The opinion of the court was delivered by: Telesca, District Judge.
Plaintiff, the Volunteers of America of Western New York
("VOA"), brings this action under the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601 et
seq. ("CERCLA"), the Resource Conservation and Recovery Act,
42 U.S.C. § 6901 et seq. ("RCRA"), and New York State statutory and
common law, seeking damages for environmental contamination of
two parcels of real property located at 214 Lake Avenue,
Rochester, New York ("the Site").
Plaintiff claims that petroleum, hazardous waste, and
contaminants have been released by the defendants, previous
owners or operators of the Site. Among other damages, plaintiff
claims that it has been forced to spend substantial sums in
environmental "response costs" to date and will be forced to
spend even more to clean-up the environmental contamination
caused by the defendants.
For the reasons set forth below, the defendants' joint motion
to dismiss is granted in part and denied in part.
Plaintiff alleges that defendants Jonathan Heinrich, David
Heinrich, and Heinrich Motors, Inc. (hereinafter collectively
"the Heinrich Defendants"), owned and operated an automobile
dealership at the Site from the 1930's to the 1980's. Plaintiff
alleges that defendants William R. Gordon (now deceased and
represented by Lois Gordon as executrix of the Estate of William
R. Gordon) and Bill Gordon Chevrolet, Inc. (collectively "Bill
Gordon") owned and operated a car dealership at the Site from the
1980's until 1997. Plaintiff alleges that defendant Rochester Gas
and Electric Corp. (RG & E) owned and operated a pipe yard, coal
pipe storage and barrel storage area on the back lot ("Parcel B")
of the Site from approximately the 1930's through the 1970's.
Finally, plaintiff alleges that defendant Kaplan Contain,
Inc.*fn1 ("Kaplan") formerly conducted barrel operations at the
Site from the 1930's through the 1970's.
Plaintiff alleges that the various defendants have engaged in
activities which resulted in the release of large quantities of
petroleum (which is not classified as a CERCLA "hazardous waste")
and various hazardous waste contaminants into the soil and
groundwater of the Site. Plaintiff points especially to the
presence of underground storage tanks that stored gasoline for
Heinrich's operation of a gasoline service station from 1938 to
1966. Those tanks were removed in 1966, but plaintiff alleges
that they released large quantities of petroleum at the Site
which has now migrated into on-site and off-site soil and
groundwater. Plaintiff also points to various "Toxic Chemicals"
which Heinrich and Bill Gordon allegedly released at the Site
into underground storage tanks, floor drains, sewers, sumps, and
catch basins. Finally, plaintiff points to toxic contaminants
allegedly released by RG & E and Kaplan on Parcel 2 of the Site,
resulting from their operations of the pipe yard, coal pipe
storage, barrel making, and barrel storage operations.
Plaintiff alleges that the New York State Department of
Environmental Conservation ("DEC") contends that petroleum and
possibly toxic chemicals from the Site have migrated into deep
bedrock groundwater and may be migrating into Monroe County's
combined sewer overflow tunnel, or into the Genesee River.
Plaintiff's Acquisition of the Site
In 1995, VOA began looking for a possible site to relocate its
existing day care centers, to build a super thrift store, and to
consolidate its administrative offices. VOA alleges that, if it
failed to provide a new day care facility for approximately 300
inner-city children by 1998, it risked losing federal funding.
VOA asserts that it searched for a new location in the City of
Rochester for over a year, but was unable to find a suitable
location to meet its requirements, until 1996 when it discovered
VOA agreed to perform investigative work pending preliminary
consideration by the State and County Departments of Health
("DOH's") as to whether the Site could be used for VOA's
contemplated uses. The DOH's made certain recommendations
(including, inter alia, installation of a separate air
ventilation system for the day care center, capping the
contamination area with two feet of clean soil, and completing
remediation work). VOA contracted with GZA to perform a
Supplemental Phase II Report, testing soil and groundwater. That
investigation revealed further contamination by heavy lube oil
and various other chemical compounds.
Nonetheless, VOA remained interested in purchasing and
developing the Site due to the availability of the DEC's
"Voluntary Cleanup Program" ("VCP"), which allows "volunteers"
(parties not responsible for the contamination) who redevelop a
contaminated site, to receive an assignable liability release to
run with the land.
From January, 1997 to November, 1997, VOA engaged in
negotiations with Bill Gordon for acquisition of the Site and
with the City of Rochester for approvals for the project. The
City required VOA to enter into a PILOT Agreement to pay taxes
and requested an option on Parcel B, which VOA granted.
On October 30, 1997, VOA submitted an application to the DEC
for the VCP. Before receiving any indication as to whether it
would be eligible for the VCP, VOA nonetheless purchased the Site
on November 19, 1997. Several days later, VOA representatives met
with the DEC to make a presentation regarding the Site. The DEC
suggested that VOA undertake limited remedial activities prior to
preparation of a formal Remedial Action Plan.
On December 5, 1997, DEC determined that VOA was eligible to
participate in the VCP. VOA began remediation activities —
installation of geoprobe boreholes and groundwater monitoring
wells, removal of underground storage tanks, removal of floor
drains, and remediation of soil. However, the DEC staff
previously assigned to the project were reassigned and the new
staff determined that much more extensive work, including
drilling bedrock wells, would be necessary. DEC did eventually
agree to pay for the bedrock wells.
On August 26, 1998, VOA executed a Warranty Deed, conveying the
Site to the County of Monroe Industrial Development Agency
("COMIDA"), and leased the property back from COMIDA. VOA was
never able to negotiate an agreement with the DEC to make VOA a
VCP. VOA has completed its redevelopment of the Site and some
remediation activities, including replacing the soil to a depth
of approximately 15 feet and remediation of the groundwater
plume. Plaintiff claims that the Site's value has been diminished
by approximately $1.8 million and that the cost of further
remediation will be substantial.
Plaintiff alleges the following causes of action: (1) strict
liability under CERCLA § 107 against all defendants as past
"owners" or "operators" of the facility for past and future
response costs; (2) for contribution under CERCLA § 113(f)(1)
against all defendants for contribution of their individual
shares of the response costs; (3) to "abate an imminent and
substantial endangerment" pursuant to RCRA § 7002(a)(1)(B),
seeking an Order of this Court directing all defendants to
remediate the contamination; (4) strict liability pursuant to New
York Navigation Law § 181(5) for response costs relating to
petroleum contamination; (5) for indemnification or contribution
and declaratory judgment under Navigation Law Article 12; (6)
common law negligence; (7) common law claim for strict liability
for abnormally hazardous activities; (8) common law claim for
public nuisance; (9) common law
claim for indemnification and contribution relating to costs
incurred pursuant to the New York State Superfund Law; ...