Although this court is not bound by the holdings in Western Processing and Azrael, it finds that the facts underlying these decisions are much more akin to those present here than are the facts in Aerojet. In addition, this court finds the reasoning of these courts persuasive especially in light of their thorough discussion of the legislative framework and purposes of CERCLA. This does not mean, however, that a state could never be considered an operator within the meaning of CERCLA. Union Gas would foreclose such a finding. What it does mean is that when a state is acting solely in its statutory capacity to clean up a hazardous waste site, this activity does not raise its status to that of an operator within the meaning of CERCLA section 107.
In the present case, neither Stilloe nor Almy Brothers allege that DEC had any nexus to the site other than by reason of its remedial clean-up activities. In its amended complaint, Stilloe claims that:
the actions of [DEC] at the site subjects them to liability as an "operator" of the site, as plaintiff has alleged gross negligence on the part of [DEC] in connection with their activities at the site.
Stilloe, 759 F. Supp. at 99 (citing Stilloe's memorandum of law in opposition to DEC's motion to dismiss its complaint, November 8, 1990, at 5).
Even if, as Stilloe alleges, DEC's physical handling of the hazardous waste during its clean-up activities resulted in damage to plaintiff, this activity, without more, does not convert DEC into an operator within the meaning of CERCLA. Stilloe as well as Almy Brothers may very well have claims against DEC, but they are not CERCLA claims. Rather, any claims that they might have against DEC for its handling of the clean-up effort are state law tort claims which section 107(d)(2) specifically does not preclude.
Having concluded that DEC is not an operator within the meaning of CERCLA under the facts of this case, this court must likewise dismiss Almy Brothers' counter-claims. Section 113 of CERCLA provides that "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  or under section 9607(a)." 42 U.S.C. § 9613(f)(1). Since DEC is not liable under section 9607(a), Almy Brothers cannot sustain a counter-claim for contribution against DEC based on its clean-up activities at the site. Like Stilloe, Almy Brothers may have a state law tort claim against DEC, but such a claim does not arise under CERCLA.
Having reviewed the holdings of Azrael and Western Processing as well as the legislative history of CERCLA, the court concludes that under the facts of this case DEC is not an operator within the meaning of section 107 of CERCLA. Therefore, the court grants DEC's motion to dismiss Stilloe's claims against it on the ground that the state has not waived its sovereign immunity and thus this court lacks subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) to hear this case.
As to the Almy Brothers' contribution counter-claim, the court concludes that because DEC is not subject to liability under section 107(a), Almy Brothers may not seek contribution against DEC. Therefore, the court dismisses Almy Brothers' counter-claim for contribution for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). Likewise, for the same reason, the court dismisses McMahon's counter-claim against DEC sua sponte.
IT IS SO ORDERED.
DATED: January 17, 1992
Syracuse, New York
Neal P. McCurn
Chief, U.S. District Judge