The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
Plaintiff W.R. Grace & Co.-Conn. ("Grace") is the current owner
of a parcel of property on Brewer Road in Waterloo, New York
("Brewer Road Site" or "Site") where hazardous waste was
deposited some fifty years ago. Grace commenced this action on
December 30, 1998, pursuant to section 113 of the Comprehensive
Environmental Response, Compensation and Liability Act
("CERCLA"), 42 U.S.C. § 9613(f), the Declaratory Judgment Act,
28 U.S.C. § 2201, and New York law, seeking contribution from
Defendant Zotos International, Inc. ("Zotos") for costs incurred
in connection with Grace's investigation and remediation of
contamination at the Site.
A non-jury trial on the issue of liability was held before this
Court on May 17, 19, 20, 21, 24, 25 and 26, 2004. The parties
introduced almost four hundred exhibits and each offered lay and
expert witness testimony. Following the trial, each party
submitted a post-hearing brief, a responding brief, and a brief
on the evidentiary issues raised at trial. Each party also
prepared proposed findings of fact and conclusions of law for the
Court's consideration. On December 15, 2004, Zotos filed a Notice of Recent Decision
of the United States Supreme Court in Cooper Industries, Inc. v.
Aviall Services, Inc., ___ U.S. ___, 125 S. Ct. 577,
160 L. Ed. 2d 548 (Dec. 13, 2004), and requested that the parties be given
the opportunity to brief the significance of Cooper to the
liability issues in this case. Grace joined in Defendant's
request by filing a Motion for Supplemental Briefing on Liability
Issues. The requests were granted and each party has submitted a
supplemental brief and reply brief.
Rule 52 of the Federal Rules of Civil Procedure provides, in
pertinent part, that "in all actions tried upon the facts without
a jury . . . the court shall find the facts specially and state
separately its conclusions of law thereon." FED. R. CIV. P.
52(a). Because the parties' post-trial briefing raises
fundamental questions of law regarding Grace's ability to
maintain a claim against Zotos, the outcome of which may be
determinative here, this Court will first address those
Grace acquired the Brewer Road Site on or about December 28,
1978, when it purchased the assets of Evans Chemetics, Inc.
("ECI"), a chemical manufacturer. (Docket No. 108, p. 3;*fn1
No. 136, ¶¶ 20-21; J. Ex. 163).*fn2 ECI had used the Brewer
Road Site as a dumping ground for waste from a manufacturing
facility in Waterloo, New York (the "Waterloo Plant") during the
period 1950 through 1959 (the "Disposal Period"). (Docket No. 108, p. 2; No. 136, ¶¶ 13, 19; J. Exs. 122; 123; 124, p. 4;
152, p. 4).
During the Disposal Period, ECI manufactured a variety of
organic compounds at the Waterloo Plant, some of which were used
in the formulation of hair care products. (J. Ex. 152, p. 4; P.
Ex. 383, p. 1). ECI also formulated and packaged hair care
products for sale to Zotos, as well as to other distributors and
customers. (Docket No. 136, ¶ 33; P. Ex. 385, p. 3).
In 1983, the New York State Department of Environmental
Conservation ("DEC") retained an environmental consultant to
conduct a Phase I preliminary investigation of the Site. (Docket
No. 136, ¶¶ 51-52; P. Ex. 383). Among the materials observed at
the Site were bottles and plastic tubes for hair care products,
some of which bore Zotos' product labels. (P. Ex. 383, p. 7; P.
Ex. 385, pp. 1-2; see also, Williams Dep. at 70:9-71:2; Tr. at
In 1984, Grace entered into an Administrative Order on Consent
with the DEC for a Phase II investigation at the Site (the "1984
Consent Order"). (Tr. at 76-77; P. Ex. 386, p. 2). On or about
September 28, 1988, Grace entered into another Order on Consent
with the DEC, pursuant to which Grace was to develop and
implement a remedial investigation, feasibility study, and, if
necessary, a remedial program for the Site (the "1988 Consent
Order"). (Docket No. 108, p. 3; No. 136, ¶ 53; P. Ex. 384). In
1993, Grace constructed the remedy set forth by the DEC. (Tr. at
84-87). According to Grace, through April 2004, it expended
approximately 1.7 million dollars on investigation and
remediation activities at the Site. (Tr. at 86-87).
