Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

WESTWOOD PHARMA. v. NAT. FUEL GAS DIST.

June 19, 1991

WESTWOOD PHARMACEUTICALS, INC., PLAINTIFF,
v.
NATIONAL FUEL GAS DISTRIBUTION CORPORATION, AS SUCCESSOR IN INTEREST TO IROQUOIS GAS CORPORATION, DEFENDANT.



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

BACKGROUND

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.

DISCUSSION

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),
  9601(25);*fn1
  (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
  of;
  (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;
  and
  (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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.