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.
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.
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
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
• 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 ...