     08-3843-cv(L); 08-4007-cv(XAP)
     Niagara Mohawk v. Consolidated Rail


 1                      UNITED STATES COURT OF APPEALS
 2
 3                              F OR THE S ECOND C IRCUIT
 4
 5
 6
 7                               August Term, 2008
 8
 9    (Argued: June 9, 2009                       Decided: February 24, 2010)
10
11             Docket Nos. 08-3843-cv (L); 08-4007-cv (XAP)
12
13
14                   Niagara Mohawk Power Corporation,
15
16                                   Plaintiff-Appellant-Cross-Appellee,
17
18                                         –v.–
19
20                            Chevron U.S.A., Inc.,
21
22                                   Defendant-Appellee-Cross-Appellant,
23
24       United States Steel Company, Richard B. Slote, in his
25    capacity as personal representative of the estate of Edwin
26                     D. King, and Portec, Inc.,
27
28                                Defendants-Appellees-Cross-Appellees,
29
30    King Services, Inc., Richard B. Slote, and Lawrence King,
31
32                                                  Defendant-Cross-Appellees,
33
34      County of Rensselaer and The County of Rensselaer Sewer
35                          District No. 1,
36
37                              Third-Party-Defendants-Cross-Appellees,
38
39         Consolidated Rail Corporation, American Premier
40    Underwriters, Inc., The Foundation Company and Pittsburgh

                                    Page 1 of       67
 1                                    Business,
 2
 3                                                                   Defendants.
 4
 5
 6
 7
 8   Before:
 9        C ALABRESI, W ESLEY, Circuit Judges, and V ITALIANO, * District
10   Judge.
11
12        Niagara Mohawk Power Corporation (“NiMo”) commenced
13   this action to recover costs pursuant to the Comprehensive
14   Environmental Response, Compensation, and Liability Act of
15   1980 (“CERCLA”), Pub. L. No. 96-510, 94 Stat. 2767, and the
16   Superfund Amendments and Reauthorization Act of 1986, Pub.
17   L. No. 99-499, 100 Stat. 1613, codified together at 42
18   U.S.C. §§ 9601-75, from the defendants for cleanup of
19   properties previously owned by NiMo and once either owned,
20   leased, or used by the defendants. In this appeal, NiMo
21   challenges orders of the United States District Court for
22   the Northern District of New York (Hurd, J.) denying NiMo’s
23   motion for summary judgment, granting summary judgment in
24   favor of the defendants, and denying NiMo’s motion for
25   reconsideration.
26        We are called upon to determine whether NiMo, as a
27   potentially responsible party under CERCLA, can seek
28   response and cleanup costs under either § 107(a)(4)(B) or
29   § 113(f)(3)(B), after having settled its CERCLA liability
30   with the New York State Department of Environmental
31   Conservation (“DEC”) but not with the Environmental
32   Protection Agency (“EPA”), where the EPA has not expressly
33   authorized the DEC to settle CERCLA liability relating to
34   the property at issue. We hold that NiMo may seek
35   contribution costs under § 113(f)(3)(B) because NiMo has
36   settled with the DEC, but consequently NiMo may not seek
37   reimbursement for response costs under § 107(a). We hold
38   that the district court erred in granting summary judgment
39   for the defendants because there are genuine issues of


           *
             The Honorable Eric N. Vitaliano, of the United States District Court
     for the Eastern District of New York, sitting by designation.

                                    Page 2 of    67
 1   material fact with regards to their respective liabilities.
 2   We hold that the district court erred by holding that NiMo
 3   did not comply with the National Continency Plan. We hold
 4   that the district court erred in part by dismissing NiMo’s
 5   New York Navigation Law claims. Finally, we hold that the
 6   district court erred in dismissing Chevron’s third party
 7   action against the County of Rensselaer and others.
 8        We affirm, however, the district court’s dismissal of
 9   NiMo’s state contribution, indemnity, and unjust enrichment
10   claims because they are preempted by CERCLA.
11
12        A FFIRMED in part and R EVERSED in part.
13
14             J OHN T. P ARKINSON, Syracuse, NY (Thomas R. Lotterman,
15                   Robert V. Zener, Milissa A. Murray, Sandra P.
16                   Franco, Bingham McCutchen LLP, Washington, DC,
17                   on the brief), for Plaintiff-Appellant-Cross-
18                   Appellee Niagara Mohawk Power Corporation.
19
20             P ATRICK J. H IGGINS, Powers & Santola, LLP, Albany,
21                    NY, for Defendant-Appellee-Cross-Appellant
22                    Chevron U.S.A., Inc.
23
24             K EVIN C. M URPHY, The Wladis Law Firm, Syracuse, NY
25                    (David L. Smiga, on the brief, Pittsburgh,
26                    PA), for Defendant-Appellee-Cross-Appellee
27                    United States Steel Corporation.
28
29             K IMBERLEE S. P ARKER, Bond, Schoeneck & King, PLLC,
30                    Albany, NY, for Defendant-Appellee-Cross-
31                    Appellee Portec, Inc.
32
33
34
35
36
37   W ESLEY, Circuit Judge:

