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New Windsor, Town of v. Tesa Tuck, Inc.

ELR Citation: 26 ELR 21230
Nos. 92 CV 8754 (BDP), 919 F. Supp. 662/42 ERC 2120/(S.D.N.Y., 03/14/1996)

The court rules on several motions for summary judgment and to amend the pleadings in a town's suit under §§107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recover costs it incurred cleaning up a municipal landfill. The court first holds that the town may recover under CERCLA even though it had to perform many of the cleanup actions in order to bring the landfill into compliance with regular state requirements for landfill closure. Because CERCLA requires compliance with other applicable statutes and regulations, it would be illogical to conclude that the town could not recover costs associated with an appropriate remedy that included actions required by state statutes and regulations. The court holds that the town created a genuine issue of material fact by submitting some credible evidence that it has incurred costs caused by a release or threatened release of hazardous substances. The court next holds that genuine issues of material fact as to whether the landfill posed a substantial danger to human health or the environment preclude summary judgment on whether the town's costs were necessary and consistent with the CERCLA national contingency plan. The court denies as premature defendants' motion for a declaratory judgment that certain categories of alleged costs are not recoverable under CERCLA. The court next holds that New York Civil Practice and Law Rules (CPLR) §214-c, which provides a three-year statute of limitations dating from the date of discovery of harm, bars the town's common-law claim for public nuisance. CPLR §214(4), which provided that nuisance claims accrued daily for as long as the nuisance continued, does not apply to the claim, because §214-c displaced that rule. The court holds that the town may amend its complaint to add three third-party defendants as first-party defendants. Although the town does not have a strong excuse for delaying two years before moving to add the defendants, the town is not guilty of bad faith, and the proposed first-party defendants have not demonstrated any facts that would mitigate against allowing the town to amend the complaint. The court denies the original first-party defendants' motion for attorneys fees they incurred investigating the third-party defendants. The court next grants New York's motion to realign from third-party defendant to party plaintiff so that it can assert claims for costs it expended overseeing the cleanup and reimbursing the town under the New York Environmental Quality Bond Act (EQBA) for its cleanup costs. Because the state's EQBA claims present issues of first impression, the court cannot conclude that they are futile on their face. The other parties will not be unduly prejudiced by the realignment. The court next holds that because the town is a potentially responsible party (PRP), it may not assert a §107 claim. Although other courts have varied in their interpretations, it is not sound to encourage different interpretations of §107 depending on whether contribution protection, the statute of limitations, or liability is at issue. If a PRP were permitted to bring a claim for joint and several liability under §107(a), the three-year statute of limitations on a §113(f) claim would be eviscerated, because a party with a claim barred under §113(f) could sue under §107(a). Limiting PRPs to contribution will also halt the ancillary litigation and the third-, fourth-, and fifth-party practice that typically bogs down CERCLA litigation. The court next holds that the town is not a "state" entitled to proceed under §107(a)(4)(A). Finally, the court holds that liability under §113 is not joint and several.

Counsel for Plaintiff
William Mulligan Jr.
Bleakley, Platt & Schmidt
One N. Lexington Ave., White Plains NY 10601
(914) 949-2700

Counsel for Defendants
Michael Devine
Kieffer & Hahn
111 Broadway, 16th Fl., New York NY 10006
(212) 349-9400