ELR Citation: ELR 21021
No(s). 83 Civ. 6402 (RPP) (S.D.N.Y. Jan 9, 1991)

The court holds that various sets of counterclaims raised by a corporate defendant in a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) cost recovery action are not duplicitous, and CERCLA does not authorize private-party recovery of attorney fees. The state of New York and a town filed an action to recover response costs and damages under CERCLA and New York common law, alleging that a corporate defendant is liable under CERCLA §107(a)(4) against the corporate defendant as a transporter of hazardous substances. The court first holds that the corporate defendant's counterclaims against the town for unjust enrichment are not duplicative of those for restitution; nor are causes of action for negligence and restitution duplicative of those for indemnification and contribution. The court holds that the proper method in a civil action to challenge redundant matter in any pleading is by a motion to strike under Rule 12(f) of the Federal Rules of Civil Procedure, rather than by a motion for judgment on the pleadings to dismiss an entire count for redundancy. The court orders the corporate defendant to file a memorandum of law demonstrating that the legal theories behind the various sets of counterclaims do not involve proof of identical material facts and would not entitle the defendant to the same relief. Next, the court rules that attorney fees are not recoverable as response costs in private actions brought under CERCLA §107. The court follows a line of cases disallowing attorney fees based on the rationale that if Congress had intended to permit private-party recovery of attorney fees in response cost actions, it would have amended CERCLA §107 accordingly when it passed the Superfund Amendments and Reauthorization Act of 1986. Finally, the court holds that the issue of whether the town breached a special duty to enforce land use and environmental statutes for the benefit of the defendant is a question for the jury, and the defendant's claim for special damages in the form of out-of-pocket expenses for engineering and hydrogeological studies was adequately pleaded.

Counsel for Plaintiff
Michael J. Moore
Office of the Attorney General
Department of Law, State Capitol, Albany NY 12224
(518) 474-2121

Counsel for Defendant
John F. Stoviak
Saul, Ewing, Remick & Saul
3800 Centre Square W., Philadelphia PA 19102
(215) 972-7777