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March 19, 1991


The opinion of the court was delivered by: McCURN, Chief Judge.



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 his business.

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.

In 1989, the DEC designated the site as a Class 2 site under Art. 27, Title 13 of the New York Environmental Conservation Law. With this classification, the DEC determined that the site in question posed a significant threat to the environment which required immediate action.*fn1 Soon thereafter, the DEC took over management of the site and moved the barrels from their location on the Almy property to a location further back on the common driveway shared by Stilloe and Almy. During this relocation, plaintiff alleges that one or more of the barrels broke, leaked and contaminated the common driveway. Stilloe claims that the DEC conducted a preliminary cleanup of the spilled waste and contaminated soil in which the hazardous substances were placed in new barrels and stored on the Stilloe and Almy properties.

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 site.

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
    release; and
      (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 ...

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