United States of America vs. Savoy Senior Housing Corp, Et Al_1
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Transcript of United States of America vs. Savoy Senior Housing Corp, Et Al_1
Case 6:06-cv-00031-NKM Document 1 Filed 07/26/06 Page 1of 12 Pageid#: 1
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
)UNITED STATES OF AMERICA, )
)Plaintiff, )
)V. )
)SAVOY SENIOR HOUSING ) CORPORATION; SAVOY LIBERTY ) VILLAGE LLC; JACOB A. FRYDMAN; ) SDB CONSTRUCTION, INC.; ) BEST GC, INC. (a/k/a BEST GRADING); ) and ACRES OF VIRGINIA, INC., )
)Defendants. )
Civil Action No.
COMPLAINT
The United States of America, through its undersigned attorneys, by the authority of the
Attorney General, and at the request of the United States Environmental Protection Agency
("EPA"), alleges as follows:
NATURE OF THE ACTION
1. This is a civil action commenced under section 309(b) and (d) of the Clean Water
Act ("CWA"), 33 U.S.C. § 13l 9(b) and (d), to obtain injunctive relief and civil penalties against
Defendants, for the unauthorized discharge of pollutants into waters of the United States in
Campbell County, Virginia, in violation of CWA section 30 l(a), 33 U.S.C. § 131l(a).
2. In this action, the United States seeks: (1) to enjoin the further discharge of
pollutants into waters of the United States in violation of CWA section 301(a), 33 U.S.C. §
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131l(a); (2) to require Defendants, at their own expense and at the direction of the EPA and/or
the United States Army Corps of Engineers, to restore and/or mitigate the damages caused by
their unlawful activities; and (3) to require Defendants to pay civil penalties as provided in 33
u.s.c. § 1319(d).
JURISDICTION AND VENUE
3. This Court has jurisdiction over the subject matter of this action pursuant to CWA
section 309(b), 33 U.S.C. § 1319(b), and 28 U.S.C. §§ 1331, 1345, and 1355.
4. Venue is proper in the Western District of Virginia pursuant to CWA section
309(b), 33 U.S.C. § 1319(b), and 28 U.S.C. § 1391(b) and (c), because the Defendants conduct
or have conducted business in this District, the subject property is located in this District, and the
cause of action alleged herein arose in this District.
5. Notice of the commencement of this action has been provided to the State of
Virginia pursuant to CWA section 309(b), 33 U.S.C. § 1319(b).
THE PARTIES
6. The Plaintiff in this action is the United States of America. Authority to bring
this action is vested in the United States Department of Justice pursuant to 28 U.S.C. §§ 516 and
519. and 33 U.S.C. § 1366.
7. Defendant Savoy Senior Housing Corporation is a New York corporation that has
a business address of 111 Fulton St., New York, NY 10019.
8. Defendant Savoy Liberty Village, LLC, is a Delaware limited liability company
that, upon information and belief, has a business address of 111 Fulton St., New York, NY
10019.
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9. Defendant Jacob A. Frydman is or has been the President and/or Chief Executive
Officer of Savoy Senior Housing Corporation and SOB Construction, Inc., which both have
business addresses of 111 Fulton St., New York, NY 10019. Upon information and belief, Mr.
Frydman was also an officer or executive in Savoy Liberty Village, LLC, which has the same
business address. Mr. Frydman is being sued in both his individual capacity and in his capacity
as president, agent, director, manager, executive, or officer of the entities listed in this Paragraph.
10. Defendant SDB Construction, Inc., is a New York corporation with a business
address of 111 Fulton St., New York, NY 10019.
11. On information and belief , Defendant Best GC, Inc. (a/k/a Best Grading) is an
inactive corporation under Virginia law and/or an individual proprietorship owned and operated
by L.T. Falwell, and located at 3921 Campbell Ave., P.O. Box 10038, Lynchburg, VA, or 3384
Cifax Road, Goode, VA 24556.
12. Defendant Acres of Virginia, Inc. is a closely-held Virginia corporation with a
business address of 404 Clay St., Lynchburg, VA 24504.
