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BOLOGNA v. KERR-MCGEE CORP.

May 10, 2000

DOMINICK D. BOLOGNA, DOMINICK BOLOGNA, AND WESTMORE FUEL CO., INC., PLAINTIFFS,
V.
KERR-MCGEE CORPORATION, ROYAL PETROLEUM, INC., PARK-OHIO HOLDINGS CORP., RUSSELL BURDSALL & WARD, INC., AND A. TARRICONE, INC., DEFENDANTS.



The opinion of the court was delivered by: Barrington D. Parker, Jr., District Judge.

  MEMORANDUM DECISION AND ORDER

Plaintiffs Dominick D. Bologna, Dominick Bologna, and Westmore Fuel, Co., Inc. (collectively the "plaintiffs") bring this action against defendants Kerr-McGee Corp. ("Kerr-McGee"), Park-Ohio Holdings, Corp. ("Park-Ohio"), Russell Burdsall & Ward, Inc. ("RBW"), and A. Tarricone, Inc. ("Tarricone"), under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. ("RCRA") and New York State statutory and common law,*fn1 seeking damages for environmental contamination in and around an oil storage facility which they own. Plaintiffs claim that releases of hazardous substances, in particular petroleum formerly stored at their facility, have caused contamination of the surrounding air, ground and water, resulting in a diminution in the value of their property and requiring remediation. Before this Court is defendant Park-Ohio's motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6).*fn2 For the following reasons, the motion is granted in part and denied in part.

BACKGROUND

In deciding a motion under Rule 12(b)(6), the Court is required to accept as true all factual allegations in the complaint and construe those allegations in the plaintiffs favor. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Easton v. Sundram, 947 F.2d 1011, 1014-15 (2d Cir. 1991). The following facts are construed accordingly.

I Ownership of Facility

Plaintiffs are the present owners of an oil storage facility (the "facility") located at 2 Purdy Avenue in Port Chester, New York, which currently stores # 2 fuel oil. The facility is fenced in on the north, south and west sides and is bounded on the east by the Byram River, a navigable body of water. Plaintiff Westmore Fuel Co., Inc. ("Westmore") is the current operator of the facility. Defendants are all former owners or operators of the facility which plaintiffs allege "received, stored, and generated hazardous substances and hazardous wastes there." Complaint ¶ 3.

The chain of ownership of the property is as follows: From 1901 to 1974, RBW, formerly Russell, Burdsall and Ward Bolt and Nut Co. Inc., owned the facility. Royal Petroleum leased the property from RBW during all relevant times. In 1974, Park-Ohio acquired RBW. Also in 1974, title to the facility was transferred from RBW to Tarricone and defendant Kerr-McGee acquired Royal Petroleum. In January of 1988, Tarricone transferred title to the facility to plaintiffs and to Patsy Bologna as tenants in common. In December of 1990, Patsy Bologna transferred her one-third interest in the facility to plaintiff Dominick D. Bologna.

II Facility Operations

At all relevant times, the facility was a petroleum bulk storage site. Plaintiffs allege that between 1901 and 1974, the period when RBW owned and Royal Petroleum leased and operated the facility, both # 6 and # 2 fuel oil were stored there. When Tarricone owned and operated the facility from December 1974 to January of 1988, only # 2 fuel oil was stored there. From 1988 to the present, plaintiffs have stored only # 2 fuel oil at the site.

III Environmental Problems

In 1994, plaintiffs retained Marin Environmental, Inc. ("Marin"), an environmental engineering company, to assess the contamination at and around the site, in part to determine whether it was more economically feasible to continue operations or to sell the facility. Marin was also to propose a method of remediation. In January of 1995, Marin issued a written report titled "Contamination Investigation at the Purdy Avenue Fuel Storage Facility, Port Chester, New York," which made the following findings:

• At least 3 separate releases of # 2 fuel oil occurred at least 20 years ago;
• One release of # 6 fuel oil occurred at least 40 years ago. This release is located on a relatively small portion of the site and appears to exist only in the dissolved phase.
• A large plume (7200 sq. ft.) of # 2 fuel oil is located at the center of the site and is flowing with groundwater toward the Byram River.
• Based on the age of contamination and the presence of # 6 fuel oil, the current site owner does not appear to be responsible for the ...

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