the Town in excess of $ 1 million, pursuant to its State Assistance Contract in the course of implementing the remedial program, and will continue to reimburse the Town for future eligible costs (Intervenor Complaint PP 35, 36).
The Town of Wallkill operated its municipal landfill from 1965 until it was closed in 1974.
During its operation, it accepted both municipal and industrial waste. Two years after the landfill was closed, in 1976, an inspector for the New York Department of Environmental Conservation ("NYDEC") discovered the presence of industrial drum waste allegedly marked with shipping labels of at least some of these defendants. As a result of the Town's drum removal and subsequent sampling that confirmed the presence of industrial wastes containing hazardous substances, the site was deemed a significant threat to public health or the environment. NYDEC listed the site on the State Inactive Hazardous Waste Disposal Site Registry and ordered that the site be remediated in accordance with 6 NYCRR Part 375, the regulations governing Inactive Hazardous Waste Disposal Sites in New York.
The Town and State executed a consent order in July 1989, and the Town was declared eligible for 75 percent reimbursement of part of its clean up costs from the State, pursuant to the Environmental Quality Bond Act.
NYDEC ordered the Town to conduct a remedial investigation (the Remedial Investigation Feasibility Study or "RI/FS"), which the Town completed after extensive on-site sampling, public participation and debate, and following an investigation by the New York State Assembly Committee on Environmental Conservation of industrial hazardous waste disposal practices in the Mid-Hudson Valley. In June 1992, the State issued its Record of Decision ("ROD"), outlining its selected remedy for remediation of the landfill. (See Plaintiff's Memorandum of Law at pp. 5-7; Rea Aff. PP 16-19.) The Town, under the State's supervision, is now implementing the remedy prescribed by the federal and state regulations. (Cozzy Aff. P 20.)
As of the date the Town commenced this lawsuit in September 1994, it had expended $ 1.5 million in response costs. The total remedial costs, including 30-year monitoring, are projected at approximately $ 7 million. (See Plaintiff's Memorandum of Law at 7.)
For a short period of time before the landfill closed, the Town kept records of haulers and industrial generators who purchased dump permits. Plaintiff Town alleges that the defendants named in this lawsuit were among those industrial generators, along with others not yet identified to the Court. It should be noted, however, that it is not claimed by plaintiff that what these defendants (or the Town for that matter) did was unlawful at the time they did it. (See Transcript of hearing on December 2, 1994 at p. 9.) It is only alleged that the defendants "generated, transported and disposed and/or arranged for disposal of wastes containing hazardous substances at the Site." Amended Complaint P 17 (attached to Affidavit of Philip H. Gitlen as Exhibit A).
However, the liability imposed under § 107 is strict liability on potentially responsible parties ("PRPs") for the costs associated with the hazardous waste, imposing joint and several liability on PRPs regardless of fault (see discussion, below). In addition, Section 113 authorizes an action for contribution whereby a PRP held jointly and severally liable under CERCLA may seek contribution from other PRPs.
I. JOINT AND SEVERAL LIABILITY UNDER § 107
Defendants seek to preclude the Town from maintaining claims simultaneously under § 107 and § 113 of CERCLA. According to defendants, as the admitted "owner" and "operator" of the landfill, the Town is itself one of the parties jointly and severally liable under § 107 for remediation of the landfill; as such, defendants reason, whatever claim the Town has against others to share its liability is an action for contribution under § 113, not for joint and several liability under § 107. Defendants rely primarily upon a First Circuit case, United Technologies Corp. v. Browning-Ferris Indus., Inc., 33 F.3d 96 (1st Cir. 1994), cert. denied, 130 L. Ed. 2d 1128, 115 S. Ct. 1176 (1995), for the proposition that the only appropriate action for a "non-innocent" party is to seek contribution to recover costs expended in excess of its pro rata share, and may not seek to impose joint and several liability. However, defendants' reliance on United Technologies is misplaced. In that case, unlike here, the plaintiffs had admitted liability and were, for that reason, limited to a contribution action. Moreover, neither a town nor other governmental entity was involved. The court therein specifically held that "we must limit § 107 claims to those brought by governmental entities or innocent parties and require PRPs to settle their claims between themselves pursuant to § 113(f)." Id. at 100 (emphasis added).
The remainder of the cases cited by defendants in support of this argument are notably not from the Second Circuit, as our Court of Appeals has not ruled on this issue. Moreover, they are cases which are inapposite, because the plaintiffs bringing those actions were not governmental entities, as is the municipality here (see discussion below), but were private owners and operators, suing parties who had previously settled with the government. See 42 U.S.C. § 9613(f) (2) (CERCLA's "Contribution Protection" provision).
In contrast, the courts have permitted governmental PRPs to maintain suit under Section 107. See, e.g., United States v. Kramer, 757 F. Supp. 397 (D.N.J. 1991); United States v. Western Processing Company, Inc., 734 F. Supp. 930 (W.D. Wash. 1990). The courts will treat a municipality as a governmental entity when to do so would further a CERCLA policy goal, particularly when that goal is encouraging settlement. See City of New York v. Exxon Corp., 697 F. Supp. 677, 685 (S.D.N.Y. 1988) (the court treated municipal plaintiff as a "state" for purposes of Section 113(f), because this would allow contribution protection to settling PRPs and "advance the Act's remedial purposes by encouraging early and complete settlements"). In addition, the intervention by the State of New York in this action clearly supports the Town's role as a governmental plaintiff.
Contrary to the frequent references thereto by the defendants, the Town has not admitted liability under CERCLA through its consent order with the State. Neither the Town's fulfillment of its cleanup obligations under CERCLA, nor the degree to which such efforts are "voluntary" rather than imposed upon the Town by statute, are controlling in this action. The plain language of CERCLA directs that consent decrees for cleanups ". . . shall not be considered an admission of liability for any purpose. . ." 42 U.S.C. § 9622(d)(1)(B). This Court finds that the Town's liability under CERCLA is not determinative of its right to recovery against the defendants. See Plaintiff's Memorandum of Law at 19.
The United States Supreme Court touched upon this issue in Key Tronic Corp. v. United States, 128 L. Ed. 2d 797, 114 S. Ct. 1960 (1994), which allowed a plaintiff PRP to maintain both a Section 107(a) cost recovery action to recover its own response costs, as well as a Section 113 contribution claim. The Court held:
"[CERCLA] now expressly authorizes a cause of action for contribution in Section 113 and impliedly authorizes a similar and somewhat overlapping remedy in Section 107."