ELR Citation: ELR 20330
No(s). 99-CV-6238T(B) (W.D.N.Y. Jan 12, 2000)

The court grants in part and denies in part a motion to dismiss several federal and state claims brought by the owner of contaminated property seeking response costs from prior site owners. The court first holds that the current site owner can bring a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §107 claim for response costs against the prior owners. Normally, as a party potentially responsible for response costs under CERCLA, the current owner would be limited to a CERCLA §113 contribution claim. However, the current owner may be entitled to assert CERCLA §107(b) defenses to CERCLA §107(a) liability. If the current owner ultimately proves that it is protected by a CERCLA §107(b) defense, then it could bring a CERCLA §107(a) claim against the prior owners.

The court next holds that CERCLA does not preempt the current owner's common-law cause of action to the extent that such claims seek recovery for damages different from those available under CERCLA. Congress intended to preempt any state-law claim that seeks as a remedy contribution or indemnification for the same damages that would be available under CERCLA. Here, the current owner argues that certain damages at the site are not available under CERCLA.

The court then holds that the current owner can bring a Resource Conservation and Recovery Act (RCRA) §7002(a)(1)(B) action to abate an imminent and substantial endangerment against those prior owners that received sufficient notice. The current owner sufficiently alleged that toxic contamination is present on the site and is creating the threat of serious harm. However, the current owner failed to provide the RCRA-required 90-days' notice to all but two of the past owners before filing suit.

The court also holds that the current owner can bring a claim for contribution against the prior owners under the New York Navigation Law. According to the statute's plain language, the current owner has the right to seek contribution from any other responsible party for costs incurred in providing cleanup or removal of petroleum discharges. In addition, the court holds that the current owner cannot bring a common-law strict liability claim for ultra hazardous activities against the prior owners. The damages recoverable under such a claim are identical to those sought under CERCLA. Therefore, the claim is preempted. Conversely, the court holds that to the extent that the current owner seeks common-law indemnification or contribution under the state Superfund law, the common-law claim is not preempted for damages not covered by CERCLA.

Counsel for Plaintiff
Robert B. Koegel
Knauf, Koegel & Shaw
The Alliance Bldg.
183 E. Main St., Ste. 1250, Rochester NY 14604
(716) 546-8430

Counsel for Defendants
Frank C. Pavia
Boylan, Brown, Code, Vigdor & Wilson
2400 Chase Sq., Rochester NY 14604
(716) 232-5300