New York v. Town of Clarkstown

• Decision Date: 27 March 2015
• Docket Number: No. 11–CV–0293.,11–CV–0293.
• Parties: State of NEW YORK, et al., Plaintiffs, v. TOWN OF CLARKSTOWN, et al., Defendants. Allied Waste North America Inc., et al., Settling Defendants/Third–Party Plaintiffs, v. AM Cosmetics Corp. et al., Third–Party Defendants.
• Court: U.S. District Court — Southern District of New York

95 F.Supp.3d 660

State of NEW YORK, et al., Plaintiffs

v.TOWN OF CLARKSTOWN, et al., Defendants.

Allied Waste North America Inc., et al., Settling Defendants/Third–Party Plaintiffs

v.AM Cosmetics Corp. et al., Third–Party Defendants.

No. 11–CV–0293.

United States District Court, S.D. New York.

Signed March 27, 2015.

Filed March 30, 2015.

Gary D. Justis, Esq., Joshua L. Bailey, Esq., The Justis Law Firm LLC, Leakwood, KS, for Third–Party Plaintiffs.

Gary S. Graifman, Esq. Kantrowitz Goldhamer & Graifman, P.C., Chestnut Ridge, NY, for Third–Party Defendant Aalborg Instruments & Controls, Inc.

Debra L. Rothberg, Esq., Richman & Levine, P.C., Garden City, NY, for Third–Party Defendants.

Balfour Beatty, Schultz Ford Lincoln Inc., and Star Kay White, Inc., Donald S. Tracy, Esq., Tracy and Edwards, New City, NY, for Third–Party Defendant Miele Sanitation Co.

Richard J.J. Scarola, Esq., Scarola Malone & Zubatov LLP, New York, NY, for Third–Party Defendant Opticon, Inc.

Ronald W. Zdrojeski, Esq., Sutherland Asbill & Brennan, New York, NY, for Third–Party Defendant Tappan Wire & Cable, Inc.

Erich Gleber, Esq., Segal McCambrige Singer & Mahoney, New York, NY, for Third–Party Defendant Ward Pavements, Inc.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Third–Party Plaintiffs Allied Waste North America Inc., for itself and its subsidiaries, including, without limitation, American Disposal Services of New Jersey, Inc. and BFI Waste Systems of New Jersey, Inc., and insofar as it and its subsidiaries are alleged to be a successor to Vincent Ippolito, Inc. and Round Lake Sanitation Corp., Barr Laboratories, Inc., Betcon Dickinson and Co., Chromalloy New York, Division of Chromalloy Gas Turbine Corp., Chromalloy Gas Turbine LLC, Clarkstown Central School District, Consolidated Rail Corp., County Asphalt, Inc., County of Rockland Highway Department, Evonik Corporation, as successor to Dynamit Nobel of America, Fisher Scientific Co. LLC, Ford Motor Co., Gannett Satellite Information Network, Inc., d/b/a the Journal News, International Paper Co., Momentive Specialty Chemicals, Inc. (f/k/a Borden Chemical Inc.), Nyack Hospital, Orange and Rockland Utilities, Inc., Pfizer Inc. for itself and its subsidiaries including, without limitation, Wyeth Holdings Corp. acting through Wyeth Pharmaceuticals (Lederle Laboratories), Rockland County Sewer District No. 1, Sanitary Waste Carriers, Inc., Thomas Milo, as indemnitor to Suburban Carting Corp., Town of Orangetown, New York, United Water New Jersey Inc., Waste Management of New York, LLC and Marangi Bros., Inc., and Wikoff Color Corp. (collectively the “Joint Defense Group (‘JDG’)” or “Third–Party Plaintiffs”), filed the instant Complaint seeking contribution under § 113(f) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (“CERCLA”) from Third–Party Defendants for their alleged equitable share of all costs and damages incurred by the Third–Party Plaintiffs at the Clarkstown Landfill Site located in the Hamlet of West Nyack in the Town of Clarkstown, County of Rockland, State of New York (the “Site”), and a declaratory judgment pursuant to § 113(g)(2) of CERCLA against Third–Party Defendants holding them liable for their respective equitable shares of response costs at the Site. (See Am. Third–Party Compl. (“ATPC”) (Dkt. No. 97).)¹

Before the Court is a Motion to Dismiss the ATPC pursuant to Federal Rule of Civil Procedure 12(b)(6) and Federal Rule of Civil Procedure 12(c) on behalf of Third–Party Defendants Aalborg Instruments & Controls, Inc. (“Aalborg”), Balfour Beatty (“Balfour Beatty”), Miele Sanitation, Co. (“Miele Sanitation”), Opticon, Inc. (“Opticon”), Schultz Ford Lincoln, Inc. (“Schultz Ford Lincoln”), Star Kay White, Inc. (“Star Kay White”), Tappan Wire & Cable, Inc. (“Tappan Wire”), and Ward Pavements, Inc. (“Ward Pavements”) (collectively “Movants”). (See Dkt. No. 289.)² For the following reasons, Movants' Motion is granted as to Balfour Beatty, and denied as to Aalborg, Miele Sanitation, Opticon, Schultz Ford Lincoln, Star Kay White, Tappan Wire, and Ward Pavements.

