A hotel developer is demanding that Revlon Inc. help pay for cleaning up discarded cans of contaminated Mitchum antiperspirant that were dumped in a Tuckahoe landfill decades ago.
Bilwin Development Affiliates of Eastchester sued Revlon Consumer Products Corp. of Manhattan on April 17 in U.S. District Court in White Plains, claiming that its Mitchum products contained Freon that polluted the property at 109-125 Marbledale Road.
“It would be against equity and good conscience to permit (Revlon) to pass the burden of cleaning up the contaminants to (Bilwin),” the complaint states, and to have had the benefit of using the property “free of full responsibility for investigation, remediation, cleanup and removal of and response to the contamination.”
Revlon did not respond to an email asking for its side of the story.
Bilwin, operated by Bill Weinberg, bought the 3.45-acre property in 2014 to build a five-story, 153-room Marriott SpringHill Suites and a restaurant.
Marble had been quarried at the site until 1958. Then the village of Tuckahoe leased the land and ran a landfill for ashes, paper, dirt, stone and yard waste until 1978.
Ardmar Realty Co. used it for parking, repairing and selling cars, until 1994.
The property had been vacant for several years when Bilwin started working on the hotel project in 2012. Its environmental consultant found contaminants consistent with chemicals and metals that could have been produced by the auto repair business.
The consultant investigated the property again in 2015, under a Brownfield Cleanup Agreement with the state. More automotive metals and chemicals, as well as contaminants associated with ash deposits, were found in the groundwater and soil.
But numerous soil vapor samples also included Freon, a refrigerant and aerosol propellant that was banned in 1987 when it was deemed a significant cause of ozone depletion.
The source of the Freon, according to the complaint, was not known.
State agencies required the developer to remove 1,264 cubic yards of waste, and to install a depressurization system to block vapors from getting into the hotel, monitoring wells, soil borings and a system to remove vapor contaminants.
Cleanup began in 2017, and that is when hundreds of crushed and intact cans of Mitchum antiperspirant, deodorant and aerosols, according to the complaint, were found.
A laboratory allegedly found the contents of samples consistent with the Freon contamination.
A hazardous disposal facility accepted the cans according to the complaint, but it is not feasible to remove all of the Freon in the groundwater. The contaminants continue to pose a risk to the property and surrounding community, the complaint states, and will have to be mitigated “in perpetuity.”
Bilwin did not disclose how much it spent on assessing, cleaning and remediating the property, but it claims that Revlon has refused to pay any of it.
Bilwin is demanding that Revlon pay a share of the costs, past and future, under the federal Comprehensive Environmental Response, Compensation and Liability Act and under the Resource Conservation and Recovery Act. The developer also accuses Revlon of negligence and of creating a public nuisance.
Bilwin is represented by Rochester attorneys Linda R. Shaw, Dwight Kanyuck and Jonathan Tantillo.