Lastly, Raymond moves to dismiss plaintiffs' remaining state law claim brought pursuant § 181(1), Article 12 of the New York State Oil Spill Prevention, Control, and Compensation Act ("Navigation Law"). A claim arises under Navigation Law § 181(1) if a party has "discharged petroleum."
In the present case, plaintiffs' Complaint alleges that Raymond discharged petroleum at the Rosen site. Further, Raymond's own expert states in his affidavit that the steel used by Raymond would have been thinly coated with oil. This evidence is enough to defeat Raymond's motion to dismiss.
C. Plaintiffs' motion for Summary Judgment
Plaintiffs move for summary judgment against Raymond on the issue of CERCLA liability at the Rosen site.
The standard for summary judgment is well-settled. A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of "informing the . . . court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56 (c)). The initial burden is to demonstrate "that there is an absence of evidence to support the nonmoving party's case." Id. at 325.
The nonmoving party may defeat the summary judgment motion by producing sufficient evidence to establish a genuine issue of material fact for trial. See id. at 322. The test for existence of a genuine dispute is whether a reasonable juror could find for the nonmoving party; that is, whether the nonmovant's case, if proved at trial, would be sufficient to survive a motion for judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
In ruling on a motion for summary judgment, a Court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Donahue v. Windsor Locks Bd. of Fire Comm'rs., 834 F.2d 54, 57 (2d Cir. 1987). The nonmoving party, however, "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Indeed, the nonmoving party's opposition may not rest on mere allegations or denials of the moving party's pleading, but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (citations and quotations omitted).
1. CERCLA Liability
Liability under CERCLA is imposed when a plaintiff establishes the following five elements: (1) the defendant falls within one of the four categories of "responsible parties" enumerated in § 107(a), 42 U.S.C. § 9607(a); (2) the site of the clean-up is a facility under § 101(9), 42 U.S.C. § 9601(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, 719-20 (2d Cir. 1993) (citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992)). "If the [plaintiffs] establish each of these elements on undisputed facts, and the defendant is unable to demonstrate by a preponderance of the evidence the existence of one of the three affirmative defenses set forth in § 9607(b), then [the plaintiffs are] entitled to summary judgment on the issue of liability, even when genuine issues of material fact remain as to appropriate damages." U.S. v. Alcan Aluminum Corp., 990 F.2d at 720 (citing Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 668 (5th Cir. 1989)).
CERCLA is a strict liability statute, and imposes liability on "any person who by contract, agreement, or otherwise arranged for disposal or treatment" of hazardous substances "from which there is a release, or a threatened release which causes the incurrence of response costs." 42 U.S.C. § 9607(a)(3) and (4). As explained by the Second Circuit, "the plain meaning of this language dictates that [a plaintiff] need only prove: (1) there was a release or threatened release, which (2) caused incurrence of response costs, and (3) that the defendant generated hazardous waste at the clean-up site. What is not required is that [a plaintiff] show that a specific defendant's waste caused incurrence of clean-up costs." Alcan, 990 F.2d at 721 (emphasis added).
As to what constitutes a hazardous substance, CERCLA defines the term "by cross-referencing several other environmental statutes.
See 42 U.S.C. § 9601(14). Significantly, the Act expressly refers to any such substance, and imposes no quantitative requirement. Alcan, 990 F.2d at 720.
The Court need not discuss each element of CERCLA liability at this time. It already has been determined by this Court that: (1) there was a release of hazardous substances at the Rosen site; (2) that the Rosen site is a "facility" within the meaning of CERCLA; (3) that the plaintiffs have incurred response costs due to the release of hazardous substances at the Rosen site; and (4) that the response costs incurred by the plaintiffs are consistent with the NCP. See August 25, 1995 Memorandum-Decision and Order of this Court. Accordingly, the Court, for the purposes of deciding the present summary judgment motion, must consider whether the record raises a material factual issue as to whether Raymond is a responsible party.
a) Responsible Party
Under CERCLA, responsible parties include
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.