The opinion of the court was delivered by: Curtin, District Judge.
In a decision and order dated May 21, 1990, the court held,
among other things, that defendant National Fuel Gas
Distribution Corporation ("National Fuel") had raised a triable
issue on the third-party defense it had asserted under §
107(b)(3) of the Comprehensive Environmental Response,
Compensation and Liability Act ("CERCLA"),
42 U.S.C. § 9607(b)(3). See 737 F. Supp. 1272, 1285-86 (W.D.N Y
1990). See also id. at 1277-79. In so holding, the
court rejected the claim by plaintiff Westwood Pharmaceuticals,
Inc. ("Westwood"), that the defense was not available to
National Fuel because its sale of the site at issue to Westwood
rendered the parties contractually related within the meaning
of § 107(b)(3). The court ruled that such a construction of
the statute would effectively render its "in connection with"
language superfluous. Id. at 1285-86. Westwood has
moved for reconsideration of that holding, requesting that the
court consider the impact of CERCLA § 101(35)(C).
The facts of this case were set forth in the court's earlier
decision, and they shall not be repeated in detail here.
Rather, for purposes of the present motion, the relevant facts
shall merely be summarized briefly.
The site at issue was purchased in 1925 by National Fuel's
predecessor in interest, which conducted gas-manufacturing and
storage operations on the land through 1951, and which for
several years thereafter continued to use the location for gas
compression and storage. During the course of these operations,
the company placed or otherwise used at the site various
underground pipes and structures. Westwood purchased the site
in 1972, and during
subsequent construction activities and associated soil testing
it discovered various subsurface contaminants, the response
costs for which Westwood claims National Fuel is liable.
National Fuel contends that if, in fact, it placed hazardous
substances at the site, any such substances that were not
eventually removed from the premises for off-site use or
disposal were left inside secure subsurface receptacles.
National Fuel further contends that the structural integrity of
these subsurface receptacles left at the site would not have
been breached and, therefore, hazardous substances would not
have escaped but for the construction activities of Westwood.
According to National Fuel, it thus is entitled to assert a
third-party defense under § 107(b)(3).
Section 107(a) of CERCLA establishes four classes of persons
liable for costs associated with responding to a release or
threatened release of a hazardous substance:
(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),
(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). See United States v. Hooker
Chemicals & Plastics Corp., 739 F. Supp. 125, 127 (W.D.N Y
1990); State of New York v. Shore Realty Corp.,
759 F.2d 1032, 1043 & n. 16 (2d Cir. 1985).
Section 107(b) sets forth the statutory defenses to liability
under § 107(a). It provides in relevant part:
There shall be no liability under subsection (a)
of this section for a person otherwise liable who
can establish by a preponderance of the evidence
that the release or threat of release of a
hazardous substance and the damages resulting
therefrom were caused solely by —
(3) an act or omission of a third party other
than an employee or agent of the defendant, or
than one whose act or omission occurs in
connection with a contractual relationship,
existing directly or indirectly, with the
defendant (except where the sole contractual
arrangement arises from a published tariff and
acceptance for carriage by a common carrier by
rail), if the defendant establishes by a
preponderance of the evidence that (a) he
exercised due care with respect to the hazardous
substance concerned, taking into consideration
the characteristics of such hazardous substance,
in light of all relevant facts and
circumstances, and ...