The opinion of the court was delivered by: JOHN T. CURTIN
Currently before the court are (1) a motion by third-party defendant City of Niagara Falls ("the City") to dismiss the amended third-party complaints of Solvent Chemical Co., Inc. ("Solvent"), Item 179, Mader Capital, Inc. ("Mader"), Item 181, and ICC Industries, Inc. ("ICC"), Item 183 (Item 266); (2) a request by the City that if the court finds the amended third-party complaints sufficient to state a cause of action, its motion to dismiss be converted to one for summary judgment against Solvent, Mader, and ICC (Item 299); and (3) a motion by Solvent to exclude from consideration certain evidentiary materials submitted by the City. Item 304. Oral argument on these and other motions was held on December 16, 1994.
Plaintiff, the State of New York, filed suit on December 9, 1983, against Solvent, Mader, ICC, and three other defendants, under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq., and related state law for the costs of investigation and clean-up of a site located at 3163 Buffalo Avenue, Niagara Falls, New York. Item 1. The complaint alleges, inter alia, that Solvent operated an industrial chemical facility at the site from 1972 to 1979; that Solvent sold the site to Transit Holding Corporation ("Transit") in August 1978, but continued to operate there until January 1979; that Mader is a successor in interest to Transit; that ICC is the corporate parent and successor in interest to Solvent; that in the conduct of its operations at the site, Solvent released and disposed of large amounts of hazardous chemicals and chemical wastes onto the land and into the ground water; and that neither Solvent, nor Mader, nor ICC has taken the necessary actions to prevent migration of the chemicals through and off the site, or to abate the existing and threatened harm to public health and the natural resources of the State.
In June 1986, Solvent, Mader, and ICC filed third-party complaints asserting CERCLA contribution and related claims against various third-party defendants, including the City. Items 42-44. Amended third-party complaints, asserting claims against additional third-party defendants, were filed in April 1994. Items 179, 181, 183.
The amended third-party complaints allege, inter alia, that from about 1941 until July 3, 1972, the site was owned by third-party defendant United States; that a chemical manufacturing facility was built at the site, and was operated on behalf of the United States between 1942 and 1945 by third-party defendant E.I. DuPont de Nemours & Co. ("DuPont"), and between 1951 and 1953 by third-party defendant Occidental Chemical Corp. ("OCC") (formerly Hooker Electrochemical Co.); that during the course of operation of that facility, hazardous chemicals were released and/or disposed of at the site; and that to the extent that hazardous chemicals are now present upon or have migrated from the site as alleged by plaintiff New York State, the United States, DuPont and OCC caused or contributed to the contamination. Item 179, PP 19-31; Item 181, PP 19-39; Item 183, PP 18-30.
The City's involvement in this action arises from its ownership of 3163 Buffalo Avenue for a brief period in 1972, when it purchased the site from the United States and resold it to Solvent. The third-party complaints allege that the City owned the site for a period commencing on or about July 3, 1972;
that it knew or should have known of the disposal or release of hazardous chemicals there by the United States, DuPont, and OCC; and that to the extent that hazardous substances are present on or have migrated from the site as alleged by plaintiff New York State, the City caused or contributed to the contamination by failing to take steps to treat, contain, or remove the chemicals disposed of or released by the United States, DuPont, and OCC. Item 179, PP 32-38; Item 181, PP 40-50; Item 183, PP 31-37. Based upon these allegations, the third-party complaints assert broadly that the City is liable for violations of CERCLA, Article 17 of the New York Environmental Conservation Law ("NY-ECL"), § 841 of the New York Real Property Actions and Proceedings Law ("NY-RPAPL"), and New York's common law of nuisance. Item 179, P 36; Item 181, P 46-48; Item 183, P 35. Each of the third-party plaintiffs claim that in the event that it is held liable in this action, it will be entitled to a judgment against the City for cost recovery and/or contribution. Item 179, PP 37-38; Item 181, PP 49-50; Item 183, PP 36-37.
On September 7, 1994, the City filed a motion to dismiss, accompanied by a memorandum of law arguing that the third-party complaints fail to state a claim under CERCLA, NY-ECL Article 17, NY-RPAPL, or New York common law, Items 266, 267. Solvent submitted a memorandum in opposition, in which ICC joined. Items 283, 286. On November 7, 1994, the City filed a reply brief, attaching certain evidentiary materials and requesting that if the court found the amended third-party complaints to sufficiently state a cause of action against it, its motion to dismiss be converted to one for summary judgment. Item 299. In response, on November 17, 1994, Solvent moved to exclude from consideration the evidence submitted by the City or, in the alternative, to postpone consideration of the City's motion until Solvent had had sufficient opportunity to conduct discovery, respond to the City's factual assertions, and submit materials in opposition. Item 304.
Meanwhile, on October 7, 1994, the United States filed a memorandum in partial opposition to the City's motion to dismiss the CERCLA claims asserted against it. Item 285. The City had argued that as a former owner of the site, it could be held liable under CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(2), only if disposal of hazardous substances had taken place during the period in which it owned the site. Item 267, p. 5. It maintained that the third-party complaints contained no allegation that the City or anyone else had introduced hazardous waste onto the site, or moved it around there, at the time the City held title to the site; that the third-party plaintiffs could at best assert the theory that the "passive migration" of hazardous substances constitutes disposal for purposes of § 107(a)(2); and that the court should reject such a theory. Id. at 6-15. The purpose of the United States' brief was to oppose the argument that passive migration of hazardous substances does not constitute "disposal" within the meaning of § 107(a)(2). Item 285, p. 2. In the brief, however, the United States also expressed the view that the CERCLA claims against the City should be dismissed because the facts of this case do not establish that there were passive movements of hazardous substances at the site during the period of the City's ownership. Id. at 13-14.
The United States' brief generated responses from Mader and Solvent. Items 296, 301. In a letter to the court dated November 3, 1994, Mader indicated that it had not intended to take a position with respect to the City's motion, but that it opposed the United States' request that the court make a factual finding that no passive movements of hazardous chemicals occurred during the time the City owned the site. Item 296. Such a finding, it argued, would imply that the property had not been previously contaminated by the United States, Occidental, and DuPont. Id. It would be inappropriate, it argued, for the court to make such a determination as part of a ruling on the City's Fed. R. Civ. P. 12(b)(6) motion. Id. In a letter to the court dated November 7, 1994, Solvent took a similar position. Item 301.
Following oral argument on December 16, 1994, the court issued an order giving the City, Solvent, and the other parties the opportunity to file additional affidavits and briefs in support of or in opposition to the City's motion. Item 322. Solvent and the City have done so. Items 324, 330. See also, letter to the court from Solvent's counsel, dated January 5, 1995.
1. The City's Motion to ...