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January 17, 1992

LOUIS A. STILLOE, Plaintiff,

The opinion of the court was delivered by: NEAL P. MCCURN



 The New York State Department of Environmental Conservation ("DEC") seeks reconsideration or, in the alternative, certification pursuant to 28 U.S.C. section 1292(b) of this court's March 19, 1991, order denying DEC's motion to dismiss claims and counter-claims against DEC for its hazardous waste clean-up activity.

 This court's March 19th order denied DEC's motion on the grounds that DEC may be liable as an "operator" within the meaning of section 101(20) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601(20). The claims allege DEC is liable under section 107(d) for releases of hazardous substances found to be the result of "intentional or grossly negligent conduct," 42 U.S.C. § 9607(d)(2), during a DEC response to environmental hazards at the Stilloe/Almy Brothers property in Binghamton, New York. This court held that the claims, if proved, could establish "operator" liability under CERCLA.


 A. Timeliness of DEC's Motion

 As a preliminary matter, Stilloe and Almy Brothers argue that the court should deny DEC's motion for reconsideration because it is untimely. In support of this contention, they cite local rule 10(m) which states that "motions for reconsideration shall be filed and served not later than ten (10) days after the entry of the judgment, order, or decree concerned." Local Rule 10(m). However, this rule must be read in conjunction with Fed. R. Civ. P. 60(b) which states that "on motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: . . . (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, . . ." Fed. R. Civ. P. 60(b) (1991 Rev. Ed.). While district courts have the authority to promulgate local rules, these rules must be consistent with the Federal Rules of I Civil Procedure. Moreover, any inconsistencies between a local and a federal rule must be resolved in favor of the federal rule. Therefore, although DEC's motion was not made within the 10 day period reared by local rule 10(m), the court concludes that it was made within a reasonable time pursuant to Fed. R. Civ. P. 60(b). Accordingly, the court holds that DEC's motion for reconsideration is timely.

 B. Reconsideration

 Generally, courts have accepted three grounds as Justifying reconsideration of a matter already decided. In this regard, the Second Circuit has permitted reconsideration in those situations which involve "an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Doe v. New York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir.), cert. denied, 464 U.S. 864, 78 L. Ed. 2d 171, 104 S. Ct. 195 (1983). In the present case, DEC seeks reconsideration in light of two recent federal district court decisions. Both of these decisions involved the dismissal of section 107(a) contribution counter-claims similar to the claims and counter-claims asserted against DEC in the present action. See United States v. Western Processing, Inc., 761 F. Supp. 725 (W.D. Wash. 1991) (dismissing a CERCLA counter-claim based on the Environmental Protection Agency's clean-up activities); United States v. Azrael, No. WN 89-2898 (D. Md. April 30, 1991) (dismissing a CERCLA counter-claim against both the United States and the State of Maryland). Although these decisions are not binding on this court, the court finds their reasoning persuasive. Accordingly, in order to prevent manifest injustice, the court grants DEC's motion for reconsideration in light of these cases as well as its own further research.

 At issue in this motion for reconsideration is whether DEC can be considered an operator for purposes of CERCLA liability when its only connection to a hazardous waste site results from its remedial clean-up efforts. Relying heavily on the court's statement in CPC Int'l, Inc. v. Aerojet-General Corp., 731 F. Supp. 783, 788 (W. D. Mich 1989), that "where a party assumes control of an activity and then fails to perform, that party should bear the responsibility for any pollution which results," this court held that DEC was an operator of the site at the time it broke open the barrels containing the hazardous waste. *fn1" Stilloe v. Almy Brothers, Inc., 759 F. Supp. 95, 103-04 (N.D.N.Y. 1991). Accordingly, this court denied DEC's motion to dismiss the claim against it. In so doing, however, this court limited DEC's liability to those actions which were found "to have been the result of either intentional or grossly negligent conduct . . . since its actions were in response to an emergency situation which existed at the site." Id. at 104 n.8 (citing 42 U.S.C. § 9607(d)).

 Having now had the opportunity to review the facts of Aerojet in light of the decisions in Azrael and Western Processing, this court finds that DEC's activities are sufficiently different from those of the Michigan Department of Natural Resources ("MDNR") in Aerojet to render that decision inapposite. In Aerojet, MDNR entered into a contract with the owner of a hazardous waste site under which MDNR assumed responsibility operate groundwater purge wells to help reduce pollution and improve waste disposal at the site. See Stilloe, 759 F. Supp. at 102-03. In Aerojet, this contract provided the nexus between the owner of the property and MDNR by establishing art ongoing relationship. Here there is no such nexus. Nor do Stilloe nor Almy Brothers allege that DEC took control of the site for any reason other than to perform its statutory responsibility to clean up the site. Accordingly, the court now concludes that Aerojet does not provide a basis for holding that under the circumstances of this case DEC is an operator within the meaning of CERCLA.

 In framing the issue in Azrael, the court stated that the question presented was "whether Congress intended the Government and states to be potentially liable under Section 107(a) of CERCLA when the EPA and states carry out their statutory responsibilities under CERCLA and state law to clean up hazardous waste sites." Azrael at 8. After reviewing the language and statutory framework as well as the policies underlying CERCLA, the court concluded that neither the ...

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