authorized the use of their names or the use of any material contained within in connection with the sale, promotion or advertising of any product or apparatus. Single-copy reproduction for individual, non-commercial use is permitted providing no alterations of content are made, and credit is given.