38        This case is yet another in a series of cases that

39   attempt to chart the contours of liability of a potentially

40   responsible party (“PRP”) under §§ 107(a)(4)(B) and
                                Page 3 of   67
1    113(f)(3)(B) for contribution towards, and payment of, costs

2    resulting from the identification and cleanup of hazardous

3    substances under the Comprehensive Environmental Response,

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

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

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

7    100 Stat. 1613, codified together at 42 U.S.C. §§ 9601-75.

8    We hold that the PRP seeking contribution in this case,

9    Niagara Mohawk Power Corporation (“NiMo”), may seek

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

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

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

13   Edwin D. King (“King”) — because New York’s Department of

14   Environmental Conservation (“DEC”) could agree to settle

15   NiMo’s CERCLA liability without express authorization by the

16   Environmental Protection Agency (“EPA”).   However, because

17   NiMo incurred response costs as a result of a resolution of

18   its CERCLA liability with the DEC, NiMo cannot seek recovery

19   costs under § 107(a)(4)(B).

20       We also hold that the district court erred in granting

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

22   because there are genuine issues of material fact as to

                             Page 4 of   67
1    their liability.     The district court erred in finding that

2    NiMo did not comply with the National Contingency Plan.       We

3    reverse in part the district court’s dismissal of NiMo’s

4    Navigation Law contribution claim.     We affirm the district

5    court’s dismissal of NiMo’s state contribution,

6    indemnification, and unjust enrichment claims as preempted

7    under CERCLA.     Finally, we reverse the district court’s

8    dismissal of Chevron’s third-party action against the County

9    of Rensselaer and others.

10   I.   BACKGROUND

11        At the center of this dispute is a contaminated site in

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

13   the last 100 years has played host to various industrial

14   activities including a coke 1 plant, a steel manufacturing

15   facility, a manufactured gas plant, and a petroleum

16   distribution facility.    Each use led to the release or

17   disposal of toxic substances, many subject to liability

18   under CERCLA.

19        NiMo owned portions of the Water Street Site either

20   directly or through a predecessor from 1922 until 1951.

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

          1
              Coke is a residue of coal left after distillation.
                                Page 5 of 67
1    manufactured gas plant on the Site.       Coal tar, which

2    contains hazardous substances covered by CERCLA, is a

3    typical waste that results from the production of

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

5    NiMo had conveyed most of its interest at the Site to

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

7    natural gas regulator station.

8        In December of 1992, NiMo entered into an Order on

9    Consent with the DEC that required NiMo to investigate

10   twenty-one sites in New York that once had hosted

11   manufactured gas plants to determine the nature and extent

12   of the hazardous materials present.       The purpose of the

13   Order was to “control and/or remove residual [manufactured

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

15   implement plans for remediation of the pollution under the

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

17   implemented a Preliminary Site Assessment that provided data

18   necessary for the DEC to determine whether the hazardous

19   substances present on the site posed a threat to the public

20   or the environment, and thus required remediation.          Any site

21   identified by the Preliminary Site Assessment as requiring

22   comprehensive evaluation was then subject to a Remedial

                              Page 6 of   67
1    Investigation conducted by NiMo, which consequently prepared

2    a Feasibility Study.     NiMo agreed to remediate sites the DEC

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

4    amended Order on Consent under which NiMo incurred

5    additional costs while obtaining a specific release of

6    CERCLA liability upon meeting certain conditions.

7         Both Orders included the Water Street Site.    As NiMo

8    learned, the hazardous byproducts of the commercial

9    activities conducted on the Site lasted far longer than the

10   industries themselves.     For purposes of the assessments,

11   reports, and remediation, the DEC divided the property into

12   four parts, corresponding to historical ownership and

13   property lines. 2

14        In its Preliminary Site Assessment for Area 1, NiMo

15   concluded that no remedial investigation or feasibility

16   study need be done based on the few hazardous materials

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

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

19   tar leaks.

