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TOWN OF OYSTER BAY v. OCCIDENTAL CHEM. CORP.

November 14, 1997

TOWN OF OYSTER BAY, Plaintiff, against OCCIDENTAL CHEMICAL CORPORATION, THE MARMON CORPORATION, COLUMBIA CORRUGATED CONTAINER CORPORATION, GREAT AMERICAN INDUSTRIES INC., a wholly-owned subsidiary of PLC ENTERPRISES, INC., G.A. CORRUGATED CORPORATION, GREAT AMERICAN CORRUGATED CONTAINER CORPORATION, LIN PAC, INC., LIN PAC CONTAINERS INTERNATIONAL, LTD., a wholly-owned subsidiary of LIN PAC GROUP, LTD., LIN PAC CORRUGATED CONTAINERS CORPORATION, LIN PAC CONTAINERS LIMITED, GRUMMAN CORPORATION, GRUMMAN AEROSPACE CORPORATION, JAKOBSON SHIPYARD, INC., LONG ISLAND LIGHTING COMPANY, KONICA IMAGING U.S.A., INC., KOLLMORGEN CORPORATION and PHOTOCIRCUITS CORPORATION, Defendants.


The opinion of the court was delivered by: BLOCK

 TABLE OF CONTENTS

 INTRODUCTION

 BACKGROUND

 
I. The Landfill
 
II. The Groundwater Contamination and the Town's Response
 
III. The Complaint
 
IV. The Target Defendants
 
A. Occidental
 
B. Marmon
 
C. Grumman
 
D. GACCC
 
V. The Pending Motions
 
A. The Town's Motion for Summary Judgment
 
B. The Great American Defendants' Motion for Summary Judgment
 
C. The Lin Pac Defendants' Motion for Summary Judgment
 
D. Defendants' Motion for Partial Summary Judgment

 DISCUSSION

 
I. The Standard on a Motion for Summary Judgment
 
II. The CERCLA Liability of the Target Defendants
 
A. General Principles Regarding CERCLA Liability
 
B. The CERCLA Liability of Target Defendants Occidental, Marmon and Grumman
 
1. Causation
 
2. The Interplay between New York State Regulatory Requirements and CERCLA
 
3. Conclusion
 
C. The CERCLA Liability of the Great American Defendants
 
1. Did Columbia Deposit Hazardous Substances at the Landfill?
 
2. Are GACCC and G.A. Corrugated, as "dead and buried" corporations, subject to suit under CERCLA?
 
3. Can GAI be held liable for Columbia's waste disposal practices under a veil-piercing analysis?
 
4. Conclusion
 
III. The Successor Liability of the Lin Pac Defendants
 
IV. Joint and Several Liability v. Contribution
 
V. The Town's State Law Claims
 
A. Statute of Limitations.
 
B. The Liability of GACCC and G.A. Corrugated under State Law.
 
C. The Liability of the Lin Pac Defendants under State Law.

 CONCLUSION

 BLOCK, District Judge:

 INTRODUCTION

 In this action, which arises under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. ("CERCLA" or "the Act"), and New York common law, plaintiff Town of Oyster Bay ("Town") seeks recovery of costs for its response to the alleged release or threatened release of hazardous substances at a landfill formerly operated by the Town in Syosset, New York. The defendants are corporations that are alleged either to have brought hazardous materials to the landfill or to have succeeded to the liabilities of such corporations.

 There are four motions currently before the Court: (1) a motion by the Town for partial summary judgment on the issue of CERCLA liability against defendants Occidental Chemical Corporation ("Occidental"), The Marmon Corporation ("Marmon"), Great American Corrugated Container Corporation ("GACCC"), Grumman Corporation and Grumman Aerospace Corporation (collectively "Grumman") pursuant to Rule 56 of the Federal Rules of Civil Procedure *fn1" ; (2) a motion for summary judgment by defendants GACCC, G.A. Corrugated Corporation ("G.A. Corrugated") and Great American Industries, Inc. ("GAI") seeking dismissal of the complaint as against them; *fn2" (3) a motion by defendants Lin Pac, Inc., Lin Pac Containers International, Ltd., Lin Pac Corrugated Containers Corporation ("LPCCC"), and Lin Pac Containers Limited (collectively the "Lin Pac defendants") for summary judgment dismissing the complaint as against them; and (4) a motion by Occidental, Marmon, the Great American defendants, the Lin Pac defendants, Grumman, Jakobson Shipyard, Inc. ("Jakobson"), Long Island Lighting Company ("LILCO"), Konica Imaging, U.S.A., Inc. ("Konica"), Kollmorgen Corporation ("Kollmorgen"), and Photocircuits Corporation ("Photocircuits") for partial summary judgment dismissing the Town's CERCLA claims to the extent that they seek joint and several liability against the defendants, and dismissing the Town's State common law nuisance and unjust enrichment claims on statute of limitations grounds.

 BACKGROUND

 The Court's discussion of the facts giving rise to this action is drawn from the complaint, the numerous statements prepared by the parties pursuant to former Local Rule 3(g), now Local Rule 56.1, and the extensive record in this case. Unless otherwise noted, the facts are undisputed.

