The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
ROBERT P. PATTERSON, JR., U.S.D.J.
On or about August 29, 1983, Plaintiffs the State of New York and the Town of Tusten instituted this action seeking to hold the defendants, including SCA Services, Inc. ("SCA"), liable under Section 107 of the Comprehensive Environmental Response, Compensation And Liability Act ("CERCLA"), 42 U.S.C. § 9607, for damages arising out of the alleged disposal and release of hazardous substances at the Cortese Landfill in Narrowsburg, New York. Plaintiffs also seek damages based on the common law causes of action of public nuisance, unjust enrichment and restitution.
SCA impleaded approximately twenty-seven third-party defendants, including Third-party defendant Nicholas Enterprises Inc. ("Nicholas"), asserting claims for reimbursement, indemnification and contribution based on CERCLA, and common law claims of unjust enrichment, public nuisance, and restitution.
Nicholas moves for summary judgment arguing that as a matter of law it cannot be held liable as an arranger under CERCLA Section 107(a)(3). For the reasons set forth below, Nicholas' motion for summary judgment is denied.
Nicholas is a New Jersey corporation with its principal place of business in Paterson, New Jersey. SCA, a Delaware corporation, is a successor in interest to Gaess Environmental Service Corporation ("Gaess"). Affidavit of Robert Ritter, submitted pursuant to Local Rule 3(g) dated September 29, 1993 ("Nicholas' 3(g) Statement"), at PP 1-2.
In 1973, Gaess operated its business and maintained a Yard in Passaic, New Jersey from which it transported waste to the Cortese landfill. Id. at P 3. Nicholas was engaged in the collection and transportation of solid waste and collected waste from its customer, Jersey Dyeing, Inc. ("JDC"), for transportation to disposal sites. Id. at PP 4-5. In this instance, Nicholas found that its disposal sites were unavailable for drummed waste, and reached an agreement with Gaess to deliver drums of waste it picked up from JDC to Gaess' Passaic Yard which SCA alleges Gaess disposed of at the Cortese site. Aff. of Raymond J. Nicholas, September 30, 1993 at P 9. Nicholas did not select the Cortese landfill site to dispose of the waste allegedly disposed there by Gaess. Id. at P 11.
Summary judgment is appropriate if the evidence offered demonstrates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). No genuine issue of material fact exists "only when reasonable minds cannot differ as to the import of the evidence before the court." Commander Oil Corp. v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993).
The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970), and the Court must view the facts in the light most favorable to the non-moving party. United States v. Diebold Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962).
Nicholas argues that summary judgment is appropriate in this case because as a "transporter" of waste it cannot be held liable under Section 107(a)(3) of CERCLA as one who "arranged for the transport" or disposition of hazardous waste.
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 ...