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UNITED STATES v. BARRIER INDUS.

January 27, 1998

UNITED STATES OF AMERICA, Plaintiff, - v - BARRIER INDUSTRIES, INC., KURT WASSERMAN, and MILDRED WASSERMAN, Defendants. KURT WASSERMAN, Third-Party Plaintiff, - v - DIAMOND CHEMICAL CO. INC., WESTINGHOUSE REMEDIATION SERVICE, ROY F. WESTON, INC., SECURITY PATROL OF AMERICA, INC., EPIC INDUSTRIES, A.L. DIAMOND, SCOTT GARPIEL, HENRY LEVENSTEIN, CATHERINE ONCHER, and HERMANDRA MORADIA, Third-Party Defendants.


The opinion of the court was delivered by: RAKOFF

 JED S. RAKOFF, U.S.D.J.

 In October, 1995, the United States commenced this action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601 et seq. ("CERCLA"), seeking (i) recovery of response costs expended by the Environmental Protection Agency ("EPA") in cleaning up a former site of (bankrupt) defendant Barrier Industries, Inc. ("Barrier") operated by Barrier's principal, defendant Kurt Wasserman ("Wasserman"), and (ii) the avoidance as a fraudulent conveyance under the Federal Debt Collection Procedures Act of 1990, 28 U.S.C. § 3001 et seq., of Wasserman's transfer to his former wife, defendant Mildred Wasserman, of a certain New York farm property. *fn1" In response, Wasserman not only filed various counterclaims against the Government but also instituted a third-party action against other persons and entities.

 The case was reassigned to this judge in late February, 1997. Following completion of discovery, the Government and Wasserman brought competing motions for summary judgment, while third-party defendant Epic Industries moved for judgment on the pleadings. On August 15, 1997, the Court telephonically advised counsel that it would grant the Government's motion holding Wasserman legally liable for the clean-up costs and voiding his attempted conveyance of the farm property, would grant Epic Industries' motion to dismiss the third-party claims against it, and would deny Wasserman's summary judgment motions. This Memorandum will serve to confirm those orders and briefly state the reasons therefor.

 With respect to Wasserman's liability for the clean-up, the following facts are not materially disputed. *fn2" From 1978 through December, 1993, defendant Barrier used hazardous substances in the manufacture of janitorial chemicals at its facility in Port Jervis, New York. Numerous spills of these hazardous substances occurred in the plant prior to December, 1993. In December, 1993, the Port Jervis Building Department condemned the building, but in early January, 1994, further spills were detected. On January 25, 1994, a representative of the EPA inspected the site and ordered corrective action, which commenced on February 15, 1994, resulting in the clean-up costs here claimed.

 Wasserman, who operated the Barrier site, does not contest that the Government has established a prima facie case of his liability under CERCLA, but contends that a genuine issue exists as to whether he was entitled to the "act of God" defense allowed by CERCLA § 9607(b). Specifically, Wasserman argues that spills occurring in January, 1994 were caused by a bursting of pipes occasioned by "an unprecedented cold spell." Def. Memorandum in Opposition at 8. However, nothing documented on the evidentiary record before the Court remotely suggests that this "cold spell" falls within the CERCLA definition of an "act of God," i.e., "an unanticipated natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character, the effects of which could not have been prevented or avoided by the exercise of due care or foresight," 42 U.S.C. § 9601(1). Moreover, § 9607(b), by its terms, permits such a defense only if the release or threatened release of hazardous substances was caused "solely" by the act of God. The Government has adduced substantial undisputed evidence that numerous other factors antedating the cold weather of January, 1994 causally contributed to the problems at the Barrier site, see Pl. Local Rule 56.1 Statement at 15-55. Accordingly, Wasserman's "act of God" defense must be rejected.

