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TOWN OF KIRKWOOD v. GORICK CONSTR. CO.

October 21, 1992

THE TOWN OF KIRKWOOD and THE TOWN BOARD OF THE TOWN OF KIRKWOOD ACTING FOR AND ON BEHALF OF WATER DISTRICTS 1, 2, 3 AND 4, AND EXTENSION NO. 1 OF WATER DISTRICT NO. 3, EXTENSION NO. 2 OF WATER DISTRICT NO. 3, EXTENSION NO. 3 OF WATER DISTRICT NO. 3, EXTENSION NO. 4 OF WATER DISTRICT NO. 3 AND EXTENSION NO. 1 OF WATER DISTRICT NO. 4 OF THE TOWN OF KIRKWOOD, Plaintiffs, against GORICK CONSTRUCTION COMPANY, INC., ALFRED F. GORICK, DIANE K. MERKLE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF STEPHANIE GORICK, DECEASED, ALFRED F. GORICK, JR., DAVID MERKEL, III, SALLY M. SHIRK AND D.A.S. DEVELOPMENT CORP., Defendants.


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

 MEMORANDUM DECISION AND ORDER

 Pursuant to Fed.R.Civ.P. 56, plaintiffs, the Town of Kirkwood and the Town Board acting for and on behalf of its Water Districts and Extensions (collectively "Kirkwood"), seek a summary judgment order establishing the strict, joint and several liability of the defendants Gorick Construction Co., Inc., Alfred P. Gorick, Sr., and Diane K. Mekel as Executrix of the Estate of Stephanie Gorick, deceased (collectively "the responding defendants"), under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C § 9607 (the first claim of plaintiffs' Complaint).

 CERCLA Liability

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

 (1) that the site in question is a "facility," within the meaning of 42 U.S.C. § 9601(9)(B);

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

 (3) that such a "release" or "threatened release" caused the plaintiff 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).

 Under § 9607(a), liable parties for hazardous waste disposal are limited to:

 (1) the owner or operator of a facility or vessel,

 (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 ...


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