US v. Hooker Chemicals & Plastics Corp.

• Decision Date: 17 July 1990
• Docket Number: No. CIV-79-990C.,CIV-79-990C.
• Citation: 739 F. Supp. 125
• Parties: UNITED STATES of America; the State of New York, and UDC-Love Canal, Inc., Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORPORATION, et al., Defendants.
• Court: U.S. District Court — Western District of New York

739 F. Supp. 125

UNITED STATES of America; the State of New York, and UDC-Love Canal, Inc., Plaintiffs, v. HOOKER CHEMICALS & PLASTICS CORPORATION, et al., Defendants.

No. CIV-79-990C.

United States District Court, W.D. New York.

June 6, 1990.

As Modified July 17, 1990.

Hurwitz & Fine, P.C. (Theodore J. Burns, of counsel), Buffalo, N.Y., for defendant County of Niagara.

Piper & Marbury (Thomas H. Truitt, and Steven K. Yablonski, of counsel), Washington, D.C., for defendant Occidental Chemical Corp.

Robert Abrams, Atty. Gen., State of N.Y. (Eugene Martin-Leff, Asst. Atty. Gen., of

counsel), New York City, for plaintiff State of N.Y.

ORDER

CURTIN, District Judge.

BACKGROUND

The Niagara County Health Department ("NCHD") was originally named as a defendant by plaintiff United States of America ("United States"). According to the original complaint, dated December 20, 1979, the NCHD was named as a defendant "only to insure that the remedial measures requested by plaintiff can be fully implemented, if necessary, by the County Health Department's power of entry to suppress or remove." Item 1 at ¶ 12. In the United States' second amended complaint, dated December 8, 1983, the NCHD was not named as a defendant. See Item 141.

In its most recent amended cross-claim against defendant Niagara County ("County"), defendant Occidental Chemical Corporation ("OCC") seeks "indemnity or contribution ... pursuant to CERCLA or otherwise, in whole or in part for the amount of any" damages for which OCC is found liable. Item 155 at ¶ 77. Since the filing of OCC's amended cross-claim, this court has found OCC strictly, jointly, and severally liable under Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a), for the costs incurred by the United States and the State of New York ("State") in responding to the conditions at the Love Canal landfill, see United States v. Hooker Chemicals & Plastics Corp., 680 F.Supp. 546 (W.D.N.Y.1988), and jointly and severally liable under the New York common law of public nuisance for the costs incurred by the State in abating the conditions at the site. See United States v. Hooker Chemicals & Plastics Corp., 722 F.Supp. 960 (W.D.N.Y.1989).

The County has moved under Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure to dismiss OCC's cross-claim for failure to state a claim upon which relief can be granted, or, in the alternative, for summary judgment declaring that OCC is not entitled to indemnity or contribution from the County as a matter of law. Since the parties have presented, and the court has not excluded, matters outside the pleadings, the County's motion shall be treated as one for summary judgment. FED.R.CIV.P. 12(b).¹

The facts of this case have been set forth in previous orders issued by the court, see United States v. Hooker Chemicals & Plastics Corp., 722 F.Supp. 960 (W.D.N.Y. 1989); United States v. Hooker Chemicals & Plastics Corp., 680 F.Supp. 546 (W.D.N. Y.1988); United States v. Hooker Chemicals & Plastics Corp., 123 F.R.D. 3 (W.D. N.Y.1988), and shall not be repeated herein. Reference shall be made to those facts and to any additional facts as necessary for resolution of the pending motion.

DISCUSSION

In order to prevail on a motion for summary judgment, the moving party must demonstrate "that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). See generally Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). A material fact is one "that might affect the outcome of the suit under the governing law ... factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A dispute about a material fact will be considered genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The court "must resolve all ambiguities and draw all reasonable inferences in favor of the party defending against the motion," Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985), cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987), and "uncertainty as to the true state of any material fact defeats the motion." United States v. One Tintoretto Painting, 691 F.2d 603, 606 (2d Cir.1982) (citation omitted). See also Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 585-88, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

The County argues that it cannot be held liable for indemnity or contribution to OCC on two grounds. First, the County argues that it is not a liable or potentially liable party under Section 107(a) of CERCLA, which, according to the County, is a prerequisite for liability as an indemnitor or contributor. Second, the County asserts that, even if the court finds that OCC is entitled to pursue such a cross-claim under state-law principles, it cannot be held liable because no "special relationship" existed between it and OCC as required by New York law. OCC responds that it need not establish that the County is a covered party under CERCLA because its cross-claim arises under New York law, and asserts that the record demonstrates that under state law the County is potentially liable for any response costs assessed against OCC to the extent that the County's conduct gave rise to such costs.

I. State-Law Contribution Claims Under CERCLA

Section 107(a) of CERCLA establishes four classes of persons liable for response costs, see 42 U.S.C. §§ 9601(23)-(25), 9607(a)(4)(A)-(B), related to a release or threatened release of a hazardous substance, see 42 U.S.C. § 9601(14); State of New York v. Shore Realty Corp., 759 F.2d 1032, 1040 n. 6 (2d Cir.1985):

(1) the owner and operator of a vessel or a facility, as those terms are defined by CERCLA, see 42 U.S.C. §§ 9601(9), 9601(25);

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of;

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances; and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person.

42 U.S.C. § 9607(a) (Supp. V 1987). See State of New York v. Shore Realty Corp., 759 F.2d at 1043 & n. 16 (2d Cir.1985). The Superfund Amendments and Reauthorization Act of 1986 ("SARA") provides:

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. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law.... Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title.

42 U.S.C. § 9613(f)(1) (emphasis added) (codifying Pub.L. No. 99-499, § 113(b), 100 Stat. 1647 (1986)). The County argues that the express language of this section requires that it must fit within one of the four categories enumerated in Section 107(a) in order to be liable to OCC for contribution. Asserting that at Love Canal it neither owned or operated any property, disposed of or arranged for the disposal of hazardous substances, nor accepted any hazardous substances for transport, the County maintains that OCC's cross-claim must be dismissed because the County is not "liable or potentially liable" within the meaning of Section 107(a).

OCC does not challenge the County's claim that it is not a liable or potentially liable party under Section 107(a). Rather, OCC insists that it is entitled to pursue contribution for CERCLA response costs from the County under state-law principles, and that, consequently, whether the County falls within the ambit of Section 107(a) is irrelevant. In support of its argument, OCC cites CERCLA Section 107(e)(2). That section provides:

Nothing in this subchapter ... shall bar a cause of action that an owner or operator or any other person subject to liability under this section, or a guarantor, has or would have, by reason of subrogation or otherwise against any person.

42 U.S.C. § 9607(e)(2).² Citing United States v. New Castle County, 642 F.Supp. 1258 (D.Del.1986); Colorado v. ASARCO, Inc., 608 F.Supp. 1484 (D.Colo.1985); and United States v. Chem-Dyne Corp., 572 F.Supp. 802 (S.D.Ohio 1983), the County replies that most federal courts that have considered the issue have held that "the right to contribution must be determined by federal common law, not by the common law of the various states." Item 894 at 6. Consequently, the County argues, it cannot be held liable for contribution to OCC under state-law standards.

Contrary to the County's position, the court sees nothing in the terms of Section 107(e)(2) indicating that Congress intended only to preserve the right of a party liable under CERCLA to pursue federal causes of action, and the County has not cited any legislative history indicating that Congress meant otherwise. Additional support for this conclusion is supplied by Section 302(d), which provides in relevant part:

Nothing in this chapter shall affect or modify in any way the obligations or liabilities of any person under other

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