The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM-DECISION AND ORDER
Plaintiff, Niagara Mohawk Power Corporation ("Niagara Mohawk"),
commenced the instant action asserting causes of action under the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended, 42 U.S.C. § 9601-9675 ("CERCLA"), N.Y.
Navigation Law §§ 176(8) & 181(1), as well as common law claims
for joint tortfeasor liability, indemnification, unjust
enrichment, and public nuisance. Niagara Mohawk seeks recovery of
costs it has incurred and will incur in the future with respect
to its investigation and cleanup of a contaminated site in and
around Troy, New York ("Site"). Niagara Mohawk also seeks
judgment as to each defendant's liability for future costs.
Defendant Consolidated Rail Corporation ("Conrail") has moved to
dismiss for lack of subject matter jurisdiction, pursuant to
Fed.R.Civ.P. 12(b)(1). Defendant United States Steel Corporation
(now known as and hereinafter referred to as "USX") has moved for
summary judgment, pursuant to Fed. R.Civ.P. 56. Oral argument was
heard on January 14, 2000 in Utica, New York.*fn1 Decision was
In the 1970s, several major railroads in the Northeast and
Midwest became insolvent and filed for bankruptcy. In response to
this perceived crisis, Congress enacted the Regional Rail
Reorganization Act of 1973 ("Rail Act"), 45 U.S.C. § 701-797m,
the primary purpose of which was "the reorganization of railroads
in [the] region into an economically viable system capable of
providing adequate and efficient rail service." § 701(b)(2).
Conrail was specifically created pursuant to the Rail Act to take
title to and operate certain rail properties. § 701(b)(4).
Property related to the Site was transferred to Conrail effective
April 1, 1976 pursuant to a court order.*fn2
The Rail Act created a special court ("Rail Act Court") which
has original and exclusive jurisdiction over "any action . . . to
interpret, alter, amend, modify, or implement any of the orders
entered by such court . . . in order to effect the purposes of
[the Rail Act] or the goals of the final system plan." §
719(e)(2). Congress abolished the Rail Act Court effective
January 17, 1997; however, jurisdiction of the Rail Act Court was
transferred to the United States District Court for the District
of Columbia. § 719(b)(2).
A predecessor of Niagara Mohawk owned and operated the Site and
engaged in the business of manufacturing gas, a byproduct of
which is coal tar. In December 1992, Niagara Mohawk signed an
Order on Consent with the New York State Department of
Environmental Conservation, whereby Niagara Mohawk was required
to investigate the nature and extent of coal tar contamination at
the Site and develop and implement remedial action. The Site is
comprised of three adjoining parcels on the east shore of the
Hudson River (Areas 2, 3, and 4), and one parcel on the west
shore (Area 1).
Niagara Mohawk seeks recovery under CERCLA from Conrail based
upon its alleged current ownership of contaminated property
within Areas 2, 3, and 4. See 42 U.S.C. § 9607(a)(1). Niagara
Mohawk asserts that USX is liable (1) under CERCLA § 9607(a)(2)
as an owner and operator of a facility where there has been
disposal of contaminants; and (2) under § 9607(a)(3) as a
generator of hazardous waste at the Site.
A. Conrail's Motion to Dismiss
1. Motion to Dismiss Standard
A cause of action shall not be dismissed for failure to state a
claim under Fed. R.Civ.P. 12(b)(6), "unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In
considering a motion brought pursuant to Fed.R.Civ.P. 12(b), the
court must assume all of the allegations in the complaint are
true. Id. In reviewing the sufficiency of a complaint at the
pleading stage, "[t]he issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims." Scheuer v. Rhodes,
416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974).
Where a motion to dismiss is made prior to any discovery or the
filing of an answer, the court is loath to dismiss the complaint,
regardless of whether the plaintiff is unlikely to prevail,
unless the defendant can demonstrate that plaintiff is unable to
prove facts which would entitle him to relief. Wade v. Johnson
Controls, Inc., 693 F.2d 19, 22 (2d Cir. 1982); see also
Egelston v. State Univ. College, 535 F.2d 752, 754 (2d Cir.
1976). "This caution against dismissal applies with even greater
force where the complaint is pro se, or where the plaintiff
complains of a civil rights ...