U.S. v. HOOKER CHEMICALS & PLASTICS

The opinion of the court was delivered by: Curtin, District Judge.

ORDER

BACKGROUND

The Niagara County Health Department ("NCHD") was originally named as a defendant by plaintiff United States of America ("United States"). According to the original complaint, dated December 20, 1979, the NCHD was named as a defendant "only to insure that the remedial measures requested by plaintiff can be fully implemented, if necessary, by the County Health Department's power of entry to suppress or remove." Item 1 at ¶ 12. In the United States' second amended complaint, dated December 8, 1983, the NCHD was not named as a defendant. See Item 141.

In its most recent amended cross-claim against defendant Niagara County ("County"), defendant Occidental Chemical Corporation ("OCC") seeks "indemnity or contribution . . . pursuant to CERCLA or otherwise, in whole or in part for the amount of any" damages for which OCC is found liable. Item 155 at ¶ 77. Since the filing of OCC's amended cross-claim, this court has found OCC strictly, jointly, and severally liable under Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a), for the costs incurred by the United States and the State of New York ("State") in responding to the conditions at the Love Canal landfill, see United States v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546 (W.D.N.Y. 1988), and jointly and severally liable under the New York common law of public nuisance for the costs incurred by the State in abating the conditions at the site. See United States v. Hooker Chemicals & Plastics Corp., 722 F. Supp. 960 (W.D.N.Y. 1989).

The County has moved under Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure to dismiss OCC's cross-claim for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment declaring that OCC is not entitled to indemnity or contribution from the County as a matter of law. Since the parties have presented, and the court has not excluded, matters outside the pleadings, the County's motion shall be treated as one for summary judgment. FED.R.CIV.P. 12(b).*fn1

The facts of this case have been set forth in previous orders issued by the court, see United States v. Hooker Chemicals & Plastics Corp., 722 F. Supp. 960 (W.D.N.Y. 1989); United States v. Hooker Chemicals & Plastics Corp., 680 F. Supp. 546 (W.D.N Y 1988); United States v. Hooker Chemicals & Plastics Corp., 123 F.R.D. 3 (W.D.N.Y. 1988), and shall not be repeated herein. Reference shall be made to those facts and to any additional facts as necessary for resolution of the pending motion.

DISCUSSION

In order to prevail on a motion for summary judgment, the moving party must demonstrate "that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). See generally Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). A material fact is one "that might affect the outcome of the suit under the governing law . . . [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact will be considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion," Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), and "[u]ncertainty as to the true state of any material fact defeats the motion." United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir. 1982) (citation omitted). See also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-88, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

The County argues that it cannot be held liable for indemnity or contribution to OCC on two grounds. First, the County argues that it is not a liable or potentially liable party under Section 107(a) of CERCLA, which, according to the County, is a prerequisite for liability as an indemnitor or contributor. Second, the County asserts that, even if the court finds that OCC is entitled to pursue such a cross-claim under state-law principles, it cannot be held liable because no "special relationship" existed between it and OCC as required by New York law. OCC responds that it need not establish that the County is a covered party under CERCLA because its cross-claim arises under New York law, and asserts that the record demonstrates that under state law the County is potentially liable for any response costs assessed against OCC to the extent that the County's conduct gave rise to such costs.

I. State-Law Contribution Claims Under CERCLA

Section 107(a) of CERCLA establishes four classes of persons liable for response costs, see 42 U.S.C. § 9601(23)-(25), 9607(a)(4)(A)-(B), related to a release or threatened release of a hazardous substance, see 42 U.S.C. § 9601(14); State of New York v. Shore Realty Corp., 759 F.2d 1032, 1040 n. 6 (2d Cir. 1985):

42 U.S.C. § 9607(a) (Supp. V 1987). See State of New York v. Shore Realty Corp., 759 F.2d at 1043 & n. 16 (2d Cir. 1985). The Superfund Amendments and Reauthorization Act of 1986 ("SARA") provides:

42 U.S.C. § 9613(f)(1) (emphasis added) (codifying Pub.L. No. 99-499, § 113(b), 100 Stat. 1647 (1986)). The County argues that the express language of this section requires that it must fit within one of the four categories enumerated in Section 107(a) in order to be liable to OCC for contribution. Asserting that at Love Canal it neither owned or operated any property, disposed of or arranged for the disposal of hazardous substances, nor accepted any hazardous substances for transport, the County maintains that OCC's cross-claim must be dismissed because the County is not "liable or potentially liable" within the meaning of Section 107(a).

OCC does not challenge the County's claim that it is not a liable or potentially liable party under Section 107(a). Rather, OCC insists that it is entitled to pursue contribution for CERCLA response costs from the County under state-law principles, and that, consequently, whether the County falls within the ambit of Section 107(a) is irrelevant. In support of its argument, OCC cites CERCLA Section 107(e)(2). That section provides: