ELR Citation: ELR 21561
No(s). 94 Civ. 7133 (CLB) (S.D.N.Y. Jul 10, 1995)

The court holds that a potentially liable municipality may bring an action against other potentially responsible parties (PRPs) under both §§107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to recover costs the town incurred remediating contamination at a municipal landfill. The court first rejects defendants' argument that the town is limited to a §113 action for contribution. Unlike the case defendants rely on, United Technologies Corp. v. Browning-Ferris Industries, Inc., 24 ELR 21356 (1st Cir. 1994), the plaintiff in this case has not admitted liability under CERCLA and is a governmental entity. The court next holds that the town's CERCLA liability is not determinative of its right to recovery against the defendant PRPs. Neither the town's fulfillment of its cleanup obligations under CERCLA, nor the degree to which the efforts are "voluntary" rather than statutorily imposed, are controlling in this action. Relying on precedent in the Second Circuit, the court also holds that even if the town were not a governmental plaintiff, it would be entitled to maintain both §§107 and 113 claims. The court then holds that the town's alleged noncompliance with state closure requirements does not preclude imposition of CERCLA liability on the defendant PRPs. Rather, the scope of liability and damages will be determined under CERCLA, which in §107(a) defines who is responsible for the costs of cleaning up contaminated sites and what releases trigger liability. The court notes that under CERCLA, the issue of the town's compliance with state closure requirements seems relevant, at most, to the apportionment of damages, or a limitation on the amount of damages recoverable. The court holds that because these involve factual questions that cannot be decided on the record before it, the issue of compliance does not lend itself to partial summary judgment.

Counsel for Plaintiff
Kimberlea S. Rea
Bleakley, Platt & Schmidt
One N. Lexington Ave., White Plains NY 10601
(914) 949-2700

Counsel for Defendants
Philip H. Gitlen
Whiteman, Osterman & Hanna
One Commerce Plaza, Albany NY 12260
(518) 487-7600