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NEW YORK v. LASHINS ARCADE CO.

March 20, 1995

THE STATE OF NEW YORK and THOMAS C. JORLING, as Trustee of the Natural Resources, Plaintiffs, against LASHINS ARCADE CO., LASHINS ARCADE CORP., ROCCO TRIPODI, BEDFORD VILLAGE CLEANERS, INC., and ROCCO ASTROLOGO, Defendants.


The opinion of the court was delivered by: CHARLES L. BRIEANT

 Brieant, J.

 Plaintiffs, the New York State Department of Environmental Conservation and Thomas C. Jorling, Trustee of New York States's natural resources, move to strike the jury demand of Defendant Rocco Astrologo, former owner and operator of a dry cleaning establishment in Bedford, New York.

 On March 12, 1993, Plaintiffs filed an Amended Complaint alleging that Defendants Lashins Arcade Co., Lashins Arcade Corp., Rocco Tripodi, Bedford Village Cleaners, Inc. and Rocco Astrologo violated Section 107 of the Comprehensive Environmental Response, Compensation and Liability Act (hereinafter "CERCLA"), 42 U.S.C. § 9607. Also asserted are supplemental claims arising under state law for public nuisance, unjust enrichment, etc. By order dated May 13, 1994, this Court granted summary judgment in favor of Defendants Lashins Arcade Co. and Lashins Arcade Corp..

 The claims in this case arise out of the contamination of soil and groundwater by hazardous waste at a location known as the Bedford Village Wells Site, which includes the Lashins Shopping Arcade ("the Shopping Arcade"). Between 1958 and 1963 Defendant Rocco Astrologo owned and operated a dry cleaning establishment in the Shopping Arcade. The Government alleges, and Mr. Astrologo denies, that during this time, Mr. Astrologo released hazardous wastes on the ground behind his dry cleaning shop, and showed the subsequent owner, Defendant Rocco Tripodi, how and where to do so. This activity is said to have polluted public and private water supply wells. Now, Plaintiffs move to strike the jury demand for claims pursuant to CERCLA.

 Under "'the cardinal principle that [courts] will first ascertain whether a construction of the statute is fairly possible by which the [constitutional] question may be avoided.'" Curtis v. Loether, 415 U.S. 189, 192 n.6, 39 L. Ed. 2d 260, 94 S. Ct. 1005 (1974) (quoting United States v. Thirty-seven Photographs, 402 U.S. 363, 369, 28 L. Ed. 2d 822, 91 S. Ct. 1400 (1971)), this Court begins by considering whether under the language of CERCLA, there exists an implied statutory right to a jury trial. As this Court has noted previously, "in determining the scope of an implied statutory right to a jury trial, it is essential to consider interests broader than those protected by the Constitution--including whether 'the crux of the case [is] a factual determination' of the sort traditionally made by common law juries." Vicinanzo v. Brunschwig & Fils, Inc., 739 F. Supp. 882, 886 (S.D.N.Y. 1990).

 This Court concludes from its analysis of CERCLA that Congress intended the right to a jury trial in a case where a plaintiff seeks a judgment for money damages for clean-up costs as well as injury to natural resources under Section 107 of CERCLA. Section 107, entitled "Liability," lists classifications of recovery:

 
(A) all cost of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan;
 
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;
 
(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and
 
(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

 42 U.S.C. § 9607(a)(4)(A)-(D). The term "damages" is statutorily defined as meaning "damages [payable in money] for injury or loss of natural resources as set forth in section 9607(a) or 9611(b) of this title." 42 U.S.C. § 9601(6). In "actions involving natural resources," the money recovered by the Government "shall be available for use to restore, rehabilitate, or acquire the equivalent of such natural resources by the appropriate agencies of the Federal Government or the State government, but the measure of such damage shall not be limited by the sums which can be used to restore or replace such resources." 42 U.S.C. § 9607(f). Such liability seems essentially tortious in nature, because a defense to liability is established if a defendant proves "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 . . . an act or omission of a third party other than an employee or agent of the defendant." 42 U.S.C. § 9607(b)(3). Accordingly, a defendant may escape liability for money damages "if it either succeeds in proving that its [actions] did not contribute to the release and the clean-up costs that followed, or contributed at most only to a divisible portion of the harm." United States v. Alcan Aluminum Corp., 990 F.2d 711, 722 (2d Cir. 1993).

 Here, Plaintiffs seek to recover money under Section 107(a), Subparagraphs (A) and (C). The Amended Complaint asserts "Defendant Astrologo is liable to the Plaintiff State pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a) for all natural resource damages and all response costs incurred and to be incurred by the Plaintiff State." (Amended Complaint P 85). Specifically, the Amended Complaint alleges "the release of hazardous substances into the environment has caused injury to, destruction of and/or loss of the natural resources of the State of New York within the meaning of §§ 101(16) and 107(a) of CERCLA, 42 U.S.C. §§ 9601(16) and 9607(a)." (Amended Complaint P 83). Furthermore, "the release of hazardous substances into the environment has caused Plaintiff State of New York to incur response costs, within the meaning of Section 101(25) of CERCLA, 42 U.S.C. § 9601(25), does continue and will continue to cause the State to incur response costs in the future, all of which costs of response are and will be not inconsistent with the national contingency plan." (Amended Complaint P 84).

 These assertions involve factual issues analogous to an action for damage to real property by tort or trespass. The fact finder would consider whether natural resources (interests in land) were damaged and if so, whether Defendant Astrologo proved by a preponderance of the evidence that his actions did not contribute to the release of the pollutant and the clean-up costs that followed, or contributed at most only to a divisible portion of the harm. The measure of damages for natural resource injury is not limited to restoration or replacement of such resources. 42 U.S.C. § 9607(f). These money damage issues go beyond mere restitution, involving matters "particularly appropriate for resolution by a trial jury." Vicinanzo, 739 F. Supp. at 886 (quoting Paladino v. Taxicab Industry ...


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