Niagara Mohawk v. Consolidated Rail

This case is yet another in a series of cases that

attempt to chart the contours of liability of a potentially

responsible party ("PRP”) under §§ 107(a)(4)(B) and

113(f)(3)(B) for contribution towards, and payment of, costs

resulting from the identification and cleanup of hazardous

substances under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 ("CERCLA”), Pub. L.

No. 96-510, 94 Stat. 2767, and the Superfund Amendments and

Reauthorization Act of 1986 ("SARA”), Pub. L. No. 99-499,

100 Stat. 1613, codified together at 42 U.S.C. §§ 9601-75.

We hold that the PRP seeking contribution in this case,

Niagara Mohawk Power Corporation ("NiMo”), may seek

contribution under § 113(f)(3)(B) from certain of the PRPs —

Chevron U.S.A., Inc. ("Chevron”), United States Steel

Corporation ("U.S. Steel”), Portec, Inc. ("Portec”), and

Edwin D. King ("King”) — because New York's Department of

Environmental Conservation ("DEC”) could agree to settle

NiMo's CERCLA liability without express authorization by the

Environmental Protection Agency ("EPA”). However, because

NiMo incurred response costs as a result of a resolution of

its CERCLA liability with the DEC, NiMo cannot seek recovery

costs under § 107(a)(4)(B).

We also hold that the district court erred in granting

summary judgment to U.S. Steel, Chevron, Portec, and King

because there are genuine issues of material fact as to

Coke is a residue of coal left after distillation. 1

their liability. The district court erred in finding that

NiMo did not comply with the National Contingency Plan. We

reverse in part the district court's dismissal of NiMo's

Navigation Law contribution claim. We affirm the district

court's dismissal of NiMo's state contribution,

indemnification, and unjust enrichment claims as preempted

under CERCLA. Finally, we reverse the district court's

dismissal of Chevron's third-party action against the County

of Rensselaer and others.



I. BACKGROUND

At the center of this dispute is a contaminated site in

Troy, New York — known as the Water Street Site — that over

the last 100 years has played host to various industrial

activities including a coke plant, a steel manufacturing 1

facility, a manufactured gas plant, and a petroleum

distribution facility. Each use led to the release or

disposal of toxic substances, many subject to liability

under CERCLA.

NiMo owned portions of the Water Street Site either

directly or through a predecessor from 1922 until 1951.

During this period, NiMo continued to operate a pre-existing

manufactured gas plant on the Site. Coal tar, which

contains hazardous substances covered by CERCLA, is a

typical waste that results from the production of

manufactured gas and has been found on the Site. By 1951,

NiMo had conveyed most of its interest at the Site to

Republic Steel, and today owns only a small parcel used as a

natural gas regulator station.

In December of 1992, NiMo entered into an Order on

Consent with the DEC that required NiMo to investigate

twenty-one sites in New York that once had hosted

manufactured gas plants to determine the nature and extent

of the hazardous materials present. The purpose of the

Order was to "control and/or remove residual [manufactured

gas plant] waste sources.” NiMo agreed to develop and

implement plans for remediation of the pollution under the

direction of the DEC. For each site, NiMo developed and

implemented a Preliminary Site Assessment that provided data

necessary for the DEC to determine whether the hazardous

substances present on the site posed a threat to the public

or the environment, and thus required remediation. Any site

identified by the Preliminary Site Assessment as requiring

comprehensive evaluation was then subject to a Remedial

A map of the Water Street Site is provided at 2



Appendix A.

Investigation conducted by NiMo, which consequently prepared

a Feasibility Study. NiMo agreed to remediate sites the DEC

deemed in need. In 2003, NiMo and the DEC executed an

amended Order on Consent under which NiMo incurred

additional costs while obtaining a specific release of

CERCLA liability upon meeting certain conditions.

Both Orders included the Water Street Site. As NiMo

learned, the hazardous byproducts of the commercial

activities conducted on the Site lasted far longer than the

industries themselves. For purposes of the assessments,

reports, and remediation, the DEC divided the property into

four parts, corresponding to historical ownership and

property lines. 2

In its Preliminary Site Assessment for Area 1, NiMo

concluded that no remedial investigation or feasibility

study need be done based on the few hazardous materials

found. NiMo did take some action in Area 1, however; it

removed some tar and continued to monitor Area 1 for any new

tar leaks.

Investigation of Area 2 revealed significant

NiMo filed an amended complaint on May 26, 1999, 3

adding defendants.

contamination. In addition to hazardous materials in the

soil and groundwater, NiMo discovered evidence of hazardous

materials in the sediment of the Wynantskill Creek, which

runs through Area 2. NiMo prepared a Final Feasibility

Study Report evaluating remedial options for the area; the

Report and its recommendations await a final DEC decision.

After its review of Area 3, NiMo requested that Area 3

be deleted from the remediation plan because the only

manufactured gas plant activity on Area 3 would not have

produced hazardous materials. The DEC agreed only to

postpone any investigation of Area 3, fearing that Area 3

may have some contamination from nearby Hudson River

deposits.



Area 4 had substantial contamination in its soil and

sediments. The DEC approved a remediation plan that

included excavation, placement of an impermeable cap over

the area, certain use restrictions for the property, and

future monitoring.



NiMo began this action on July 1, 1998, seeking to 3

recoup its CERCLA costs and seeking to recover under a



number of state law claims. Defendants counterclaimed and

cross-claimed for contribution; the parties ultimately moved

for summary judgment. In its first opinion in November of

2003, the district court thoroughly recounted the

complicated facts of the case and disposed of a number of

matters. Niagara Mohawk Power Corp. v. Consol. Rail Corp.

("Niagara I”), 291 F. Supp. 2d 105 (N.D.N.Y. 2003). On

November 7, 2003, the day after the district court's opinion

in Niagara I, the 2003 Order of Consent was executed.



That Order was "intended to supercede and replace” the 1992

Consent Order. NiMo agreed to continue the remediation of

the sites. Under the terms of the agreement, NiMo "resolved

its liability to the State for purposes of contribution

protection provided by CERCLA Section 113(f)(2).”

Over the next five years, the case came to our Court

twice. Prior to our decisions in each appeal, the United

States Supreme Court issued a major decision involving

CERCLA issues that directly affected the appeal then before

us and required us to remand the matter to the district

court for reconsideration. This decision is the culmination

The Court is currently housed at the Moynihan Federal 4

Courthouse at 500 Pearl Street, a "temporary” location of

now some five years.

In the late 1930s or early 1940s, the Hooker Chemical 5

Company began dumping toxic waste in an abandoned canal near

Niagara Falls. Michael H. Brown, Love Canal and the

Poisoning of America, The Atlantic Monthly, Dec. 1979, at

33. In 1953, the canal was filled and sold to the city to

provide land for a new elementary school and playground.

Id. Families moved into the area, unaware that the large

field behind their homes was teeming with toxic waste. Id.

Despite evidence of contamination, it took until 1978 for

New York State and the federal government to investigate the

pervasive health problems affecting the residents and the

deterioration of buildings around the Love Canal. S. Rep.

No. 96-848, at 8-10 (1980). Ultimately, it was determined

that thousands of tons of toxic waste contaminated the area

around Niagara Falls, creating an "environmental ghetto[]”

that then-President Carter declared a federal emergency.

Id.

of the case's third visit to 500 Pearl Street. 4



II. CERCLA

Enacted in response to New York's Love Canal disaster,5

CERCLA was designed, in part, to "assur[e] that those

responsible for any damage, environmental harm, or injury

from chemical poisons bear the costs of their actions.” S.

Rep. No. 96-848, at 13 (1980). CERCLA, remedial in nature,

is designed to encourage prompt and effective cleanup of

hazardous waste sites. See B.F. Goodrich Co. v. Murtha, 958

F.2d 1192, 1197-98 (2d Cir. 1992). CERCLA empowers the

federal government and the states to initiate comprehensive

Under CERCLA, a potentially responsible party (PRP) 6

is defined as:

cleanups and to seek recovery of expenses associated with

those cleanups. Somewhat like the common law of ultra-

hazardous activities, property owners are strictly liable

for the hazardous materials on their property, regardless of

whether or not they deposited them there. See New York v.

Lashins Arcade Co., 91 F.3d 353, 359 (2d Cir. 1996); see

also Integrated Waste Servs., Inc. v. Akzo Nobel Salt, Inc.,

113 F.3d 296, 301-02 (2d Cir. 1996). Owners can escape

liability only if the pollution results from an act of God

or an act of war, or if the owners establish they are

"innocent owners” under the statute. 42 U.S.C. § 9607(b);

see also Michael B. Gerrard & Joel M. Gross, Amending

CERCLA: The Post-SARA Amendments to the Comprehensive

Environmental Response, Compensation, and Liability Act 54

(2006).

CERCLA does provide property owners an avenue of

reprieve; it allows them to seek reimbursement of their

cleanup costs from others in the chain of title or from

certain polluters — the so-called potentially responsible

parties ("PRP”s). 42 U.S.C. § 9607(a). This reprieve is 6

(1) the owner and operator of a vessel or a facility,

(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, from which there is a release, or a

threatened release which causes the incurrence of

response costs, of a hazardous substance.

