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New York v. General Elec. Co.

Citation: 14 ELR 20719
No. No. 83-CV-1615, 592 F. Supp. 291/21 ERC 1097/(N.D.N.Y., 06/26/1984)

The court rules that plaintiff has stated a claim for which relief can be granted in its action under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs and natural resource damages from defendant, who sold waste oil contaminated with hazardous substances to third parties who used the oil for dust control at a dragstrip. The court first rules that the dragstrip may be a "facility" within the meaning of CERCLA § 107(a)(3). The statute defines "facility" broadly. Defendant's argument, that because "containing such hazardous substances" modifies "facility" § 107(a)(3) covers only dump sites that already contain hazardous chemicals, is unsupported in the legislative history and is nonsensical. The court next rejects defendant's argument that it is not a responsible party under § 107(a)(3) because it did not "arrange for disposal" at the dragstrip, but sold the waste oil to a third party for use in its business. The allegations in plaintiff's complaint construe the sale as a disposal transaction. That is sufficient to defeat the dismissal motion, particularly in light of legislative history indicating Congress' intent that hazardous substance generators not be able easily to contract away their liability.

The court also rejects defendant's motion to dismiss for plaintiff's failure to incur response costs before bringing suit. Prior expenditures are not an element of one of plaintiff's claims — the one for natural resource damages. Moreover, plaintiff has alleged recoverable expenses, including investigatory costs, which are response costs under CERCLA. Next to fall is defendant's claim that the action must be dismissed because plaintiff failed to comply with the 60-day notice requirement of § 112(a). The court finds that the hazardous substance release was probably not discovered by plaintiff until 1982, which means that the December 11, 1983 deadline for filing actions based on releases completed and discovered prior to passage of CERCLA in 1980 is inapplicable. Thus, dismissal would serve no purpose since plaintiff could simply refile the suit. In any event, the court notes that the notice requirement applies to actions to recover from the Superfund, not to liability actions; and observes that the requirement does not appear to be jurisdictional. The court also denies defendant's motion to dismiss plaintiff's claim for injunctive relief, ruling that plaintiff's pendent state law nuisance claim would support such relief and declining to rule on whether CERCLA does.

The court further rules that the liability provisions of CERCLA are free of the restrictions placed on the use of the Superfund. Plaintiff's liability action is not fettered by the need to be consistent with the national contingency plan, and may proceed even though the dragstrip is not on the national priorities list. The legislative history and precedent demonstrate that those requirements apply to actions against the Superfund, not those against responsible parties. The only precedent to the contrary concerns actions by private parties, which are subject to stricter limits than those imposed on government actions.

Counsel for Plaintiffs
Norman Spiegel, Nancy Stearns, Ass't Attorneys General
Environmental Protection Section
Two World Trade Ctr., New York NY 10047
(212) 488-5123

Nancy B. Firestone
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2757

Counsel for Defendants
Allan J. Topol, Patricia A. Barald, Corinne A. Goldstein
Covington & Burling
P.O. Box 7566, Washington DC 20044
(202) 662-6000

Susan Phillips Read, Corp. Counsel
Environmental Programs
General Electric Co., One River Rd., Schenectady NY 12345
(518) 385-9058