APU also maintains that Witben, Universal, and Wolfson are liable as they were owners and/or operators of the Union Road Site while hazardous wastes were actively dumped there, based on the fact that unauthorized dumping by third parties was ongoing during Witben's ownership of the site, and that no protective measures were instituted by either Witben, Universal, or Wolfson. Witben, Universal, and Wolfson, however, claim that any dumping of hazardous wastes occurred when New York Central Railroad owned the Site, and that any material dumped without authorization by third parties during their ownership was non-hazardous waste.
i. Passive Disposal
"Passive" disposal, for purposes of CERCLA, refers to the leaking or migration of hazardous substances into the soil or water following their initial disposal. Reading Co. v. City of Philadelphia, 155 Bankr. 890, 898 (E.D.Pa. 1993). Courts finding that passive disposal is covered under CERCLA define "disposal" to include "not only terms encompassing affirmative human conduct, but also terms indicative of passive conduct: leaking' and spilling.'" Howes v. W.R. Peele, Sr. Trust, 889 F. Supp. 849, 854 (E.D.N.C. 1995).
A split of authority exists concerning the issue of liability for passive releases of hazardous substances. Some courts have held that such passive releases constitute a disposal for CERCLA purposes. See, e.g., Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 844-46 (4th Cir.), cert. denied, 506 U.S. 940, 113 S. Ct. 377, 121 L. Ed. 2d 288 (1992); Peele, supra, at 854; Stanley Works v. Snydergeneral Corp., 781 F. Supp. 659 (E.D.Cal. 1990) ("passive" disposal falls under § 9607(a)). Other courts have rejected the idea that passive releases constitute disposals under CERCLA. See Redwing Carriers v. Saraland Apartments, Ltd., 875 F. Supp. 1545, 1561 (S.D.Ala. 1995) (to be a disposal under CERCLA, disposal must result from an affirmative act to introduce hazardous substances into another tract); United States v. CDMG Realty Co., 875 F. Supp. 1077, 1084 (D.N.J. 1995) ("disposal" does not encompass a passive element; liability can attach under CERCLA only after some element of active human participation in the disposal can be shown); United States v. Petersen Sand & Gravel, 806 F. Supp. 1346, 1351 (N.D.Ill. 1992) (passive disposal does not form the basis for CERCLA liability); Ecodyne Corp. v. Shah, 718 F. Supp. 1454, 1455-57 (N.D.Cal. 1989) (rejecting concept of passive disposal). Neither the Second Circuit, nor any district courts within the circuit, have made any rulings relating to the notion of passive disposal.
After a review of the cases relating to passive disposal, the court finds that Congress did not intend so expansive a definition of disposal so as to include the concept of passive disposal. In Petersen, the court compared the CERCLA definitions of "disposal" and "release," finding that the term "release" contemplated and encompassed the term "disposal" but not vice versa. Petersen, 806 F. Supp. at 1351. The Petersen court then found that only those owners/operators during whose watch "disposal" took place suffer CERCLA liability, while a "release" during an owner's tenure does not, of itself, confer liability, stating that it was "the inescapable conclusion . . . that giving 'disposal' a passive meaning controverts the plain language of CERCLA." Petersen, supra, at 1351-52. See also In re Diamond Reo Trucks, Inc., 115 Bankr. 559, 566 (W.D.Mich. 1990) (rejecting concept of passive disposal stating that Congress alone must act to change potentially liable parties under CERCLA).
Accordingly, the court finds that Witben, Universal, and Wolfson are not liable under CERCLA upon a theory of passive disposal during Witben's time of ownership.
ii. Disposal of Hazardous Wastes during Witben's ownership
APU also asserts that Witben, Universal, and Wolfson are liable under CERCLA § 9607(a)(2) as operators of a facility at the time of disposal of hazardous substances based on the active dumping by third parties during this period, and the fact that neither Witben, Universal, nor Wolfson took any steps to prevent such dumping. APU relies on the following facts in support of their argument.
The Remedial Investigation Report prepared for the DEC in June, 1991 described aerial photographs taken of the Union Road Site between 1928 and 1979, and noted that, while no disposal activity is apparent in a 1972 photograph, that in a 1979 photograph, the area north of the tar pit appears to be reworked and used for disposal. Additionally, when the Union Road Site was first investigated in 1982, the property was seen to be littered with household trash and construction debris. In the tar pit, fifty-six drums filled with unidentified substances were observed. In 1986, during another inspection, eighty-one drums were inventoried, including some drums containing "stone with binder," elements used in the mixing of concrete or asphalt. APU asserts that it is clear that drums were being dumped into the tar pit during the 1980's, during Witben's ownership.
