The opinion of the court was delivered by: John T. Curtin United States District Judge
In this consolidated action,*fn1 defendant E.I. du Pont de Nemours & Company ("DuPont") moves pursuant to Rule 56 of the Federal Rule of Civil Procedure for partial summary judgment seeking (1) dismissal of the claims for contribution brought by third-party plaintiffs Solvent Chemical Company, Inc. ("Solvent") and ICC Industries Inc. ("ICC") (referred to collectively herein as "Solvent') under section 113(f) of the Comprehensive Environmental Response and Compensation Act ("CERCLA"), 42 U.S.C. § 9613(f), and (2) dismissal of Solvent's claim for injunctive relief brought under the Resource Conservation & Recovery Act ("RCRA"), 42 U.S.C. § 6901, et seq. (No. 01-CV-425C, Item 92).*fn2
For the reasons that follow, DuPont's summary judgment motion is denied to the extent it seeks dismissal of Solvent's CERCLA contribution claim, and granted to the extent it seeks dismissal of Solvent's RCRA claim.
The factual background of this action has been set forth at length in several prior decisions and orders, including orders denying two previous summary judgment motions by DuPont, and will be discussed here only as necessary to the resolution of the matters raised in the current motions.
This litigation has been pending on the court's docket since December 1983, when the State of New York sued Solvent and others to recover costs incurred in connection with the remediation of environmental contamination at property located at and adjacent to 3163 Buffalo Avenue, Niagara Falls, New York (the "Site"). The original complaint contained causes of action under CERCLA § 107(a), the New York Environmental Conservation Law ("ECL"), the New York Real Property Actions and Proceedings Law ("RPAPL"), and the common law of public nuisance, seeking judgment requiring the defendants to:
(a) take all necessary measures to abate, reduce, and remediate the effects of the pollution and resulting public nuisance, and otherwise clean up the pollution;
(b) reimburse the State of New York for its costs in responding to such pollution;
(c) compensate the State for damages to the natural resources of the State of New York pursuant to CERCLA, the RPAPL, and the common law of nuisance; and
(d) pay penalties pursuant to the ECL. (Item 1, ¶ 3).
Beginning in June 1986, Solvent commenced a series of third-party actions against more than 80 companies and individuals--including DuPont--for contribution based upon the third-party defendants' alleged release or disposal of hazardous substances at the Site (see Items 43 and 44).*fn3 Following several years of site investigation and evaluation of remedial alternatives, the New York State Department of Environmental Conservation ("DEC") issued a Record of Decision ("ROD") in December 1996 outlining a detailed plan for the remedial action to be taken at the Site. In April 1997, the State entered into separate Consent Decrees with Solvent and DuPont, among others, settling all of the State's claims against these parties for past and future response costs in return for the settling parties' agreements to pay a portion of the costs, undertake performance of some of the remedial work, or both. This court approved the Consent Decrees in October 1997 (see Items 652, 655, and 657).*fn4
In June 2001, Solvent commenced a new lawsuit against DuPont (referred to by the parties as "Action II") for contribution pursuant to CERCLA § 113(f)(1) and the common law, seeking equitable allocation of response costs allegedly incurred as a result of the migration of hazardous substances*fn5 from the DuPont facility adjacent to the 3163 Buffalo Avenue Site. Solvent also asserted a claim under RCRA for injunctive relief "[o]rdering DuPont to take such action as is necessary to abate the imminent and substantial endangerment which it caused or to which it has contributed . . ." (Amended Complaint, No. 01-CV-425C, Item 42, p. 7). As mentioned above, Action II was recently consolidated with this action for all purposes throughout trial and appeal.
Prior to consolidation, DuPont filed two successive motions for summary judgment in No. 01-CV-425C seeking dismissal of Solvent's CERCLA contribution claim. Upon full consideration after oral argument, the court denied each of these motions, essentially finding that DuPont had failed to meet its burden of demonstrating the absence of a genuine issue of material fact with respect to its liability under CERCLA for contribution based on an equitable share of the remediation costs at the Site attributable to the migration of hazardous substances from the DuPont facility, and that neither the CERCLA statute nor the Consent Decree offered DuPont full protection from the contribution liability asserted by Solvent. See Solvent Chemical Co. v. E.I. DuPont De Nemours & Co., 2005 WL 1523570 (W.D.N.Y. June 28, 2005) (No. 01-CV-425C, Item 91); Solvent Chemical Co. v. E.I. DuPont De Nemours & Co., 242 F. Supp. 2d 196 (W.D.N.Y. December 24, 2002) (No. 01-CV-425C, Item 41). The court noted in its June 28, 2005 decision and order that the matters raised and argued by DuPont in the second motion were identical to the matters decided against it in the first. See Solvent, 2005 WL 1523570, at *7, *8. The court also acknowledged--but rejected--DuPont's attempt to supplement the record with respect to the issues addressed in the Supreme Court's December 2004 decision in Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157 (2004), as applied by the Hon. William M. Skretny in W.R. Grace & Co.--Conn. v. Zotos International, Inc., 2005 WL 1076117 (W.D.N.Y. May 3, 2005), upon reviewing those cases and finding their holdings of no application here. Solvent, 2005 WL 1523570, at *10 n. 9.
DuPont now argues that the court should revisit the issue as to the application of Cooper Industries and its progeny, including Zotos International and the Second Circuit's September 9, 2005 decision in Consolidated Edison Company of New York, Inc. v. UGI Utilities, Inc., 423 F.3d 90 (2d Cir. 2005). According to DuPont, these cases have changed the law pertaining to CERCLA contribution claims by making it clear that a right of contribution in favor of a private party arises under the statute only when that party has been sued under CERCLA, or when that party has resolved its CERCLA liability (rather than some broader category of legal claims) by, for example, entering a Consent Decree with the State. DuPont contends that because of this change in the law, Solvent's contribution claim against DuPont to recover its costs to perform the remedy for the Site must be dismissed because those costs are solely the result of the resolution of Solvent's liability to the State under the New York Environmental Conservation Law and the common law of public nuisance, not the resolution of any CERCLA liability to the State.
DuPont also seeks dismissal of Solvent's RCRA claim because the remedy selected in the ROD has been implemented to fully address the environmental conditions at the Site, and Solvent has not identified any further remedial actions ...