and non-chlorinated organic compounds. The soil analyses performed by Clean Harbors revealed that during the second round of soil samplings the highest concentrations of contaminants including 1,1,1-trichloroethane, trichloroethane, and tetrachloroethane were taken from a location directly in front of the facility. The results of the investigation and tests conducted by NEPCCO, NYTEST, Clean Harbors, and DEP confirmed the conclusion that the source of the chemical contamination in the vicinity of 19th Avenue was the facility.
According to the City's expert, Cyprian Cox, the chemicals detected in the soils and groundwater at and near the facility are extremely toxic and pose a significant threat to public health and environment.
The most significant receptor of contamination from the facility is the 19th Avenue sewer line. Due to its location down hill from the facility and the fact that the sewer line is Permeable, the contaminant plume from the facility in all likelihood flows into the sewer line pathway and infiltrates the sewer line through its seams and joints. Once inside the sewer line, the contaminants can migrate into residential and commercial structures through their sewer connections. Humans may then be exposed to these contaminants either through direct inhalation or through dermal skin absorption.
In response to the contamination encountered on 19th Avenue, the City, through DOT and DEP, undertook a number of steps intended to either assess the source, nature, and extent of contamination discovered during excavation of the trench or to minimize risks to workers and the public at large during the completion of the contract work in the contaminated area.
First, the City paid $ 35,651.42 for the investigation performed by NEPCCO at the request of DEP to determine the nature and extent of groundwater and soil contamination in the area where work had been stopped.
Second, the City spent $ 169,070.06 to secure the contaminated area. The security measures included: partial backfilling of the trench, stationing of two security guards providing a 24-hour watch to limit public access to the trench, building a fence around the contaminated area, and rental and purchase of metal plates to cover the intersections of 42nd Street and 19th Avenue and 43rd Street and 19th Avenue to minimize the risk of pedestrians or automobiles falling into the trench.
Third, the City spent $ 524,852.49 to supply and place interlocking steel sheeting in the trench.
Fourth, the City spent an additional $ 267,507.08 to complete installation of steel "cells" in the trench.
Fifth, the City spent $ 7,423.35 for additional testing to determine the toxicity of the soil underneath the temporary pavement that had been installed on 19th Avenue between 42nd and 43rd streets.
To date the total response costs incurred by the City due to the release of hazardous substances from the facility is $ 1,088,368.90. That figure includes $ 83,862.50 in attorneys' fees incurred in prosecuting this action.
Summary judgment must be granted if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P.56(c). The moving party has the burden of demonstrating the absence of any disputed material facts, see Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990), and the court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgment is sought. See id.
The showing needed on summary judgment reflects the burden of proof in the underlying action. The court must consider "the actual quantum and quality of proof" demanded by the underlying cause of action and which party must present such proof. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Therefore, where the ultimate burden of proof is on the nonmoving party, the moving party meets his initial burden for summary judgment by "'showing' -- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). To survive the motion, the nonmoving party must then "make a showing sufficient to establish the existence of [the challenged] element essential to [that party's] case." Id. at 322. The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
Summary judgment is appropriate "when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Id. at 587.
As a preliminary matter, the Court must determine the applicable burden of proof and persuasion since both sides say the other is responsible for the failure of any showing as to the reasonableness and necessity of the costs incurred. In an action brought by the federal government or a state pursuant to section 107(a)(4)(A), the burden is on the defendant to prove that the removal or remedial actions undertaken by the federal government or state were excessive or unnecessary and thus inconsistent with the NCP. In this sense, the response costs of the federal government and state governments are entitled to a presumption of consistency with the NCP which a defendant must overcome. All parties not included under section 107(a)(4)(A) must sue under section 107(a)(4)(B) to recover response cost and are required to prove that their costs of response were necessary and consistent with the NCP in order to establish a prima facie case for response costs.
