Barnes Landfill, Inc. v. Town of Highland, 91 Civ. 5410 (VLB).

Decision Date02 October 1992
Docket NumberNo. 91 Civ. 5410 (VLB).,91 Civ. 5410 (VLB).
Citation802 F. Supp. 1087
PartiesBARNES LANDFILL, INC., Plaintiff, v. TOWN OF HIGHLAND, et al., Defendants.
CourtU.S. District Court — Southern District of New York

Jonathan P. Nye, Whiteman, Osterman and Hanna, Albany, N.Y., for plaintiff.

David A. Engel, Burke, Cavalier, Lindy & Engel, Albany, N.Y., for defendants.

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

This case is a private action under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendment and Reauthorization Act of 1986 ("SARA"), brought by the lessee and operator of a landfill facility against thirty-three defendants, most of whom contributed to plaintiff's landfill.1 The plaintiff has asserted federal claims derived from the alleged release or threat of release of hazardous substances and the migration or threat of migration from soil and groundwater at the landfill, seeking reimbursement for past and future response costs and a declaratory judgment of liability as to such costs. In addition, plaintiff has included a pendent state common law claim for restitution. Many of the defendants have joined in a motion to dismiss all three claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted.

Plaintiff's primary claim is that the defendants are jointly and severally liable for response costs incurred by plaintiff in meeting the congressional mandate for protecting the environment from the disposal of solid waste that contains hazardous substances. To withstand a motion to dismiss a private-party claim under CERCLA (42 U.S.C. § 9607), the plaintiff must establish a prima facie cause of action consisting of five elements: (1) the defendant falls within one of the four classes of responsible parties defined in § 9607(a); (2) the site is a facility; (3) there is a release or threatened release of hazardous substances at the facility; (4) the release or threatened release of a hazardous substance must cause the plaintiff to incur "response costs;" and (5) the costs and response actions are consistent with the National Contingency Plan set up under CERCLA and administered by the Environmental Protection Agency ("EPA"). See 42 U.S.C. § 9607(a); B.F. Goodrich Company, et. al v. Harold Murtha, et. al., 958 F.2d 1192 (2d Cir.1992); see also Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir.1989).

Defendants have challenged the sufficiency of the allegations in the complaint with respect to elements (3) and (4). CERCLA § 9607(a) pertains to "hazardous substances," which are defined in the statute at 42 U.S.C. §§ 9601(14) and 9602(a). Despite this specific guidance to responsible parties as to which substances are or may be designated as hazardous, plaintiff's allegations refer only to "hazardous substances" without in any instance naming what those substances are or might be. See, e.g., Amended Complaint, paras. 40, 45. Even if plaintiff were to name specific substances, blanket allegations against all defendants do not provide any defendant with adequate notice of that defendant's potential liability.2

In addition, plaintiff's allegation that it has spent approximately $2 million on "closure costs to abate the alleged release of hazardous substances" without further detail is conclusory. It is only costs caused by the hazardous substance response for which defendants can be held liable under federal law. Ordinary closing or clean-up costs not pertaining to hazardous substances, incurred under state law or otherwise, would not be a basis for holding defendants responsible under CERCLA. Here, no specific hazardous substances and no breakdown of costs incurred because of them, as opposed to other closing or cleanup costs, are set forth in the complaint.

Given the large number of defendants involved and the...

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10 cases
  • Town of New Windsor v. Tesa Tuck, Inc.
    • United States
    • U.S. District Court — Southern District of New York
    • March 14, 1996
    ...fourth and fifth elements entitled them to summary judgment dismissing the Town's CERCLA claims. Relying on Barnes Landfill, Inc. v. Town of Highland, 802 F.Supp. 1087 (S.D.N.Y.1992) and City of Seattle v. Amalgamated Servs., 1994 WL 869839 (W.D.Wash.), the movants argue that the Town has n......
  • Prisco v. State of NY
    • United States
    • U.S. District Court — Southern District of New York
    • September 14, 1995
    ...Administrative Group v. Avon Products, Inc., 820 F.Supp. 116, 119 (S.D.N.Y.1993) (Goettel, J.) and Barnes Landfill, Inc. v. Town of Highland, 802 F.Supp. 1087 (S.D.N.Y.1992) (Broderick, J.), defendants argue that after extensive discovery, plaintiffs have failed to produce sufficient eviden......
  • Dana Corp. v. American Standard, Inc.
    • United States
    • U.S. District Court — Northern District of Indiana
    • October 24, 1994
    ...815 F.Supp. 539 (D.Conn.1993), Gallagher v. T.V. Spano Bldg. Corp., 805 F.Supp. 1120 (D.Del.1992), and Barnes Landfill, Inc. v. Town of Highland, 802 F.Supp. 1087 (S.D.N.Y.1992), but these cases are more closely analogous to this action than the cases upon which the plaintiffs rely. In Unit......
  • Town of Oyster Bay v. Occidental Chemical Corp.
    • United States
    • U.S. District Court — Eastern District of New York
    • December 5, 1997
    ...be required to bear response costs to the extent that CERCLA remediation overlaps with state regulation. In Barnes Landfill, Inc. v. Town of Highland, 802 F.Supp. 1087 (S.D.N.Y.1992), the district court held that the $2 million that the plaintiff in that case had spent to abate the release ......
  • Request a trial to view additional results
1 books & journal articles
  • The aftermath of Key Tronic: implications for attorneys' fee awards.
    • United States
    • Environmental Law Vol. 24 No. 4, October 1994
    • October 1, 1994
    ...e.g., Jordan v. Southern Wood Piedmont Co., 805 F. Supp. 1575, 1578-79 (S.D. Ga. 1992); Barnes Landfill, Inc. v. Town of Highland, 802 F. Supp. 1087, 1088 (S.D.N.Y. 1992); Anspec Co. v. Johnson Controls, Inc., 788 F. Supp. 951, 955 (E.D. Mich. Other courts, however, do not consider the four......

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