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TOWN OF NEW WINDSOR v. TESA TUCK

July 15, 1996

THE TOWN OF NEW WINDSOR and THE STATE OF NEW YORK, Plaintiffs, against TESA TUCK, INC., LIGHTRON CORPORATION, INC., EUGENE LITTMAN, HARRY BASCH, MEARL CORPORATION, and KOLLMORGEN INSTRUMENTS CORPORATION, Defendants. TESA TUCK, INC. and LIGHTRON CORPORATION, INC., Third-Party Plaintiffs, -against- THE UNITED STATES OF AMERICA, JAMES S. PATSALOS, JAMES S. O'NEILL, CHARLES T. KAVANAGH, CORNELL GROUP SERVICE CORP., THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION, CITY OF NEWBURGH, and THE NEW YORK STATE THRUWAY AUTHORITY, Third-Party Defendants.


The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, JR., U.S.D.J.

 FACTS

 The Authority now moves for summary judgment on the grounds that third-party plaintiffs cannot establish that it is a "responsible party" under (1) § 107(a)(2), because there is no evidence that hazardous substances encroached upon the Authority's property, and even if there were hazardous substances, the Authority exercised "due care" with respect to them; (2) § 107(a)(3), because there is no evidence that the Authority "arranged" to have "hazardous substances" disposed of at the landfill, and even if it did, CERCLA's "tailpipe emission exemption" and "petroleum exclusion" preclude a finding of liability; and (3) § 107(a)(1), because the Authority's property is not a facility.

 DISCUSSION

 1. Legal Standard

 Rule 56 of the Federal Rules of Civil Procedure authorizes summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court's responsibility is to perform "the threshold inquiry of determining whether there is the need for a trial -- whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." McNeil v. Aguilos, 831 F. Supp. 1079, 1082 (S.D.N.Y. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1985)); Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990). In determining whether a genuine issue of material fact exists, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See McNeil, 831 F. Supp. at 1082 (citing United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962) (per curiam) (other citations omitted)). See also Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991) (citations omitted).

 Liability under CERCLA is imposed where a plaintiff establishes the following five elements: (1) the defendant falls within one of the four categories of "responsible parties" enumerated in § 107(a); (2) the site of the clean-up is a facility under § 101(9); (3) there is a release or threatened release of hazardous substances at the facility; (4) as a result of which plaintiff has incurred response costs; and (5) the costs incurred conform to the national contingency plan ("NCP") under § 107(a)(4) as administered by the EPA. See U.S. v. Alcan Aluminum Corp., 990 F.2d 711, 719-720 (2d Cir. 1993) (citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992)).

 Under § 107(a), a "responsible party" includes:

 
(1) the owner . . . of a facility,
 
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
 
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment . . . of hazardous substances owned or possessed by such person, by any other party or entity, at any facility . . . owned or operated by another ...

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