ELR Citation: ELR 21030
No(s). 90-CV-818 (N.D.N.Y. Mar 19, 1991)

The court holds that the New York Department of Environmental Conservation (DEC) may be liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs incurred due to the DEC's alleged negligence in moving barrels of hazardous waste from a site in Binghamton. The court first holds that the DEC is a "person" under CERCLA. The DEC is an agency of the state whose purpose is to coordinate and develop policies, planning, and programming related to the environment of the state. The court next holds that the DEC was an operator of the site at the time it allegedly broke open the barrels of hazardous waste on the property. The court next holds that the plaintiff's complaint was pleaded with sufficient specificity under Federal Rule of Civil Procedure 8(a). Plaintiff's complaint states a cause of action against the DEC. The court holds that a special relationship may exist between the DEC and the codefendant and, therefore, a claim against the DEC for contribution, indemnity, or recoupment concerning the codefendant may lie. The court next holds that CERCLA §113 allows the DEC to be sued for money damages in federal court. The DEC is not protected by sovereign immunity from potential liability under CERCLA.

Counsel for Plaintiff
Earl D. Butler, David S. Berger
Butler, Allen, Clark & Place
Vestal Professional Bldg. Annex, 231-241 Main St., Vestal NY 13850
(607) 748-9907

Counsel for Defendant
John J. Privatera
Office of the Attorney General
Department of Law, State Capitol, Albany NY 12224
(518) 474-2121

Robert H. Wedlake
Kramer, Wales & Wright
59-61 Court St., P.O. Box 1865, Binghamton NY 13902
(607) 723-6321