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New York v. Solvent Chem. Co.

ELR Citation: 26 ELR 20168
Nos. No. 83-CV-1401C, 880 F. Supp. 139/41 ERC 1312/(W.D.N.Y., 03/13/1995) motions to dismiss claims against city granted in part, denied in part

The court dismisses third-party claims that past owners and operators of a contaminated site asserted under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against a New York city that had owned the site. The court first holds that the third-party complaints fail to state a claim against the city under CERCLA §107(a)(2) because they fail to allege that disposal of a hazardous substance occurred while the city owned the site. The court also holds that the complaints fail to state a claim against the city under New York Environmental Conservation Law §17-0501. Although the court does not determine whether passive migration may violate §17-0501, the complaints fail to allege that any such migration took place while the city owned the site. Furthermore, they fail to allege that the city engaged in any other conduct prohibited by §17-0501. The court holds, however, that the complaints sufficiently state public nuisance claims against the city, because they plainly allege that there was a release or threat of release of hazardous wastes when the city owned the site or that the condition of the site was otherwise such that a public nuisance existed there, that the city had actual or constructive knowledge of the existence of a public nuisance, and that it failed to take adequate steps to remedy the condition. Finally, the court denies the city's motion for summary judgment on the third-party public nuisance claims, because a genuine issue of material fact exists as to whether a public nuisance existed at the site when the city owned it and whether the city had actual or constructive knowledge of such nuisance.

[A related case is published at 25 ELR 20959.]

Counsel for Plaintiff
Robert E. Hernan, Ass't Attorney General
Attorney General's Office
120 Broadway, 25th Fl., New York NY 10271
(212) 416-8519

Counsel for Defendants
Paul M. Samson
Damon & Morey
1000 Cathedral Pl., 298 Main St., Buffalo NY 14202
(716) 856-5500