The opinion of the court was delivered by: Scullin, Chief Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiffs commenced this action on April 28, 2000, pursuant to
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. § 9601 ("CERCLA"), as amended.
Plaintiffs allege that Defendant Longboat, Inc. ("Longboat") and
Defendant James Barry ("Barry") are responsible, as the current
owners and/or operators of the Napanoch Paper Mill Site ("Site"),
for all recovery costs incurred by Plaintiff New York State and
for all future response costs and natural resource damages in
connection with the disposal of hazardous substances at the Site.
Plaintiffs also seek recovery under the state law theories of
unjust enrichment and public nuisance.
Presently before the Court is Defendant Barry's motion to
dismiss and his request for a more definite statement.
The Site is a 19-acre former paper mill that has been operated
by various companies over the past century. See Complaint at ¶
8. The Site has not been used for any manufacturing business
since a fire occurred there in 1977. See id. at ¶ 9. Plaintiffs
allege that hazardous substances, including polychlorinated
biphenyls ("PCBs"), were used in the operations of the various
paper mills and were discharged with wastewater into lagoons
located on the Site. See id. at ¶ 10. The overflow from those
lagoons was discharged into Rondout Creek. See id. at ¶ 11.
Beginning in 1986, the New York State Department of
Environmental Conservation ("DEC") conducted investigations of
the Site to determine the nature and scope of the contamination.
See id. at ¶ 13. The DEC designated the Site as an inactive
hazardous waste disposal site pursuant to New York's
Environmental Conservation Law ("ECL") § 27-1301(2). The DEC
classified the Site as a Class 2 site or one that presents a
significant threat to the public health or environment and which
requires action. See id. at ¶ 14. As a result of the risk
level, the DEC undertook an Interim Remedial Measure ("IRM") to
remove the PCB-contaminated materials. The DEC removed
approximately 6,750 tons of PCB-contaminated paper sludge and
soil. See id. at ¶¶ 15-16. The DEC then initiated a Remedial
Investigation/Feasibility Study ("RI/FS") in March of 1994. See
id. at ¶¶ 17-18. The final report indicated the presence of PCBs
and/or polyaromatic hydrocarbons ("PAHs") on the Site. The report
noted that other various substances, including
arsenic, chromium, lead and mercury were also present at the
Site. See id. at ¶ 19. The DEC concluded that the appropriate
remedy was the removal of the PCB-contaminated papers rolls, the
excavation and off-site disposal of contaminated soil, and the
excavation and dewatering of Rondout Creek to remove the
contaminated sediment. See id. at ¶ 22. This action was
commenced in 1996 and is now substantially completed. See id.
at ¶ 23. The State of New York has incurred response costs, not
including interest or enforcement, of over $20 million. See id.
at ¶ 24.
Plaintiffs claim that since Defendants*fn1 have been the
owner/operators of the Site since 1985, pursuant to sections
9607(a)(1) and 9613(g)(2) of CERCLA, they are jointly and
severally liable for all response costs the State has incurred.
See id. at ¶¶ 33-36. Plaintiffs also seek relief for unjust
enrichment from Defendants. Plaintiffs argue that Defendants
failed to perform their duties and obligations and that,
therefore, the State had to do so in order to ensure the
protection of the public health and environment. See id. at ¶¶
37-40. Plaintiffs claim that Defendants were unjustly enriched by
the State's performance of those duties owed by Defendants. The
State, therefore, seeks restitution for the expenses incurred.
See id. at ¶¶ 43-44. Finally, Plaintiffs claim that Defendants
maintained a continuing public nuisance at the Site and are,
therefore, liable to the State under the common law of public
nuisance and the New York Real Property and Proceedings Law § 841
for all costs arising from the State's abatement of this public
nuisance. See id. at ¶¶ 46-48.
Defendant Barry, in support of his motion to dismiss, brought
pursuant to Rule 12 of the Federal Rules of Civil Procedure,
asserts the following arguments: 1) improper venue pursuant to
12(b)(3);*fn2 2) failure to state a claim for which relief can
be granted pursuant to 12(b)(6); and 3) failure to join necessary
parties under Rule 19 pursuant to 12(b)(7). See Def.'s Notice
of Motion to Dismiss at 1. Defendant Barry also requests a more
definite statement pursuant to Rule 12(e) and raises the issue of
Defendant Longboat's capacity to be sued.
The Court will address Defendant Barry's arguments
A. Defendant Longboat's capacity to be subject to suit
Plaintiffs respond that, even assuming arguendo, that
Defendant Longboat was properly dissolved, the company is still
subject to suit in this CERCLA action because a dissolved company
continues to exist for purposes of winding up its affairs. See
Pls.' Memorandum of Law at 4 (citing New York Business
Corporation Law § 1006). Plaintiffs claim that they are seeking
relief from Longboat for its actions beginning in 1985 before it
was dissolved. District courts have held that defunct companies
can be liable under CERCLA ...