42 U.S.C. § 9607(a).

"Removal” under CERCLA means: 7

[T]he cleanup or removal of released hazardous

substances from the environment, such actions as may be

necessary taken in the event of the threat of release

of hazardous substances into the environment, such

actions as may be necessary to monitor, assess, and

evaluated the release or threat of release of hazardous

substances, the disposal of removed material, or the

taking of such other actions as may be necessary to

prevent, minimize, or mitigate damages to the public

health or welfare or to the environment, which may

otherwise result from a release or threat of release.

42 U.S.C. § 9601(23).



available through three separate provisions, namely §§ 107,

113(f)(1), and 113(f)(3)(B). Section 107 authorizes the

United States, a state, or "any other person” to seek

reimbursement for all removal or remedial costs associated 7

"Remedial action[s]” mean:

[T]hose actions consistent with permanent remedy taken

instead of or in addition to removal actions in the

event of a release or threatened release of a hazardous

substance into the environment, to prevent or minimize

the release of hazardous substances so that they do not

migrate to cause substantial danger to present or

future public health or welfare or the environment.

42 U.S.C. § 9601(24).



with the hazardous materials on the property, provided that

those actions are consistent with the National Contingency

Plan — the federal government's roadmap for responding to

the release of hazardous substances. Id. § 9607(a)(4). The

language "any other person” includes a PRP that voluntarily

cleans the site. See United States v. Atl. Research Corp.,

551 U.S. 128, 135-36 (2007). Section 113(f)(1) provides

PRPs who have been sued under § 107 a right of contribution

from other PRPs, including the plaintiff. Id. at 139.

Section 113(f)(3)(B) also provides a right of contribution

to PRPs that have settled their CERCLA liability with a

state or the United States through either an administrative

or judicially approved settlement. 42 U.S.C. §

9613(f)(3)(B). In allocating the response costs among the

parties, the statute instructs the court to use "such

equitable factors as the court determines are appropriate.”

A number of courts, including ours, have noted that 8

while § 107(a) permits recovery of all remedial costs, it

does not preclude a defendant PRPs from asserting

counterclaims (or cross-claims) for contribution under §

113(f)(1), effectively converting the § 107(a) action into

an apportionment of liability among jointly and severally

liable parties. See Consol. Edison Co. of N.Y. v. UGI

Util., Inc., 423 F.3d 90, 100 n.9 (2d Cir. 2005); see also

Atl. Research, 551 U.S. at 140.



Id. § 9613(f)(1).

Section 107 allows for complete cost recovery under a

joint and several liability scheme; one PRP can potentially

be accountable for the entire amount expended to remove or

remediate hazardous materials.8 See Schaefer v. Town of

Victor, 457 F.3d 188, 195 (2d Cir. 2006). When CERCLA was

first enacted, this was the only remedy available. Courts

struggled with whether PRPs (themselves liable for some of

the cleanup) could invoke § 107 for contribution from other

PRPs for their proportionate share of the costs as opposed

to full cost recovery. See Key Tronic Corp. v. United

States, 511 U.S. 809, 816 (1994). In the absence of express

language, some courts filled in the obvious gap and

recognized a common law right to contribution between PRPs.

Id. Congress finally provided the express language

necessary to authorize a contribution right under CERCLA

with the Superfund Amendments and Reauthorization Act of

1986, adding § 113 to the statutory scheme. Pub. L. No. 99-

499, 100 Stat. 1613, 1647-48.



Supreme Court jurisprudence exploring the nature of the

relationship between these statutory provisions developed

simultaneously with the district court's decisions in the

case before us. After the district court's first decision,

the Court issued the first of two opinions attempting to

clarify the interaction between §§ 107 and 113. First, in

2004, the Court determined that a private party who had not

been sued under § 106 or § 107(a) could not assert a claim

for contribution under § 113(f)(1) from other PRPs. Cooper

Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 160-61

(2004). Looking to the text of § 113(f)(1), the Court

concluded that contribution was only available "during or

following” an action under § 106 or § 107. Id. at 165-66.

The plaintiff had remediated the hazardous material

voluntarily, without the judicial spur of § 106 or § 107,

and thus was not eligible to sue other PRPs for

contribution. Id. at 168. Because the parties had not

briefed the issue, the Court expressly refused to decide

whether the plaintiff could have sued under § 107. Id. at

The district court also ruled that NiMo could not 9

invoke § 107(a) as a basis for its claims. Niagara II, 436

F. Supp. 2d at 403. The court relied on pre-Cooper

Industries Circuit precedent, Bedford Affiliates v. Sills,

156 F.3d 416 (2d Cir. 1998), that had required settling PRPs

to employ § 113(f). Id. That holding was abandoned — at

least as to the inability of a settling PRP to use § 107(a)

— by our decision in W.R. Grace & Co. — Conn. v. Zotos

Int'l, Inc., 559 F.3d 85, 90 (2d Cir. 2009). W.R. Grace was

decided after the district court's decision in Niagara II.

169-70.



After Cooper Industries, we remanded Niagara I back to

the district court for reconsideration in light of that

decision. Niagara Mohawk Power Corp. v. Consol. Rail Corp.

("Niagara II”), 436 F. Supp. 2d 398, 399-400 (N.D.N.Y.

2006). In Niagara II, NiMo correctly conceded that it could

not proceed with a contribution claim under § 113(f)(1) — it

had not been sued under § 106 or § 107(a). Id. at 400-01.

NiMo argued, however, that it could seek contribution under

§ 113(f)(3)(B) because it had resolved its CERCLA liability

in the 2003 Consent Order. Id. at 401. The district court

disagreed. It concluded that because the DEC had not been

granted authority to settle CERCLA claims by the EPA, the

settlement did not qualify under § 113. Id. at 402. The

district court viewed the consent orders as reaching only

state law-based liability.9

See Niagara II, 436 F. Supp. 2d at 398. As a result of the

district court's two rulings, NiMo was left with no federal

right of contribution at all.

The Court looked to the common law understanding of 10

contribution in defining that term as used in § 113(f): "the

tortfeasor's right to collect from others responsible for

the same tort after the tortfeasor has paid more than his or

her proportionate share, the shares being determined as a

percentage of fault.” Atl. Research, 551 U.S. at 138

(quoting Black's Law Dictionary 353 (8th ed. 2004))

(internal quotation marks omitted).



After Niagara II, in 2007, the Supreme Court addressed

the unanswered question from Cooper Industries. See Atl.

Research, 551 U.S. at 131 (2007). The Court read "any other

necessary costs of response incurred by any other person” in

§ 107(a)(4)(B) as authorizing claims against other PRPs by

private parties that incurred response costs. Id. at 135-

37. The Court differentiated joint and several liability

claims under § 107 from contribution claims under § 113,

identifying each as distinct "causes of action [available]

to persons in different procedural circumstances.” Id. at

139 (internal quotation marks omitted). Section 107, the

Court explained, is available for parties that have incurred

actual response costs, while § 113(f) is available for

parties that have reimbursed those response costs to

others. Id. 10



We remanded Niagara II in light of Atlantic Research.

Niagara Mohawk Power Corp. v. Consol. Rail Corp. ("Niagara

III”), 565 F. Supp. 2d 399, 400 (N.D.N.Y. 2008). The

district court in Niagara III concluded that Atlantic

Research necessitated no change in the court's previous

determinations and reaffirmed its prior rulings. Id. at

403. Once again the case is before us.

A. Niagara's Recovery Costs

Pursuant to its agreement with the DEC, NiMo incurred

costs to investigate and remediate the Water Street Site.

NiMo sought repayment of those costs from the defendants

under a theory that the defendants were PRPs as a result of

their status as owners of portions of the site and also as a

result of certain actions each took on their respective

properties — storing leaking drums, demolition of industrial

facilities, disposal of hazardous substances on site — all

of which allegedly resulted in the presence of hazardous

substances on the Water Street property.

1. 2003 Consent Order

Before the district court, NiMo sought to recover the

costs of its remediation efforts under § 107 or,

alternatively, under § 113(f)(1). Following the first

Having dismissed NiMo's federal claims, the district 11

court then declined to exercise supplemental jurisdiction

over NiMo's unjust enrichment claims. Niagara II, 436 F.

Supp. 2d at 403.



remand, NiMo conceded that it was not entitled to seek

contribution under § 113(f)(1) because it had not been

subject to a civil action under § 106 or § 107. Niagara II,

436 F. Supp. 2d at 401. However, NiMo argued it was

entitled to contribution under § 113(f)(3)(B) because the

2003 Consent Order qualified as an administrative

settlement. Id. The court refused to consider the 2003

Consent Order. Id. 11

The parties argue quite vigorously over whether the

2003 Consent Order is before us. Chevron and Portec stress

that the district court's decision to not consider the 2003

Consent Order was not an abuse of discretion and that our

earlier refusal to add the Order to the record on appeal of

Niagara I supports that view.

Chevron and Portec are right about the standard of

review, but wrong about the result. We review a district

court's decision whether to reopen the record to admit new

evidence for abuse of discretion. Matthew Bender & Co. v.

