ELR Citation: ELR 21264
No(s). 92 Civ. 9469 (S.D.N.Y. May 3, 1993)

The court dismisses claims by potentially responsible parties against corporations, a medical center, and a New York county for a declaratory judgment of liability under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and for contribution under CERCLA §113. Adopting the reasoning of the U.S. Supreme Court's decision in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 113 S. Ct. 1160 (1993), the court first holds that a heightened pleading standard does not apply to CERCLA cases. The court next holds that the plaintiffs failed to state a claim on which relief can be granted under CERCLA §107(a), because they only alleged that the defendants arranged for the treatment or disposal of solid waste and that studies have shown that solid waste contains hazardous substances. They do not state to which studies they refer or the source of the solid waste studied. Absent some allegation that the defendant's specific solid waste contained hazardous substances, the plaintiffs failed to allege the defendants are liable parties under §107(a)(3). However, in light of the plaintiffs' contentions that their amended complaint was meant to allege that hazardous waste was contained in the defendants' solid waste, the court grants the plaintiffs 20 days to amend their §107 claim. The court holds that because the plaintiffs failed to state that the defendants are liable parties under §107, they have also failed to state a claim for contribution under §113. The court grants them 20 days to amend their §113 claim. The court does not rule on the defendants' motion to dismiss the plaintiffs' negligence claim, because the plaintiffs appear to have dropped the claim. Finally, the court denies the plaintiffs leave to amend their claim to allege a state contribution claim, because the claim would be premature. A cause of action for contribution does not accrue until payment of the underlying liability has been made by the suing party, and in this instance no liability has been established.

Counsel for Plaintiffs
David W. Payne
Leboeuf, Lamb, Leiby & McRae
One Commerce Plaza
99 Washington Ave., Ste. 2020, Albany NY 12210
(518) 465-1500

Counsel for Defendants
Roger Slade, Susan S. Egan
Edwards & Angell
750 Lexington Ave., New York NY 10022
(212) 308-4411