20        Investigation of Area 2 revealed significant



          2
           A map of the Water Street Site is provided at
     Appendix A.
                             Page 7 of 67
1    contamination.   In addition to hazardous materials in the

2    soil and groundwater, NiMo discovered evidence of hazardous

3    materials in the sediment of the Wynantskill Creek, which

4    runs through Area 2.   NiMo prepared a Final Feasibility

5    Study Report evaluating remedial options for the area; the

6    Report and its recommendations await a final DEC decision.

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

8    be deleted from the remediation plan because the only

9    manufactured gas plant activity on Area 3 would not have

10   produced hazardous materials.   The DEC agreed only to

11   postpone any investigation of Area 3, fearing that Area 3

12   may have some contamination from nearby Hudson River

13   deposits.

14       Area 4 had substantial contamination in its soil and

15   sediments.   The DEC approved a remediation plan that

16   included excavation, placement of an impermeable cap over

17   the area, certain use restrictions for the property, and

18   future monitoring.

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

20   recoup its CERCLA costs and seeking to recover under a



          3
           NiMo filed an amended complaint on May 26, 1999,
     adding defendants.
                             Page 8 of 67
1    number of state law claims.     Defendants counterclaimed and

2    cross-claimed for contribution; the parties ultimately moved

3    for summary judgment.     In its first opinion in November of

4    2003, the district court thoroughly recounted the

5    complicated facts of the case and disposed of a number of

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

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

8    November 7, 2003, the day after the district court’s opinion

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

10   Order was “intended to supercede and replace” the 1992

11   Consent Order.     NiMo agreed to continue the remediation of

12   the sites.     Under the terms of the agreement, NiMo “resolved

13   its liability to the State for purposes of contribution

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

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

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

17   States Supreme Court issued a major decision involving

18   CERCLA issues that directly affected the appeal then before

19   us and required us to remand the matter to the district

20   court for reconsideration.     This decision is the culmination




                                Page 9 of   67
1    of the case’s third visit to 500 Pearl Street. 4

2    II.   CERCLA

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

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

5    responsible for any damage, environmental harm, or injury

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

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

8    is designed to encourage prompt and effective cleanup of

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

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

11   federal government and the states to initiate comprehensive


           4
           The Court is currently housed at the Moynihan Federal
     Courthouse at 500 Pearl Street, a “temporary” location of
     now some five years.
           5
           In the late 1930s or early 1940s, the Hooker Chemical
     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.
                            Page 10 of 67
1    cleanups and to seek recovery of expenses associated with

2    those cleanups.   Somewhat like the common law of ultra-

3    hazardous activities, property owners are strictly liable

4    for the hazardous materials on their property, regardless of

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

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

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

8    113 F.3d 296, 301-02 (2d Cir. 1996).       Owners can escape

9    liability only if the pollution results from an act of God

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

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

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

13   CERCLA: The Post-SARA Amendments to the Comprehensive

14   Environmental Response, Compensation, and Liability Act 54

15   (2006).

16        CERCLA does provide property owners an avenue of

17   reprieve; it allows them to seek reimbursement of their

18   cleanup costs from others in the chain of title or from

19   certain polluters — the so-called potentially responsible

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

          6
           Under CERCLA, a potentially responsible party (PRP)
     is defined as:

                              Page 11 of   67
1   available through three separate provisions, namely §§ 107,

2   113(f)(1), and 113(f)(3)(B).    Section 107 authorizes the

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

4   reimbursement for all removal or remedial costs 7 associated


        (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).
        7
            “Removal” under CERCLA means:

        [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).
                             Page 12 of   67
1    with the hazardous materials on the property, provided that

2    those actions are consistent with the National Contingency

3    Plan — the federal government’s roadmap for responding to

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

5    language “any other person” includes a PRP that voluntarily

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

7    551 U.S. 128, 135-36 (2007).     Section 113(f)(1) provides

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

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

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

11   to PRPs that have settled their CERCLA liability with a

12   state or the United States through either an administrative

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

14   9613(f)(3)(B).     In allocating the response costs among the

15   parties, the statute instructs the court to use “such

16   equitable factors as the court determines are appropriate.”


                 “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).
                               Page 13 of   67
1    Id. § 9613(f)(1).

