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STATE OF N.Y. v. SCA SERVICES

January 9, 1991

THE STATE OF NEW YORK AND THE TOWN OF TUSTEN, PLAINTIFFS,
v.
SCA SERVICES, INC., JOHN CORTESE CONSTRUCTION CORPORATION, JOHN CORTESE, AND SHELDON WERNICK, DEFENDANTS. SCA SERVICES, INC., JOHN CORTESE CONSTRUCTION CORPORATION, JOHN CORTESE, AND SHELDON WERNICK, THIRD-PARTY PLAINTIFFS, V. ROBERTS & CARLSON, INC., CONTINENTAL CAN COMPANY, INC., BASF CORPORATION (INMONT DIVISION), KAY-FRIES INC., NATIONAL STARCH AND CHEMICAL CORPORATION, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., AND JOHN DOES 1-99, THIRD-PARTY DEFENDANTS.



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

OPINION AND ORDER

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.

BACKGROUND

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."). Plaintiffs 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.

DISCUSSION

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 defense).*fn11

  1.  The Town's Request for Judgment Dismissing SCA's Third
      and Fourth ...

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