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September 30, 1992


The opinion of the court was delivered by: WILLIAM M. SKRETNY





 Plaintiff commenced this action on August 1, 1990, seeking to recover, under various federal and state law theories, the costs plaintiff allegedly has incurred or will incur to clean up the alleged chemical contamination of certain property located in Niagara Falls, New York (the "Site"). Jurisdiction is predicated on 28 U.S.C. § 1331, § 113(b) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. § 9613(b), and this Court's supplemental jurisdiction. 28 U.S.C. § 1367.

 Plaintiff's second amended complaint (the "amended complaint") alleges that the plaintiff had leased the Site from Niagara Vest, the current owner of the Site. *fn1" Plaintiff further alleges that Union Carbide owned the Site prior to Niagara Vest, and for over forty years had occupied the Site and operated a manufacturing facility on it. Additionally, plaintiff alleges that during the course of its operations, Union Carbide handled, used, stored end disposed of hazardous substances on the Site and adjacent property, and that following Niagara Vest's acquisition of the Site Niagara Vest caused or permitted the deposit and storage of hazardous substances on proper, contiguous to the Site. Due to resulting releases of hazardous substances, plaintiff allegedly incurred response costs consistent with the national contingency plan.

 In its amended complaint, plaintiff asserts five claims for relief against both of the defendants, and one additional claim for relief against Niagara Vest alone. Plaintiff's first claim for relief is premised upon Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), which allows a private party to recover the "response costs" incurred in responding to a discharge or threatened discharge of hazardous materials (second amended complaint, pp. 6-9). *fn2"

 The second claim for relief is based upon Section 113(f) of CERCLA, 42 U.S.C. § 9613(f), which provides a right of contribution against other parties who may be liable for the release or threatened release of toxic materials (C, pp. 9-10).

 The third claim for relief is for common law restitution against the defendants for the costs that have been and will be incurred by the plaintiff as a result of contamination by the defendants (C, p. 10).

 The fourth claim for relief seeks a declaratory judgment setting forth the respective rights and obligations of the parties with regard to the contamination. Plaintiff asks that this Court apportion the liability for past and future response costs on the basis of liability (C, pp. 11-12).

 The fifth claim for relief seeks common law indemnity against the defendants (C, pp. 12-13).

 It should be noted at the outset that plaintiff refers throughout the amended complaint to future response costs that may be incurred in dealing with contamination at or near the Site. Plaintiff now submits that all such references refer only to future attorney fees and disbursements (P.M. pp. 10-11). Whether or not these costs are recoverable in this litigation will be addressed below.

 The defendants seek the following relief in their motion to dismiss. (1) dismissal of each claim for relief insofar as it seeks recovery of attorney fees; (2) dismissal of plaintiff's second claim for relief in its entirety; (3) dismissal of plaintiff's fourth claim for relief in its entirety; and (4) striking from the second amended complaint all references to and requests for recovery of future response costs. These requests will be addressed seriatim.


 The defendants argue that plaintiff has no right to be reimbursed for attorney fees incurred in the prosecution of this lawsuit (D.M. pp. 3-11). On the other hand, plaintiff argues that CERCLA awards attorney fees to a private plaintiff who has responded to the release of a hazardous substance (P.M. pp. 4-8). This issue has not yet been considered by the Second Circuit, and there is a considerable split of authority among various district courts. Therefore, this issue will be addressed at some length by this Court.

 It is well-established that, absent a contractual or statutory provision, the prevailing litigant cannot recover attorney fees from the losing party. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 262, 95 S. Ct. 1612, 1624, 44 L. Ed. 2d 141 (1975). "Absent explicit congressional authorization, attorneys' fees are not a recoverable cost of litigation." Runyon v. McCrary, 427 U.S. 160, 185, 96 S. Ct. 2586, 2601, 49 L. Ed. 2d 415 (1976). Because plaintiff is relying on the provisions of CERCLA to recover attorney fees, this Court must examine the statutory language of CERCLA and, where necessary, the legislative history, to determine whether Congress has explicitly authorized attorney fees. To find such an authorization, this Court must find more than "generalized commands," Runyon v. McCrary, 427 U.S. at 186, 96 S. Ct. at 2602; rather, ...

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