united states of america vs. savoy senior housing corp, et al_1

Case 6:06-cv-00031-NKM Document 1 Filed 07/26/06 of 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. §


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.


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


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.


Liberty Village, LLC, Jacob A. Frydman, SDB Construction, Inc., Best GC, Inc. (a/k/a Best

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Case 6:06-cv-00031-NKM Document 1 Filed 07/26/06 Page 10 of 12 Pageid#: 10

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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Case 6:06-cv-00031-NKM Document 1 Filed 07/26/06 Page 11of 12 Pageid#: 11

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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Case 6:06-cv-00031-NKM Document 1 Filed 07/26/06 Page 12 of 12 Pageid#: 12

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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united states of america vs. savoy senior housing corp, et al_1

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