The opinion of the court was delivered by: CARTER
Plaintiffs Filomena Prisco and Thomas Prisco, who has since passed away, instituted this action for declaratory and injunctive relief, and monetary damages for certain alleged violations of federal and state environmental statutes and state common law by a number of private defendants in relation to a landfill plaintiffs owned in the town of Patterson, Putnam County, New York.
Extensive discovery has been conducted by the parties. For further procedural history see Prisco v. State of N.Y., 1994 U.S. Dist. LEXIS 3542, No. 91 Civ. 3990, 1994 WL 114818 (S.D.N.Y. Mar. 25, 1994) (Buchwald, J.); Prisco v. State of N.Y., 804 F. Supp. 518 (S.D.N.Y. 1992) (Carter, J.); Prisco v. State of N.Y., 1992 U.S. Dist. LEXIS 5273, No. 91 Civ. 3990, 1992 WL 88165 (S.D.N.Y. Apr. 22, 1992) (Carter, J.).
Defendant Stamford Wrecking Company ("Stamford") moves for summary judgment pursuant to Rule 56, F.R. Civ. P., contending that there are no evidentiary facts to support plaintiffs' claims that Stamford violated the comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (1995) ("CERCLA"), the Resource Conservation and Recovery Act, 42 U.S.C. § 6972 et seq. (1995) ("RCRA"), the Clean Water Act, 33 U.S.C. § 1311(a) (1986) ("CWA"), and New York State Environmental Conservation Law § 24-0107 (McKinney 1984). Stamford also moves to dismiss plaintiffs' pendant state claims for lack of federal subject matter jurisdiction. Defendants Top Job Sanitation Co., Inc., Gun Hill Trucking, Ltd., A-1 Carting, Inc., A-1 Compaction Corp., A-1 Compaction, Inc., Greene Refuse Service, Suburban Carting Corp., NYCONN Waste Recycling, Inc. s/h/a NYCONN Waste Disposal, American Disposal Services, Inc. and Vincent Cavaliere move for summary judgment, pursuant to Rule 56, F.R. Civ. P., and/or to dismiss, pursuant to Rule 12(b)(6), plaintiffs' first, second, third and fourth causes of action, (see Complaint, PP 79-113), involving CERCLA, RCRA and CWA claims against them; and to dismiss plaintiffs' pendent state law claims set forth in plaintiffs' fifth through twelfth causes of action for lack of federal subject matter jurisdiction. (See Complaint, PP 114-161). Defendant John Danna & Sons Inc. ("Danna") moves for summary judgment, pursuant to Rule 56, F.R. Civ. P., pertaining to all of the claims brought against it by plaintiffs.
Plaintiffs cross-move against all the individual defendants. In particular, the Priscos cross-move for summary judgment, pursuant to Rule 56, F.R. Civ. P., on the CERCLA, RCRA, and CWA claims set forth in the first, second, third and fourth causes of action; to declare the defendants jointly and severally liable for all future response costs under CERCLA, pursuant to 28 U.S.C. § 2201 (1994); and to strike under 42 U.S.C. § 9607(b) (1995) any impermissible affirmative defenses made by defendants.
The Priscos own approximately twenty acres of land in the town of Patterson in Putnam County, New York, where they ran a flea market and leased property. In anticipation of commercial development in their area, the Priscos wanted to enhance the value of their property by leveling it with construction and demolition ("C & D") material, a less expensive alternative to virgin soil. Consequently, from approximately May, 1987 to early fall, 1987, the Priscos paid Stamford Wrecking Co. to deposit such material on their land.
Plaintiffs claim that in about August of 1987, they were approached by defendants William E. Bubenicek, who represented himself as a New York State Department of Environmental Conservation ("NYSDEC") law enforcement officer, and Lloyd F. Ward, a New York State Police Officer. Bubenicek and Ward sought to establish a C & D landfill on the Priscos' property, to be run by the NYSDEC. Plaintiffs concede that they agreed to allow the landfill on their property, believing that Bubenicek and Ward operated the landfill on behalf of and with the authorization of the NYSDEC. Accordingly, from August, 1987 until about February, 1988, NYSDEC allegedly operated a landfill facility at the Prisco site. Bubenicek and Ward solicited the private corporate defendants to transport C & D material to the property. The named defendants transported solid waste to the Prisco site.
