Garbage, long ago hauled away and buried, has come back to haunt Babylon taxpayers, businesses and consumers who are being told by the New York State Attorney General’s office that they have to pick up a $22 million state tab to pay for three quarters of the cost of the clean up at town’s unregulated landfill in Wyandanch/West Babylon.

That landfill was active from 1947 through the mid-1980s, when the town opened its resource recovery facility in compliance with the state’s landfill law. That law, which went into affect in 1990, and mandated that all municipal landfills in the state, recognized as a source of groundwater contamination, be shut down.

"Essentially it was, like all other landfills throughout those years—nothing more than a hole in the ground in which garbage was dumped," said Ron Kleusner, chief of staff to Town Supervisor Steve Bellone. "What was significant about Babylon’s landfill, and all others on Long Island though, was that they threatened our underground drinking water supply."

The Town of Babylon, under a separate agreement signed in 1989, paid $8 million, or approximately a quarter of the estimated $30 million it cost the New York State Department of Environmental Conservation to clean up and cap the landfill. Those funds came from a bond floated by the town and paid for by Babylon town taxpayers.

News that the office of Attorney General Eliot Spitzer was now looking to recoup the additional $22 million directly from those who dumped debris in the landfill during those years, including Villages, school districts, private businesses, carters and homeowners, surfaced this week after a consulting firm, LECG of Pennsylvania, hired by nine potentially responsible parties (PRPs) the state had notified of its intentions, sent letters to more than 140 other firms, the Villages of Amityville, Lindenhurst and Babylon, and school districts in the town. LECG had documented, through town records, that all had used the landfill and were, thus liable under the Comprehensive Environmental Response Compensation and Liability Act, more commonly known as Superfund.

All are being asked to attend a meeting in West Babylon June 8, at which time LECG will attempt to form a Joint Defense Group (JDG), designed, said William Hengemihle of LECG, to allow all PRPs to enter into an alternative process and avoid formal and costly litigation. Those who do not become part of the JDG, and ultimately the final negotiated settlement with the state, could then be sued by both the State Attorney General’s Office and the JDG for the amount of their liability exposure as determined by the JDG, he said.

That angered some local officials who said they had not even had their day in court to determine if they were responsible.

"How can they say we are responsible for doing what was perfectly legal at the time," said Amityville Village Mayor Peter T. Imbert. "It’s outrageous."

"In these (Superfund) cases, there is no question as to liability," responded Hengemihle. "The only real question is how to assess and allocate the liability among the parties."

"They are shooting hot air," said former Babylon Town Supervisor Anthony Noto, the architect of the town’s resource recovery facility. "How do they tell a Village or a carter or a resident who paid to dump at the town’s landfill and did nothing wrong under the law that they now have to pay for the cost of remediation?

How, said Hengemihle, and a spokesman for Spitzer’s office, is by relying upon the Superfund law that allows the state to go after those who disposed of waste at the site without regard to fault or wrongdoing or misconduct, which, under the law does not have to be established.

"Recouping these funds from those who created the pollution allows the state to move forward and complete other Superfund projects, which are important to the work of cleaning up the environment," said Mark Violette, a spokesman for Attorney General Eliot Spitzer.

Noto countered, however, that similar legislation in Pennsylvania, failed and the entities that used the landfills were not held liable. And, he added, Babylon’s resource recovery facility operated by pulling water from the contaminated plume beneath the landfill and turning it into steam and energy. "We are, essentially, cleaning up our own mess," he said.

Hengemihle pointed, however, to legal precedent, specifically B.F. Goodrich Co. V. Murtha. That decision, handed down by the Second Circuit, found that municipal waste, even though it may have a very low concentration of hazardous substances, is a hazardous substance under the Superfund law. Every entity that sent waste to the landfill, then, may be sued for the costs of cleaning it up.

Other serious questions persist, said local officials.

"How did they come up with the formula of assessing who is responsible, which seems like a very cumbersome thing to do," said Babylon Village Attorney Joel Sikowitz. "And, how are they going to assess an equitable amount (of liability) on each party."

"We will attend the meeting but assume no liability," said Bruce Kennedy, Amityville Village’s attorney. "The Village paid a fee to dump at the landfill, was never told it was a problem, and should not be held responsible for doing, what was, the time, a perfectly legal action."

Whether the town knew when it signed the contract with the state that its landfill customers would, 15 years later, be held responsible for the $22 million over and above what the town paid, is not known. Kleusner said, however, that while the town is not a party to the potential action now, that he intends to be at the meeting.

"Regardless of whether the town is a party to the action or not is not the issue," said Kleusner who said he got the impression from LECG that town officials were not welcome at the June 8 meeting. "We are talking about a serious financial matter that impacts on our villages, our schools, our businesses and our taxpayers and as a former environmental commissioner for the town of Babylon and the Supervisor’s Chief of Staff, I intend to be there."

Those companies contacted by the state who are attempting to form the JDG, include Multiple Listing Service of Long Island, Northrop Grumman, Philips Electronics of North America, Raytheon, Del Laboratories, General Dynamics, Sturtevant Millwork Corporation, Watts Industries (Jameco Industries), and Weiss Instruments Inc.

Howard Golson, the attorney for Multiple Listing Services, said that while his clients accept no liability, the issue is clear. The state’s burden is easy to meet and the cost of defending a lawsuit is not small, so it is a simple question of negotiating a solution that makes sense for everyone."

"What we are doing here is fairly routine," said Violette when pressed as to why the state was taking action now. "Our office is involved in numerous cases throughout the state because the costs, (of clean up) depending on the landfill, can be in the billions. The state bears the initial cost but then tries to recoup the money from those who used the sites."

In the 1970s, as research showed the impacts of unregulated landfilling on the environment, the state placed monitoring wells in and around Babylon’s landfill to determine the extent of the contamination and the movement of the now-famous contaminated plume that stretched from the landfill southerly, in some cases as far south as Sunrise Highway.

As Babylon scrambled to find an alternate method of solid waste management, first with the Multi-Town project at Edgewood that failed, and finally with the construction of its own incinerator, the state mounted a major clean up of the 65 acres in Babylon, which included inactive scavenger lagoons. Dumped there was residential, commercial, industrial and construction/demolition solid waste, as well as scavenger cesspool waste.  The town operated an incinerator for municipal waste from 1955 through 1978.

In 1987, the site was placed on the state’s registry as an inactive hazardous waste site and two years later, the town and the DEC entered into a consent order requiring the town to undertake the remediation investigation and feasibility study for the site. Based on the result of that study, the remediation was divided into two components: One which addressed the source of environmental contamination and the second which addressed the contaminated groundwater and mandated various environmental monitoring programs be implemented.