13. At all times relevant to the Complaint, the Defendants either owned or otherwise
controlled the real property that is the subject of this Complaint and/or performed, controlled,
engaged in, or were othe1wise responsible for the violations of the CWA that occurred on such
property.
STATUTORYBACKGROUND
14. CWA section 30l(a), 33 U.S.C. § 131l(a), prohibits the discharge of pollutants
into navigable waters except in compliance with, inter alia, a permit issued pursuant to CWA
sections 402 or 404, 33 U.S.C. §§ 1342, 1344.
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15. CWA section 404(a), 33 U.S.C. § 1344(a), authorizes the Secretary of the
Army, acting through the Chief of Engineers, to issue permits for the discharge of dredged
or fill material into navigable waters at specified disposal sites, after notice and opportunity
for public comment.
16. CWA section 402(a), 33 U.S.C. § 1342(a), authorizes the Administrator of EPA
to issue permits for the discharge of pollutants into navigable waters in compliance with the
requirements of the CWA, after notice and opportunity for public comment.
17. CWA section 402(b), 33 U.S.C. § 1342(b), allows the Administrator of EPA to
authorize states to administer their own permit programs for discharges of pollutants into
navigable waters within their respective jurisdictions in compliance with the requirements of the
CWA.
18. CWA section 502(12), 33 U.S .C. § 1362(12), defines "discharge of a pollutant" to
include "any addition of any pollutant to navigable waters from any point source."
19. CWA section 502(6), 33 U.S.C. § 1362(6), defines "pollutant" to include,
inter alia, dredged spoil, rock, sand and cellar dirt.
20. CWA section 502(7), 33 U.S .C. § 1362(7), defines "navigable waters" as "the
waters of the United States, including the territorial seas."
21. 33 C.F.R. § 328.3(a)(l ), (2), (5) and (7), and 40 C.F.R. § 232.2, define "waters of
the United States to include: (I) all waters which are currently used, were used in the past, or
may be susceptible to use in interstate or foreign commerce; (ii) all interstate waters; (iii) all
other waters, such as intrastate lakes, rivers, streams, sloughs or wetlands, the use, degradation
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or destruction of which could affect interstate or foreign commerce; (iv) tributaries to such
waters; and (v) wetlands adjacent to such waters or their tributaries.
22. 33 C.F.R. § 328.3(b) and 40 C.F.R. §§ 122.2 and 232.2 define ''wetlands'' as
"those areas that are inundated or saturated by surface or ground water at a frequency and
duration sufficient to support, and that under normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soil conditions."
23. CWA section 502(14), 33 U.S.C. § 1362(14), defines "point source" to include
"any discernible, confined and discrete conveyance . . . from which pollutants are or may be
discharged."
24. CWA section 502(5), 33 U.S.C. § 1362(5), defines "person" to include "an
individual [or] corporation."
25. CWA section 309(b), 33 U.S.C. § 1319(b), authorizes the commencement of a
civil action for appropriate relief, including a permanent or temporary injunction, against any
person who violates CWA section 30 l(a), 33 U.S.C. § 131l(a).
26. CWA section 309(d), 33 U.S.C. § 1319(d), authorizes the commencement of an
action for civil penalties against any person who violates CWA section 301(a), 33 U.S.C. §
131l(a).
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FIRST CLAIM FOR RELIEF
27. Beginning in or around July 2001 through the filing of this Complaint, the
Defendants and/or persons acting on their behalf discharged dredged or fill :material into waters
of the United States without a permit under CWA section 404 on 140 acres of property known as
the Liberty Village Site ("the Site"), located at 5700 Candlers Mountain Road, Lynchburg,
Virginia.
28. The dredged or fill material that the Defendants and/or persons acting on their
behalf caused to be discharged includes, among other things, dirt, spoil, rock and sand, all of
which constitute "pollutants" as defined in CWA section 502(6), 33 U.S.C. § 1362(6).
29. Defendants and/or persons acting on their behalf used mechanized land-clearing
and earth-moving equipment to accomplish the discharges. This equipment constitutes "point
sources" as defined in CWA section 502(14), 33 U.S.C. § 1362(14).