W. Pub. Co., 158 F.3d 674, 679 (2d Cir. 1998). A district



court has abused its discretion if its ruling is "based . .

. on an erroneous view of the law or on a clearly erroneous

assessment of the evidence, or [if the district court]

rendered a decision that cannot be located within the range

of permissible decisions.” In re Sims, 534 F.3d 117, 132

(2d Cir. 2008) (internal quotation marks and citations

omitted). In our view the district court abused its

discretion by failing to admit the 2003 Consent Order.

Upon our remand of Niagara I to the district court to

reconsider its decision in light of Cooper Industries, NiMo

attempted to admit the 2003 Consent Order by attaching the

Order to an attorney's affidavit submitted to the district

court with NiMo's brief on the effect of Cooper Industries

on the case. The district court rejected the 2003 Consent

Order as not part of the record and noted that no motion to

supplement the record had been made. Niagara II, 436 F.

Supp. 2d at 401. The district court added the following

comments in a footnote: "The Amended Consent Order is an

attachment to an attorney affidavit submitted in support of

Niagara Mohawk's brief on remand, but was not included (or

for that matter mentioned) in any prior proceedings, which

have been ongoing since 1998. It is also noted that Niagara



Mohawk sought permission in the Second Circuit to supplement

the record on appeal with the Amended Consent Order.

Permission was denied.” Id. at 401 n.3 (emphasis added).

Our initial denial of NiMo's request to include the

2003 Consent Order in the record of the first appeal makes

sense to us; the Consent Order was not before the district

court in Niagara I. See Int'l Bus. Mach. Corp. v.

Edelstein, 526 F.2d 37, 44 (2d Cir. 1975) ("[A]bsent

not consider rulings or evidence which are not part of the

trial record.”). That ruling was not premised on NiMo's

mistake but on impossibility; the 2003 Consent Order could

not have been before the district court as it had not been

fully executed until after the district court's first

decision. See Niagara I, 291 F. Supp. 2d at 105; see also

Niagara II, 436 F. Supp. 2d at 401. But, in these

circumstances, our conclusion with regard to what was before

our court should not have been dispositive or, frankly, even

considered by the district court when faced with the

decision to admit the document on remand. As soon as the

district court regained jurisdiction following the remand,

NiMo attempted to admit the document with its first

Even if the district court had not abused its 12

discretion in failing to admit the 2003 Consent Order, we

are empowered to take judicial notice of the 2003 Consent

Order, as it is a public record. See, e.g., Roth v.

Jennings, 489 F.3d 499, 509 (2d Cir. 2007). Thus, on

multiple grounds, we conclude that the 2003 Consent Order is

a part of the appellate record and may be considered in our

analysis.



submission. The district court's notation that the Order

had not previously been included in the record is

technically correct but overlooks the obvious — it could not

have been a part of the record as it did not exist.

Moreover, the district court's comment that the case had

been on-going since 1998 was of no moment; NiMo presented

the 2003 Consent Order at the first opportunity it had to do

so. And, although NiMo did not make a formal motion to

supplement the record, there is no evidence that any of the

defendants made a formal motion to strike the document or

even disputed its authenticity. The district court 12

penalized only NiMo for a trivial procedural shortcoming;

this was error.

2. Section 113(f)(3)(B) Claims

In our view, only § 113(f)(3)(B) provides the proper

procedural mechanism for NiMo's claims. Under §

113(f)(3)(B), a "person who has resolved its liability to

Under the Voluntary Cleanup Agreement, the DEC 13

"release[d], covenant[ed] not to sue, and . . . fore[went]

from bringing any action, proceeding, or suit pursuant to

the [New York] Environmental Conservation Law, the

Navigation Law or the State Finance Law, and from referring

Page 23 of 67

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.” 42 U.S.C. § 113(f)(3)(B). As noted, the

district court determined that this provision did not apply

to NiMo because NiMo settled with the DEC, and the EPA had

not formally delegated power to settle CERCLA claims to the

DEC. Niagara II, 436 F. Supp. 2d at 402. In the district

court's view, the settlement did not resolve NiMo's

liability under CERCLA and thus, NiMo was not entitled to

contribution. Id. at 404.

Some of our earlier cases could be mistaken for

supporting the district court's view. In Consolidated

Edison, we held that a utility ("ConEd”) that entered into a

"Voluntary Cleanup Agreement” with the DEC could not seek

contribution from another PRP under § 113(f)(3)(B) because

the Voluntary Cleanup Agreement by its terms only absolved

ConEd of state liability and did not reference CERCLA. 13

to the Attorney General any claim for recovery of costs

incurred by the [DEC] . . . for the further investigation

and remediation of the Site, based upon the release or

threatened release of Covered Contamination.” Consol.

Edison, 423 F.3d at 96.

This Court noted but did not resolve the issue again 14

in Schaefer v. Town of Victor, 457 F.3d 188, 202 n.19 (2d

Cir. 2006) ("[W]e need not decide whether the . . . Consent

Judgment [at issue] constitutes a judicially approved

settlement . . . .”).



Consol. Edison Co. v. U.G.I. Util., Inc., 423 F.3d 90, 97

(2d Cir. 2005). The Voluntary Cleanup Agreement indicated

that DEC would "not take any enforcement action under . . .

CERCLA,” but DEC promised to refrain from doing so only "to

the extent that [the existing] contamination [at issue] is

being addressed under the Agreement.” Id. at 97. The state

agency also reserved the "right to take any investigatory or

remedial action deemed necessary as a result of a

significant threat resulting from the Existing Contamination

or to exercise summary abatement powers.” Id. at 96-97. We

held that the rights reserved by the DEC "[left] open the

possibility that the [DEC] might still seek to hold ConEd

liable under CERCLA” and therefore, because ConEd could

still be sued under CERCLA, it was not entitled to bring an

action under § 113(f)(3)(B). Id. at 97. 14



In W.R. Grace & Co.– Conn. v. Zotos Int'l, Inc., we

held that a PRP could not bring an action for contribution

against another PRP under § 113(f)(3)(B) based on its

settlement with the DEC because the DEC settlement "ma[de]

no reference to CERCLA, [and] establishe[d] that the DEC

settled only its state law claims against [the PRP], leaving

open the possibility that the DEC or the EPA could, at some

future point, assert CERCLA or other claims.” 559 F.3d 85,

91 (2d Cir. 2009). Specifically, the consent order at issue

provided that, "[i]f the [DEC] acknowledges that the

implementation is complete . . . such acknowledgment shall

constitute a full and complete satisfaction and release of

each and every claim, demand, remedy or action whatsoever

against [the PRP], its officers and directors, which the

[DEC] has or may have as of the date of such acknowledgment

pursuant to Article 27, Title 13, of the [New York

Environmental Conservation Law] relative to or arising from

the disposal of hazardous or industrial waste at the Site.”

Id.

In each case, the consent order at issue did not

purport to resolve CERCLA liability and hence, in the

panel's view, did not qualify as an administrative



settlement under § 113. But neither Consolidated Edison nor

W.R. Grace held that the DEC was without authority to settle

CERCLA claims nor did either case conclude that CERCLA

settlement authority required explicit authorization from

the EPA. See W.R. Grace, 559 F.3d at 90-91; Consol. Edison,

423 F.3d at 95-97. Moreover, unlike the consent agreements

in Consolidated Edison and W.R. Grace, the 2003 Consent

Order specifically released NiMo from CERCLA liability. The

2003 Consent Order released NiMo from liability under

"[f]ederal statutory . . . law involving or relating to

investigation or remedial activities relative to or arising

from the disposal of hazardous wastes or hazardous

substances . . . at the [Water Street Site]” and "resolved

[NiMo's] liability to the State for purposes of contribution

protection provided by CERCLA Section 113(f)(2)[, 42 U.S.C.

§ 9613(f)(2)].” Under the 2003 Consent Order, the remedial

activities performed by NiMo were consideration for "a

release and covenant not to sue . . . which [DEC] has or may

have pursuant to . . . State or Federal statutory or common

law involving or relating to investigative or remedial

activities relative to or arising from the disposal of

hazardous wastes or hazardous substances.” Once NiMo



completed the Consent Order responsibilities, NiMo was

"deemed to have resolved its liability to the State for

purposes of contribution protection provided by CERCLA

Section 113(f)(2)” and thus was "entitled to seek

contribution.” The 2003 Consent Order qualifies as an

administrative settlement of liability for purposes of

CERCLA pursuant to the plain text of § 113(f)(3)(B).

Our interpretation of the Consent Order fits squarely

within the type of contribution claims contemplated by §

113. The provisions of the statute come into play once NiMo

resolved its liability to the "United States or a State.”

42 U.S.C. § 9613(f)(3)(B) (emphasis added). The statute

does not require that the United States acquiesce in the

administrative settlement — it does not read the "United

States and a State.” Nor does § 113(f)(3)(B) require that

there be a federal delegation of settlement authority to a

state — the statute does not say the "United States or a

State with the express authority of the United States.” But

the district court's interpretation of the statute would

compel such a result. If Congress wanted to constrict the

authority of state environmental agencies in settling CERCLA

claims, it could have easily done so. Instead, Congress

The EPA brief understandably takes issue with our 15

holding in Consolidated Edison.

