of the availability of the third party defense to Marine, however. The Second Circuit has recently held that:
The mere existence of a contractual relationship between the owner of land on which hazardous substances are or have been disposed and a third party whose act or omission was the sole cause of the release or threatened release of such hazardous substances into the environment does not foreclose the owner of the land from escaping liability. . . . In order for the landowner to be barred from raising the third-party defense under such circumstances, the contract between the landowner and the third party must either relate to the hazardous substances or allow the landowner to exert some element of control over the third party's activities.
Westwood Pharmaceuticals, Inc. v. National Fuel Gas Distrib. Corp., 964 F.2d 85 (2d Cir. 1992) (emphasis in original). In Westwood, the court held that a prior owner of property was not precluded from invoking the third party defense by a land sale contract with the party responsible for the release. On the other hand, the "classic scenario" in which a defendant would be barred is that of a landowner who contracts with a third party to operate a landfill. Shapiro v. Alexanderson, 743 F. Supp. 268 (S.D.N.Y. 1990).
The contract between Marine and A & N relates to hazardous substances. Both the Pircio's Lease and the 1982 Lease specifically provide that the premises are to be used for a dry cleaning establishment. A & N used hazardous substances as a matter of course in conducting its business. Thus, "the contract between the landowner and the third party somehow is connected with the handling of hazardous substances," Westwood, slip op. at 2172, making the third party defense unavailable to Marine.
4. The Innocent Purchaser Defendants
The innocent purchaser defense likewise is unavailable to Marine. As discussed above, this defense requires that the defendant have acquired the property subsequent to the release or disposal activity. It is undisputed that Marine entered into the Marine Lease for the entire Property in 1970 and that A & N's disposal activity continued at least until 1978. Marine contends, nevertheless, that it cannot be considered the "owner" of the Dry Well until 1982, when it entered into the 1982 Lease with A & N. Prior to that time, claims Marine, ownership of the Dry Well cannot be imputed to it because under the Pircio's Lease, Pircio's/ A & N was "to maintain and repair the pump and cesspool or dry well presently located on the premises of which the herein demised premises are a part; which said pump and cesspool or dry well provide water for and collect waste from the demised premises. Pircio's Lease, Glanville Ex. E, at P43. Marine maintains that it is therefore an innocent purchaser because A & N had ceased its disposal activities prior to 1982.
Even assuming that A & N did cease its disposal activities prior to 1982, Marine cannot invoke the innocent purchaser defense because it acquired the Property, including the Dry Well, in 1970 when it entered into the Marine Lease. The Marine Lease conveyed to Marine possession of the entire Property, and made no exception for the Dry Well. Under CERCLA, an owner or operator cannot contract away its responsibility for purposes of CERCLA liability. See 42 U.S.C. S 9607(e)(1) ("No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility . . . to any other person the liability imposed under this section."); Rodenbeck v. Marathon Petroleum Co., 742 F. Supp. 1442, 32 E.R.C. 1236, 1242 (N.D. Ind. 1990). Thus, Marine's motion for summary judgment based on the innocent purchaser defense is denied.
For the foregoing reasons, the Government's motion for summary judgment as to the CERCLA liability of A & N and Forcucci, the Berkman Defendants and Marine is granted. The motion by the Berkman Defendants for summary judgment dismissing the claims against them based on the third party and innocent purchaser defenses is denied. Marine's motion for summary judgment dismissing the claims against it on the grounds that it is not a covered party under CERCLA § 107(a), or, in the alternative, that it is absolved of liability under the third party or innocent purchaser defenses is denied. Triable issues of fact remain as to the affirmative defenses interposed by the Berkman Defendants.
It is so ordered.
New York, N. Y.
April 3, 1992
Robert W. Sweet