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NEW YORK v. GE

June 26, 1984

STATE OF NEW YORK, Plaintiff, against GENERAL ELECTRIC COMPANY, Defendant.


The opinion of the court was delivered by: MINER

MEMORANDUM-DECISION and ORDER

ROGER J. MINER, D.J.

I

 This action seeking injunctive, declaratory and monetary relief arises out of the allegedly unlawful disposal of certain hazardous wastes by defendant General Electric Company ("GE"). The action is brought by New York State pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601-9657 ("CERCLA"), *fn1" the New York State Real Property Actions and Proceedings Law, N.Y. Real Prop. Acts. Law § 841 (McKinney 1979), and the New York common law of public nuisance. Jurisdiction is predicated upon 28 U.S.C. § 1331, 42 U.S.C. § 9613(b) and the doctrine of pendent jurisdiction. Before the Court is GE's motion to dismiss the complaint *fn2" for failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b)(6).

 II

 Defendant GE operates several manufacturing plants in the State of New York, including plants at Hudson Falls and Fort Edward, New York. According to plaintiff's complaint, *fn3" in the early 1960's GE disposed of between four and five hundred fifty-five gallon drums of used transformer oil from those two plants through sales to the South Glenn Falls Dragway, Inc., Allie Swears, and Carl Becker. The oil, which contained hazardous substances including polycholorinated biphenyls ("PCBs") and dibenzofurans, was used at the South Glens Falls Dragstrip ("dragstrip") for purposes of dust control. *fn4" In 1982 and 1983, chemical analyses of soil samples taken by plaintiff from the dragstrip and its environs revealed PCB *fn5" contamination as high as 2900 parts a million and dibenzofuran contamination as high as 12 parts a billion. Analysis of air samples taken in June of 1983 indicated PCB contamination in the ambient air as well. This contamination apparently results in release of PCBs into the ambient air by volatilization as well as migration of the contaminants through the soil and towards the groundwater. According to the amended complaint, "[t]hese releases of hazardous substances have caused damage to the soil and ambient air and to other natural resources of the State of New York . . . [and] [t]he hazardous chemical contamination . . . causes harm and threatens additional harm to the health and safety of the people of the State of New York particularly those living in the Town of Moreau or using the area in and around the South Glens Falls Dragstrip." Amended complaint, PP18-19.

 On November 30, 1983, pursuant to section 112(a) of CERCLA, 42 U.S.C. § 9612(a), the state presented its claim to defendant for damages to the natural resources and "for the costs of removal, remediation and response with respect to the identification, definition, monitoring, control and abatement of the contamination at and around the South Glens Falls Dragstrip." Amended complaint, P20. GE has failed to satisfy the claim for these items and accordingly the state "has incurred and continues to incur expenses and costs to respond to . . . the contamination at and around the South Glens Falls Dragstrip and has suffered and continues to suffer damages to the natural resources of the State of New York in amounts not yet ascertained. . . ." Id. P21.

 This relatively simple factual background lays the predicate for three causes of action set forth in plaintiff's amended complaint. The first cause of action alleges that GE is strictly liable under section 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3), "for all damages sustained and to be sustained by the land, wildlife, biota, groundwater, ambient air and other such natural resources of the State and for all costs and expenses incurred or to be incurred by the State of New York for the removal, remediation and response to all contamination at and in the environs of the South Glens Falls Dragstrip. . . ." Amended complaint, P23. The second and third causes of action concern alleged violations of state statutory and common law. *fn6" GE has not moved against these claims on the merits but rather has only taken the position that the dismissal of New York's federal CERCLA claims would require dismissal of the state claims under the jurisprudential considerations of pendent jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).

 Plaintiff seeks reimbursement fromGE for

 all damages sustained to the natural resources of the State including the cost of assessing such injury, destruction or loss and for all the costs and expenses incurred by the State of New York for the removal, remediation and response to all contamination at and around the South Glens Falls Dragstrip as allowed by Section 107(a)(A) and (C) of the Superfund Act, 42 U.S.C. § 9607(a)(A) and (C).

 Amended complaint at 11.Moreover, plaintiff seeks a declaratory judgment, 28 U.S.C. § 2201, declaring that GE is liable for all such damages incurred and to be incurred. Finally, plaintiff requests that defendant be ordered to monitor the contamination at the dragstrip and abate completely and permanently the nuisance caused by the migration of the hazardous substances. Defendant now moves to dismiss the complaint on a number of grounds. *fn7"

 III.

 A. Applicability of section 107

 GE argues that there is no basis for liability under Section 107 of CERCLA, 42 U.S.C. § 9607, the relevant subsection of which provides for liability of persons

 who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances. . . .

 42 U.S.C. § 9607(a)(3). *fn8" GE's argument is twofold: First, it argues that because a dragstrip is not a hazardous waste facility there can be found no liability under section 107(a)(3). Second, it contends that liability may not be premised upon section 107(a)(3) because it did not "contract or otherwise arrange for "disposal or treatment" of the transformer oil within the meaning of the statute. This Court rejects both of defendant's contentions.

 Section 107(a)(3) provides for liability of "any person who . . . arranged for disposal . . . of hazardous substances owned or possessed by such person . . . at any facility owned or operated by another. . . ." 42 U.S.C. § 9607(a)(3) (emphasis added). Section 101(9) of ...


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