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SENECA MEADOWS, INC. v. ECI LIQUIDATING

August 6, 1998

SENECA MEADOWS, INC. and MACEDON HOMES, INC., Plaintiffs,
v.
ECI LIQUIDATING, INC., et al., Defendants.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 Plaintiff Seneca Meadows, Inc. ("SMI" or "plaintiff") commenced this action pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"). Pending before the Court is defendants' motion for summary judgment on SMI's CERCLA § 107 claim. *fn1"

 FACTUAL BACKGROUND

 SMI has been the owner and operator of the Tantalo Landfill ("landfill") in Seneca Falls, New York since 1968. Land filling and other waste disposal practices occurred at this site from approximately 1958 until 1974. The New York State Department of Environmental Conservation ("DEC") listed the landfill on its Registry of Inactive Hazardous Waste Disposal Sites in 1980. In 1992, SMI entered into a Consent Order with the DEC to investigate the contamination at the landfill and to develop remedial alternatives.

 In 1995, SMI commenced this action against defendants, alleging that they were the primary generators of the hazardous wastes. In its complaint, SMI asserts various claims against these defendants, including both a cost recovery claim pursuant to CERCLA § 107 and a contribution claim pursuant to CERCLA § 113 for the response costs it has incurred or will incur in cleaning up the landfill.

 In its first cause of action under § 107, plaintiff maintains that defendants are strictly, jointly and severally liable to SMI for all response costs that it has incurred or will incur in response to the release or threatened release of hazardous substances at the landfill. In its second cause of action under § 113, plaintiff maintains that defendants are liable in contribution to SMI for those response costs that exceed SMI's equitable share.

 Defendants move for partial summary judgment, dismissing plaintiff's § 107 claim on the ground that SMI, as a potentially responsible party, cannot maintain a § 107 cost recovery claim, but may assert only a § 113 contribution claim, entitling plaintiff to recover only to the extent that SMI pays more than its fair share of the response costs.

 DISCUSSION

 Summary judgment will be granted if the record demonstrates 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." Fed. R. Civ. P. 56(c). A genuine issue of material fact exists only if the record, taken as a whole, could lead a reasonable trier of fact to find in favor of the non-movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 The burden of demonstrating the absence of any genuine issue of material fact rests on the moving party, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), and all ambiguities and inferences that may be reasonably drawn from the facts must be viewed in the light most favorable to the non-moving party. Coach Leatherware Co. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991). To defeat summary judgment, the non-moving party must go beyond the pleadings and designate "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

 Congress enacted CERCLA in 1980 to address the environmental problems associated with the widespread use and disposal of hazardous substances. United States v. Carr, 880 F.2d 1550, 1552 (2d Cir. 1989); New York v. Shore Realty Corp., 759 F.2d 1032, 1037 (2d Cir. 1985). The primary goals of CERCLA are to cleanup hazardous waste sites and to establish liability for the costs of the cleanup on "responsible" parties. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992); Kowalski v. Goodyear Tire & Rubber Co., 841 F. Supp. 104, 108 (W.D.N.Y. 1994). Under CERCLA, there are four categories of responsible parties: (1) current owners and operators of a facility; (2) previous owners and operators of a facility at the time when hazardous substances were disposed; (3) individuals who arranged for the disposal of hazardous substances; and (4) individuals who transported hazardous substances for disposal. 42 U.S.C. § 9607(a)(1)-(4). In this action, there is no dispute that SMI, as both the current owner and the owner of the landfill when hazardous substances were disposed there, is a potentially responsible party under the statute. Further, there is no dispute that the defendants, who allegedly arranged for the disposal of hazardous substances at the landfill, are also potentially responsible parties under the statute.

 CERCLA, as amended by SARA, provides private parties with two causes of action to recoup some or all of the response costs associated with hazardous waste cleanup. The first is a cost recovery claim under § 107, and the second is a contribution claim under § 113.

 Section 107 provides, in relevant part, that a responsible party will be liable for "any other necessary costs of response incurred by any other person consistent with the national contingency plan." 42 U.S.C. § 9607(a)(4)(B). Liability under § 107 is strict, joint and several, except in those rare cases where the harm is divisible. Murtha, 958 F.2d at 1198; City of New York v. Chemical Waste Disposal Corp., 836 F. Supp. 968, 972 (E.D.N.Y. 1993). Therefore, § 107 allows a plaintiff to obtain a complete recovery of all its response costs from any one of a number of responsible defendants.

 Section 113, which was added by SARA, provides, in relevant part, that "any person may seek contribution from any other person who is liable or potentially liable under section 107(a)." 42 U.S.C. § 9613(f)(1). Liability under § 113 is several only. Gould Inc. v. A & M Battery & Tire Serv., 901 F. Supp. 906, 913 (M.D. Pa. 1995). Therefore, each ...


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