2          Section 107 allows for complete cost recovery under a

3    joint and several liability scheme; one PRP can potentially

4    be accountable for the entire amount expended to remove or

5    remediate hazardous materials. 8   See Schaefer v. Town of

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

7    first enacted, this was the only remedy available.     Courts

8    struggled with whether PRPs (themselves liable for some of

9    the cleanup) could invoke § 107 for contribution from other

10   PRPs for their proportionate share of the costs as opposed

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

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

13   language, some courts filled in the obvious gap and

14   recognized a common law right to contribution between PRPs.

15   Id.   Congress finally provided the express language

16   necessary to authorize a contribution right under CERCLA


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

                              Page 14 of   67
1    with the Superfund Amendments and Reauthorization Act of

2    1986, adding § 113 to the statutory scheme.      Pub. L. No. 99-

3    499, 100 Stat. 1613, 1647-48.

4        Supreme Court jurisprudence exploring the nature of the

5    relationship between these statutory provisions developed

6    simultaneously with the district court’s decisions in the

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

8    the Court issued the first of two opinions attempting to

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

10   2004, the Court determined that a private party who had not

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

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

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

14   (2004).   Looking to the text of § 113(f)(1), the Court

15   concluded that contribution was only available “during or

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

17   The plaintiff had remediated the hazardous material

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

19   and thus was not eligible to sue other PRPs for

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

21   briefed the issue, the Court expressly refused to decide

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

                               Page 15 of   67
1    169-70.

2        After Cooper Industries, we remanded Niagara I back to

3    the district court for reconsideration in light of that

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

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

6    2006).    In Niagara II, NiMo correctly conceded that it could

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

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

9    NiMo argued, however, that it could seek contribution under

10   § 113(f)(3)(B) because it had resolved its CERCLA liability

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

12   disagreed.    It concluded that because the DEC had not been

13   granted authority to settle CERCLA claims by the EPA, the

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

15   district court viewed the consent orders as reaching only

16   state law-based liability. 9


         9
           The district court also ruled that NiMo could not
     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.
                             Page 16 of 67
1          After Niagara II, in 2007, the Supreme Court addressed

2    the unanswered question from Cooper Industries.     See Atl.

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

4    necessary costs of response incurred by any other person” in

5    § 107(a)(4)(B) as authorizing claims against other PRPs by

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

7    37.   The Court differentiated joint and several liability

8    claims under § 107 from contribution claims under § 113,

9    identifying each as distinct “causes of action [available]

10   to persons in different procedural circumstances.”     Id. at

11   139 (internal quotation marks omitted).   Section 107, the

12   Court explained, is available for parties that have incurred

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

14   parties that have reimbursed those response costs to

15   others. 10   Id.



     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.
           10
            The Court looked to the common law understanding of
     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).
                             Page 17 of 67
1           We remanded Niagara II in light of Atlantic Research.

2    Niagara Mohawk Power Corp. v. Consol. Rail Corp. (“Niagara

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

4    district court in Niagara III concluded that Atlantic

5    Research necessitated no change in the court’s previous

6    determinations and reaffirmed its prior rulings.      Id. at

7    403.    Once again the case is before us.

8           A.   Niagara’s Recovery Costs

9           Pursuant to its agreement with the DEC, NiMo incurred

10   costs to investigate and remediate the Water Street Site.

11   NiMo sought repayment of those costs from the defendants

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

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

14   result of certain actions each took on their respective

15   properties — storing leaking drums, demolition of industrial

16   facilities, disposal of hazardous substances on site — all

17   of which allegedly resulted in the presence of hazardous

18   substances on the Water Street property.

19               1.   2003 Consent Order

20          Before the district court, NiMo sought to recover the

21   costs of its remediation efforts under § 107 or,

22   alternatively, under § 113(f)(1).      Following the first
                               Page 18 of   67
1    remand, NiMo conceded that it was not entitled to seek

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

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

4    436 F. Supp. 2d at 401.    However, NiMo argued it was

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

6    2003 Consent Order qualified as an administrative

7    settlement.   Id.   The court refused to consider the 2003

8    Consent Order. 11   Id.

9         The parties argue quite vigorously over whether the

10   2003 Consent Order is before us.    Chevron and Portec stress

11   that the district court’s decision to not consider the 2003

12   Consent Order was not an abuse of discretion and that our

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

14   Niagara I supports that view.

15        Chevron and Portec are right about the standard of

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

17   court’s decision whether to reopen the record to admit new

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

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



          11
            Having dismissed NiMo’s federal claims, the district
     court then declined to exercise supplemental jurisdiction
     over NiMo’s unjust enrichment claims. Niagara II, 436 F.
     Supp. 2d at 403.
                             Page 19 of 67
1    court has abused its discretion if its ruling is “based . .