The United States was not a party to Consolidated

Edison and believes it was not correctly decided.

Section 113(f)(3)(B) applies where a PRP 'has resolved

its liability to . . . a State for some or all of a

response action or for some or all of the costs of such

action.' 42 U.S.C. § 9613(f)(3)(B). The settlement of

federal and state law claims other than those provided

by CERCLA fits within § 113(f)(3)(B) as long as the

settlement involves a cleanup activity that qualifies

as a 'response action' within the meaning of CERCLA §

101(25), 42 U.S.C. § 9601(25).

Brief for United States as Amicus Curiae Supporting

Appellant at 15, Niagara Mohawk v. Consol. Rail, Nos. 08-

3843-cv; 08-4007-cv (2d Cir. 2009) (emphasis added). While

there is a great deal of force to this argument given the

language of the statute, we need not resolve the

Consolidated Edison / W. R. Grace problem as the language of

the 2003 Order clearly encompasses CERCLA liability and our

cases have never precluded the state agency from resolving

CERCLA claims.



chose the disjunctive and established a dual track for the

resolution of CERCLA liability.

As the EPA's amicus brief points out, "[b]ecause of the

number and variety of contaminated sites across the country,

states play a critical role in effectuating the purposes of

CERCLA.” Brief for United States as Amicus Curiae 15

Supporting Appellant at 4, Niagara Mohawk v. Consol. Rail,

Nos. 08-3843-cv; 08-4007-cv (2d Cir. 2009) That role is

not only critical, it is autonomous. For instance, the EPA



must coordinate with an affected state before deciding on an

appropriate remedial action, and, under § 128, the EPA may

award a grant to a state that has a response program that

conforms to the requirements of CERCLA. 42 U.S.C. §§

9604(c), 9628(a). The EPA is expressly authorized to enter

into contracts or agreements with states to carry out CERCLA

response actions. 40 C.F.R. § 300.515(a)(1).

Under CERCLA, states have causes of action independent

from the federal government. For example, under § 107, a

PRP is liable for clean up costs "incurred by the United

States Government or a state.” 42 U.S.C. § 9607(a)(4)(A).

We have previously held that a state does not need the

approval of the United States before it can remediate

hazardous substances and sue PRPs under § 107. See N.Y. v.

Shore Realty Corp., 759 F.2d 1035, 1047-48 (2d Cir. 1985).

CERCLA views the states as independent entities that do not

require the EPA's express authorization before they can act.

New York is empowered to settle a PRP's CERCLA liability.

The 2003 Consent Order between NiMo and the DEC qualifies as

"an administrative or judicially approved settlement” under

§ 113(f)(3)(B); NiMo is entitled to seek contribution under

CERCLA.

While we normally would not consider an alternative 16

basis for recovery once we have decided another section of a

statute provides one, this is far from a normal case. Given

the twists and turns the litigants and the law has

experienced over the past eleven years, we think it time to

address all of the parties' arguments.

In Atlantic Research, the Supreme Court left open the 17

question of when an action for cost recovery under § 107(a)

may be available to a PRP that directly incurs clean up

costs under some judicial or administrative compulsion. See

Atl. Research, 551 U.S. at 139 n.6. We similarly do not

decide whether a § 107(a) action could be pursued by a PRP

that incurs clean up costs after engaging with the federal

or a state government, but is not released from any CERCLA

liability.



Section 107(a) Claim

NiMo contends that it may also have a claim under §

107(a). Section 107(a) claims are brought by federal or 16

state agencies that have incurred response costs or PRPs who

incur CERCLA clean up costs without judicial or

administrative intervention. See Atl. Research, 551 U.S. 17

at 135. Section 113(f)(3)(B) claims seek proportionate

reimbursement from other PRPs of cleanup costs for a PRP

that has resolved its CERCLA liability for some or all of

the costs of a response action through a judicial or agency-

approved settlement. See 42 U.S.C. § 9613(f)(3)(B).

Clearly, the two sections have differing restrictions and

To the extent that NiMo seeks recovery of its actual 18

response costs and does not seek reimbursement from others

for response costs it disproportionately paid to a third

party, NiMo's claims do not seem to fit the common law

definition of contribution that the Supreme Court employed

in defining the statutory term in Atl. Research. The Atl.

Research Court, however, recognized that there could be an

overlap of the concepts of cost recovery and contribution.

Atl. Research, 551 U.S. at 139 n.6. NiMo was partially

responsible for the contamination at the Water Street Site.

It avoided a state or federal cleanup of the Site and a

subsequent suit by New York or the United States under §

107(a) for reimbursement of those costs by entering into the

Consent Orders. NiMo in essence financed the cleanup.

While NiMo's claims might fall within "the overlap”of the

concepts of cost recovery and contribution recognized by

Atl. Research, "concepts” do not alter the plain language of

the statute in play here. NiMo's claims clearly meet the

more specific parameters of the terms of § 113(f)(3)(B).

Page 31 of 67

different purposes. Moreover, § 113(f) was enacted by 18

Congress as part of SARA to amend CERCLA for the purpose of

codifying the contribution remedy that most courts had

already read into the statute. It was designed to

"clarif[y] and confirm . . . the right of a person held

jointly and severally liable under CERCLA to seek

contribution from other potentially liable parties, when the

[PRP] believes that it has assumed a share of the cleanup or

cost that may be greater than its equitable share under the

circumstances.” H.R. Rep. No. 99-253(I), at 79 (1985).

NiMo's claim fits squarely within the more specific

requirements of § 113(f)(3)(B). NiMo acknowledged

Claims under § 107 do enjoy a six-year statute of 19

limitations while claims under § 113 have a three-year

statute of limitations. 42 U.S.C. § 9613(g).

responsibility and paid for response costs under the

statute. NiMo settled its CERCLA liability with DEC by

agreeing to identify and to remediate some of the hazardous

substances present at the Water Street Site. NiMo presses a

claim for a sharing of those costs with other PRPs

consistent with § 113(f)(3)(B). The EPA in its amicus brief

strongly argues that § 113(f)(3)(B) is the proper vessel for

NiMo's contribution claims in light of its more specific

requirements, the nature of NiMo's claims, and the amendment

of the statute to provide the right of contribution. We

agree. Congress recognized the need to add a contribution

remedy for PRPs similarly situated to NiMo. To allow NiMo

to proceed under § 107(a) would in effect nullify the SARA

amendment and abrogate the requirements Congress placed on

contribution claims under § 113. "When Congress acts to 19

amend a statute, [courts] presume it intends its amendment

to have real and substantial effect.” Stone v. INS, 514

U.S. 386, 397 (1995).



III. SUMMARY JUDGMENT

In Niagara I, the district court denied NiMo's motion



for summary judgment with respect to King Service and

granted summary judgment for U.S. Steel and Portec, and

partial summary judgment for Chevron. Niagara I, 291 F.

Supp. 2d at 140-41. The district court found that although

King was the current owner of Area 2 — and failed to provide

evidence that it engaged in the appropriate inquiry when it

purchased the property in 1968 to qualify for the innocent

owner defense under 42 U.S.C. § 9601(35)(B) — there was a

genuine issue of material fact as to whether response costs

incurred by NiMo were consistent with the National

Contingency Plan. Niagara I, 291 F. Supp. 2d at 128.

With respect to U.S. Steel, the district court found

that NiMo's expert testimony that U.S. Steel had released

hazardous substances onto the Water Street Site during the

time U.S. Steel owned the property prior to 1922 was

speculative. Id. at 129. The district court concluded that

NiMo had failed to raise a genuine issue of material fact as

to whether hazardous substances were released when U.S.

Steel owned the property. Id. at 130.

With respect to Chevron, the district court first

determined that although the DEC had suspended its

investigation of Area 3, which Chevron currently owns,

The district court dismissed Chevron's claims against 20

the Rensselaer defendants as moot. Niagara I, 291 F. Supp.

2d at 135.



Chevron was a PRP because the entire Water Street Site,

including Area 4 that Chevron had also owned, remained at

issue in the case. Id. at 131. However, the district court

found that NiMo had not provided any evidence to support its

claim that Republic, Chevron's tenant on Area 4 when Chevron

owned that portion of the property, had dispersed hazardous

materials. Id. at 134. Therefore, the district court held

Chevron was not liable for the cleanup of Area 4. Id. 20

The district court reserved decision for the damages phase

on the degree to which Chevron would be liable for response

costs. Id. at 133.

Portec never owned or occupied any part of the Water

Street Site, but was Area 2's neighbor to the northeast.

NiMo pursued costs from Portec because NiMo believed Portec

deposited waste in the Wynantskill Creek that then traveled

into Area 2. The district court first held that NiMo was

required to show that it had, or would, incur cleanup costs

as a result of the hazardous substances found on Portec's

property. Id. at 135. In other words, the district court

held that NiMo must prove a nexus between Portec's release



of hazardous substances and NiMo's cleanup costs. Id. at

136. The district court found that NiMo had not provided

evidence of causation. Id. at 137.

