The opinion of the court was delivered by: GERARD L. GOETTEL
In February 1992, the EPA issued an order directing the Town of Warwick and certain companies to clean up the Warwick Landfill Superfund Site pursuant to a remedial design set forth in an earlier EPA Record of Decision. This action arises from claims by certain of the parties who were directed to participate in the cleanup (as well as one additional plaintiff) that the defendants are liable for response and contribution costs. Plaintiffs also allege a pendent state law claim based on defendants' alleged negligent acts.
The Warwick Landfill ("the Site") is located in the Town of Warwick, Orange County, approximately one and a half miles northeast of the Village of Greenwood Lake. The Site was owned by the Penaluna family from 1898 to 1984 and leased as a municipal landfill by the Town of Warwick ("the Town") from the mid-1950s to 1977. During this time period, substances deemed "hazardous" under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") were deposited at the Site.
From 1977 to 1980, the Site was leased by Grace Disposal and Leasing, Ltd. ("Grace") which continued to operate it as a landfill. Grace is owned and operated by defendants Round Lake Sanitation Company ("Round Lake") and ISA of New Jersey ("ISA"). CERCLA hazardous substances continued to be deposited at the Site until its closure in 1980. As a result of the Site's operation as a landfill, an approximately thirteen acre landfill mound was created on the 25 acre leasehold parcel.
As a result of the RI/FS study, the EPA determined that Site remediation should be divided into two operable units. Operable Unit 1 ("OU 1") would be concerned with controlling the source of the contamination by capping the landfill and implementing point of use treatment at residential wells surrounding the Site. After public comment, the EPA selected a remedy for OU 1 which included, inter alia, a landfill cap, residential well sampling and point of use treatment systems, a ground water monitoring program, and measures to mitigate damage to adjacent wetlands.
New York State concurred with the EPA's selected remedy, and in July of 1991, the EPA wrote to the potentially responsible parties inviting them to undertake the clean up. None responded by the September 30, 1991 deadline.
In February of 1992, the EPA issued an Administrative Order finding Ford Motor Company ("Ford"), Georgia-Pacific Corporation ("Georgia-Pacific"), ISA, Round Lake, Union Carbide Corporation ("Union Carbide") and the Town liable parties under § 107(a) of CERCLA, 42 U.S.C. § 9607(a), and ordering them to implement the selected remedy.
In response Ford, Georgia-Pacific and Union Carbide formed the Warwick Administrative Group ("the Warwick Group") to implement Site clean up. The Group invited the defendants in this action to join with them in the Site clean up and suggested that alternative dispute resolution be used to resolve each party's respective liability. Only plaintiff Reichhold Chemical Company, Inc. ("Reichhold") chose to join the Group.
On December 31, 1992, Ford, Georgia-Pacific, Reichhold, Union Carbide, the Warwick Group and the Town brought this cause of action seeking to recover response costs incurred as well as damages sustained as a result of the release or threatened release of hazardous substances at the Site. The complaint alleges that since April 1992, the Group and the Town have complied with the EPA's order and have incurred costs and damages as a result. Plaintiffs also seek a declaratory judgment that defendants are liable for future response costs and damages.
The named defendants in this action are Avon Products Inc. ("Avon"), the County of Westchester ("Westchester"), Inco Alloys International, Inc. ("Inco"), International Paper Company, Inc. ("International Paper"), Jones Chemicals, Inc. ("Jones"), Lightron Corporation ("Lightron"), Nepera, Inc. ("Nepera"), New York University Medical Center ("NYUMC"), Orange & Rockland Utility Inc. ("O & R Utilities"), Revere Smelting & Refining Corporation of New York ("Revere"), ISA, La Mela Sanitation Service, Inc. ("La Mela"), Round Lake, Waste Management of New York ("WMNY"), and Waste Management of Connecticut ("WMCN"). The amended complaint also names defendants John Doe 1 through 50 as yet unidentified individuals or entities.
All plaintiffs, except the Town, seek damages and a declaratory judgment declaring all defendants (1) jointly and severally liable to plaintiffs for all response costs incurred thus far and for any future response costs, pursuant to § 107(a) of CERCLA, 42 U.S.C. § 9607(a) and (2) liable for contribution to plaintiffs for response costs, pursuant to § 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f)(1). The Town alleges the same claims against all defendants except Westchester and O & R Utilities.
Further, plaintiffs, except for the Town, allege a negligence claim against all defendants. The Town alleges a negligence claim against all defendants except Westchester and O & R Utilities. Finally, Ford brings a breach of contract claim against ISA based on various contracts for the disposal of certain waste materials executed by the two parties between 1972 and 1979. Ford alleges that ISA breached the terms of the disposal contracts which required that waste be disposed in accordance to all applicable laws.
On April 13, 1993, the EPA issued an Administrative Order for Remedial Design and Remedial Action naming moving defendants International Paper, Nepera and Revere as well as International Business Machines and plaintiff Reichhold as respondents. The order found the respondents liable parties under § 107(a) of CERCLA, 42 U.S.C. § 9607(a), and ordered them to implement the selected remedy. In spite of the order, ...