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SHAPIRO v. ALEXANDERSON

August 24, 1990

SAUL SHAPIRO, PLAINTIFF,
v.
PETER C. ALEXANDERSON, AS COUNTY EXECUTIVE OF THE COUNTY OF PUTNAM, COUNTY OF PUTNAM AND EMIL LANDAU, DEFENDANTS. PETER C. ALEXANDERSON, AS COUNTY EXECUTIVE OF THE COUNTY OF PUTNAM, COUNTY OF PUTNAM, THIRD PARTY PLAINTIFFS, V. STEVEN ESTRIN, INDIVIDUALLY, STEVEN A. ESTRIN, INC., EBERLIN & EBERLIN, P.C., LEONARD J. EDER, ENVIRONMENTAL DESIGN ENGINEERS, INDIVIDUALLY AND D/B/A EBERLIN, EDER AND ESTRIN, A JOINT VENTURE, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, AND SUBURBAN CARTING, GREEN REFUSE AND A & M CARTING, THIRD PARTY DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

Plaintiff Saul Shapiro ("Shapiro") moves for reargument of that part of the Opinion and Order of July 9, 1990 ("Opinion") 741 F. Supp. 472 in the above captioned case which denied the portion of Shapiro's motion for summary judgment which sought "a declaration that defendant County of Putnam [("County")] is a responsible party within the meaning of [the Comprehensive Environmental Response, Compensation, and Liability Act] CERCLA, 42 U.S.C. § 9607(a)(2)." Pl. Notice of Motion.

As related in detail in the Opinion, this is a CERCLA action to recover necessary costs of response to the release and threat of release of hazardous substances at a site of land on Old Route 6, Carmel, New York ("the site"), of which Shapiro is a part owner and at which the County once operated a landfill, pursuant to a contract with Shapiro. Shapiro and the County, as an "owner" and an "operator" respectively, are both "covered persons" under 42 U.S.C. § 9607(a) and therefore potentially liable for necessary response costs. See Opinion 741 F. Supp. at 477-78, 478-79.

This motion concerns the rulings on whether the parties could take advantage of the narrow defense available to "covered persons" under Section 9607(b)(3). That defense is available to a covered person when it can show: (1) that a third party was the sole cause of the release or threatened release of a hazardous substance; (2) that the act or omission of the third party causing the release did not occur in the context of a contractual relationship existing directly or indirectly with the covered person; and (3) that the covered person took due care and precautions to prevent the foreseeable acts or omissions of the third party causing the release or threatened release. Section 9607(b)(3) states:

  There shall be no liability under subsection (a)
  of this section for a person otherwise liable who
  can establish by a preponderance of the evidence
  that the release or threat of release of a
  hazardous substance and the damages resulting
  therefrom were caused solely by —

42 U.S.C. § 9607(b) (emphasis added).

The Court held that Shapiro is not entitled to a Section 9607(b)(3) defense based on his contention that the County is solely responsible for the release and threats of release of hazardous substances, because a Section 9607(b)(3) defense is not available if the "act or omission" of the party which is solely responsible "occurs in connection with a contractual relationship" with the covered person. The acts and omissions of the County, alleged by Shapiro, occurred in connection with the County's contractual relationship with Shapiro. See Opinion 741 F. Supp. at 478.

The Court also held that the County was not entitled to a Section 9607(b)(3) defense based on its contention that Steven Estrin ("Estrin") is solely responsible, because Estrin's alleged acts and omissions occurred in connection with a contractual relationship between Estrin and the County. See Opinion 741 F. Supp. at 478.

This motion is directed to the County's argument that it is entitled to a Section 9607(b)(3) defense because the owners were the sole cause of the negligence. The Court held that "[t]here are issues of fact material to whether the County exercised due care and to whether the owner's negligence caused the leachate problems. Accordingly, the County's argument that the owners are solely responsible for the release and threats of release does not entitle the County to a Section 9607(b)(3) defense on these motions." Opinion 741 F. Supp. at 478.

Shapiro argues here that the Court should not have left that issue open subject to resolution of facts, but should have held that the County's contention, that it is entitled to a Section 9607(b)(3) defense because the owners are solely responsible, is fatally flawed because the alleged acts and omissions of the owners "occur[red] in connection with a contractual relationship" with the County. The County concedes that at one time it had a contractual relationship with the owners, but the County argues that the alleged acts of the owners which render them solely responsible were not taken "in connection with [the owners'] contractual relationship" with the County.

Since both parties have fully briefed this issue on this motion, the Court proceeds to determine whether the original decision should be modified. Resolution of this issue requires an interpretation of the language of the "contractual relationship" exception to the Section 9607(b)(3) defense: "one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant. . . ." 42 U.S.C. § 9607(b)(3). Shapiro argues that the terminology encompasses all acts or omissions of a party with any contractual relationship with the defendant. This broad interpretation is supported by dicta in district court opinions. See O'Neil v. Picillo, 682 F. Supp. 706, 728 (D.R.I. 1988) (to establish a Section 9607(b)(3) defense, defendant must show that "`a totally unrelated third party is the sole cause of the release'") (emphasis in original) (quoting United States v. Stringfellow, 661 F. Supp. 1053, 1061 (C.D.Cal. 1987)); City of Philadelphia v. Stepan Chemical Co., 18 Envtl.L.Rep. 20133, 20134, 1987 WL 15214 (E.D.Pa. 1987) (Section 9607(b)(3) defense is "limited . . . to situations where the responsible party has no connection to the third party") (emphasis in original).

The Court, however, does not embrace the view that the contractual relationship clause encompasses all acts by a third party with any contractual relationship with a defendant. Such a construction would render the language "in connection with" mere surplusage. The act or omission must occur in a context so that there is a connection between the acts and the contractual relationship. For example, the classic scenario in which courts preclude a covered person from asserting a Section 9607(b)(3) defense is when the covered person asserting the defense is a landowner and the third-party is operating the landfill pursuant to a contract with the owner. The acts or omissions of that operator, while operating the landfill, are in connection with the landowner-operator contract and therefore preclude the owner's assertion of the Section 9607(b)(3) defense. See Opinion 741 F. Supp. at 478 (precluding owners from basing a Section 9607(b)(3) defense on acts of County as operator of the landfill).

One district court has held that the landowner-operator contractual relationship also precludes the operator from asserting a Section 9607(b)(3) defense based upon the acts or omissions of the landowner. See United States v. Northernaire Plating Co., 670 F. Supp. 742, 748 (W.D.Mich. 1987). Northernaire reasoned that allegations that the landowner neglected to care for waste being dumped by the operator constituted an omission by the landowner in connection with the operator's contract with the landowner. Shapiro argues that ...


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