The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM — DECISION & ORDER
The United States of America and the State of New York
(collectively, the "government") initiated this action on July
10, 1987, against 83 business entities to recover response costs
pursuant to section 107 of the Comprehensive Environmental
Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. § 9607 (as amended), in connection with the clean-up costs of a
hazardous waste site formerly owned by Pollution Abatement
Services of Oswego, Inc. ("PAS"). Shortly after commencement, the
government entered into a consent decree with 82 of these
defendants, recovering $9.1 million. The suit proceeded against
the lone holdout, Alcan Aluminum Corporation ("Alcan"), for the
remaining $3.2 million of unrecovered costs. Alcan thereafter
filed a third-party complaint seeking contribution from Cornell
Following discovery, the Court granted summary judgment in
favor of the government, holding Alcan jointly and severally
liable for cleanup costs at PAS. The Court further held that
Alcan had failed to meet its burden to establish that the harm at
PAS was divisible, and awarded the government approximately $4
million in accumulated response costs. The Court also granted
Alcan's motion for summary judgment seeking contribution from
Cornell. The Court then held a hearing to determine the fair
share of Cornell's liability to Alcan. Adopting the six-factor
fair share allocation test set forth in United States v. R.W.
Meyer, Inc., 932 F.2d 568 (6th Cir. 1991), the Court ruled that
Cornell was responsible for six percent of the response cost
recovered by the government from Alcan and therefore awarded
Alcan $310,540.92. An amended final judgment was entered on May
On appeal, the Second Circuit affirmed the granting of summary
judgment with respect to the imposition of liability against
Alcan for response costs at PAS, and the finding that Alcan was
entitled to contribution from Cornell at PAS. But it reversed the
Court's finding that the government was entitled to summary
judgment against Alcan on the question of the divisibility of the
harm, holding that Alcan had put forth sufficient evidence to
establish a factual issue whether the harm caused at the PAS was
capable of apportionment of liability. United States v. Alcan
Aluminum Corp., 990 F.2d 711 (2d Cir. 1993) ("Alcan").
On remand, the government moved for summary judgment against
Alcan on the issues of (1) liability in the so-called
Alcan-Fulton case (91-CV-1132), and (2) apportionment of
liability with regards to the Alcan-PAS case (87-CV-920).*fn1
Alcan opposed the government's motion for summary judgment, and
cross-moved for summary judgment on the same issues.
In a Memorandum — Decision & Order dated October 28, 1996, this
Court granted the government's motion for summary judgment with
respect to liability in Alcan-Fulton, but reserved decision on
the issue of apportionment of liability pending a rebriefing by
the parties. United States v. Alcan Aluminum Corp., 1996 WL
637559, at *2-*4 (N.D.N.Y. Oct.28, 1996).
After rebriefing, the Court denied the cross-motions for summary
judgment, finding that apportionment of liability could not be
made because questions of material fact remained as to what
hazardous substances were contained in Alcan's oil emulsion and
whether the metals could have concentrated. United States v.
Alcan Aluminum Corp., 1997 WL 727506 (N.D.N.Y. Aug.20, 1997).
Alcan now moves to dismiss the Complaint pursuant to
FED.R.CIV.P. 12(b)(6), asserting that the retroactive application
of CERCLA is unconstitutional in light of the Supreme Court's
decision in Eastern Enterprises v. Kenneth S. Apfel,
524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998).
From 1970 to 1977, various chemical waste materials were
received for disposal or treatment at PAS. As a result of PAS
operations, the site's surface became contaminated by hazardous
substances because of wastes leaching from drums, lagoons being
overtopped and surface runoff. During the 1970 through 1977
period, Alcan used PAS for the disposal or treatment of 4.6
million gallons of oil emulsion.
In the late 1970s, the government began undertaking response
measures at PAS. In 1989, the United States also undertook
response measures at Fulton. This lawsuit followed to recover the
response costs incurred in connection with the clean-up of both
Presently before the Court is Alcan's motion to dismiss
pursuant to FED. R.CIV.P. 12(b)(6). When deciding a motion to
dismiss, a court must accept as true all factual allegations in
the complaint and construe them favorably to plaintiff. LaBounty
v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Cosmas v. Hassett,
886 F.2d 8, 11 (2d Cir. 1989). The court should not dismiss on a
Rule 12(b)(6) motion unless it appears clear that the plaintiff
cannot in any way establish a set of facts to sustain her claim
which would ...