The opinion of the court was delivered by: Curtin, District Judge.
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
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.
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.
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
(1) the owner and operator of a vessel or a
facility, as those terms are defined by CERCLA,
see 42 U.S.C. § 9601(9), 9601(25);
(2) any person who at the time of disposal of any
hazardous substance owned or operated any facility
at which such hazardous substances were disposed
(3) any person who by contract, agreement, or
otherwise arranged for disposal or treatment, or
arranged with a transporter for transport for
disposal or treatment, of hazardous substances
owned or possessed by such person, by any other
party or entity, at any facility or incineration
vessel owned or operated by another party or
entity and containing such hazardous substances;
(4) any person who accepts or accepted any
hazardous substances for transport to disposal or
treatment facilities, incineration vessels or
sites selected by such person.
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
Any person may seek contribution from any other
person who is liable or potentially liable under
section 9607(a) of this title, during or following
any civil action under section 9606 of this title
or under section 9607(a) of this title. Such claims
shall be brought in accordance with this section
and the Federal Rules of Civil Procedure, and shall
be governed by Federal law. . . . Nothing in this
subsection shall diminish the right of any person
to bring an action for contribution in the absence
of a civil action under section 9606 of this title
or section 9607 of this title.
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).
Nothing in this subchapter . . . shall bar a cause
of action that an owner or operator or any other
person subject to liability under this section, or
a guarantor, has or would have, by reason ...