 Wasserman further resists liability by arguing that the EPA's actions did not conform to the national contingency plan required under § 9607(a)(4)(A), see United States v. Alcan Aluminum Corp., 990 F.2d 711, 719-20 (2d Cir. 1993), because the EPA's on-site coordinator made an arbitrary "a priori decision to remove everything from the site," including non-hazardous materials, Def.'s Memorandum in Support at 22, and because the EPA did not take the measures required for a remedial action pursuant to 40 CFR § 300.430 (e)(6) and (9). However, the Government has adduced substantial evidence as to the reasonableness and remedial efficacy of the EPA's determinations in these regards, in response to which Wasserman offers nothing but conclusory argument devoid of any citations to the record or other evidentiary support. See B.F. Goodrich v. Betkoski, 99 F.3d 505, 528 (2d Cir. 1996).

 Accordingly, summary judgment is granted in favor of the Government and against Wasserman on the issue of CERCLA liability. *fn3" This still leaves the issue of damages, however, as to which the parties have stipulated that damages will be assessed by the Court on the basis of written submissions to be hereinafter supplied by the parties. *fn4"

 With respect to the alleged fraudulent transfer, the relevant undisputed facts are as follows. Kurt and Mildred Wasserman married in 1942, physically separated in 1967, and entered into a legal separation agreement in 1985. In the Fall of 1993, the Wassermans began discussions for the distribution of property between them. Lending urgency to these discussions were the mounting financial problems of Barrier, which had filed for bankruptcy protection in June, 1992, and the prospect that actions seeking recovery against Kurt Wasserman's personal assets would be instituted by state and federal authorities, including the Small Business Administration, whose substantial loan to Barrier was personally guaranteed by Wasserman.

 The Wassermans began divorce proceedings in or around March, 1994. On March 4, 1994, the EPA formally notified Wassermann that it considered Wasserman and Barrier to be potentially responsible for EPA's response costs at the Barrier site. In October, 1994, the EPA further informed Wasserman that it would be filing a lien against Barrier to secure reimbursement of its cleanup costs. On December 6, 1994, a property settlement that included transfer of the farm property here in issue was signed by the Wassermans. It was incorporated into a final judgment of divorce granted on January 25, 1995. As part of this settlement agreement, Kurt Wasserman transferred to Mildred Wasserman his legal title to the farm property, while retaining "the exclusive right to reside on the farm rent free." The agreement also gave Kurt Wasserman the right to collect rent from other tenants of the property in return for his payment of tax, insurance, and other farm-related expenses, and restricted Mildred Wasserman's right to sell or transfer the property. See Scarvalone Dec. Exh. WW [Property Settlement Agreement] at P 4.

 The Federal Debt Procedures Act of 1990, 28 U.S.C. §§ 3001, et seq. ("FDCPA"), renders fraudulent as against a debt to the United States (whether such debt arises before or after the transfer is made) any transfer made in either of two circumstances pertinent here: (1) when the debtor makes the transfer "with actual intent to hinder, delay, or defraud a creditor," § 3304(b)(1)(A), or (2) when the debtor makes the transfer "without receiving a reasonably equivalent value in exchange for the transfer...if the debtor...believed or reasonably should have believed that he would incur [ ] debts beyond his ability to pay as they became due," § 3304(b)(1)(B)(ii).

 Instead, the defendants argue that the transferee, Mildred Wasserman, is entitled to keep the property because she "took in good faith and for reasonably equivalent value..." 28 U.S.C. § 3307(a). But here again, while the Government has adduced substantial evidence -- based on Mildred Wasserman's own testimony - that Mildred Wasserman neither took the farm property in good faith, see citations to Mildred Wasserman Dep., Pl.'s Rule 56.1 Statement PP 121-25 and 128-29, nor gave reasonably equivalent value, see Scarvalone Dec. Exhs. EE and WW at PP 1-4, Mildred Wasserman has adduced no contrary evidence. Rather, she relies on the legal argument that a property settlement duly incorporated in a state court divorce judgment automatically satisfies the § 3307(a) defense absent a showing that the divorce itself was procured by fraud. This contention, however, has previously been rejected by other courts, see, e.g., United States ex rel. Hartigan v. Alaska, 661 F. Supp. 727, 729-30 (N.D. Ill. 1987); see also United states v. Mongelli, 857 F. Supp. 18, 20-21 (S.D.N.Y. 1994), and has attained no greater persuasiveness ...


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