Plaintiffs contend that their property has been contaminated by hazardous substances and wastes deposited by the individual wastehauler defendants in this action. The NYSDEC conducted inspections of the Prisco site in 1987 and 1988 and determined that the Prisco landfill had to be closed in accordance with its Part 360 regulations, which regulate solid waste management facilities. See 6 NYCRR Part 360 (1987). In 1991, Environmental-Science, Inc., on behalf of and approved by the NYSDEC, conducted a Preliminary Site Assessment ("PSA") which documented the nature of the material at the Prisco site and its impact on the environment. The NYSDEC continues to make such assessments. Plaintiffs later discovered that the NYSDEC was allegedly involved in a "sting" operation on their property in an attempt to gain information about the waste hauling industry in the area.
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, end admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), F.R. Civ. P; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). The moving party bears the initial burden of demonstrating an absence of any genuine issue of material fact, and then the burden shifts to the non-moving party to point to specific facts that demonstrate that there is a genuine issue for trial. Rule 56(e), F.R. Civ. P.; Celotex Corp., 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When determining whether to grant a motion for summary judgment, the court must ascertain whether there is sufficient evidence to allow a jury to reasonably find in favor of the non-moving party. Anderson, 477 U.S. at 249.
In general, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Salahuddin v. Cuomo, 861 F.2d 40, 43 (2d Cir. 1988); Hudson's Bay Fur Sales Canada, Inc., 1991 U.S. Dist. LEXIS 4552, No. 90 Civ. 8026, 1991 WL 60377, at *2 (S.D.N.Y. Apr. 8, 1991) (Carter, J.), and "the court must consider the legal sufficiency of the complaint, not the weight of evidence which light be offered at trial." Granat v. Center Art Galleries-Hawaii, Inc., 1993 U.S. Dist. LEXIS 14092, No. 91 Civ. 7252, 1993 WL 403977, at *2 (S.D.N.Y. Oct. 6, 1993) (Carter, J.). The court is required to assume the veracity of the plaintiff's allegations and to draw inferences in favor of the pleader. Id.; Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989).
The plaintiffs seek recovery pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a) (1995). A prima facie cause of action under CERCLA is established when the following requirements are met:
(1) defendant fits one of the four classes of responsible parties outlined in § 9607(a); (2) the site is a facility (under § 9601(9)); (3) there is a release or threatened release of hazardous substances at the facility; (4) the plaintiff incurred costs responding to the release or threatened release; and (5) the costs and response actions conform to the National Contingency Plan set up under the Act and administered by the EPA (Environmental Protection Agency] . . . .
B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992); accord United States v. Alcan Aluminum Corp., 990 F.2d 711, 720 (2d Cir. 1993). There is strict liability, General Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281, 285 (2d Cir. 1992); Murtha, 958 F.2d at 1198, and CERCLA should be construed liberally, as Congress intended. General Elec. Co., 962 F.2d at 285; Murtha, 958 F.2d at 1198. The court will examine plaintiffs' motion for summary judgment on their CERCLA claims first and then defendants' in turn. If plaintiffs are able to establish each of these elements and defendants are unable to establish the applicability of one of the defenses pursuant to 42 U.S.C. § 9607(b) (1995), then the plaintiffs are entitled to summary judgment on the liability issue. Chesapeake and Potomac Tel. Co. of Va. v. Peck Iron & Metal Co., 814 F. Supp. 1269, 1274 (E.D. Va. 1992). If defendants are able to establish that they are not responsible parties, as defined by 42 U.S.C. § 9607(a) (1995), then they are entitled to summary judgment on the liability issue. For organizational ease, the court will initially evaluate elements two through five because these elements are common to all the defendants.
A. Facility (second element)
There is no dispute over plaintiffs' characterization of the site as a facility under 42 U.S.C. § 9601(9) (1995). Section 9601(9) states that the term "facility" means "(A) any . . . landfill . . . or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located . . . ." The Priscos' site contains a landfill and the Priscos' site is where hazardous substances were deposited, and therefore CERCLA's facility criteria, or CERCLA's second element, has been met.
