The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.
This is an action by a state and a municipality to recover
response costs and damages under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), as amended, 42 U.S.C. § 9601 et seq. (1988), and
under New York common law. Plaintiffs base their claims on the
alleged release of hazardous substances from a landfill once
located on the Delaware River in the Town of Tusten in Sullivan
County, New York ("the site"). Plaintiff Town of Tusten ("the
Town") now moves pursuant to Fed.R.Civ.P. 12(c) for judgment on
the pleadings dismissing the third, fourth, fifth and a portion
of the seventh counterclaims asserted by defendant SCA
Services, Inc. ("SCA") against the Town. For the reasons set
forth below, the Town's motion is denied in its entirety; all
portions of the third, fourth, fifth or seventh counterclaims
in which SCA seeks to recover attorney's fees are stricken by
the Court sua sponte.
From 1970 through 1981, defendants John Cortese and John
Cortese Construction Corporation ("Cortese Construction")
operated a landfill ("the Cortese landfill") on a flat, grassy
five-acre site ("the site") located approximately 400 feet west
of the Delaware River in the Town of Tusten, Sullivan County,
New York. The Cortese landfill accepted household, commercial,
municipal, industrial and chemical waste.*fn1 Barrels of waste
were allegedly either dumped into open trenches and flattened
with a bulldozer or were emptied into the trenches and the
barrels salvaged for reuse. Amended Complaint filed June 19,
1985 ¶ 46 (hereinafter "Amended Complaint").
Defendant Sheldon Wernick is a New Jersey resident who
plaintiffs allege acted as a broker or middleman for the
disposal of industrial and chemical waste at the site. Cortese
and Cortese Construction admit that they accepted 200-300
barrels of waste from Wernick's principal(s) in 1973 and 1974.
CO See Answer of Cortese and Cortese Construction ¶ 17.
Defendant SCA is a Delaware corporation with subsidiaries
engaged in the business of treating, storing, transporting and
disposing of industrial and chemical waste. SCA acknowledges
that it has uncovered documents showing that in 1973 and 1974,
drivers for Gaess Environmental Services Corporation ("Gaess"),
a wholly owned subsidiary of SCA at the time, may have
delivered waste to the Cortese landfill for disposal.
See Answer of SCA ¶¶ 19 & 30. SCA's third-party complaint
alleges that the Gaess deliveries involved as many as 480
barrels of industrial and chemical waste generated by the
third-party defendants. Third-Party Complaint of SCA Services,
Inc. filed January 17, 1989 ¶¶ 37-45. Plaintiffs simply allege
that in 1973 and 1974 SCA delivered "several thousand barrels"
of waste containing "hazardous substances" as defined in
42 U.S.C. § 9601(14). Amended Complaint ¶ 25.
In September 1980, the New York Department of Environmental
Conservation ("DEC") declared the Cortese landfill an "open
dump" within the meaning of § 6903(14) of the Resource
Conservation and Recovery Act of 1976 ("RCRA"),
42 U.S.C. § 6901 et seq. (1988).*fn2 Monitoring conducted by the
State on and off the site detected the presence of toxic metals
and organic chemicals in the groundwater. A public well located
approximately 1500 feet from the site is allegedly no longer
suitable for use as a water supply for the Town of Tusten.
Amended Complaint ¶ 13.
Plaintiffs commenced this action on August 29, 1983. The
complaint alleges that John Cortese and Cortese Construction
are liable under § 107(a)(2) of CERCLA, 42 U.S.C. § 9607(a)(2)
(1988), as owners and operators of a facility where hazardous
substances were disposed of.*fn3 The complaint alleges that
Wernick is liable under § 107(a)(3) of CERCLA,
42 U.S.C. § 9607(a)(3) (1988), as a person who arranged for the transport
of hazardous substances to the site for disposal.*fn4 Finally,
the complaint alleges that SCA is liable under § 107(a)(4) of
CERCLA, 42 U.S.C. § 9607(a)(4) (1988), as a transporter of
hazardous substances.*fn5 Under the amended complaint filed
June 19, 1985, plaintiffs seek to hold all defendants jointly
and severally liable (1) under CERCLA for response costs and
injury to the wildlife, air, water and soil resources of the
State;*fn6 (2) under New York law for creating and
contributing to the maintenance of a public nuisance; and (3)
under New York law for restitution of plaintiffs' expenditures
in investigating the scope of the chemical contamination at the
site and the scope of the resulting nuisance. The State of New
York joined in these claims on its own behalf and as parens
patriae on behalf of residents of the State of New York.
On June 12, 1984 John Cortese and Cortese Construction
asserted cross-claims against SCA and Wernick and a
counterclaim against plaintiffs for contribution,
indemnification and damages. Defendant Wernick has
cross-claimed for indemnification from SCA, Cortese and
then-defendant Samuel White.*fn7
Without admitting liability in this action, SCA entered into
a stipulation signed by all parties to the main action filed on
June 10, 1985 and amended at least once thereafter. The
stipulation requires SCA to conduct at its own expense a
comprehensive technical study of conditions at the site
(pursuant to a "Plan for Remedial Investigation and Feasibility
Study of the Cortese Landfill, Narrowsberg, New York.").
thereafter filed an amended complaint on June 19, 1985.*fn8
On January 17, 1989 SCA filed an answer to plaintiffs'
amended complaint.*fn9 SCA denied that any "release" as
defined in § 101 of CERCLA, 42 U.S.C. § 9601(22) (1988), has
occurred or is presently occurring at the site, denied that the
site poses any threat of harm to the public or natural
resources and claimed that Gaess transported waste to the site
in good faith reliance on permits and approvals issued by the
State to Cortese and Cortese Construction and on plaintiffs'
site inspections. Answer of SCA at ¶¶ 15 & 19-30. SCA also
asserted counterclaims against the Town of Tusten for
indemnification and/or contribution seeking to hold the Town
jointly and severally liable for costs incurred by SCA under
the June 10, 1985 stipulation as well as for all legal fees and
engineering and other costs incurred by SCA in connection with
responding to conditions at the site.*fn10 The Town brought
the present motion for judgment on the pleadings dismissing
certain of SCA's counterclaims. The parties stipulated that the
motion be decided on the papers without oral argument.
In a Rule 12(c) motion for judgment on the pleadings, the
Court may consider only the allegations in the pleadings and a
complaint or claim should not be dismissed unless it appears
beyond doubt that the claimant can prove no set of facts in
support of the claim. See George C. Frey Ready-Mixed Concrete,
Inc. v. Pine Hill Concrete Mix Corp., 554 F.2d 551, 553 (2d
Cir. 1977); 5A Wright & Miller, Federal Practice and Procedure
§ 1367 at 510 (2d ed. 1990) ("The motion for judgment on the
pleadings only has utility when all material allegations of
fact are admitted in the pleadings and only questions of law
remain" such as construction of a will or statute or when the
claim is barred by a valid statute of limitations
1. The Town's Request for Judgment Dismissing SCA's Third
and Fourth ...