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TOWN OF WALLKILL v. TESA TAPE INC.

July 10, 1995

TOWN OF WALLKILL, Plaintiff, against TESA TAPE INC.; REVERE SMELTING and REFINING CORPORATION; OCCIDENTAL CHEMICAL CORPORATION; HERCULES, INC.; CITIZENS TELECOMMUNICATIONS COMPANY OF NEW YORK, INC.; CONTEL OF NEW YORK INC.; HORTON MEMORIAL HOSPITAL; AGWAY PETROLEUM CORPORATION and STAR EXPANSION COMPANY, INC., Defendants.


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

 Brieant, J.

 In this action brought under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 ("CERCLA"), defendants Tesa Tape Inc., Revere Smelting & Refining Corporation and Occidental Chemical Corporation make a motion for partial summary judgment, pursuant to Rule 56 of the Fed. R. Civ. P. and Local Rule 3, filed on December 12, 1994. Separate motions for partial summary judgment have also been filed by defendants Citizens Telecommunications Company of New York and Contel of New York, defendant Hercules, Inc., and defendant Horton Memorial Hospital, *fn1" filed on February 10, February 21, and February 28, respectively. Oral argument was held on March 31, 1995, and the motions were fully submitted.

 Defendants' motions for partial summary judgment seek: (1) a declaration that the Town of Wallkill may seek only contribution from the defendants pursuant to Section 113 of CERCLA and may not seek to impose joint and several liability pursuant to Section 107 of CERCLA because the Town itself is a liable party; and (2) a declaration that the Town of Wallkill has failed to state a claim under CERCLA for costs expended in complying with the New York Code Rules and Regulations ("NYCRR") Part 360 Landfill Closure Requirements.

 According to plaintiff Town of Wallkill, "literally millions of dollars of public funds (both State and Municipal) ride on the eventual outcome of this [summary judgment] motion." (Letter to the Court from Kimberlea Shaw Rea dated January 17, 1995.) Likewise, the State asserts that the defendants' motion for summary judgment, if granted, would have "an enormous adverse fiscal impact on both the Town and the State of New York." (Letter to the Court from David A. Munro, Assistant Attorney General, dated January 17, 1995; see also Memorandum of Law of Applicant for Intervention.)

 In turn, the defendants state that they are seeking declaratory relief at this early stage of the litigation because a ruling in their favor would reduce an alleged $ 7 million case to "the minimal level of damages that are shown by the Town to be causally related to each defendant", making settlement potential "highly likely"; at the very least, the extent of discovery and the breadth of the case would be "considerably narrowed." (Defendants' Memorandum of Law at 2.) Plaintiffs, however, dispute this characterization, stating that defendants misunderstand the calculation for damages under § 113. (Plaintiff's Memorandum of Law, pp. 11-12.) In any event, the potential impact on settlement is not a proper consideration for this Court in making its ruling on what is exclusively a matter of law.

 BACKGROUND

 This is a CERCLA case which seeks to recover past and ongoing cleanup costs the Town of Wallkill (the "Town") has incurred and will incur in remediating contamination in its municipal landfill, an inactive hazardous waste site, which contamination was caused by the disposal of hazardous substances by the industrial generator defendants and others. This cleanup is partially state-aided and the Town must pay back, to the State of New York 75% of any recovery by it in this suit. The action was commenced when the Town filed its Complaint on September 30, 1994 (an Amended Complaint was filed on November 22, 1994). Familiarity on the part of the reader with the underlying facts and all prior proceedings in this case is assumed.

 On February 24, 1995, this Court granted the motion of the State of New York (the "State") to intervene as a plaintiff in this action, seeking to recover costs incurred by the State with regard to remediation of the Wallkill landfill. *fn2" The State has reimbursed 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. *fn3" 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. *fn4"

 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 ...


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