Town of New Windsor v. Tesa Tuck, Inc.

• Decision Date: 14 March 1996
• Docket Number: No. 92 CV 8754 (BDP).,92 CV 8754 (BDP).
• Citation: 919 F. Supp. 662
• Parties: The TOWN OF NEW WINDSOR, Plaintiff, v. TESA TUCK, INC., Frye Copysystems, Inc., GAF Corporation, Lightron Corporation, Inc., Eugene Littman, and Harry Basch, Defendants. TESA TUCK, INC., Frye Copysystems, Inc., GAF Corporation, Lightron Corporation, Inc., Third-Party Plaintiffs, v. KOLLMORGEN INSTRUMENTS CORPORATION, The New York State Department of Transportation, The State of New York, The New York Thruway Authority, The United States of America, James S. Patsalos, James S. O'Neill, Charles T. Kavanah, Cornell Group Service Corp., Mearl Corporation, Coca-Cola Bottling Company of New York and City of Newburgh, Third-Party Defendants.
• Court: U.S. District Court — Southern District of New York

919 F. Supp. 662

The TOWN OF NEW WINDSOR, Plaintiff, v. TESA TUCK, INC., Frye Copysystems, Inc., GAF Corporation, Lightron Corporation, Inc., Eugene Littman, and Harry Basch, Defendants.

TESA TUCK, INC., Frye Copysystems, Inc., GAF Corporation, Lightron Corporation, Inc., Third-Party Plaintiffs, v. KOLLMORGEN INSTRUMENTS CORPORATION, The New York State Department of Transportation, The State of New York, The New York Thruway Authority, The United States of America, James S. Patsalos, James S. O'Neill, Charles T. Kavanah, Cornell Group Service Corp., Mearl Corporation, Coca-Cola Bottling Company of New York and City of Newburgh, Third-Party Defendants.

No. 92 CV 8754 (BDP).

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

March 14, 1996.

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Bleakley Platt & Schmidt, White Plains, NY, for Plaintiff.

Kiefferr and Hahn, New York City, for Defendant, Third-Party Plaintiff & Cross Claimant Tesa Tuck Inc.

Bingham Englar Jones & Houston, New York City, for Defendant & Third-Party Plaintiff Frye Copysystems Inc.

Attorney General's Office, N.Y.S. Department of Law, Environmental Protection Bureau, New York City, for Third-Party Defendants N.Y.S. Thruway Authority, The N.Y.S. Dept. of Transportation and the State of New York.

Eisen, Herschcopf & Schulman, New York City, for Third-Party Defendant Mearl Corporation.

Pirro, Collier, Cohen, Crystal & Bock, New York City, for Third-Party Defendant Coca Cola Bottling Co. of N.Y. Inc.

Oppenheimer, Wolff & Donnelly, New York City, for Defendant & Third-Party Plaintiff & Cross Defendant GAF Corp.

Keane & Beane, White Plains, NY, for Defendant & Third-Party Plaintiff Lightron Corp.

Neuman Tamsen & Greher, Newburgh, NY, for Defendant Harry Basch.

Crowell and Moring, Washington, DC, for Third-Party Defendant & Cross Defendant Kollmorgen Instruments Corp.

U.S. Attorney's Office, New York City, for Third-Party Defendant U.S.A.

Cuddy & Feder, White Plains, NY, for Third-Party Defendants James S. Patsolos, James S. O'Neill, Charles T. Kavanah & Cornell Group Service Corp.

Carter, Ledyard & Milburn, New York City, for Defendant City of Newburgh.

MEMORANDUM DECISION AND ORDER

PARKER, District Judge.

Plaintiff Town of New Windsor ("the Town") brought this action under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), P.L. 99-499 (October 17, 1986), specifically 42 U.S.C. § 9607 ("§ 107") and 42 U.S.C. § 9613 ("§ 113"), and state nuisance law against defendants Tesa Tuck, Inc., Frye Copysystems, Inc., GAF Corporation, Lightron Corporation, Inc., Eugene Littman and Harry Basch, seeking recovery of its costs in cleaning up the New Windsor landfill.

In 1994, four of the defendants commenced third-party actions against Kollmorgen Instruments Corporation, the New York State Department of Transportation, the State of New York ("the State"), the New York State Thruway Authority, the United States of America, James S. Patsalos, James S. O'Neill, Charles T. Kavanagh, Cornell Group Service Corp., Mearl Corporation, Coca-Cola Bottling Company of New York¹ and City of Newburgh.

Before this Court are the motions of (1) defendants Tesa Tuck, GAF, Frye, and Lightron and third-party defendants Kollmorgen and Coke-NY for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, dismissing the complaint in its entirety ("Motion # 1"); (2) the Town to amend the First Amended Complaint to add as defendants Kollmorgen, Mearl and Coke-NY, pursuant to Rule 15 of the Federal Rules of Civil Procedure ("Motion # 2"); (3) the State to amend its pleading to realign as a party plaintiff, pursuant to Rule 15 of the Federal Rules of Civil Procedure ("Motion # 3"); and (4) the United States to dismiss the Town's § 107 claim, pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Motion # 4").