The district court dismissed NiMo's New York Navigation

Law claim because NiMo, as a petroleum discharger, could not

bring a claim under New York Navigation Law § 172(3). Id.

The district court also held that NiMo could not bring a

claim under New York Navigation Law § 176(8) because it had

remediated only manufactured gas hazardous wastes and not

petroleum. Id.



The district court ruled that NiMo's state law

contribution and indemnification claims were preempted by

CERCLA as to King and Chevron, and dismissed those claims as

to the other defendants because the defendants were not

subject to liability for damages for the same injury to

property. Id. The district court then denied NiMo's motion

for summary judgment on its unjust enrichment claim against

King and Chevron because NiMo failed to prove that there was

no genuine issue of material fact. Id. at 140. Finally,

the district court held that NiMo's public nuisance claim

was time barred by a three-year statute of limitations and

that Oliver Chevrolet, Inc. v. Mobil Oil Corp., 249 A.D.2d

This includes King Service, Edwin King, Lawrence 21

King, and Slote.



793, 794-95 (3d Dep't 1998), did not counsel extending it.

Niagara I, 291 F. Supp. 2d at 138.

NiMo, U.S. Steel, Portec, and the King defendants,21

along with defendants not party to this appeal, moved under

Federal Rule of Civil Procedure 54(b) for entry of final

judgment. The district court granted summary judgment in

favor of Portec, U.S. Steel, and Chevron — only with respect

to Area 4 — on NiMo's CERCLA claims, and dismissed NiMo's

state law claims. NiMo appealed. As noted above, in the

ensuing years the case came to this Court on two occasions

and on each visit we remanded the matter to the district

court for reconsideration of an intervening ruling from the

Supreme Court that gave greater definition to the statutory

scheme for potentially responsible parties seeking recovery

of response costs from other PRPs.

Following the second remand, the district court decided

that NiMo's cleanup costs with regard to Chevron were not

recoverable under CERCLA "because of the type of substances

involved (asphalt, kerosene, naphtha, and naphthalene).”

Niagara III, 565 F. Supp. 2d at 402. The district court

We review the district court's summary judgment 22

conclusions de novo. See Commander Oil Corp. v. Barlo

Equip. Corp., 215 F.3d 321, 326 (2d Cir. 2000).



noted that pursuant to the 1992 and 2003 Consent Orders,

NiMo was "responsible for removal and remediation of

manufactured gas plant-related hazardous waste contamination

only, that is, hazardous contamination caused by [NiMo]

itself.” Id. at 402-03. Thus all of NiMo's claims were

dismissed by the district court. Again NiMo appealed.22

The standard is well known: summary judgment is

appropriate when there exists no dispute of material fact.

See, e.g., Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d

292, 300 (2d Cir. 2003). But the standard's utility

functions only in the context of the statute that imposes or

absolves a litigant from liability. All of the parties

asked the district court to resolve the liability question

as a matter of law. NiMo lost for a number of reasons

expressed by the district court in its rulings that began in

November of 2003 and culminated with the second remand

decision now before us. We have already concluded that the

district court erred in its conclusion that NiMo could not

employ § 113(f)(3)(B), but that is not the end of the

liability calculation.

CERCLA was hastily enacted and was a combination of 23

three other toxic waste and oil spill cleanup bills that had

not passed. Frank P. Grad, A Legislative History of the

Comprehensive Environmental Response, Compensation and

Liability ("Superfund”) Act of 1980, 9 Colum. J. Envtl. L.

1, 1-2 (1982). CERCLA in its final form has scant

legislative history. Id. at 1. Those interested in

reviewing the history of CERCLA, then, often look to the

history of the three other bills that informed the final

product. Id. at 2; see also Committee on Environment and

Public Works, A Legislative History of the Comprehensive

Environmental Response, Compensation, and Liability Act of

1980 (Superfund) at V-VII (1983).

Page 38 of 67

CERCLA is a remedial statute; it reaches as far back

into the past as necessary to identify both the hazardous

wastes present at a site and those responsible for them

under the statute. The logic is straightforward and simple

— Congress wanted owners and polluters to identify and clean

up all the hazardous waste they discover. To further this

goal, Congress made past and present owners, and others,

liable for the hazardous materials they contributed.

Recognizing, however, the practical difficulties of this

statutory scheme, Congress also empowered the court through

§ 113 to use "such equitable factors as the court determines

are appropriate” to reach a just result. 42 U.S.C. §

9613(f)(1) (emphasis added).

Congress noted examples of the factors that it thought 23

courts should consider in apportioning costs:



(1) The ability of the party to demonstrate that his

contribution to the release can be distinguished; (2)

The amount of hazardous substance involved. Of course,

a small quantity of highly toxic material, or above

which releases or makes more dangerous another

hazardous substance, would be a significant factor; (3)

The degree of toxicity of the hazardous substance

involved; (4) The degree of involvement of the person

in the manufacture, treatment, transport, or disposal

of the hazardous substance; and (5) The degree of

cooperation between the person and the Federal, State,

or local government in preventing harm to public health

or the environment from occurring from a release. This

includes efforts to mitigate damage after a release

occurs.



S. Rep. No. 96-848, at 345-46 (1980).

While these factors may seem relevant to a liability

determination, CERCLA purposefully lowered the liability bar

required to be a PRP. As we have observed previously:

The plain meaning of th[e statutory] language dictates

that [a party seeking costs] need only prove: [ ] there

was a release or threatened release, which [ ] caused

incurrence of response costs, and [ ] that the

defendant generated hazardous waste at the cleanup

site. What is not required is that the government [or

another authorized party] show that a specific

defendant's waste caused incurrence of cleanup costs.



United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d

Cir. 1993) (emphasis in original).

This relaxed liability standard is appropriate when

viewed in the context of the language of CERCLA. The

statute focuses on two important goals: remediation of sites

that present a clear and present danger to the health and

Page 40 of 67

well-being of the communities in which they are located and

identification of the source, or sources, of hazardous

materials at sites that may have experienced commercial

activity long ago (the record in this case alone dates back

to the 1800s). Both goals suggest that caution is

appropriate when evaluating a motion for summary judgment to

dismiss a claim against a PRP in a CERCLA case. As we have

noted, "Congress faced the unenviable choice of enacting a

legislative scheme that would be somewhat unfair to

generators of hazardous substances or one that would

unfairly burden the taxpaying public . . . . [W]e think

Congress imposed responsibility on generators of hazardous

substances advisedly.” Alcan Aluminum, 990 F.2d at 716-17.

Each hazardous waste site is unique in its combination

of commercial activities, substances present, and history.

In situations like the present case, the type of evidence,

be it direct or circumstantial, and its quality, is to some

degree impeded by the passage of time and the lack of

business records reflecting the day-to-day operations of the

industries then present at the Water Street Site. The

available evidence of who did what at the relevant site is

often dependent on inference. When determining CERCLA



liability, "there is nothing objectionable in basing

findings solely on circumstantial evidence, especially where

the passage of time has made direct evidence difficult or

impossible to obtain.” Franklin County Convention

Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d

534, 547 (6th Cir. 2001).

In practice, courts generally bifurcate a CERCLA

proceeding, determining liability in Phase I, and then

apportioning recovery in Phase II. During Phase I, courts

have engaged in a very limited liability inquiry. See Alcan

Aluminum, 990 F.2d at 720. We have previously commented on

the "breadth” of CERCLA, and have held even a minimal amount

of hazardous waste brings a party under the purview of the

statute as a PRP. Id. The traditional tort concept of

causation plays little or no role in the liability scheme.

A party seeking to establish liability under CERCLA need not

even show a specific PRP's waste caused cleanup costs. Id.

at 721. The First Circuit defines liability similarly: "To

satisfy the causal element, it is usually enough to show

that a defendant was a responsible party within the meaning

of 9607(a); that cleanup efforts were undertaken because of

the presence of one or more hazardous substances identified



in CERCLA; and that reasonable costs were expended during

the operation.” Acushnet Co. v. Mohasco Corp., 191 F.3d 69,

77 (1st Cir. 1999). The Ninth Circuit quite dramatically

agrees, labeling CERCLA as a statute that allows "broad

discretion” to impose liability on "anyone who disposes of

just about anything.” A&W Smelter & Refiners, Inc. v.

Clinton, 146 F.3d 1107, 1110 (9th Cir. 1998).

It is in Phase II, when damages are apportioned, that

the relative strength of the evidence of liability becomes a

relevant factor. See, e.g., PMC, Inc. v. Sherwin-Williams

Co., 151 F.3d 610, 616 (7th Cir. 1998) (Posner, J.) (a PRP's

"spills may have been too inconsequential to affect the cost

of cleaning up significantly, and in that event a zero

allocation . . . would be appropriate”). In pushing such

concerns to Phase II, we admit, as we have in the past,

that, in the context of CERCLA, "causation is being brought

back into the case — through the backdoor, after being

denied entry at the frontdoor — at the apportionment stage.”