B. Release of Hazardous Substances (third element)
In order to trigger CERCLA liability, the existence of a hazardous substance, as defined by CERCLA, must be demonstrated. Southern Pac. Transp. Co. v. California (Caltrans), 790 F. Supp. 983, 984 (C.D. Cal. 1991). Relying on Warwick Administrative Group v. Avon Products, Inc., 820 F. Supp. 116 (S.D.N.Y. 1993) (Goettel, J.) and Barnes Landfill, Inc. v. Town of Highland, 802 F. Supp. 1087 (S.D.N.Y. 1992) (Broderick, J.), defendants argue that after extensive discovery, plaintiffs have failed to produce sufficient evidence which could convince a reasonable jury that their C & D material contained hazardous substances. However, defendants' reliance on Warwick and Barnes is misplaced. In Warwick, this court dismissed plaintiffs' CERCLA private cost recovery action because the plaintiffs failed to allege that the solid wastes that defendants transported and disposed of contained hazardous substances. Id. at 122. In particular, the plaintiffs claimed that defendants fit the definition of a responsible party pursuant to 42 U.S.C. § 9607(a)(3) (1995) and that studies showed hazardous substances at the facility, making each of the defendants liable for all response costs. Id. at 121. Plaintiffs were allowed to replead in order to clarify that the defendants' solid waste contained the hazardous substances mentioned by the studies. Id. at 122. Here, the Priscos allege that the defendants all deposited solid waste on plaintiffs' property and that hazardous substances were found on plaintiffs' property which are constituents of each of the defendants' solid wastes delivered to the site. (Pls.' Mem. of Law in in [sic] Support of Notice of Cross-Mot. and Trial Mem. ("Pls.' Mem.") at 39.) Thus, the Priscos have sufficiently alleged that defendants' solid waste contained hazardous substances.
In Barnes, the operator of a landfill brought a private CERCLA action seeking reimbursement for response costs and a declaratory judgment against thirty-three defendants, most of whom contributed waste to the landfill. The defendants loved to dismiss the claim for failure to allege that there had been a release or threatened release of hazardous substances at the facility. Id. at 1088. This court concluded that the plaintiff did not specify what hazardous substances were released and that plaintiff's
Id. at 1088 n.2. The court granted the defendants' motion to dismiss for vagueness and granted the plaintiff leave to replead. Id. at 1089. The court ultimately concluded that the second amended complaint sufficiently alleged a CERCLA violation, noting that the plaintiff claimed that particular hazardous substances were present in waste it received from a single defendant. Barnes Landfill, Inc. v. Town of Highland, 1993 U.S. Dist. LEXIS 17739, No. 91 Civ. 5410, 1993 WL 525113, at *2-3 (S.D.N.Y. 1993) (Broderick, J.).
Barnes is distinguishable from this case, in that the Priscos specifically identify what hazardous substances were released, (see Pls.' App. of Exs. to Mem. of Law in Supp. of Notice of Cross-Mot. dated Apr. 4, 1994 and Trial Mem. ("Pls.' App."), Ex. 39, List of Hazardous Substances and Reportable Quantities ("Pls.' List"); Rich. Aff. at P 14), and allege that the defendants are liable for the hazardous substances which are characteristic of and by-products of the solid waste they deposited. Defendants assert that they deposited C & D material, and the PSA, which found the presence of hazardous substances, concluded that "the site can be characterized as having a mixture of C & D debris, solid waste, and non-hazardous industrial waste." (Sachs Aff., Ex. P, Preliminary Site Assessment at 1-7.) Unlike Barnes, this is not a case where it is known that defendants contributed only nonhazardous C & D to the landfill and are being made defendants merely because hazardous substances were found there. Thus, Barnes is inapposite, and plaintiffs have adequately alleged defendants' potential culpability.
Defendants contend that the PSA established that there were no hazardous wastes at the Prisco site and that therefore plaintiffs have failed to demonstrate that there was a release or threatened release of hazardous substances. In particular, the PSA concluded,
No hazardous wastes were documented at the site according to 40 CFR 261, Subsection C and 6 NYCRR Part 371. . . . The presence of hazardous waste at the site was not documented through records searches, field observations, or sample analytical results.
(Sachs Aff., Ex. P, PSA at I-7; see also Ex. Q, Mem. from O'Toole to Sullivan of 11/5/91, at 1) ("no 6 NYCRR Part 371 hazardous wastes were documented to be present at the site.")). Defendants assert that the PSA is a comprehensive site investigation, involving significant testing of the soil and water for hazardous substances on the Prisco site. Furthermore, defendants assert that the Prisco site has not been classified as a Superfund site or one containing hazardous wastes by either the state of New York or the United States government and that the Priscos have not been served by any governmental agency for violations of CERCLA, RCRA, CWA or any other federal or state wetlands statutes.
