The opinion of the court was delivered by: MISHLER
Memorandum of Decision and Order
Plaintiff, the State of New York, has brought this suit against the United States of America, Caspar Weinberger (Secretary of Defense) and Verne Orr (Secretary of the Air Force) to redress wrongs allegedly committed by defendants against New York State, its citizens and its residents. Defendants allegedly committed these wrongs through "chemical contamination of the groundwaters underlying former Suffolk County Air Force Base and the surrounding area and [through] the threat of further contamination posed to the groundwaters and surface waters of New York State." (Amended Comp. P1).
From approximately March 27, 1951 to March 31, 1971, defendants operated and controlled the Suffolk County Air Force Base at what is now known as the Suffolk County Airport. After March 31, 1971, defendants transferred ownership of the airbase to Suffolk County, although they still retained possession and control of seventy acres of the airbase for use by New York Air National Guard, 106th Airspace Rescue and Recovery Group. (Id. P9, 11-12).
South and downgradient of the airport are residential areas, which are bordered by Quantuck Creek on the east; Aspatuck Creek on the west; and Quantuck Bay on the south. Plaintiff alleges that all three of these bodies of water are navigable waters rich in marine life. (Id. P18).
Plaintiff claims that over a period exceeding ten years, defendants spilled, leaked or discharged large quantities of military jet fuel known as JP4 as well as other chemicals into the ground at Suffolk County Airport. Specifically, plaintiff makes the following allegations:
(1) "[B]eginning in the late 1950's or early 1960's, a leak in the hydrant system that channeled JP4 jet fuel from the storage tanks to the aircraft at the Suffolk County Airport resulted in discharge of military jet fuel into the soil" until repaired in the fall of 1962 (Id. at P20-21);
(2) In 1967, during a cleaning of the storage tanks, tens of thousands of gallons of jet fuel entered the soil (Id. P23-26);
(3) In February, 1974, while fuel was being transferred from one storage tank to another, more than 10,000 gallons of JP4 was discharged into the soil (Id. P28-29);
(4) From 1957 to the present, during military firefighting exercises, jet fuel, hydraulic fluid, drain oil and other chemicals, which were "not consumed [by] fire were left in [a] pit and soaked into the soil" (Id. P31-33);
(5) Until April 1, 1971, defendants operated a Nondestructive Inspection Laboratory "where hazardous chemicals, including dye penetrants, degreasers and acids were used for examining aircraft structures and components for flaws"; when no longer useable, these chemicals were stored temporarily in a lime filled pit from which the chemicals leaked into the soil (Id. P34-36); and
(6) Defendants disposed of "significant quantities" of contaminated jet fuel, carbon tetrachloride, and other "hazardous chemicals" into a landfill near the airport (Id. P37-41).
In 1977, hydrocarbon and fuel contaminants were found in residential water wells on Peters Lane located south and downgradient from the airport. Due to potential health hazards, Suffolk County installed a water main in this area to provide the residents with a safe source of drinking water. (Id. P43-45).
In 1982, "significant concentrations" of JP4 jet fuel were discovered in groundwater monitoring wells located south and downgradient from the airport. In addition, hydrocarbon contaminants were found in a well on Fairview Avenue, located south of Peters Lane. Suffolk County Health Department advised residents in this area to cease using their private wells. (Id. P46-49).
II. Legal Claims and Requested Relief
It is this contamination and pollution allegedly caused by the foregoing events and emanating from Suffolk County Airport that forms the factual basis for plaintiff's complaint. As for the legal underpinnings of plaintiff's complaint, it sets forth nine causes of action, the first and ninth of which are expressly premised upon federal statutes. Under the first cause of action, defendants' "handling, storage, disposal and discharge of JP4 jet fuel and other hazardous chemicals and fail[ure] to remove them from the soil" purportedly violates § 13 of the Rivers and Harbors Act, 33 U.S.C. § 407 and § 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a). (Id. P55-56). Under the ninth cause of action (or what is in actuality the second denominated eighth cause of action in the amended complaint), defendants are allegedly strictly liable to plaintiff for resultant damages to the "land, wildlife, biota, groundwater and other natural resources" and for "all costs and expenses incurred or to be incurred by the State of New York for the removal, remediation and response to the contamination" at and around the airport under § 107(a) of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9607(a). (Id. P82-83). The other seven causes of action are explicitly grounded on state law as follows: strict liability in tort (second cause of action -- P57-62); negligent creation of a continuing public nuisance (third cause of action -- P63-67); negligent maintenance of a continuing public nuisance (third cause of action -- P68-71); intentional maintenance of a continuing public nuisance (fifth cause of action -- P72-75); violation of general prohibition against water pollution under New York's Environment Conservation Law (ECL) § 17-0501 (sixth cause of action -- P76-77); violation of ECL § 17-1743 by failing to notify the Department of Environmental Conservation of the 1974 spill of JP4 fuel (seventh cause of action -- P78-79); and violation of ECL § 17-0503 by permitting hazardous substances to "enter the soil and thereby leak into the waters of a Marine District" (eighth cause of action -- P80-81).
Jurisdiction is asserted under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., the Clean Water Act, 33 U.S.C. § 1365; CERCLA, 42 U.S.C. § 9601 et seq. and 28 U.S.C. § 1331(a).
As for relief, plaintiff seeks the following:
(1) That defendants be required to remove the jet fuel and other contaminants referred to in this Complaint from the soil and groundwater beneath and down gradient from the Suffolk County Airport and return the site to its ecological condition prior to the spills and discharges of JP4 jet fuel and other hazardous chemicals.
(2) That defendants provide safe drinking water to any person whose well has been or becomes contaminated from jet fuel or other hazardous chemicals referred to in this complaint; or
(3) That defendants be liable to the State of New York for the actual costs of removing or neutralizing the jet fuel and other hazardous chemicals in this complaint referred to; and
(4) That defendants be fined in the amount as provided by law for each day of violation of New York Environmental Conservation Law and the Clean Water Act; and
(5) That defendants reimburse the State of New York for all damages sustained and to be sustained to the natural resources of the State and for all the costs and expenses incurred or to be incurred by the State of New York for remediation and response to the contamination at and in the environs of the Suffolk County Airport as allowed by Section 107(a)(2)(A)(B) of CERCLA, 42 U.S.C. § 9607(a) [; and]
(6) For such other and further relief that this Court deems just and proper.
(Amended Comp. p. 20-21).
Defendants now move to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b) for lack of subject matter jurisdiction and/or failure to state a claim upon which relief can be granted. Alternatively they seek judgment on the pleadings under Fed.R.Civ.P. 12(c) or summary judgment under Fed.R.Civ.P. 56. Defendants have submitted affidavits and exhibits in support of their motion, which was submitted without oral argument. Since matters outside the pleadings have been presented and are presently considered by the court, this motion is treated as one for summary judgment. Fed.R.Civ.P. 12(b).
A. Summary Judgment Standard ...