In its Amended Complaint in this action, filed in November
2000, Grace seeks contribution from Zotos, pursuant to
42 U.S.C. § 9613(f),*fn3 on the ground that Zotos arranged to have
various hazardous substances that it owned or possessed disposed
of at the Brewer Road Site, and is therefore a responsible party
liable under CERCLA. (Docket No. 38, ¶ 28). Alternatively, Grace
seeks contribution pursuant to N.Y.C.P.L.R. § 1401 and state
common law. (Id., ¶¶ 35-36).
III. DISCUSSION AND ANALYSIS
A. Grace's Contribution Claim under CERCLA section 113(f)(1)
CERCLA section 113(f)(1) provides, in relevant part, that:
Any person may seek contribution from any other
person who is liable or potentially liable under
section 9607(a) of this title, during or following
any civil action under section 9606 of this title or
under section 9607(a) of this title.
42 U.S.C. § 9613(f)(1) [emphasis supplied].*fn4
In Cooper Industries, Inc. v. Aviall Services, Inc.,
___ U.S. ___, 125 S. Ct. 577, 160 L. Ed. 2d 548 (Dec. 13, 2004), the
Supreme Court held that a private party who has not itself been
sued under CERCLA section 106 (an abatement action) or section
107(a) (a cost recovery action) may not obtain contribution from
other liable parties under section 113(f)(1). Id., pp. 583-586.
The Amended Complaint does not allege, nor has Grace ever
argued, that it was subject to either of the civil actions
specified in section 113(f)(1). Thus, Cooper is dispositive on
the issue of section 113(f)(1) liability here, and Grace does not
argue otherwise. As Zotos correctly contends, section 113(f)(1) does
not authorize Grace's suit against it.
B. Grace's Purported Contribution Claim under CERCLA section
The Supreme Court noted in Cooper that CERCLA section 113
provides two distinct avenues by which a plaintiff may seek
contribution, the first being section 113(f)(1). The second
avenue, section 113(f)(3)(B), provides that: "[a] person who has
resolved its liability to the United States or a State for some
or all of a response action or for some or all of the costs of
such action in an administrative or judicially approved
settlement may seek contribution from any person who is not party
to a settlement referred to in [CERCLA 113(f)(2)]."*fn5
Section 113(f)(2) states, in relevant part, that: "[a] person who
has resolved its liability to the United States or a State in an
administrative or judicially approved settlement shall not be
liable for claims for contribution regarding matters addressed in
the settlement." In other words, a party that has settled its
liability under CERCLA may bring a CERCLA contribution action
against a non-settling party and is also protected from any
contribution claims made by others relative to the site that is
the subject of the settlement.
In its supplemental brief, Grace asserts that its right to seek
contribution from Zotos is not adversely affected by the decision
in Cooper regarding section 113(f)(1). Specifically, Grace
urges that "in the instant case, Grace seeks contribution
pursuant to CERCLA § 113(f)(3)(B) because Grace has resolved its
liability to the State of New York in two administratively
approved settlements for response costs and the response actions at the Brewer Road landfill." (Docket No. 200, p. 3).
At no time prior to this most recent round of post-trial
briefing has Grace sought to premise recovery on section
113(f)(3)(B).*fn6 However, the Second Circuit has held that
the failure "to cite a statute, or to cite the correct one, in no
way affects the merits of the claim." Albert v. Carovano,
851 F.2d 561, 571 n. 3 (2d Cir. 1988) (motion to dismiss); see
also, Newman v. Silver, 713 F.2d 14, 16 n. 1(2d Cir. 1983)
(federal pleading is by statement of claim, not by legal
theories) (citing Gins v. Mauser Plumbing Supply Co.,
148 F.2d 974, 976 (2d Cir. 1945) ("particular legal theories of
counsel yield to the court's duty to grant the relief to which
the prevailing party is entitled [after trial], whether demanded
or not")). Thus, irregardless ...