By MATT CHANDLER
Buffalo Law Journal

In a case that has entered its fourth decade of legal wrangling, lawyers representing Solvent Chemical Co. and its parent company, ICC Industries Inc., won a $2.5 million judgment tied to the cleanup of Solvent's former chemical facility in Niagara Falls.

New York state first filed an action against the company in 1983 under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) seeking to force the company to pay for a "Superfund" cleanup of the site, at 3163 Buffalo Ave. Solvent Chemical agreed in 1997 to handle the cleanup of the site. The company reports that it spent $9 million for the construction of a groundwater pump and treatment system, completed in 2003.

As part of the settlement, Solvent reserved the right to pursue recovery of some of the costs from other parties, and subsequently sought to collect from up to 60 other companies that sent hazardous substances to the site through the years.

Buffalo law firm Jaeckle Fleischmann & Mugel LLP, retained by Solvent since 1996, reports that the case has been one of the longest-running and most complex CERCLA/Superfund cases in the state.

Dennis Harkawik, a partner in the firm's environmental practice group, said Jaeckle Fleischmann negotiated more than $2.6 million in settlements with many of the parties. But two companies that had land adjacent to the site, DuPont and Olin, refused to settle, claiming they had "zero responsibility" for toxins on the property.

Twenty-seven years after the issue first arose, following a six-week trial, U.S. District Court Judge Hon. John Curtin issued a 185-page ruling Jan. 28 in which he awarded Solvent Chemical more than $2.5 million. Curtin awarded Olin $8,000 in a multimillion-dollar countersuit the company filed against Solvent for cleanup of an adjoining creek.

Harkawik and two other Jaeckle lawyers, Brenda Joyce and Charles Grieco - who have been working together on the case for 14 years - said the ruling was a bittersweet victory. While they took a major step toward resolving the dispute, they felt the judgment left out a major piece of the pie.

"Although the judge awarded significant past costs, he did not award any future costs, and this is a cleanup that is going to go on probably forever," Harkawik said. "We have to decide with our client if we want to appeal the judge not awarding future cleanup costs."

Joyce said she was surprised by the split ruling in the case.

"For a judge to say, ‘Yes, the parties are liable and they have contributed to the contamination,' but to then not award those future costs is highly unusual."

With appeals, the Solvent case could surpass 30 years in the legal system before all is said and done. Calculating prejudgment interest is another complicating factor.

"With these Superfund cases, they seem to never die," Harkawik said.

Tim Ireland, a spokesman for DuPont, said it was too early to say whether the chemical giant would file an appeal in the case.

"The decision was in excess of 180 pages, and it was complicated," Ireland said. "It is not unusual under these circumstances for DuPont to review it very carefully and take our time to decide what we are going to do, if anything."

Olin did not respond to a request for comment by press time.