Alcan Aluminum, 990 F.2d at 722. District courts are

authorized to use their broad discretion under CERCLA to

employ the equitable factors, including consideration of the

quality of the evidence that lead to liability. See



Goodrich Corp. v. Town of Middlebury, 311 F.3d 154, 170 (2d

Cir. 2002).

At the summary judgment stage, then, the analysis of a

"genuine dispute of material fact” in the context of a § 113

claim under CERCLA might seem limited and constrained. The

party seeking contribution must, of course, establish that

the defendants qualify as PRPs under the statute and must

demonstrate that it is probable that the defendants

discharged hazardous material. But the party seeking

contribution need not establish the precise amount of

hazardous material discharged or prove with certainty that a

PRP defendant discharged the hazardous material to get their

CERCLA claims past the summary judgment stage. By

referencing "equitable factors,” the statute requires

district courts to consider the practical difficulties in

these cases. Summary judgment is only proper when a

defendant establishes it is not liable at all under CERCLA —

namely, it is not a PRP under the statute, there is no

plausible evidence that it discharged hazardous materials,

or it is eligible for one of the three affirmative defenses

available under § 107. See 42 U.S.C. § 9607(b).

Defenses of minimal involvement or limited proof of



responsibility do have a role in the CERCLA scheme; they

come in to play during the damages phase when the court is

charged with equitably apportioning the costs of the cleanup

among the PRPs. That a party seeking contribution can only

demonstrate a minimal amount of hazardous discharge from a

particular PRP, or that the exact origin proportions are

unknown, are the types of equitable factors a court should

consider in the apportionment process.

Congress sought to further incentivize PRPs to pay for

their role in the creation of a hazardous waste site

regardless of when they polluted. See Toxic Substances

Control Act Amendments: Hearings Before the Subcommittee on

Consumer Protection and Finance of the Committee on

Interstate and Foreign Commerce, 95th Cong. 356 (1978). To

that end, parties seeking contribution — by definition PRPs

who have already been charged with liability and resolved

their exposure or PRPs confronted with reimbursement claims

in a § 107(a) action — must be granted sufficient

opportunity to pursue other PRPs and have the costs of

cleanup borne equitably with others liable under the

statute.



This summary judgment standard is in keeping with our



previous directive to liberally construe CERCLA in order to

accomplish the congressional objectives. W.R. Grace, 559

F.3d at 89. See generally Blake A. Watson, Liberal

Construction of CERCLA Under the Remedial Purpose Canon:

Have the Lower Courts Taken a Good Thing Too Far?, 20 Harv.

Envtl. L. Rev. 199 (1996), reprinted in Sutherland Statutes

and Statutory Construction § 65A:13 (Norman J. Singer & J.D.

Shambie Singer, eds., 2009).

A. Chevron

In 1955, Chevron purchased Areas 3 and 4 of the Water

Street Site from the Republic Steel Company, and leased an

easement over Area 2 for above-ground pipelines originating

from Area 3. Chevron used Area 3 for an asphalt terminal

from approximately 1953 to 1998. Chevron is the current

owner of Area 3 and the easement; it sold Area 4 to

Rensselaer County in 1974. During the time when Chevron

owned Area 4, Chevron leased the land back to Republic

Steel.

Chevron argues that NiMo is only obligated to cleanup

waste from manufactured gas production and, since Chevron

was not in the business of manufacturing gas, Chevron cannot

be liable for any of NiMo's costs. Chevron is correct that,



under the Consent Order, NiMo was responsible for

remediating the waste specifically related to manufactured

gas. But NiMo first had to investigate the site to identify

all hazardous waste present. Investigation costs are

recoverable as response costs under CERCLA. See 42 U.S.C. §

9601(23). Thus, even if a PRP disposed of hazardous waste

that was not related to manufactured gas, NiMo may pursue

contribution for the PRP's share of the investigation costs.

The District Court originally held, in Niagara I, that

"the CERCLA facility at issue here is the MGP facility,” and

that Chevron, as "a current owner of a portion of the former

MGP facility . . . [was] a 'covered person' liable for

response costs.” Niagara I, 291 F. Supp. 2d at 131. We

have no problem with that holding. But even if one treated

the various areas as severable parts, we would reach the

same conclusion.

For the easement over Area 2 and the entirety of Area

3, Chevron qualifies as a PRP under the statute because

Chevron is "the owner or operator” of Area 3 and the

easement over Area 2. 42 U.S.C. § 9607(a)(1). With regard

to the easement over Area 2, there is evidence that

hazardous substances may have leaked from Chevron's pipes



and may have been released when Chevron moved asphalt and

other substances from barges onto its dock and through the

pipes. Chevron does not deny the evidence that there were

spills at the dock and pipe leaks in the soil, but argues

that its asphalt and petroleum products are not hazardous

substances under CERCLA, and thus Chevron cannot be held

liable for their discharge. Chevron is correct that

petroleum products are expressly excluded from the

definition of hazardous substances. 42 U.S.C. § 9601(14).

But though asphalt is not a hazardous material per se, NiMo

introduced evidence that this asphalt facility produced or

used hazardous materials that may have been released with

the asphalt. In response, Chevron produced evidence that

the waste products from manufactured gas contain "different

and greater amounts” of hazardous materials than asphalt.

Whether the amount of hazardous materials deposited is

minimal is an equitable consideration the court may note

during the apportionment of costs. The evidence presented

is sufficient to present a genuine issue of material fact to

defeat Chevron's motion for summary judgment.

As for Area 3, there was evidence that, in the early

1980s one of Chevron's railroad hoses ruptured and



discharged coal tar product into the ground. In 1987,

Chevron discovered a pinhole leak of coal tar from a tank on

its property. Chevron claims these are "microscopic

incidents” and that it is entitled to summary judgment.

Regardless of the characterization of these spills, NiMo has

taken no remedial action and incurred no cost to investigate

or cleanup Area 3. In fact, NiMo reported to the DEC that

its preliminary research found no hazardous substances at

Area 3 and that no further investigation was necessary. It

would seem that in order for NiMo to recover costs, NiMo

must prove first that it incurred them. See United States

v. Alcan Aluminum Corp., 315 F.3d 179, 184 (2d Cir. 2003).

The district court correctly concluded that, at this stage

of the cleanup process, NiMo cannot maintain a contribution

claim against Chevron for Area 3.

Area 4 is more complicated. While Chevron owned Area

4, it leased the property to Republic Steel. Though Chevron

argues otherwise, Chevron may be liable as a PRP if Republic

Steel disposed of any hazardous substances at the Site

because Chevron owned the facility. 42 U.S.C. § 9607(a)(2).

There is particularly evocative testimony in the 24

record about "the cow incident,” when Chevron employees

heard "something[] down south of the property bellowing” and

discovered a cow "in the tar pit and she was almost up to

the belly . . . all feet in.”

Page 49 of 67

In 1960, after animals and people got stuck in the open 24

tar pits and one pit caught fire, Republic Steel attempted

to remediate the pits on Area 4 by covering them with

"earthen material.” Relative to the standards at the time,

capping the tar pits was supposedly a state-of-the-art

technique. NiMo, however, presented evidence that capping

could spread contamination by creating pressure that forced

the hazardous materials to surface at the sides of the site

and mix with surface water.

Under CERCLA, "disposal” means "the discharge, deposit,

injection, dumping, spilling, leaking, or placing of any . .

. hazardous waste.” 42 U.S.C. § 6903(3). NiMo argues that,

by placing the caps, Republic Steel caused the tar from the

pits to leak out into the surrounding area. NiMo claims

leaking qualifies as disposal, and thus Chevron is liable

because it owned Area 4 at the time of disposal of a

hazardous substance. We agree. NiMo presented sufficient

evidence to create a genuine issue of material fact as to

whether the placement of the caps played a role in



1 redistributing the hazardous materials at Area 4.

2 In addition, the DEC noted that some of the hazardous

3 materials found at Area 4 did not originate from NiMo's

4 activity. This raises a question of fact as to whether

5 Chevron or Republic Steel contributed other deposits, in

6 addition to causing the leak in the pits.

7 B. Portec

8 Portec has never owned any of the land at the Water

9 Street Site. However, between 1968 and 1997, Portec owned

10 land to the northeast of Area 2, and used the land to house

11 a rail-splitting plant that Portec operated from 1900 to

12 1989. During the time in question, the Wynantskill Creek

13 ran along the northern part of Portec's property, crossed

14 Area 2, and emptied into the Hudson River.

15 From 1908 on, Portec was a member of the Wynantskill

16 Improvement Association. At various points, Portec also

17 served as the chair and, eventually, the sole member of the

18 Association. The Wynantskill Improvement Association was a

19 nonprofit organization designed to improve the Wynantskill

20 Creek for milling purposes through a variety of methods,

21 including regulating the flow of the water, connecting lakes

22 and ponds to the Creek, and constructing dams. Portec is

Page 51 of 67

1 the sole remaining member of the Association, and

2 consequently, may hold title to a portion of the Wynantskill

3 Creek.

4 NiMo argues that Portec is liable as a PRP because its

5 membership in the Association renders Portec responsible for

6 the activities of the Association as a whole. To NiMo, the

7 Association's control of the Wynantskill Creek makes it

8 liable for waste in the Creek. NiMo alternatively claims

9 that Portec is liable for contribution because it permitted

10 the disposal of hazardous materials on its property, those

11 hazardous materials entered the Wynantskill Creek and,

12 eventually, they contaminated Area 2. Portec counters that

13 it is not liable under CERCLA because it never owned or

14 operated any of the property at the Water Street Site, and

15 that there is no legal basis for assigning CERCLA liability

16 based on membership in a non-profit corporation. We need

17 not reach the thorny issue of whether membership in such an

18 association could result in CERCLA liability because we find

19 that Portec is liable under a much simpler theory.