Defendants argue that plaintiffs' purported expert, Charles A. Rich, a certified professional geologist and president and principal hydrogeologist of CA Rich Consultants, Inc., also failed to provide credible evidence demonstrating that there were hazardous wastes on the Prisco property. In particular, Rich neither sampled nor tested the site, and Rich neither observed nor smelled evidence of hazardous wastes during his one-hour visit. (Sachs Aff., Ex. R, Rich Dep. at 29-30, 32.) Based on his review of materials and his own visit, Rich concluded that "there has been a continuing 'release' . . . of leachate containing both defined and listed 'hazardous wastes' and 'hazardous substances' into the adjoining wetlands, surface water and groundwater . . . [that] may cause an imminent and substantial threat to the local water supply . . . and may ultimately cause harm to the New York City water supply system." (Rich Aff. at P 7.) Rich criticizes the PSA for, among other things, not being thorough enough in its sampling to conclude that the site does not contain reportable quantities of hazardous waste pursuant to New York regulations. (Rich Aff. at P 8.) Defendants argue that Rich's criticisms of the PSA are speculative and that his opinion should not be considered that of an expert.
Even if the court assumes that the PSA is complete and correct in its conclusion that no hazardous waste was found at the Prisco site, that Rich's assessment of the site is uninformative and misguided, and that federal and state government never classified the site as a Superfund or brought official action against the Priscos, it does not follow that plaintiffs cannot bring a CERCLA action. Such factors are immaterial for triggering CERCLA liability. See State of N.Y. v. Shore Realty Corp., 759 F.2d 1032, 1037 (2d Cir. 1985) (EPA's failure to list site on the National Priorities List ("NPL"), 42 U.S.C. § 9605(8)(B) (1995), is irrelevant to defendant's liability); Mid Valley Bank v. North Valley Bank, 764 F. Supp. 1377, 1386 (E.D. Cal. 1991) (under CERCLA, hazardous substances are defined by federal and not state standards). CERCLA liability is triggered when there is a release or threatened release of hazardous substances as defined by 42 U.S.C. § 9601(14) (1995). In particular, a "hazardous substance" includes,
"(A) any substance" designated under the Clean Water Act, "(B) any element, compound, mixture, solution, or substance" under CERCLA § 9602, "(C) any hazardous waste" listed in § 3001 of the Solid Waste Disposal. Act, "(D) any toxic pollutant" listed in § 307(A) of the Clean Water Act, "(E) any hazardous air pollutant listed under" § 112 of the Clean Air Act, and "(F) any imminently hazardous chemical substance or mixture" with respect to which the EPA has taken action.
Alcan, 990 F.2d at 720 (quoting 42 U.S.C. § 9601(14) (1995) (emphasis added). Indeed, "the breadth of § 9601(14) cannot be easily escaped." Alcan, 990 F.2d at 720. In accordance with 42 U.S.C. § 9602(a) (1995), the EPA has designated certain substances as hazardous in 40 C.F.R. § 302.4 (1994) and the accompanying table. In particular, according to the PSA, the following substances listed in 40 C.F.R. § 302.4 (1994) were present at the Prisco site: acetone, chloroform, 2-butanone (MEK or methyl ethyl ketone), benzene, ethylbenzene, xylenes (BTEX), hydrogen sulfide, carbon disulfide, methane, trichloromonofluoromethane, 1,1 - dichloroethane (1,1 - DCA), toluene, polychlorinated biphenyls (PCBs), polynuclear aromatic hydrocarbons (PAKs), vinyl chloride, trichloroethene (TCE),
tetrachloroethene (PCE), butyl benzl phthalate, cadmium, lead, silver, 4,4' DDT, 4,4' DDE, chrysene, nickel and benzo[a]pyrene, dicholrodifluoromethane,
and bis (2-ethylhexyl)phthalate.
See 40 C.F.R. § 302.4 (1994) and accompanying table; Pls.' List; Pls.' App., Ex. 30, PSA at 1-2 - I-8.
The Second Circuit has "expressly held that 'quantity or concentration is not a factor'" and that the "'hazardous substance' definition . . . include[s] even minimal amounts of pollution." Alcan, 990 F.2d at 720 (quoting Murtha, 958 F.2d at 1200); accord City of N.Y. v. Exxon Corp., 744 F. Supp. 474, 483-84 (S.D.N.Y. 1990) (Conboy, J.), aff'd upon reconsideration, 766 F. Supp. 177 (S.D.N.Y. 1991) (Conboy, J.). Thus, the mere presence at the Prisco site of the hazardous substances enumerated in 40 C.F.R. 302.4 (1994) triggers CERCLA liability, Exxon, 744 F. Supp. at 483; Murtha, 958 F.2d at 1200 ("a substance need only be designated as hazardous under any one of the four environmental statutes or under Table 302.4 to be a hazardous substance under CERCLA"); City of N.Y. v. Exxon Corp., 766 F. Supp. 177, 185 (S.D.N.Y. 1991) (Conboy, J.); see, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1152 (1st Cir. 1989); United States v. A & N Cleaners & Launderers, Inc., 788 F. Supp. 1317, 1324-25 (S.D.N.Y. 1992) (Sweet, J.), and it is irrelevant if the PSA asserts that there are even very low levels of concentration, Murtha, 958 F.2d at 1200; see Sachs Aff., Ex. P, PSA at I-7, or that such substances do not rise to the level of being classified as hazardous "waste."
