The opinion of the court was delivered by: McCURN, Chief Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff Louis A. Stilloe ("Stilloe") alleges that in 1988
the New York State Department of Environmental Conservation
("DEC") determined that certain barrels containing hazardous
substances were being stored without proper authorization at
810 Jackson St. in Broome County, Binghamton, New York ("the
site"). These barrels were being stored in or near a parking
lot/driveway next to the building wherein Stilloe conducted
Prior to his purchasing the site, Stilloe alleges that
defendant Robert J. McMahon ("McMahon") moved barrels and
debris being stored at the site onto the property of defendant
Almy Brothers, Inc. ("Almy"), whose land abuts the site and is
accessed by a common driveway.
On December 4, 1990, this court heard oral argument
concerning motions brought by the DEC, Stilloe and Almy. The
DEC had moved to dismiss plaintiff's original complaint and
Almy's original cross-claim against the DEC, however this
motion became moot after this court granted Stilloe and Almy's
motions to file and serve an amended complaint and amended
answer respectively in this action.
Plaintiff asserts three causes of action in his amended
complaint. The first claim, alleged against all defendants,
seeks response costs under the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA" or "the
Act"), 42 U.S.C. § 9601 et seq., as amended by the Superfund
Amendments and Reauthorization Act of 1986 ("SARA"). The second
cause of action, asserted only against defendant McMahon, is
for breach of contract. Stilloe's third claim, asserted against
all defendants, seeks a declaratory judgment from this court,
pursuant to CERCLA § 113(g)(2) and § 107
(42 U.S.C. § 9613(g)(2)) and the Declaratory Judgment Act, 28 U.S.C. § 2201.
The relief in this claim seeks a declaration from this court
finding the defendants liable to Stilloe for all those response
costs incurred by him in the future which are necessary and
consistent with the national contingency plan developed to
remediate the site at issue. In this amended complaint, Stilloe
alleges that the DEC is a "person" under CERCLA, and that the
DEC, acting as an "operator" of the site, was "grossly
negligent" in its handling of the hazardous materials at the
In its amended answer, Almy has asserted a cross-claim
against the DEC which seeks monetary damages for expenses Almy
incurred as a result of removing the contaminated substances
from the site. Additionally, Almy seeks a declaration from
this court stating that the DEC's actions or inactions in
remediating the problem at the site in question "multiplied"
the cleanup costs incurred by Almy.
The DEC has moved to dismiss plaintiff's amended complaint
and defendant Almy's amended cross-claim against the DEC
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. In its motion, the DEC alleges that plaintiff's
amended complaint fails to state a claim against the DEC. The
movant contends that it is not a "person" under CERCLA and
that it was not an "operator" of the site at the time the
barrels allegedly broke open and spilled the hazardous waste.
The DEC further argues that Almy's amended cross-claim against
it similarly fails to state a claim against the DEC.
(1) Stilloe's claims against the DEC.
Before addressing the merits of the DEC's motion, it is
helpful to review the applicable statute governing liability
under the Act. 42 U.S.C. § 9607(a) provides:
Notwithstanding any other provision or rule of
law, and subject only to the defenses set forth
in subsection (b) of this section —
(1) the owner and operator of a vessel or a
(2) any person who at the time of disposal of
any hazardous substance owned or operated any
facility at which such hazardous substances
were disposed of,
(3) any person 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
or incineration vessel owned or operated by
another party or entity and containing such
hazardous substances, and
(A) all costs of removal or remedial action
incurred by the United States Government or a
State or an Indian Tribe not inconsistent
with the national contingency plan;
(B) any other necessary costs of response
incurred by any other person consistent with
the national contingency plan;
(C) damages for injury to, destruction of, or
loss of natural resources, including the
reasonable costs of assessing such injury,
destruction, or loss resulting from such
(D) the costs of any health assessment or
health effects study carried out under section
104(i) [42 U.S.C. § 9604(i)].
Thus, to be liable under CERCLA, you must (a) be a "person"
who (b) falls within one of the four categories of liable
persons described in § 9607(a).
(a) Is the DEC a "person" under the Act?
Initially, the court must determine whether the DEC is a
"person" under CERCLA. The DEC is an agency of the State of
New York whose purpose is to coordinate and develop policies,
planning and programming related to the environment of the
State. See generally N.Y.Env.Con.L., Art. 3. The State of New
York, and therefore its agencies, are "persons" as that term is
defined by CERCLA. See 42 U.S.C. § 9601(21) (including "State"
in the statute's definition of "person" under the Act),
Pennsylvania v. Union Gas Co., 491 U.S. 1, 8, 109 S.Ct. 2273,
2278, 105 L.Ed.2d 1 (1989). Since the DEC is a person under ...