The City argues that it should be treated like a state under section 107(a)(4)(A) of CERCLA and have its response costs presumed to be consistent with the NCP. In support of this argument the City points to the many sections of CERCLA in which governmental entities -- federal, state, and local governments -- are granted special authority and power not available to private parties. The City contends that the differences in the way in CERCLA treats federal, state, and local governments on the one hand and private parties on the other support its interpretation that it is entitled to the presumption of consistency with the NCP that the federal government and state governments enjoy.
Defendants argue that the City should be treated as a private party under section 107(a)(4)(B) of CERCLA and is not entitled to the presumption that its costs of response are consistent with the NCP. Defendants support that contention by relying on two district court decisions from other jurisdictions, Town of Bedford v. Raytheon Co., 755 F. Supp. 469 (D. Mass. 1991) and City of Philadelphia v. Stepan Chemical Co., 713 F. Supp. 1484 (E.D. Pa. 1989), in each of which the court held that a city is not a state for the purposes section 107(a)(4)(A) of CERCLA.
The interpretation of a statute must begin with the language of the statute itself, Touche Ross v. Redington, 442 U.S. 560, 566, 61 L. Ed. 2d 82, 99 S. Ct. 2479 (1979), "and absent a clearly expressed legislative intention to the contrary," a court should generally assume that Congress expresses its purposes through the ordinary meaning of the words it uses. Escondido Mut. Water Co. v. La Jolla Band of Mission Indians, 466 U.S. 765, 772, 80 L. Ed. 2d 753, 104 S. Ct. 2105 (1984). This effort is complicated under CERCLA because it "is far from being a model of statutory or syntactic clarity." City of New York v. Exxon Corp., 633 F. Supp. 609, 613-614 (S.D.N.Y. 1986) (Weinfeld, J.) (Exxon I).
CERCLA defines "state" as follows:
The terms 'United States' and 'State' include the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Marianas, and any other territory or possession over which the United States has jurisdiction.
42 U.S.C. § 9601(27). By its terms, CERCLA's definition of "state" does not include political subdivisions such as municipalities. The entities that are included under this definition differ substantially from political subdivisions in terms of their authority and power. All the entities included in subsection 101(27) are sovereigns and, unlike municipalities, do not depend on states for their authority to govern.
Municipalities and other political subdivisions are included within the definition of the term "person" set out in 42 U.S.C. § 9601(21).
As outlined above, the presumption of consistency with the NCP set out in section 107(a)(4)(A) applies to response actions by the United States Government, States, and Indian tribes. The requirement that the plaintiff prove that its response actions are consistent with the NCP set out in section 107(a)(4)(B) applies to "any other person" not named in section 107(a)(4)(A). Thus, according to the plain language of section 107(a), Congress intended to have a municipality's entitlement to recover response costs determined under section 107(a)(4)(B), instead of section 107(a)(4)(A).
As the City notes, however, CERCLA does not, in many respects, treat cities or local governments like private parties. For example, section 104(d), 42 U.S.C. § 9604(d), empowers states and their political subdivisions to enter into cooperative agreements with the EPA to engage in cleanup activities and to share the costs of cleanup. Private parties have no such power. Other examples of how CERCLA treats states and their political subdivisions similarly include section 104(i)(6)(E), 42 U.S.C. § 9604(i)(6)(E); section 104(i)(15), 42 U.S.C. § 9604(i)(15); section 111(c)(11), 42 U.S.C. § 9611(c)(11); and section 123(b)(1), 42 U.S.C. § 9623(b)(1).
Although the structure of CERCLA supports the City's contention that it is not in many respects a private party, it does not support the conclusion that it should be treated as a state for the purposes of section 107(a)(4). Indeed, the fact that Congress explicitly decided to mandate similar authority to states and their political subdivisions, explicitly in some sections of CERCLA and not in others, buttresses defendants' argument that, given the differences in language between section 107(a)(4)(A) and 107(a)(4)(B), Congress intended to treat states and their political subdivision differently with regard to the NCP. "Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23, 78 L. Ed. 2d 17, 104 S. Ct. 296 (1983).
