The opinion of the court was delivered by: David G. Larimer, Chief Judge United States District Court
Plaintiffs Seneca Meadows, Inc. ("SMI") and Macedon Homes, Inc. ("MHI")
commenced this action in August 1995, asserting various causes of action
under the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. Plaintiffs allege
that the twenty-four named defendants were responsible for contamination
at a landfill ("the Tantalo Site") owned by SMI, and on certain property
adjacent to the landfill ("the Adjacent Properties"), owned by both SMI
and MHI. The original complaint, and the first amended complaint, which
plaintiffs filed as of right in September 1995, asserted causes of action
under both CERCLA and New York State common law.
Pursuant to two Decisions and Orders previously entered by this court,
see 983 F. Supp. 360 (W.D.N.Y. 1997), and 16 F. Supp.2d 255 (W.D.N Y
1998), familiarity with which is assumed, many of plaintiffs' original
causes of action have been dismissed. The 1997 Decision and Order
dismissed SMI's common law claims regarding the Tantalo Site as
time-barred. The 1998 Decision and Order dismissed SMI's claim under
CERCLA § 107, 42 U.S.C. § 9607.
Plaintiffs filed a second amended complaint on April 28, 2000. It
asserts claims under CERCLA §§ 112 and 113, and a claim for a
declaratory judgment declaring that defendants are liable for future
response costs incurred by SMI in connection with the contamination at
the Tantalo site. In addition, although the second amended complaint does
not contain a § 107 claim, it does appear to reassert some of the
previously dismissed common law claims. The fourth through twelfth claims
are all based on New York common law, and assert claims on behalf of both
plaintiff with respect both to the Tantalo Site and the Adjacent
Properties. Since SMI's common law claims relating to the Tantalo Site
have already been dismissed, I will deem these claims only as asserting
claims relating to the Adjacent Properties.
Currently pending before the court are two motions for summary
judgment. One was filed by nine defendants, all of which are companies
related in some way to GTE Corporation ("the GTE defendants" or "GTE").
The other was filed by defendant General Motors Corporation ("GMC"). By
order entered September 29, 2000, the Court denied both motions for
summary judgment in their entirety. On further reflection, it appears
that GMC's motion should be granted in part, but, in all other respects,
GMC's motion and GTE's motion for summary judgment are denied and this
decision sets forth the bases for that denial.
I. CERCLA Liability and Defenses: General Standards
The relevant legal principles relating to CERCLA actions were set forth
in two leading cases, United States v. Alcan Aluminum Corp., 990 F.2d 711,
722 (2d Cir. 1993), and Acushnet v. Mohasco Corp., 191 F.3d 69 (1st Cir.
1999). In Alcan, which was a cost recovery action brought by the
Government under CERCLA § 107, the Court of Appeals for the Second
Circuit explicated a number of precepts concerning CERCLA liability.
First, the court explained that CERCLA imposes strict liability on "any
person who by contract, agreement, or otherwise arranged for disposal or
treatment" of hazardous substances "from which there is a release, or a
threatened release which causes the incurrence of response costs." Id. at
721 (quoting U.S.C. § 9607(a)(3) and (4)). In order to prevail,
then, the court stated that the Government had to prove that: "(1) there
was a release or threatened release, which (2) caused incurrence of
response costs, and (3) that the defendant generated hazardous waste at
the clean-up site. What is not required is that the government show that
a specific defendant's waste caused incurrence of clean-up costs." Id.
In so ruling, the court "candidly admit[ted] that causation is being
brought back into the case — through the backdoor, after being
denied entry at the frontdoor — at the apportionment stage." Id.
The court added, however, that
causation — with the burden on defendant
— is reintroduced only to permit a defendant to
escape payment where its pollutants did not contribute
more than background contamination and also cannot
concentrate. To state this standard in other words, we
adopt a special exception to the usual absence of a
causation requirement, but the exception is applicable
only to claims, like Alcan's, where background levels
are not exceeded. And, we recognize this limited
exception only in the absence of any EPA thresholds.
The court then went on to discuss the timing of the divisibility
issue. After reviewing CERCLA's language and legislative history, the
court concluded that in general, "liability is fixed first and
immediately for enforcement purposes; litigation later to sort out what
contribution is owed and by whom as a result of the remediation effort."
Id. at 723. But, the court added, it did "not rule that this chronology
be followed or that the . . . approach of deciding divisibility at the
initial liability phase of the case is the best way for the district
court to proceed. Instead, the choice as to when to address divisibility
and apportionment are questions best left to the sound discretion of the
trial court in the handling of an individual case." Id.
The First Circuit followed these principles in Acushnet, in which the
court affirmed an order dismissing the claims against certain defendants
before a full trial on apportionment, on the ground that those defendants
had not caused the plaintiff to incur ...