20 Under § 107(a)(2), a PRP may be liable under CERCLA if

21 it "at the time of disposal of any hazardous substance . . .

22 operated any facility at which such hazardous substances

25 Quench oil is oil used to cool heat-treated metal.

Page 52 of 67

1 were disposed of.” 42 U.S.C. § 9607(a)(2). The definition

2 of operator is very broad in the CERCLA context. See United

3 States v. Bestfoods, 524 U.S. 51, 65-66 (1998). To be an

4 operator under the statute, a person "must manage, direct,

5 or conduct operations specifically related to pollution,

6 that is, operations having to do with the leakage or

7 disposal of hazardous waste.” Id. at 66-67. Under this

8 definition, Portec is a PRP under CERCLA because Portec

9 "conducted operations specifically related to pollution” at

10 the Wynantskill Creek. There is evidence that Portec's

11 activities on its property resulted in hazardous waste

12 deposits. Spent solvents and quench oils were not 25

13 properly removed from the plant. Underground pipes leaked

14 fuel oil. Neighboring properties suffered spills. Soil

15 sampling from the Portec property revealed a number of

16 hazardous substances in the ground. More importantly for

17 NiMo's purposes, there is evidence that these hazardous

18 deposits made their way into the Wynantskill Creek and into

19 the Hudson River. Portec used the Wynantskill Creek to

20 discharge waste from its plant. Surface and ground water

21 traveled across Portec's property into the Creek. The

Page 53 of 67

1 Creek, in turn, passed through Area 2 on its way to the

2 Hudson.

3 During its travels across Area 2, the water in the

4 Creek appears to have left behind hazardous materials.

5 These hazardous materials, according to one of NiMo's

6 experts, originated at the Portec Plant. In the planned

7 remediation of Area 2, NiMo may have to cleanup this waste,

8 along with the waste that NiMo itself deposited there.

9 Thus, Portec operated a facility where hazardous waste was

10 deposited and NiMo may have to clean that waste as part of

11 its remediation plan for Area 2. This meets the necessary

12 statutory elements to attach liability to Portec. Because

13 Portec qualifies as a PRP under CERCLA, and because there is

14 evidence in the record that Portec may have deposited

15 hazardous materials that settled in Area 2, the district

16 court erred in its grant of summary judgment to Portec.

17 C. King

18 In 1957, King Service, Inc. leased Area 2 from the

19 then-owner and began operating a petroleum distribution

20 facility. In a series of transactions between 1968 and

21 1973, King purchased Area 2, save a bit of land where the

22 Wynantskill Creek enters the Hudson River. King is the

Page 54 of 67

1 current owner of Area 2.

2 NiMo presented undisputed evidence that there are

3 hazardous wastes located on Area 2. King, as the current

4 owner of the contaminated property, is indisputably liable

5 as a PRP. See 42 U.S.C. § 9607(a)(1). The district court

6 concluded the same, but ultimately dismissed the complaint

7 as to King because the court incorrectly determined that

8 NiMo did not qualify for contribution under § 113(f)(B)(3).

9 The grant of summary judgment to King was improper.

10 D. U.S. Steel

11 U.S. Steel, or its predecessors, owned the Water Street

12 Site from 1902 to 1922. U.S. Steel operated iron and steel

13 manufacturing facilities at Areas 1 and 2. From 1907 to

14 1922, U.S. Steel dismantled structures and equipment at an

15 idle steel plant on Area 1. U.S. Steel also demolished the

16 old Bessemer Steel Works that had been in use since the late

17 1860s to convert iron to steel on Area 2. The demolition

18 generated materials that U.S. Steel dumped, along with

19 byproducts from its own iron and steel manufacturing, at a

20 landfill it owned and operated at Area 4. As a result of

21 U.S. Steel's dumping at Area 4, this area allegedly grew in

22 acreage. NiMo seeks contribution from U.S. Steel as the

Under CERCLA, "arranger” is shorthand for "any person 26

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.” 42 U.S.C. § 9607(a)(3).

Page 55 of 67

1 owner or operator of property who disposed of hazardous

2 waste on its property, and as an arranger. 42 U.S.C. §

3 9607(a)(2)-(3). NiMo contends that U.S. Steel deposited 26

4 hazardous waste from its demolition and industrial

5 activities. U.S. Steel contends that NiMo's allegations are

6 based on speculation and are without evidentiary basis.

7 CERCLA liability may be inferred from the totality of

8 the circumstances as opposed to direct evidence. Tosco

9 Corp. v. Koch Indus., Inc., 216 F.3d 886, 892 (10th Cir.

10 2000). Because the relevant time period was from 1902 until

11 1922, both NiMo and U.S. Steel were forced to rely primarily

12 on circumstantial evidence resulting in a battle of experts.

13 NiMo's experts concluded that U.S. Steel's activities

14 resulted in the deposit of hazardous materials while U.S.

15 Steel's experts concluded that its activities did not. The

16 battle bespeaks of a dispute of material fact for purposes

17 of CERCLA liability.

Page 56 of 67

1 U.S. Steel was an owner of the property in question;

2 there is evidence in the form of expert testimony, albeit

3 disputed, that U.S. Steel caused hazardous deposits on the

4 property. CERCLA does not require a smoking gun. The

5 credibility of the experts, the type of evidence presented,

6 the amount of hazardous waste involved, and the degree of

7 U.S. Steel's involvement in the identified hazardous

8 deposits are all relevant as equitable factors for the

9 district court to use in apportioning response costs. At

10 this stage, however, NiMo's claims against U.S. Steel

11 survive summary judgment; U.S. Steel qualifies as an owner

12 under § 107 and NiMo has presented evidence that hazardous

13 deposits may have been generated and deposited at the site

14 on U.S. Steel's watch.

15 E. National Contingency Plan

16 The district court determined that there was a genuine

17 issue of material fact as to whether NiMo's cleanup efforts

18 were consistent with the National Contingency Plan. We have

19 never squarely addressed whether compliance with a state

20 consent decree is sufficient to prove adherence to the

21 National Contingency Plan.

22 Under § 107, a PRP is liable for cleanup costs

Page 57 of 67

1 consistent with the national contingency plan. 42 U.S.C. §

2 9607(a)(4)(A)-(B). The National Contingency Plan is

3 essentially the federal government's toxic waste playbook,

4 detailing the steps the government must take to identify,

5 evaluate, and respond to hazardous substances in the

6 environment. See 40 C.F.R. part 300; see also Travis

7 Wagner, The Complete Guide to the Hazardous Waste

8 Regulations: RCRA, TSCA, HMTA, EPCRA, and Superfund, 3d,

9 326-27 (1999). Adherence to the plan is the gatekeeper to

10 seeking reimbursement of response costs. Ultimately, the

11 goal is "consistency and cohesiveness to response planning

12 and actions.” H. Rep. 96-1016, at 30 (1980).

13 Courts presume that actions undertaken by the federal,

14 or a state, government are consistent with the National

15 Contingency Plan. See, e.g., City of Bangor v. Citizens

16 Commc'ns Co., 532 F.3d 70, 91 (1st Cir. 2008). However,

17 private parties that have responded to hazardous substances

18 must establish compliance. Id. One way of establishing

19 compliance with the national plan is to conduct a response

20 under the monitoring, and with the ultimate approval, of the

21 state's environmental agency. Id.; see also NutraSweet Co.

22 v. X-L Eng'g Co., 227 F.3d 776, 791 (7th Cir. 2000). This

Page 58 of 67

1 is consistent with the state's power to settle CERCLA

2 liability without the express approval of the EPA. It would

3 be bizarre indeed if a PRP's settlement with a state

4 entitled it to seek contribution under § 113(f)(B)(3), but

5 its actions taken in executing that settlement disqualified

6 the settlor from employing the statute to recoup a portion

7 of its expenses.

8 NiMo's adherence to the DEC Consent Decree established

9 its compliance with the National Contingency Plan. The

10 district court's conclusion in this regard was error.