Plaintiff also relies on the court's decision in Exxon, 697 F. Supp. 677 (S.D.N.Y. 1988) (Conboy, J.) (Exxon II), to support its claim that the City should be treated like a state under section 107(a)(4)(A). In Exxon II, a proposed settlement between the City and seven defendants was challenged by two non-settling parties on the ground that, inter alia, the City lacked standing to sue under section 107(a)(4)(A) and could only proceed as a private party under 107(a)(4)(B). The challenging parties argued that the settling defendants were not entitled to protection from claims for contribution regarding matters addressed in their settlement with the City under section 113(f)(2), because that provision only provides such protection to parties settling with the United States or a state.
Judge Conboy rejected the challenge of the non-settling parties to the City's standing under section 107(a)(4)(A) for the purposes of settlement under section 113(f)(2). The court reasoned that "to deny the settling parties the statutory benefits of section 113(f)(2) under these circumstances would be unduly formalistic." Exxon II, 697 F. Supp. at 686. He concluded, after analyzing the many other provisions of CERCLA which place local governments on the same footing as state and federal authorities and from the Act's overall treatment of local governments, that "it is clear that political subdivisions are not relegated to the role of private parties under the Act. . . ." Id. at 685.
This Court is not persuaded that the reasoning of Exxon II is applicable here. Judge Conboy reasoned that the overreaching purposes of CERCLA are served by reading sections 107(a) and 113(f)(2) broadly because such a reading would facilitate settlement of the case between the City and multiple polluters. Clearly this reading of these two sections for the purposes of settlement is consistent with the objectives of CERCLA, but to interpret section 107(a)(4) in such a way as to relieve local governments of the burden of proving that their costs of response are consistent with the NCP is an interpretation not only unsupported by the language of the statute but also not necessarily consistent with the objectives and policies underlying CERCLA. Accordingly, I conclude that the language of section 107(a)(4) requires that the City bear the same burdens of proof and persuasion as any other person seeking response costs, as provided by section 107(a)(4)(B) of CERCLA.
According to section 107(a)(4)(B) of CERCLA the elements required to present a prima facie cause of action for liability for response costs are: (1) that the defendant fits into at least one of the four classes of responsible parties set forth in 42 U.S.C. § 9607(a),
(2) that the facility at which the hazardous substances were disposed is a "facility" as defined in 42 U.S.C. § 9601(9), (3) that there has been a release or threaten release of hazardous substances into the environment from the facility, and (4) that plaintiff incurred necessary costs responding to a release or threatened release consistent with the NCP. 42 U.S.C. § 9607(a)(4)(B); see Amoco Oil Company v. Borden, Inc., 889 F.2d 664, 668 (5th Cir. 1989).
None of the defendants dispute that the City has satisfied elements 2 and 3 of the prima facie case. The disputes with regard to CERCLA involve the first and the fourth elements of the prima facie case. LaBarbera argues that the City has not established that he was a "covered person." All of the defendants contend that the City has not proven that its response costs were consistent with the NCP.
Defendant LaBarbera argues that the City has not established the first element of the prima facie case for liability under CERCLA against him. LaBarbera argues that he is not an "operator" under section 9607(a)(2) of CERCLA, because he had no connection to Chemical Solvents or Chemical Waste after 1983 and because plaintiff has not established in its motion for summary judgment that the response costs that it has incurred were the result of a release or a threatened release which took place prior to December 1983. Instead, defendant LaBarbera contends that the release occurred as a result of the activities of New York City's contractor in digging the ditch in 1985.
LaBarbera argues that there is a material issue of fact as to whether he can avoid liability under the affirmative defense set out in section 107(b)(3) of CERCLA, which provides in relevant part:
There shall be no liability under subsection (a) of this section for a person otherwise liable who can establish by a preponderance of the evidence that the release or threat of release of a hazardous substance and the damages resulting therefrom were caused solely by --