The opinion of the court was delivered by: PARKER
BARRINGTON D. PARKER, JR., U.S.D.J.
This action under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), P.L. 99-499 (October 17, 1986), and state law is before this Court on the motion of third-party defendant, the City of Newburgh, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Familiarity with the facts and this Court's prior decision of March 14, 1996 is assumed. Third-party plaintiffs have asserted CERCLA § 113(f) claims for contribution against Newburgh, based upon Newburgh's disposal of hazardous substances at the New Windsor landfill. Newburgh moves for summary judgment on the ground that third-party plaintiffs have produced no evidence demonstrating that it disposed or arranged for the disposal of hazardous substances at the landfill.
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 ("Murtha I"), 958 F.2d 1192, 1198 (2d Cir. 1992)).
Under § 107(a), a "responsible party" includes:
(3) 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 operated by another party or entity and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, . . .
In order for a defendant to be within the class of covered persons under § 107(a)(3) or (4), the plaintiff must prove that defendant transported or arranged for the disposal of hazardous substances, as defined by CERCLA § 101(14),
at the facility; the plaintiff must prove that the waste transported to or disposed of at the facility contained hazardous substances. See Murtha I, 958 F.2d at 1200-1201. Third-party plaintiffs assert that Newburgh generated three hazardous substances that were disposed of at the landfill: incinerator ash, combustible refuse and debris, and tires. Newburgh argues, first, that these substances are not hazardous, and second, that there is no evidence the Newburgh disposed of these substances at the landfill. I review the evidence for each substance in turn.
Third-party plaintiffs argue that the fact that Newburgh generated incinerator ash is shown by a letter, dated August 16, 1965, from Thomas Rose, City Manager of Newburgh, to George Manuche, Supervisor of New Windsor. See Exhibit D. The letter states "I am enclosing herewith a draft of a lease for a piece of property in the Town of New Windsor that the City desires to use for disposing of non-combustible refuse and incinerator ash. . . . I would appreciate some acknowledgement by you that the Town of New Windsor would have no objection to the City using this land." The draft lease describes property owned by Rudy DiNitto located on Route 9W. The draft lease was not executed.
That incinerator ash at the landfill contained a hazardous substance is shown, third-party plaintiffs argue, by the expert report of Dr. Robert Harris. See Exhibit J. Dr. Harris states that "the contaminant group, PAHs, that have impacted soil/sediment in the leachate collection area, can be attributed to many sources at NWLF (e.g., residue from the burning/incineration of municipal refuse and highway runoff)." Dr. Harris also states "another PAH source at NWLF is the fill material. In the southern portion of NWLF, identified in the RI/FS as the area of oldest fill, 'much of the material consisted of burned municipal waste and construction debris' (RI/FS 1991, vol. 1, p. 3-12). The Federal Agency for Toxic Substances and Disease Registry states that 'PAHs are a group of chemicals that are formed during the incomplete burning of coal, oil and gas, garbage, or other organic substances' (ATSDR 1990, p. 1)." Finally, Dr. Harris states a "1987 USEPA study characterizing municipal combustor ashes from municipal solid waste landfills concluded from a literature survey and from field studies that 'polyaromatic hydrocarbons (PAHs), phthalates, cholrobenzenes and chlorophenols are the most prevalent types of compounds found in MWC [municipal waste combustion] ashes' (USEPA 1987, p. 2-19)."
That Newburgh disposed of incinerator ash at the landfill is demonstrated in part, third-party plaintiffs argue, by the RI/FS, which states that "in the southern portion of the landfill (area of oldest fill), much of the material consisted of burned municipal waste and construction debris." Exhibit I. Third-party plaintiffs assert that Exhibit D establishes that Newburgh sought to dump incinerator ash in New Windsor during the "oldest" time of the landfill (1965). Thus, third-party plaintiffs argue, Exhibits I and D together establish that the old "burned municipal waste" is Newburgh's incinerator ash. Third-party plaintiffs argue that the connection is confirmed by the minutes from the Regular Town Board and Water Meetings of December 17, 1969, August 4, 1971 and October 6, 1971. See Exhibit O. The minutes reveal that various ...