30. Defendants and/or persons acting on their behalf discharged pollutants into a
stream or streams on the Site that are tributaries to, and form the headwaters of, Flat Creek,
which flows into the Big Otter River and eventually to the Roanoke River, a navigable-in-fact
waterway.
31. The subject stream or streams are or were perennial and/or relatively permanent.
32. The subject stream or streams, either alone or in combination with similarly
situated waters in the region, significantly affect the chemical, physical, and biological integrity
of downstream waters including, but not limited to, the Roanoke River.
33. The subject stream or streams constitute "waters of the United States" and
"navigable waters" under CWA section 502(7), 33 U.S.C. § 1362(7).
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34. Defendants and/or persons acting on their behalf discharged pollutants into
wetlands that are or were adjacent to the stream or streams described in Paragraph 30.
35. The subject wetlands have or had a continuous surface connection to the stream
or streams described in Paragraph 30.
36. The subject wetlands, either alone or in combination with similarly situated lands
in the region, significantly affect the chemical, physical, and biological integrity of downstream
waters including, but not limited to, the Roanoke River.
37. The subject wetlands constitute "waters of the United States" and "navigable
waters" under CWA section 502(7), 33 U.S.C. § 1362(7).
38. Defendants did not obtain a permit from the Secretary of the Anny, acting
through the Chief of Engineers, for the discharges of dredged or fill material into waters of the
United States as required by CWA sections 301(a) and 404, 33 U.S.C. §§ 1311(a), 1344.
39. On information and belief, Defendants Savoy Senior Housing Corporation, Savoy
Liberty Village, LLC, and Jacob A. Frydman owned or otherwise controlled the land on which
each unauthorized discharge of dredged or fill material into waters of the United States occurred.
40. On information and belief, Defendants Savoy Senior Housing Corporation, Savoy
Liberty Village, LLC, Jacob A. Frydman, SDB Construction, Inc., Best GC, Inc. (a/k/a Best
Grading), and Acres of Virginia, Inc. conducted, contracted for, supervised, directed and/or
otherwise controlled or are responsible for the unauthorized activities described in this
Complaint.
41. Defendants are persons within the meaning of CWA section 502(5), 33 U.S.C. §
1362(5).
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42. Defendants have violated and continue to violate CWA section 301(a), 33 U.S.C.
§ 131l(a), by their unauthorized discharges of dredged or fill material into waters of the United
States, including wetlands, at the Liberty Village Site.
43. Each site at which such material was discharged into waters of the United States
constitutes a separate violation, and each day that such material remains in place constitutes a
separate violation of CWA section 301(a), 33 U.S.C. § 131l(a).
44. Upon information and belief, Defendants, unless enjoined, will allow dredged or
fill material to remain in waters of the United States, including wetlands, on the Liberty Village
Site in violation of CWA section 301, 33 U.S.C. § 1311.
SECOND CLAIM FOR RELIEF
45. Beginning in or around July 2001 and continuing through 2003, the Defendants
and/or persons acting on their behalf discharged sediment into waters of the United States
without a permit under CWA section 402 and/or in violation of such a permit, on 140 acres of
property known as the Liberty Village Site ("the Site"), located at 5700 Candlers Mountain
Road, Lynchburg, Virginia.
46. The sediment that the Defendants and/or persons acting on their behalf caused to
be discharged includes, among other things, dirt and sand, which constitute "pollutants" as
defined in CWA section 502(6), 33 U.S.C. § 1362(6).
47. Defendants and/or persons acting on their behalf used mechanized land-clearing
and earth-moving equipment to accomplish the discharges. This equipment constitutes "point
sources" as defined in CWA section 502(14), 33 U.S.C. § 1362(14).
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48. Defendants and/or persons acting on their behalf discharged pollutants into a
stream or streams on the Site that are tributaries to, and form the headwaters of, Flat Creek,
which flows into the Big Otter River and eventually to the Roanoke River, a navigable-in-fact
waterway.