I. Background

A. Factual Background

The following are the facts drawn from the ATPC, taken as true for the purpose of resolving the instant Motion, and the procedural history of the underlying Action in this case. The Site was an operating municipal landfill from the 1950s through 1990. (ATPC ¶ 1.) The Site received a combination of municipal solid waste, commercial waste, and industrial waste from a five-mile radius around the Site, as well as other areas outside such five-mile radius. (Id. ) The Town of Clarkstown (the “Town”) owned and operated the Site from the 1950s through 1990, during which time there was a release of hazardous substances at or from the Site. (Id. ¶ 6.)

Pursuant to Environmental Conservation Law (“ECL”) § 27–1305, the Site was listed on the State's Registry of Inactive Hazardous Waste Disposal Sites based on the release of hazardous substances at and from the Site. (Id. ¶ 7.) The Town and the New York State Department of Environmental Conservation (“NYSDEC”) entered into a Consent Order that required the Town to undertake remedial actions required by the Record of Decision (“ROD”) for the Site. (Id. ¶ 8.)³ NYSDEC and the Town entered into a State Assistance Contract (“SAC”) pursuant to the Environmental Quality Bond Act of 1986, whereby the State agreed to reimburse the Town for 75% of the eligible costs for investigation, remedial design, construction of the remedial action, and construction oversight to be incurred by the Town at the Site. (Id. ¶ 9.) The Town implemented response measures at the Site to remedy the alleged release and/or threatened release of hazardous substances into the environment, and incurred response costs which have been partially reimbursed by the State, including, but not limited to, costs of investigation, removal, remedial activity, and operation and maintenance, as those terms are defined or used in CERCLA §§ 9601(23), 9601(24), 9601(25), 9607(a), and 9613, in relation to the Site. (Id. ¶ 10.)

On March 21, 2011, after several years of negotiations, the State, the Town, the JDG (and its assignors), entered into a Consent Decree. (Id. ¶ 11.) The Consent Decree was modified on January 23, 2012 to add several more entities as Settling Defendants, which reduced the amount the settling defendants, including the JDG and its assignors, but not including the Town, were required to pay to the State from $4,000,000 to $3,750,000. (Id. ¶ 12.) Pursuant to the Consent Decree, the settling defendants, including the JDG and its assignors, but not including the Town, have paid three installment payments totaling $3,750,000 to the State to settle the State's claims at the Site, and the JDG has incurred and will continue to incur additional recoverable response costs, including attorneys' fees and expenses that are closely tied to the response actions at the Site. (Id. ¶¶ 13–14.)

Each member of the JDG is a settling defendant and a signatory to the Consent Decree. (Id. ¶ 16.) Moreover, the JDG members are the assignees of “all federal, state, local[,] and common law claims in connection with the Site” from several Settling Defendants “who are also (or will be) signatories to the ... Consent Decree.” (Id. ¶ 17.)⁴ As indicated above, the JDG is comprised of members that are Third–Party Plaintiffs in this Action.

The ATPC alleges that each of the Third–Party Defendants arranged for disposal of hazardous substances at the Site and/or transported hazardous substances that were disposed of at the Site. As relevant to the instant Motion, the ATPC alleges that Aalborg, a manufacturer of industrial flow meters, controllers, and valves, operated a facility within five miles of the Site, located at 382 Route 59, Tall Pines Industrial Park, Section 292 in Monsey, New York, and “generated waste streams containing hazardous substances that were disposed of at the Site.” (Id. ¶¶ 30–31.) Specifically, the ATPC alleges that “[u]pon information and belief, Aalborg's waste streams consisted of aluminum, brass [,] and stainless steel, electrical component waste, maintenance waste, metal fabrication waste, metal finishing waste, office waste[,] and packaging waste, which likely contained hazardous substances such as acetone, aluminum benzene, cadmium, chromium, copper, dichloroethylene, lead, manganese, methyl ethyl ketone, methylene chloride, nickel, perchloroethylene, toluene, trichloroethane, trichloroethylene, xylenes[,] and/or zinc.” (Id. ¶ 32.)

The ATPC alleges that Balfour Beatty is the “successor” to Cablec Corp. (“Cablec”), a manufacturer and distributor of electric cable and wire for utilities, that operated a facility within five miles of the Site located at 17 Squadron Boulevard in New City, New York from at least 1983 through 1990, and generated waste streams containing hazardous substances that were disposed of at the Site. (Id. ¶¶ 55–56.) The ATPC alleges that “[u]pon information and belief, Cablec's waste streams consisted of cafeteria waste, electrical component wastes, maintenance waste, office waste[,] and packaging waste, which likely contained hazardous substances such as acetone, benzene, cadmium, copper, dichloroethlene, lead, methyl ethyl ketone, methylene chloride, perchloroethylene, toluene, trichloroethane, trichloroethylene, vinyl chloride, xylenes[,] and/or zinc.” (Id. ¶ 57.)

The ATPC next alleges that Miele Sanitation “is a waste hauler” listed on the User's List for the Site as an entity who used the Site to dispose of waste, that selected the Site for disposal, and that transported and disposed of waste streams containing hazardous substances at the Site. (Id. ¶¶ 261–62.) Specifically, the ATPC alleges that “[u]pon information and belief, the likely waste streams hauled to the Site by Miele Sanitation included at least auto body repair and auto repair wastes, cafeteria waste, construction waste, dry cleaner waste, electrical component...