to the drum return."); United States v. Iron Mountain Mines, Inc., 881 F. Supp. 1432, 1451 (E.D.Cal. 1995) ("No court has imposed arranger liability on a party who never owned or possessed, and never had any authority to control or duty to dispose of, the hazardous materials at issue.").
For example, in General Electric Co. v. Aamco Transmissions, Inc., 962 F.2d 281 (2d Cir. 1992), oil companies that had no obligation to exercise control over the manner in which their dealers disposed of waste motor oil were not liable as arrangers under CERCLA. The Court held that "although arranger liability can attach to parties that do not have active involvement regarding the timing, manner or location of disposal, there must be some nexus between the potentially responsible party and the disposal of the hazardous substance." General Electric, 962 F.2d at 286 (internal quotation and citation omitted). The Court noted that almost all courts holding defendants liable as arrangers have found that the defendant had some actual involvement in the decision to dispose of waste, and that the few courts that held an entity responsible as an arranger in the absence of actual involvement have found that nexus between the potentially liable party and the disposal of hazardous substances to be some obligation to arrange for or direct their disposal. See General Electric, 962 F.2d at 286.
In addition, Amcast Industrial Corp. v. Detrex Corp., 2 F.3d 746, 751 (7th Cir. 1993), cert. denied, 510 U.S. 1044, 126 L. Ed. 2d 658, 114 S. Ct. 691 (1994), distinguished between the spilling of hazardous substances that occurs en route to disposal and the spilling of hazardous substances that occurs en route to delivery. A person who hires a transport company to carry hazardous substances to a disposal site would be liable as a "arranger" for a spill that occurred en route because "disposal" includes accidental spillage, but a person who hired a transport company to deliver a hazardous substance to another entity for use would not be liable as a "arranger" for a spill that occurred en route because that person did not "arrange for" the accidental disposal; rather, he arranged for delivery. Amcast, 2 F.3d at 751.
Here, there is no evidence that the Authority had any obligation to exercise control over the disposal of hazardous substances emanating from vehicles travelling along the Thruway, or that it had active involvement in disposing of any hazardous substances. In fact, the third-party plaintiffs have not opposed this argument. Accordingly, the Authority is not a responsible party under § 107(a)(3).
Because this Court concludes that the Authority did not "arrange for" the disposal of hazardous waste, it need not reach the issues of whether CERCLA's "tailpipe emission exemption" and "petroleum exclusion" preclude a finding of liability.
4. Whether the Authority is liable as an owner of a facility under § 107(a)(1)
Finally, third-party plaintiffs have not submitted any evidence tending to show that the Authority is liable as an owner or operator of a facility. CERCLA defines "facility" as " . . . any landfill . . ., or any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located . . ." 42 U.S.C. § 9601(9). As discussed above, there is no evidence that hazardous substances were deposited, stored, disposed of, placed, or otherwise located on the Authority's property.
In conclusion, the Authority's motion for summary judgment is granted.
Dated: White Plains, N.Y.
July 15, 1996
Barrington D. Parker, Jr.