any permit issued under RCRA after November 1984 to address
corrective action for releases from solid waste management units
at a facility. Item 12, p. 3.
In 1995, the DEC announced the results of the RFA study.
Essentially, the agency concluded that releases of hazardous
substances had occurred and may continue to occur at the Dye
Plant from several areas, including the impoundments mentioned
above, as well as closed and active sewer lines. Consequently,
the DEC issued Buffalo Color a final post-closure permit
pursuant to 6 N.Y.C.R.R., Part 373 ("Part 373 permit"). The
permit required Buffalo Color to remediate releases from both
the closed and active sewer lines and the contamination arising
from a number of potential sources, including the impoundments.
In fact, due to the density of the sewer lines and the numerous
areas of chemical handling located on the property, the entire
active area of the Dye Plant (including Areas A, B, C, and E)
was subject to the permit's corrective action requirements.
Buffalo Color has already conducted an RCRA Facility
Investigation ("RFI") to determine the nature and extent of the
releases and potential releases of hazardous wastes and/or
constituents from Areas A, B, C, and E. The RFI Final Report was
issued in December, 1998. Item 18, Tab 5. Buffalo Color is
currently preparing a Corrective Measure Study ("CMS") to
determine potential approaches for remediation of the identified
releases. The DEC will review the CMS and select the most
appropriate remediation plan. So far, Buffalo Color asserts that
it has incurred costs totaling $337,870 in performing the RFI
and formulating the CMS. Initial estimates regarding the
alternative corrective actions considered in the CMS range from
$9.5 to $11.2 million.
AlliedSignal concedes that one or more of its admitted
predecessors owned and operated the Dye Plant from December 18,
1899 to June 30, 1977, and has stipulated that it will assume
any CERCLA liability attributable to the Dye Plant during that
time period. Item 18, Tab 3, pp. 2-3. However, AlliedSignal
steadfastly denies that any such liability exists, claiming that
there was no disposal of hazardous substances during that time
period or, in the alternative, that the Purchase Agreement
relieved it of any such liability. Because of AlliedSignal's
denial, Buffalo Color commenced this action, asserting three
causes of action. The first and second causes of action seek to
hold AlliedSignal liable under Sections 107(a)(2) and 113(f)(1)
of CERCLA. The third cause of action sets forth a claim against
AlliedSignal for indemnity under Section 3(b) of the Purchase
On September 9, 1999, Buffalo Color filed a motion for partial
summary judgment on its second and third causes of action, and
also on AlliedSignal's first through eleventh and thirteenth
through nineteenth affirmative defenses. Item 11. In response,
AlliedSignal cross-moved for summary judgment dismissing Buffalo
Color's complaint in its entirety on the ground that the
Purchase Agreement relieves it from any liability. Item 19. In
the alternative, AlliedSignal moved for partial summary judgment
dismissing Buffalo Color's claim that AlliedSignal was jointly
and severally responsible for all response costs pursuant to
CERCLA § 107.
I. Standard for Summary Judgment
Both Buffalo Color and AlliedSignal have moved for summary
judgment of the action or part of the action in their respective
favors. Summary judgment is appropriate where a review of the
record reveals that there is no genuine issue as to any
material fact and the moving party is entitled to a judgment as
a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). The moving party bears the responsibility of identifying
for the court the portions of the record which demonstrate the
absence of any material facts. Federal Deposit Ins. Corp. v.
Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (citing Celotex v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265
Once the moving party has provided sufficient evidence to
support a motion for summary judgment, the opposing party must
"set forth specific facts showing that there is a genuine issue
for trial." Endico Potatoes, Inc., v. CIT Group Factoring,
67 F.3d 1063, 1066 (2d Cir. 1995) (quoting Fed.R.Civ.P. 56(e)). The
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion
for summary judgment. Podell v. Citicorp Diners Club Inc.,
112 F.3d 98, 100 (2d Cir. 1997). The litigant opposing summary
judgment must therefore bring forward some affirmative
indication that his version of relevant events is not
"fanciful." Id. at 100.
"Entry of summary judgment indicates that no reasonable jury
could return a verdict for the losing party." Coach Leatherware
Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991).
When deciding a motion for summary judgment, courts "view the
evidence in the light most favorable to the non-moving party and
draw all reasonable inferences in its favor." American Casualty
Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994)
(quotation and citation omitted).
II. Arguments for Summary Judgment
The present motions for summary judgment ask this court to
make two determinations: first, whether, under CERCLA,
AlliedSignal is a responsible party and is therefore liable for
its equitable share of costs incurred by Buffalo Color for Dye
Plant remediation; and second, the legal effect that Section 3
and other sections of the Purchase Agreement have on the
parties' respective liabilities in this action.
A. Summary Judgment on Plaintiff's Second Cause of
There are generally two issues in CERCLA cases brought by a
company against another company: (1) whether the defendant
company is liable for contribution of remediation costs, and (2)
if liable, for what amount. Here, Buffalo Color's summary
judgment motion is limited to whether AlliedSignal is a
responsible party under CERCLA and, as such, is therefore liable
for a portion of the costs Buffalo Color has and will incur in
performing the hazardous waste clean-up at the Dye Plant. See
42 U.S.C. § 9607(a)(2), 9613(f).