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KARA HOLDING CORP. v. GETTY PETROLEUM MARKETING

September 22, 1999

KARA HOLDING CORP., PLAINTIFF,
v.
GETTY PETROLEUM MARKETING, INC., GETTY PROPERTIES CORP., GETTY REALTY CORP., LEEMILT'S PETROLEUM INC., AND THE TYREE ORGANIZATION LTD., DEFENDANTS.



The opinion of the court was delivered by: Sweet, District Judge.

OPINION

Defendants Getty Petroleum Marketing, Inc. ("Getty Petroleum"), Getty Properties Corp. ("Getty Properties"), and Getty Realty Corp. ("Getty Realty") (collectively, "Getty"), as well as Leemilt's Petroleum, Inc. ("Leemilt's"), and The Tyree Organization, Ltd. ("Tyree") have moved pursuant to Rules 12(b)(1), 12(b)(6), and 56(b) of the Federal Rules of Civil Procedure to dismiss the complaint in this action. For the reasons stated herein, the motion is granted in part, and denied in part.

The Parties

Plaintiff Kara Holding Corp. ("Kara") is a New York corporation with its principal place of business in Bronx, New York.

Defendant Getty Petroleum is a corporation authorized to do business in the State of New York, with business locations in Bronx, New York and Manhattan.

Defendant Getty Properties is a corporation authorized to do business in the State of New York, with a business location in Manhattan.

Defendant Getty Realty is a corporation authorized to do business in the State of New York, with a business location in Manhattan.

Defendant Leemilt's is a corporation authorized to do business in the State of New York, with business locations in Jericho, New York and Manhattan.

Defendant Tyree is a corporation authorized to do business in the State of New York with business locations in Brookfield, Connecticut and Farmingdale, New York.

Facts

The following facts are undisputed by the parties, except where otherwise indicated.

The instant action arises out of a petroleum spill that occurred on April 2, 1997 at Getty Service Station # 329 (the "Getty station" or the "station"), a gas station located in Bronx, New York. Plaintiff, the owner of a building situated adjacent to the gas station, contends that a gasoline spill or spills at the station have resulted in considerable soil and groundwater contamination, as well as contamination of the Bronx River — which is located only a short distance away. Defendants are, variously, the alleged owner(s) and operator(s) of the Getty Station, or related corporate entities — though the parties apparently disagree as to which corporate entities are actually responsible for operation of the Getty station.

Plaintiff's building is rented by the New York City Human Resources Administration (the "HRA"). Located at the building is an HRA office known as the "Colgate Learning Center," which is responsible for the administration of public assistance programs.

On April 2, 1997, the Colgate Learning Center was evacuated because of gasoline vapors attributable to petroleum spilled at the Getty station. According to Defendants, the discharge of petroleum at the gas station was halted on April 2nd, and remediation of the spill began in earnest on that very same day — when a response team from defendant Tyree was dispatched to the gas station and began the removal of contaminants.

By letter dated November 19, 1997, New York State's Department of Environmental Conservation (the "DEC") contacted Scott Hanley of Getty Properties to obtain Getty's voluntary commitment to "cleanup and remove" the petroleum contamination at the gas station. (Hanley Aff.Ex. B.) Enclosed with the letter was a proposed Stipulation Agreement (the "Stipulation") that set a schedule for Getty's remediation efforts and allowed cleanup activities to proceed without the need for additional DEC permits. By signing the stipulation, the letter informed Hanley, Getty was not admitting any liability under New York's Navigation Law or waiving any defenses it might have to liability. By the same token, however, the letter informed Hanley that Getty's agreement to remedy the petroleum discharge itself would not affect the DEC's ultimate right to pursue an action under the Navigation Law or New York's Environmental Conservation Law.

On December 10, 1997, Getty Realty signed the Stipulation on behalf of "Getty" — the generic entity listed on the Stipulation's caption. By its own terms, the Stipulation was. "equivalent to an order pursuant to [New York's] ECL §§ 17-0303 and a directive pursuant to NL § 176 and is enforceable as such." (Hanley Aff.Ex. B.) Getty's cleanup efforts were to be conducted in accordance with a "Corrective Action Plan" setting forth a timetable for the cleanup of petroleum wastes.

By complaint dated December 9, 1998, the DEC, nevertheless, commenced an administrative enforcement action concerning groundwater and soil contamination at the Getty station and adjoining properties. The complaint asserted, inter alia, violations of New York's Environmental Conservation Law and Navigation Law, and sought declaratory relief, injunctive relief, and civil penalties. Named as defendants in that complaint were Getty Petroleum, Getty Realty, and Getty Petroleum Corp., a predecessor of defendant Getty Properties.

According to the Defendants, the DEC has diligently prosecuted that enforcement action, and a pre-hearing conference was conducted to that end on January 25, 1999. In an affidavit submitted by Defendants, a representative of Getty Properties with oversight responsibility for the remediation of petroleum contamination at the Getty station also states that Getty and the DEC are currently engaged in negotiations expected to lead to a "consent order based upon a revised corrective action plan to be approved by the DEC." (Hanley Aff. ¶ 15.) Papers submitted by defendants also assert that remediation activities at the Getty station continue to the present day.

While plaintiff Kara has asserted that the petroleum contamination at issue in this action has its origins in a discrete spill event in April of 1997, it also claims that the petroleum hydrocarbon wastes released during that spill have yet to be fully cleaned, and that additional spill events have occurred since April of 1997. According to the papers submitted by Kara, the Colgate Learning Center has been evacuated on multiple occasions over the past several years as a result of gasoline vapors attributable to the Getty station's spilled petroleum. These vapors, which emanate from the basement of Kara's building, have resulted in repeated complaints by HRA employees, and have required responses from the New York City Fire Department and a "HAZMAT" unit. According to Kara, groundwater contaminated by petroleum and petroleum products enters the cellar of the Colgate Learning Center periodically, creating a potentially explosive petroleum water and vapor condition. In late spring of 1998, samples taken from wells on the Getty property revealed elevated levels of petroleum constituents in the groundwater circulating beneath the Getty station.

The complaint in this action was filed on January 14, 1999, and asserts federal causes of action under the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 and Solid Waste Amendments of 1984 (referred to collectively as the "RCRA"), 42 U.S.C. § 6901 et seq., and the Clean Water Act (the "CWA"), 33 U.S.C. § 1251 et seq., as well as various state claims for trespass, nuisance, negligence, gross negligence, intentionally wrongful conduct, indemnity, restitution, and violations of New York's Navigation Law and Education Law. For its federal RCRA ...


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