 I. The Landfill

 The approximately 35-acre former landfill is owned by the Town and is located just north of the Long Island Expressway in Syosset, within 1.25 miles of more than one thousand residences and less than 150 feet from a local elementary school. From 1936 until approximately 1975, the landfill, which was unlined, accepted residential and commercial waste, including cesspool waste, as well as demolition, agricultural and industrial waste. The complaint alleges, inter alia, that: (1) Occidental's predecessors-in-interest, Rubber Corporation of America ("RUCO"), Hooker Chemical Corporation and Hooker Chemicals and Plastics Corporation (collectively "Hooker") disposed of thousands of tons of hazardous wastes containing heavy metals, solvents, organics, oils and sludges, plasticizers and PCBs each year between 1946 through 1968; (2) Marmon's predecessor-in-interest, Cerro Wire & Cable Corp. ("Cerro"), disposed of thousands of tons of industrial sludge containing iron, chromium, zinc, copper, lead, cadmium, and nickel each year for a period of 25 years; (3) Columbia Corrugated Container Company ("Columbia"), the alleged predecessor-in-interest of the Great American defendants and the Lin Pac defendants, disposed of more than 100,000 gallons of dyes, inks, and sludges containing iron, zinc, copper, lead, cadmium, nickel, chromium, titanium, manganese, magnesium and phenols for a period of many years ending in 1975; and (4) Grumman disposed of industrial sludge containing hydroxides of chromium, aluminum, iron, paint, ammunition, machine shop waste, and wastes from manufacturing processes.

 II. The Groundwater Contamination and the Town's Response

 On January 28, 1975, the Nassau County Department of Health ("NCDOH") closed the landfill based on concerns that it was polluting the groundwater. In 1983, an environmental report was prepared on behalf of NCDOH that indicated that the groundwater underneath and surrounding the landfill contained concentrations of arsenic, cadmium, chromium and lead at levels in excess of New York State drinking water standards. Also in 1983, the United States Environmental Protection Agency ("EPA") placed the landfill on the Superfund National Priorities List, which sets forth those sites that pose the highest degree of risk to human health and the environment. The landfill has also been placed on New York's Registry of Inactive Hazardous Waste Disposal Sites, and the New York State Department of Environmental Conservation has determined that the landfill is a significant threat to the public health and environment, and that remedial action is required.

 In 1986, the EPA and the Town entered into an Administrative Order on Consent that obligated the Town to prepare a Remedial Investigation and Feasibility Study ("RI/FS") of the landfill. Because of the complexity of the environmental problems at the landfill, the EPA divided the evaluation and cleanup of the landfill into two phases, or "operable units" (hereinafter "OU-1 and OU-2"). The RI/FS for OU-1 investigated the nature and extent of contamination at the landfill property and focused upon control of contamination at its source, while the RI/FS for OU-2 addressed the migration of contaminants from the landfill into the groundwater. In 1990, based on the results of the RI/FS report for OU-1, as well as an evaluation of comments submitted during the public comment period, the EPA determined that the Town should implement New York State closure requirements specified in the Official Compilation of Codes, Rules & Regulations of the State of New York at title 6, part 360. Specifically, the EPA directed that a geosynthetic membrane cap be constructed on the top surface of the landfill. The EPA estimated the cost of this remedy as $ 26 million. The EPA requested that Occidental, Grumman, Jakobson, Marmon, the Lin Pac defendants, Kollmorgen and LILCO, inter alia, voluntarily join the Town in performing or financing the remedial action selected by EPA; however, each declined. *fn3"

 III. The Complaint

 This action, filed on February 18, 1994, seeks to recover the response costs that the Town has incurred in connection with the landfill remediation, estimated at approximately $ 10 million, and to obtain a declaratory judgment that defendants are liable for future response costs. The complaint contains six claims for relief: (1) a claim for joint and several liability for past and future response costs pursuant to 42 U.S.C. § 9607(a)(4)(A); (2) a claim for joint and several liability for past and future response costs pursuant to 42 U.S.C. § 9607(a)(4)(B); (3) a claim for contribution to the Town for past and future response costs pursuant to 42 U.S.C. § 9613(f)(1); (4) a State common law claim for creation and maintenance of a public nuisance; (5) a State common law claim for unjust enrichment based upon defendants' failure to abate the public nuisance; and (6) a State common law claim for contribution.

 IV. The Target Defendants

 In respect to the Town's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure against the target defendants on the issue of their CERCLA liability, the Court summarizes the role that each of these defendants allegedly played in the disposal of hazardous waste at the landfill.

 A. Occidental

 Occidental is the successor-in-interest to RUCO, which operated a plant in Hicksville, New York from 1945 through 1965. In 1965, Hooker Chemical Corporation purchased RUCO and operated the Hicksville plant as its RUCO Division. Hooker Chemical Corporation changed its name to Hooker Chemical & Plastics Corporation in 1974 and to Occidental in ...


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