49. The subject stream or streams are or were perennial and/or relatively permanent.
50. The subject stream or streams, either alone or in combination with similarly
situated waters in the region, significantly affect the chemical, physical, and biological integrity
of downstream waters including, but not limited to, the Roanoke River.
51. The subject stream or streams constitute "waters of the United States" and
"navigable waters" under CWA section 502(7), 33 U.S.C. § 1362(7).
52. On information and belief, Defendants did not obtain a CWA permit from EPA or
the State of Virginia for the discharges of sediment into waters of the United States, as required
by CWA sections 301(a) and 402, 33 U.S.C. §§ 1311(a), 1342, prior to approximately July 2002.
53. On information and belief, Defendants failed to comply with the conditions of
their CWA section 402 permit after it was obtained in July 2002, in violation of CWA sections
30l(a) and 402, 33 U.S.C. §§ 131l(a), 1342
54. On information and belief, Defendants Savoy Senior Housing Corporation, Savoy
Liberty Village, LLC, and Jacob A. Frydman owned or otherwise controlled the land on which
each unauthorized discharge of dredged or fill material into waters of the United States occurred.
55. On information and belief, Defendants Savoy Senior Housing Corporation, Savoy
Liberty Village, LLC, Jacob A. Frydman, SDB Construction, Inc., Best GC, Inc. (a/k/a Best
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Grading), and Acres of Virginia, Inc. conducted, contracted for, supervised, directed and/or
otherwise controlled or are responsible for the unauthorized activities described in this
Complaint.
56. Defendants are persons within the meaning of CWA section 502(5), 33 U.S.C. §
1362(5).
57. Defendants have violated and continue to violate CWA section 301(a), 33 U.S.C.
§ 1311(a), by their unauthorized discharges of sediment into waters of the United States at the
Liberty Village Site.
58. Each site at which such material was discharged into waters of the United States
constitutes a separate violation, and each day that such material remains in place constitutes a
separate violation of CWA section 301(a), 33 U.S.C. § 131l(a).
59. Upon information and belief, Defendants, unless enjoined, will allow further
discharges of sediment into waters of the United States on the Liberty Village Site in violation of
CWA section 301, 33 U.S.C. § 1311.
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PRAYER FOR RELIEF
WHEREFORE, the Plaintiff, the United States of America, respectfully requests that this
Court order the following relief:
That the Defendants be permanently enjoined from discharging or causing the discharge
of dredged material, fill material, sediment, and any other pollutants into any waters of the
United States except in compliance with the CWA;
That the Defendants, or any combination thereof, be enjoined to undertake measures, at
Defendants' own expense and at the direction of the EPA and/or the United States Army Corps
of Engineers, to effect complete restoration of waters of the United States, including wetlands,
on the Liberty Village Site and/or to conduct off-site mitigation for irreversible environmental
damage, as appropriate;
That the Defendants be assessed, pursuant to CWA section 309(d), 33 U.S.C. § 1319(d),
a civil penalty for each day of each violation of CWA section 301(a), 33 U.S.C. § 1311(a);
That the United States be awarded costs and disbursements in this action; and
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That this Court grant Plaintiff, the United States of America, such other relief as the Court
may deem just and proper.
Respectfully submitted, this 26th day of July, 2006.
SUE ELLEN WOOLDRIDGEAssistant Attorney General
Environment and Natural Resources Division
JOHN L. BRO\VNLEEUnited States Attorney Western District of Virginia
KENNETH C. AMADITZTrial Attorney
U.S. Department of JusticeEnvironment and Natural Resources Division Environmental Defense SectionP.O. Box 23986
Washington, DC 20026-3986(202) 514-3698(202) 514-8865 (fax)
Isl Sara Bugbee Winn Sara Bugbee Winn,Assistant United States Attorney
VSB # 35924P.O. Box 1709 Roanoke, VA 24008 (540) 857-2250
(540) 857-2283
OF COUNSEL:
PAMELA LAZOSSenior Assistant Regional CounselU.S. EPA Region III 1650 Arch St.Philadelphia, PA 19103-2029
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