11 VI. STATE LAW CLAIMS

12 A. New York Navigation Law Claims

13 Under New York Navigation Law, anyone who has

14 "discharged petroleum shall be strictly liable, without

15 regard to fault, for all cleanup and removal costs and all

16 direct and indirect damages.” N.Y. Nav. L. § 181(1). This

17 includes costs incurred from investigation and remediation

18 of petroleum. See, e.g., New York v. LVF Realty Co., 59

19 A.D.3d 519, 521 (2d Dep't 2009). A party who shoulders the

20 cleanup and removal costs and is not at fault for the

21 petroleum discharge may pursue a claim against the actual

22 polluters. N.Y. Nav. L. §§ 172(3), 181(5). NiMo brought

Page 59 of 67

1 Navigation Law claims against the defendants for their

2 discharge of petroleum. However, NiMo had also discharged

3 petroleum at the Water Street Site. As the district court

4 correctly concluded, under the language of § 181, NiMo

5 cannot pursue claims against the defendants because NiMo is

6 at fault for at least some of the petroleum discharge at the

7 site.

8 However, there is an additional provision of New York

9 Navigation Law that affords NiMo a cause of action. Under §

10 176(8), "every person providing cleanup [or] removal of

11 discharge of petroleum . . . shall be entitled to

12 contribution from any other responsible party.” N.Y. Nav.

13 L. § 176(8). "Every person” is obviously inclusive and the

14 language "other responsible party” indicates that the

15 drafters were aware that "every person” could encompass a

16 responsible party. NiMo is entitled to seek contribution

17 for its response costs related to petroleum discharges.

18 We agree with the district court that NiMo did not

19 incur any cleanup costs with respect to Area 3, however,

20 NiMo — in complying with the Consent Order — incurred costs

21 to cleanup Areas 1, 2, and 4. NiMo cleaned up a variety of

22 materials, some of which contained petroleum and petroleum

Page 60 of 67

1 products. There is a genuine issue of material fact as to

2 the liability of the remaining defendants for contribution

3 with regard to costs incurred by NiMo to cleanup and remove

4 unlawfully discharged petroleum.

5 B. Contribution, Indemnification, and Unjust

6 Enrichment Claims

7

8 The district court dismissed NiMo's claims against King

9 and Chevron for contribution under New York law, concluding

10 that CERCLA preempted the state claims. Niagara I, 291 F.

11 Supp. 2d at 137. The district court also dismissed NiMo's

12 state law contribution claims against U.S. Steel and Portec

13 because the district court had already determined that U.S.

14 Steel and Portec were not liable for the remediation of the

15 Water Street Site. Id.

16 CERCLA could preempt state law in one of three ways:

17 (1) Congress expressly indicated that CERCLA preempts state

18 law; (2) CERCLA is a comprehensive regulatory scheme such

19 that it creates a reasonable inference that the state cannot

20 supplement it; or (3) state law directly conflicts with

21 CERCLA. See Cal. Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S.

22 272, 280-81 (1987). We have previously held that CERCLA

23 does not expressly preempt applicable state law. Marsh v.

Page 61 of 67

1 Rosenbloom, 499 F.3d 165, 177 (2d Cir. 2007). We have also

2 concluded that CERCLA is not such a comprehensive scheme

3 that it cannot be supplemented by state law. Bedford

4 Affiliates v. Sills, 156 F.3d 416, 427 (2d Cir. 1998),

5 overruled on other grounds by W.R. Grace, 559 F.3d at 90.

6 That leaves only preemption by conflict, which exists when

7 "compliance with both state and federal law is impossible,

8 or when the state law stands as an obstacle to the

9 accomplishment and execution of the full purposes and

10 objectives of Congress.” Pac. Capital Bank, N.A. v.

11 Connecticut, 542 F.3d 341, 351 (2d Cir. 2008) (quoting

12 United States v. Locke, 529 U.S. 89, 109 (2000)) (internal

13 quotation marks omitted).

14 CERCLA depends on a federal and state partnership to

15 assist the national government in identifying and

16 remediating hazardous wastes sites consistent with the

17 National Contingency Plan. But while a state can settle a

18 PRP's CERCLA liability, that authorization does not compel

19 the conclusion that Congress intended that parties who have

20 settled their CERCLA liability should have both a federal

21 and a state law based claim for recovery of the same

22 response expenditures. CERCLA employs state agencies in

Our cases — Consolidated Edison and W.R. Grace — have 27

recognized that there are situations where a settlement with

the DEC encompasses only state law based liability. We

suspect that the United States, given the views it has

expressed in its amicus brief, might view the matter

differently. If any settlement with a state environmental

agency qualifies as a state administrative settlement under

CERCLA, it would seem that CERCLA has preempted the area of

contribution claims that arise out of the settlement.

Page 62 of 67

1 identifying and remediating hazardous waste sites while

2 providing a federally defined settlement enticement.

3 Congress created the statutory right to contribution in §

4 113(f) in part to encourage settlements and further CERCLA's

5 purpose as an impetus to efficient resolution of

6 environmental hazards. See Atl. Research, 551 U.S. at 141;

7 see also Marsh, 499 F.3d at 180. Section 113 is intended to

8 standardize the statutory right of contribution and, in

9 doing so, avoid the possibility of fifty different state

10 statutory schemes that regulate the duties and obligations

11 of non-settling PRPs who might be viewed as tortfeasors

12 under the law of any particular state. Based on the text, §

13 113 was intended to provide the only contribution avenue for

14 parties with response costs incurred under CERCLA. See 42 27

15 U.S.C. § 9613(f)(3)(C) ("Any contribution action brought

16 under this paragraph shall be governed by Federal law.”).

17 Thus we conclude that state law contribution claims for

We are not the first circuit to reach this result. 28

See PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 618

(7th Cir. 1998) (Posner, J.); see also In re Reading Co.,

115 F.3d 1111, 1117 (3d Cir. 1997) abrogated on other

grounds by E.I. DuPont De Nemours & Co. v. United States,

460 F.3d 515, 522 (3d Cir. 2006). More generally, our

conclusion is in keeping with other courts' determinations

that CERCLA is intended to be the exclusive scheme governing

hazardous waste claims that fall within its purview. See,

e.g., Barnes ex rel. Estate of Barnes v. Koppers, Inc., 534

F.3d 357, 365 (5th Cir. 2008) (when the "conditions for

CERCLA cleanup are satisfied,” CERCLA's tolling provision

preempts the state law tolling provision); Fireman's Fund

Ins. Co. v. City of Lodi, Cal., 302 F.3d 928, 946 (9th Cir.

2002) (if the defendant is found to be a PRP, CERCLA

preempts the defendant's contribution protection provided by

the local environmental and liability ordinance); Town of

Munster, Ind. v. Sherwin-Williams Co., 27 F.3d 1268, 1273

(7th Cir. 1994) (limiting "the defenses to liability under

CERCLA to those enumerated in the statute” and barring

equitable defenses).

Page 63 of 67

1 CERCLA response costs conflict with CERCLA contribution

2 claims and therefore are preempted.28

3 NiMo makes no claims for cleanup costs outside of those

4 it expended in compliance with the Consent Order and we have

5 already determined that costs incurred pursuant to the

6 Consent Order, as amended, fall within CERCLA. Because NiMo

7 did not incur costs outside of CERCLA, NiMo has no grounds

8 for contribution under New York law and we affirm the

9 district court.

10 We are left then with NiMo's indemnification and unjust

11 enrichment claims. We have previously concluded that state

29 Though Bedford Affiliates was overruled by W.R.

Grace, the panel's decision that CERCLA preempts state

indemnification claims remains undisturbed.

Page 64 of 67

1 law indemnification claims were preempted by CERCLA, a

2 conclusion that we reiterate today. Bedford Affiliates, 156

3 F.3d at 427. We also hold that the state law claims for 29

4 unjust enrichment are preempted for substantially the same

5 reasons as detailed above — allowing unjust enrichment

6 claims for CERCLA expenses would again circumvent the

7 settlement scheme, as PRPs could seek recompense for a

8 legally unjustifiable benefit outside the limitations and

9 conditions of CERCLA.

10 C. Public Nuisance

11 The district court dismissed NiMo's claim for public

12 nuisance as time barred. Niagara I, 291 F. Supp. 2d at 140.

13 NiMo offers no argument to contest this ruling. Therefore,

14 we affirm the district court.

15 V. CHEVRON'S CROSS-APPEAL

16 Chevron cross-appeals on several grounds. First,

17 Chevron challenges the district court 's sua sponte

18 dismissal of Chevron's third-party action against Rensselaer

19 County, which purchased Area 4 from Chevron in 1974. The

20 district court reasoned that the third-party action was moot

Page 65 of 67

1 because the district court had absolved Chevron of liability

2 for Area 4. Id. at 135. Chevron argues that, should we

3 decide to reinstate NiMo's CERCLA contribution claims

4 against Chevron for Area 4, then we should also reinstate

5 Chevron's claim against Rensselaer County. We agree.

6 Because we have reinstated NiMo's CERCLA contribution claims

7 as to Area 4, we reinstate Chevron's claim against

8 Rensselaer County.

9 Chevron also appeals the district court's dismissal of

10 Portec and U.S. Steel from the case. As we have reversed

11 the district court and reinstated NiMo's claims against both

12 Portec and U.S. Steel, Chevron's cross-claims for

13 contribution against Portec and U.S. Steel are also

14 reinstated.

The district court's orders of November 6, 2003, March

11, 2004, June 28, 2006, and July 16, 2008 are hereby

AFFIRMED in part and REVERSED in part.

Digested by Jesse Antell