Witben, Universal, and Wolfson argue that there is no evidence in the record that any dumping on the property by unauthorized third parties was of hazardous waste. Further, Witben, Universal and Wolfson assert that the inventory of drums in 1982 was based on a visual inspection, while the inventory of drums in 1986 was based on a thorough inspection, and that the larger inventory of drums located in 1986 was only a result of the fact that the inspectors unearthed other drums that were already on the property prior to Witben's ownership. As to the testimony of the New York Central Railroad employee, Edmond Wesolowski, who worked at the Gardenville Yard during the time of dumping, Witben, Universal, and Wolfson contend that his deposition shows that barrels were dumped on the property by the railroad, and that APU's assertion that the railroad reused all of their drums and did not dump any barrels is incorrect.
The court finds that there are genuine issues of disputed fact as to this theory of liability relating to the number of drums found at the site, who dumped the drums, whether any dumping of drums took place after Witben took ownership of the property, and whether any dumping of hazardous wastes took place at the Union Road Site after Witben purchased the property. As such, summary judgment can not be granted as to any party on this issue.
5. Sereth Properties, Inc. and Wolsher, Inc.
In its First Cross-Claim, APU asserted a cause of action under CERCLA against Wolfson, Witben, Universal Marion, Sereth, and Wolsher as owners or operators of the Union Road Site at the time of the disposal of any hazardous substance. In its Second Cross-Claim, APU asserted a cause of action under CERCLA against Wolfson, Witben, Universal Marion, Sereth, and Wolsher as past or current owners or operators of the Union Road Site. However, in its Notice of Motion for Partial Summary Judgment, APU moved for summary judgment against Wolfson, Witben, and Universal Marion only. Further, at oral argument, and in its "Outline of APU Theories of Liability," APU represented that it was advancing no theories of liability against Sereth or Wolsher.
Accordingly, as APU is not opposing Defendant Sereth's and Wolsher's motion for summary judgment, summary judgment will be granted in favor of Sereth and Wolsher against APU on APU's First and Second Cross-Claims.
6. Contribution Claims
In their motion for summary judgment, Defendants Witben, Sereth, Wolsher, Universal Marion, and Wolfson argued for dismissal of APU's CERCLA contribution claim on the ground that APU's predecessor was solely responsible for the contamination of the Union Road Site. Additionally, these Defendants moved for dismissal of APU's state contribution claim on the ground that, as APU had voluntarily agreed to pay for the cleanup, it had no viable claim for contribution, and that APU had failed to demonstrate that its payments for the cleanup were in excess of its proportionate share of liability.
APU has asserted a cost recovery action under § 107 of CERCLA, 42 U.S.C. § 9607(a)(4)(B), for recovery of response costs, and a contribution action under § 113(f) of CERCLA, 42 U.S.C. § 9613(f). Defendants contend that, as APU is a potential responsible party ("PRP") itself, it cannot bring a cause of action under § 107, but may only bring an action under § 113(f) for contribution.
Section 107(a)(4) provides, in relevant part, that:
any person who accepts or accepted any hazardous substances . . . from which there is a release, or a threatened release which causes the incurrence of response costs, . . . shall be liable for -
(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan.
42 U.S.C. § 9607(a)(4) (emphasis added).
In Companies for Fair Allocation v. Axil Corp., 853 F. Supp. 575 (D.Conn. 1994), one of only two district courts within the Second Circuit to consider this issue, the court stated that "the § 107 liability, with its use of the term any other person' and its limited defenses to liability, implies that Congress intended the liability provision to sweep broadly." Cos. for Fair Allocation, supra, at 579. The court noted that, "while CERCLA is silent as to whether any other person' includes other PRPs, a number of courts have found that allowing PRPs to pursue § 107 actions is consistent with the broad scope of liability that Congress intended." Cos. for Fair Allocation, supra, at 579 (citing cases all holding that PRPs may pursue cost recovery under § 107). See also Barton Solvents v. Southwest Petro-Chem, Inc., 1993 WL 382047 (D.Kan. 1993) (court allowed a PRP which had obligated itself through a consent order to incur response costs, without establishing liability, to bring an action against non-settling defendants under both § 107 and § 113, stating that "the weight of authority establishes that liability under CERCLA is joint and several. . . such liability extends to actions for cost recovery brought by private parties under CERCLA section 107, even actions by private parties who are potentially responsible parties.
In Town of Wallkill v. Tesa Tape, Inc., 891 F. Supp. 955 (S.D.N.Y. 1995), the other district court within the Second Circuit to consider the issue held that the town, a PRP under CERCLA was entitled to maintain a claim for both joint and several liability and for contribution against under PRPs. Town of Wa l lkill, supra, at 960. The court noted the holding in Key Tronic Corp. v. United States, 128 L. Ed. 2d 797, 114 S. Ct. 1960 (1994), where the Supreme Court held that:
"[CERCLA] now expressly authorizes a cause of action for contribution in Section 113 and impliedly authorizes a similar and somewhat overlapping remedy in Section 107.