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United States v. Allied-Signal, Inc.

Citation: 30 ELR 20055
No. No. 97-CV-0436, 62 F. Supp. 2d 713/49 ERC 1228/(N.D.N.Y., 08/18/1999)

The court denies the entry of a proposed consent decree between the United States and four New York municipalities that defined the municipalities' individual liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for cleanup costs at the Sidney Landfill Superfund site in New York. The successor-in-interest to the site challenged the consent decree and filed a third-party complaint against the municipalities asserting claims for contribution and indemnification. The court first holds that the per unit cost of cleanup utilized by the U.S. Environmental Protection Agency (EPA) in the proposed consent decree to determine the municipalities' proportionate share of liability was unfair and unreasonable. The per unit cost of cleanup does not fairly represent the response costs the municipalities could reasonably expect to pay for the closure of the site. EPA based the per unit cost on outdated figures, provided no detailed explanation regarding how those figures were derived or why they are applicable to the site, and excluded the costs of post-closure monitoring and maintenance even though the consent decree covers all response costs, including those associated with operation and maintenance. The court, therefore, disapproves the consent decree.

The court next dismisses the successor-in-interest's CERCLA § 107 claim against the municipalities. A potentially responsible party (PRP) cannot bring a cost recovery action against another PRP under § 107, but is limited to asserting a contribution action under CERCLA § 113. The court thenholds that the municipalities are not entitled to immunity from contribution under CERCLA § 113(f)(2). CERCLA § 113(f)(2) only grants settling parties protection from contribution claims when the parties' liability to the United States has been resolved in an administrative or judicially approved settlement. Here, the court rejected the proposed consent decree. The court additionally holds that the municipalities may be subject to "arranger liability" under CERCLA § 107(a)(3). A rational finder of fact could reasonably conclude that the municipalities arranged or planned for the disposal of refuse at the site, that the hazardous waste at the site was from waste disposed of by the municipalities, and that municipalities disposed of hazardous waste owned or possessed by them. The municipalities affirmatively undertook active involvement in seeking and securing a location for the disposal of hazardous waste, they effectively dictated where municipal waste would be disposed of by subsidizing the costs of disposal at the site, and they had actual involvement in the decision to dispose of waste.

Counsel for Plaintiff
James C. Woods, Ass't U.S. Attorney
U.S. Attorney's Office
231 Foley U.S. CtHse.
445 Broadway, Albany NY 12207
(518) 431-0247

Counsel for Defendants
Philip H. Gitlen
Whiteman, Osterman & Hanna
One Commerce Plaza, Albany NY 12260
(518) 487-7600