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October 26, 2000


The opinion of the court was delivered by: David G. Larimer, Chief Judge United States District Court



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 ...

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