The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action pursuant to, inter alia, the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq., the New York Environmental Conservation Law ("ECL"), and New York Navigation Law. Now before the Court is defendant The Hartford Insurance Co.'s ("Hartford") motion [#195] for summary judgment on all claims being asserted against it in this action, including a declaration that it has no duty to defend or indemnify plaintiff. The application is granted.
The underlying facts of this case were fully set forth in a previous Decision and Order [#165] of the Court. For purposes of the subject motion, it is sufficient to note the following facts, which, unless otherwise indicated, are viewed in the light most favorable to plaintiff. This action involves environmental contamination of a parcel of land, owned by Plaintiff, known as 640 Trolley Drive ("640 Trolley Drive," "the property," or "the site") in the Town of Gates, County of Monroe and State of New York. Prior to 1960, the property was vacant land. In or about 1960, a 12,300 square-foot masonry structure was constructed on 640 Trolley Drive, and since that time the various owners of the premises, including Plaintiff, have leased out the premises for industrial purposes. Defendant Clark Witbeck, Inc. ("Clark Witbeck") leased the property from the early 1960s until 1992. Clark Witbeck's business involved distributing industrial tools and supplies, including abrasives, fasteners, cutting tools, and, most importantly for purposes of this action, liquid "cutting fluids" or "cooling fluids," containing polychlorinated biphenyls ("PCBs") and petroleum distillates.
On or about October 27, 2000, long after Clark Witbeck had vacated the premises, a subsequent tenant was clearing brush behind the building when it discovered a dry well, which contained a black, oily substance. Subsequent testing indicated that the material in the dry well contained PCBs, 1,1,1-trichloroethane ("TCA"), and other volatile organic compounds ("VOCs"), semi-volatile organic compounds ("SVOCs"), acetone, and petroleum (including xylene and other petroleum constituents.).
Upon being notified of the contamination, the New York Department of Environmental Conservation ("NYDEC") listed the property on the state's Registry of Inactive Hazardous Waste Disposal Sites, and arranged for the dry well to be removed in January 2002. The NYDEC also demanded that Plaintiff pay for the investigation and remediation of the contamination at the property. More specifically, by letter dated August 28, 2001, the NYDEC informed Plaintiff of its intention to investigate and possibly seek costs to clean up the site. For purposes of the instant motion, the parties agree that the NYDEC's letter is the "underlying complaint," against which Plaintiff seeks to have the defendant insurance companies provide a defense. The NYDEC letter stated, in relevant part:
As mandated by Section 27-1305 of the Environmental Conservation Law (ECL) . . . [the NYDEC] must investigate all inactive disposal sites suspected or known to contain hazardous wastes. We have information which leads us to suspect that hazardous waste has been disposed of at the following location: 640 Trolley Boulevard
This letter constitutes notification of the [NYDEC's] intention to investigate the validity of this suspicion. Should this study confirm that hazardous waste disposal has occurred, this site will be entered into the New York State Registry of Inactive Hazardous Waste Disposal Sites.
If the investigation reveals that hazardous waste disposal at a site poses a significant threat to the environment of public health, the Environmental Conservation Law provides the authority for the [NYDEC] to recover the costs for the investigation from the owners or others deemed to be responsible for the site.
As to this letter, the Court notes that the ECL defines "disposal" to mean, the abandonment, discharge, deposit, injection, dumping, spilling, leaking or placing of any substance so that such substance or any related constituent thereof may enter the environment. Disposal also means the thermal destruction of waste or hazardous waste and the burning of such wastes as fuel for the purpose of recovering useable energy.
NY ECL § 27-1301 (McKinney 2006). The NYDEC subsequently arranged for the removal of the dry well in January 2002. Moreover, the NYDEC plans to conduct further investigation of the property, and, if necessary, further remedial work, and has ...