CARTER, District Judge
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.
On or about April 28, 1988, the Priscos returned to their home and discovered C & D material piled and deposited in their pond. The Priscos allegedly attempted to contact Bubenicek and Ward, to no avail. The Priscos allege that pursuant to directives by NYSDEC's Regional Director Paul D. Keller and Assistant Sanitary Engineer Lawrence C. Gallagher, they had the C & D material leveled, the site capped with clean dirt and the premises seeded. In addition, plaintiffs claim they dredged and removed C & D debris from the pond and excavated the site to make trenches to control the leachate problem. The Priscos claim that they spent approximately $ 10,000 to $ 11,000 in costs.
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.
A. Summary Judgment
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.
B. Motion to Dismiss
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
blanket allegations against all defendants do not provide any defendant with adequate notice of that defendant's potential liability. Thus, there should be sole indication that a particular defendant contributed hazardous waste, not merely waste, to the landfill. . . . It would be inappropriate for an entity known to contribute only paper or kitchen garbage to be made a defendant merely because heavy metal was in the material found in a dump site.