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NEW YORK v. ALLIED CORP.

April 8, 1992

STATE OF NEW YORK, Plaintiff, against ALLIED CORPORATION, et al., Defendants, -against- CARRIER CORPORATION, et al., Third-Party Defendants.


The opinion of the court was delivered by: CON. G. CHOLAKIS

CON. G. CHOLAKIS, D.J.

 MEMORANDUM DECISION AND ORDER

 In 1983 the State of New York brought this case against ten parties for the remediation of two toxic dumps located in upstate New York, pursuant to Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9607, and the New York State Environmental Conservation Law (ECL). These two sites are known as "Novak Farm" and "Lincklaen." The State also seeks reimbursement of their costs in responding to this threat, damages for harm to natural resources, and penalties under the ECL.

 In the 1960's and 1970's these sites were the home of companies "Solvent Savers" and "Cash Barrel" -- ostensibly chemical reclamation and recycling firms. The owner of these enterprises, Dale Hough, *fn1" did not keep very complete business records of his operations and his death in 1978 precludes any meaningful deposition testimony from him about his operations. Moreover, documentary evidence regarding Solvent Savers' operations is all but non-existent. As a result, a very large part of this case involves the determination of just which companies' toxic chemicals have been dumped at these sites.

 Since this suit was commenced, there have been extended periods during which litigation was suspended pending studies of the sites and settlement negotiations. The original ten defendants have been busily pointing fingers at each other with numerous cross-claims, and in 1987 it was clear that there would be no easy resolution. At that time, four years after the commencement of the suit, Defendants Bristol, Stauffer, and General Electric (affectionately referred to by the other parties to this action as the "Big Three") and several other defendants were "obligated" to answer the complaint. Pursuant to discovery that had transpired up to that point, including the deposition testimony of some former employees of Solvent Savers, four additional companies were served third party complaints: Smith Corona, R.E. Deitz, Inc., Carrier Corporation and Norwich-Eaton Pharmaceuticals Incorporated (NEPI).

 Sometime in late 1987 the Federal Government, through the United States Environmental Protection Agency (USEPA), assumed primary responsibility for co-ordinating and initiating activities at these sites. In September 1989, USEPA issued an Administrative Order to several parties, compelling the removal and disposal of certain contaminated soils and drums located at these sites. Separately, USEPA conducted a Remedial Investigation/Feasibility Study (RI/FS) of the sites; and in December 1990, USEPA served a demand on six parties, for reimbursement of approximately $ 2 million which was expended on this RI/FS and related CERCLA costs. To date this reimbursement claim is unresolved. Additionally, in May of 1991, USEPA issued an Administrative Order to five of the parties, compelling the performance of a remedial action at the sites.

 A Case Management Order was issued by this Court on November 29, 1991, and trial of this action is scheduled to begin on August 3, 1992. Presently before this Court are the following dispositive motions: Third-party defendant Smith Corona's motion for summary judgment; Defendant United States' motion for partial summary judgment; and Defendants/Third-party Plaintiffs GE, Bristol, and Stauffer Chemical/Management's cross-motion for summary judgment against the United States. Defendant General Motors' Motion for Summary Judgment; Defendant Unisys' Motion for Summary Judgment; and Defendant United States' Motion for Partial Summary Judgment dismissing the non-CERCLA Cross-claims of Unisys; *fn2" have all been withdrawn.

 CERCLA LIABILITY

 A party is liable under CERCLA if the following four elements are proven:

 (1) that the sites in question are "facilities," within the meaning of 42 U.S.C. § 9601(9)(B);

 (2) that a "release" or "threatened release" has occurred at the sites, within the meaning of 42 U.S.C. § 9601(22) & (14);

 (3) that such a "release" or "threatened release" caused the State to incur response costs, see 42 U.S.C. § 9607; and

 (4) that the party is a responsible person within the four classes described in 42 U.S.C. § 9607(a)

 See United States v. Alcan Aluminum Corp., 755 F. Supp. 531, 535-36 (N.D.N.Y. 1991) ...


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