BACKGROUND

The Town was the owner and operator of the New Windsor landfill ("the landfill"), which operated from 1962 until 1976. In the 1980s, the New York State Department of Environmental Conservation ("DEC") deemed the landfill a significant threat to public health or to the environment, and listed it on its registry as an Inactive Hazardous Waste Site. In 1986, the United States Environmental Protection Agency ("EPA") rejected the DEC's nomination of the landfill for listing on CERCLA's National Priorities List ("NPL").

In 1989, the Town and DEC executed an Administrative Order on Consent ("Consent Order") requiring the Town to conduct a detailed investigation of the landfill and to develop and implement a remedial plan, and declaring it eligible for 75% reimbursement by the State of part of its clean up costs, pursuant to the New York Environmental Quality Bond Act of 1986 ("EQBA").² Reimbursement was conditioned on the Town's pursuit of this cost recovery action against those who contributed to the landfill, 75% of the recovery from which would be shared with the State. In February 1990, the DEC entered a State Assistance Contract (# C300069) with the Town to reimburse the Town for 75% of the eligible clean-up costs incurred in remediating the landfill. In exchange, the Town agreed to take all reasonable steps to recover its response costs from other responsible parties and to pay the State 75% of the proceeds from the recovery. This lawsuit, filed in 1992, seeks such recovery.

In 1990-91, the Town's consultant, EA Engineering Science and Technology, performed a Remedial Investigation Feasibility Study ("RI/FS"). Following its review of the final RI/FS, in October, 1991, the State issued its Record of Decision ("ROD"), which outlined the State's chosen remedy for the landfill. The remedial action was implemented in 1992-93. The Town has spent approximately $5 million, and under existing 30-year monitoring requirements, will spend an additional $3 million in response costs. The Town has received funds of approximately $3.5 million in EQBA aid from the State. The Town seeks these costs as necessary costs of response from the defendants.

In Motion # 1, the movants seek summary judgment dismissing the complaint in its entirety on the grounds that (1) the costs incurred by the Town in complying with its obligations under state law are not CERCLA response costs, (2) the Town's closure of the landfill was neither "necessary" nor "consistent with the national contingency plan" as required by CERCLA, and (3) the Town's common law claim for public nuisance is time barred.

In Motion # 2, the Town moves to amend the complaint to add Kollmorgen, Mearl and Coke-NY as defendants, arguing that joinder at this stage in the litigations is proper because these third-party defendants cannot demonstrate bad faith on the part of the Town or undue prejudice from the amendment.

In Motion # 3, the State moves to amend its pleading to realign as a party plaintiff so that it can assert its own claims against certain parties for its costs in reimbursing the Town and in overseeing the remediation of the landfill.

In Motion # 4, the United States moves to dismiss the Town's § 107 claim. It argues that because the Town is a responsible party or a potentially responsible party, its claims are for contribution under § 113(f), not claims on which joint and several liability may be imposed pursuant to § 107(a)(4). The United States argues that because defendants/third-party plaintiffs face liability on the Town's claims only for their allocable share of the CERCLA response costs incurred by the Town and do not risk incurring liability for any amount in excess of their allocable shares, they do not themselves have contribution claims against the third-party defendants, and thus third-party claims and cross-claims for contribution are unavailable as a matter of law in this action.

THE STATUTORY FRAMEWORK

In 1980, Congress passed CERCLA to provide the tools necessary for a prompt and effective response to problems resulting from hazardous waste disposal, and to force those responsible for creating harmful conditions to bear the costs of remediation. See B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir.1992). Because it is a remedial statute, CERCLA must be construed liberally to effectuate its two primary goals. B.F. Goodrich, 958 F.2d at 1198. Liability under CERCLA is strict, see State of New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985), and joint and several, if the environmental harm is indivisible. See B.F. Goodrich Co., 958 F.2d at 1198.

CERCLA establishes four classes of responsible parties liable for the costs of responding to releases or threatened releases of hazardous substances. These include past and present owners or operators of facilities, transporters of hazardous substances, and those who generate or arrange for the disposal or treatment of hazardous substances. 42 U.S.C. § 9607(a).

Section 107(a)(4) of CERCLA provides, in pertinent part, that a responsible person shall be liable for —

(A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; ...

§ 107(a)(4)(A) and (B), 42 U.S.C. § 9607(a)(4)(A) and (B).

In 1986, Congress passed the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), P.L. 99-499, 100 Stat. 1613, adding §§ 113(f) and (g), 42 U.S.C. §§ 9613(f) and (g).³ Sections 113(f)(1) and (2) provide a private right of action for contribution and contribution protection for parties settling with the United States government or a State.

Section 113(f) provides, in pertinent part:

(1) Contribution

Any person may seek contribution from any other person who is liable or potentially liable under section 9607(a)

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