There is no dispute over whether there was a release or a threat of release of hazardous substances. 42 U.S.C. § 9601(22) (1995) states that a "release" is "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment." See Shore Realty Corp., 759 F.2d at 1045 (holding that "leaking tanks and pipelines, the continuing leaching and seepage from the earlier spills, and the leaking drums all constitute 'releases'"). The PSA concluded that "contamination has been released from the site to the groundwater, surface water, and sediment" and that "threats to the public health and the environment are present to the degree described" within the PSA. (Sachs Aff., Ex. P, PSA at I-8.) Thus, the court concludes that there was a release or threat of release of hazardous substances at the Prisco site. Therefore, the third element of CERCLA has been met.
C. Response Costs (fourth element)
Defendants contend that the Priscos did not incur costs in response to the release or threatened release of hazardous substances. In particular, defendants argue that the Priscos' costs were for closing the landfill, pursuant to the requirements of 6 NYCRR, Part 360, and not for responding to a release or threat of release of hazardous substances.
42 U.S.C. 9601(25) (1995) defines a "response" as a "removal" or "remedial action." A "removal" is "the taking of such . . . actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release" of hazardous substances, 42 U.S.C. § 9601(23) (1995), and "remedial action" is action "consistent with [a] permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance in the environment, to prevent or minimize the release of hazardous substances . . . ." 42 U.S.C. § 9601(24) (1995). A "remedial action" includes "dredging or excavations" and "collection of leachate." 42 U.S.C. § 9601(24) (1995). In general, a removal is a short-term cleanup arrangement carried out in response to an emergency situation, while a remedial action involves a longer-term, more permanent containment or disposal program, Shore Realty Corp., 759 F.2d at 1040; City of N.Y. v. Exxon Corp., 633 F. Supp. 609, 614 (S.D.N.Y. 1986) (Weinfeld, J.); see Tri-County Business Campus Joint Venture v. Clow Corp., 792 F. Supp. 984, 993 (E.D.Pa. 1992) (describing factors determining remedial actions, including action's taking over 12 months and costing over $ 1 million), although the delineation is not absolute. Carlyle Piermont Corp. v. Federal Paper Bd. Co., 742 F. Supp. 814, 818 (S.D.N.Y. 1990) (Lasker, J.).
Plaintiffs claim that their response was a "removal" pursuant to 42 U.S.C. § 9601(23) (1995), a characterization that the court does not challenge for the following reasons. First, a plaintiff's "own description of its cleanup efforts is a prime starting point for determining whether those efforts should be labelled as remedial or removal." Tri-County Business Campus, 792 F. Supp. at 992. Second, the Priscos' response actions may have been necessary to "prevent, minimize, or mitigate damage to the public health or welfare or to the environment." 42 U.S.C. § 9601(23) (1995). The PSA confirmed the fact that "contamination has been released from the site" and that there are "threats to the public health and the environment," including the potential for human contact with contaminants and the release of "known carcinogens . . . for fish, frogs, and small mammals." (Pls.' App., Ex. 30, PSA at 1-8, 1-7.) In addition, NYSDEC's Ward Stone claims that he witnessed "a major part of the construction debris sloping down into a small wetland" and "leachate coming out of the base of the landfill into the wetland." (Pls.' Mem. at 21, Ex. 28 at 28-29).
Plaintiffs specifically responded to the NYSDEC's warning that they were impermissibly placing refuse in ground or surface water. Third, an NYSDEC letter noted that the NYSDEC "reserves the right to require such further measures as may be appropriate to achieve proper closure of the site," implying that plaintiffs' response actions were preventive and temporary in nature. (Pls.' App., Ex. 26, Letter from Keller to Prisco of 2/5/88, at 1.) Fourth, the urgency with which the NYSDEC expressed the need for closing the landfill insinuates that closure of the landfill was a removal action. see Channel Master Satellite v. JFD Elecs. Corp., 748 F. Supp. 373, 385 (E.D.N.C. 1990). Finally, while excavation was performed in order to control leachate, an action often considered remedial, see Tri-County Business Campus, 792 F. Supp. at 992 (excavations are "more frequently ...