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

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

4    rendered a decision that cannot be located within the range

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

6    (2d Cir. 2008) (internal quotation marks and citations

7    omitted).   In our view the district court abused its

8    discretion by failing to admit the 2003 Consent Order.

9         Upon our remand of Niagara I to the district court to

10   reconsider its decision in light of Cooper Industries, NiMo

11   attempted to admit the 2003 Consent Order by attaching the

12   Order to an attorney’s affidavit submitted to the district

13   court with NiMo’s brief on the effect of Cooper Industries

14   on the case.   The district court rejected the 2003 Consent

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

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

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

18   comments in a footnote: “The Amended Consent Order is an

19   attachment to an attorney affidavit submitted in support of

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

21   for that matter mentioned) in any prior proceedings, which

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

                             Page 20 of   67
1    Mohawk sought permission in the Second Circuit to supplement

2    the record on appeal with the Amended Consent Order.

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

4        Our initial denial of NiMo’s request to include the

5    2003 Consent Order in the record of the first appeal makes

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

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

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

9    extraordinary circumstances, federal appellate courts will

10   not consider rulings or evidence which are not part of the

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

12   mistake but on impossibility; the 2003 Consent Order could

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

14   fully executed until after the district court’s first

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

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

17   circumstances, our conclusion with regard to what was before

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

19   considered by the district court when faced with the

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

21   district court regained jurisdiction following the remand,

22   NiMo attempted to admit the document with its first

                               Page 21 of   67
1    submission.     The district court’s notation that the Order

2    had not previously been included in the record is

3    technically correct but overlooks the obvious — it could not

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

5    Moreover, the district court’s comment that the case had

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

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

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

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

10   defendants made a formal motion to strike the document or

11   even disputed its authenticity. 12   The district court

12   penalized only NiMo for a trivial procedural shortcoming;

13   this was error.

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

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

16   procedural mechanism for NiMo’s claims.       Under §

17   113(f)(3)(B), a “person who has resolved its liability to



           12
            Even if the district court had not abused its
     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.
                             Page 22 of 67
1    the United States or a state for some or all of a response

2    action or for some or all of the costs of such action in an

3    administrative or judicially approved settlement may seek

4    contribution from any person who is not party to a

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

6    district court determined that this provision did not apply

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

8    not formally delegated power to settle CERCLA claims to the

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

10   court’s view, the settlement did not resolve NiMo’s

11   liability under CERCLA and thus, NiMo was not entitled to

12   contribution.        Id. at 404.

13          Some of our earlier cases could be mistaken for

14   supporting the district court’s view.           In Consolidated

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

16   “Voluntary Cleanup Agreement” with the DEC could not seek

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

18   the Voluntary Cleanup Agreement by its terms only absolved

19   ConEd of state liability and did not reference CERCLA. 13


            13
            Under the Voluntary Cleanup Agreement, the DEC
     “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
1    Consol. Edison Co. v. U.G.I. Util., Inc., 423 F.3d 90, 97

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

3    that DEC would “not take any enforcement action under . . .

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

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

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

7    agency also reserved the “right to take any investigatory or

8    remedial action deemed necessary as a result of a

9    significant threat resulting from the Existing Contamination

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

11   held that the rights reserved by the DEC “[left] open the

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

13   liable under CERCLA” and therefore, because ConEd could

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

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


     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.
         14
            This Court noted but did not resolve the issue again
     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 . . . .”).


                              Page 24 of   67
1           In W.R. Grace & Co.– Conn. v. Zotos Int’l, Inc., we

2    held that a PRP could not bring an action for contribution

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

4    settlement with the DEC because the DEC settlement “ma[de]

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

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

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

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

9    91 (2d Cir. 2009).   Specifically, the consent order at issue

10   provided that, “[i]f the [DEC] acknowledges that the

11   implementation is complete . . . such acknowledgment shall

12   constitute a full and complete satisfaction and release of

13   each and every claim, demand, remedy or action whatsoever

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

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

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

17   Environmental Conservation Law] relative to or arising from

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

19   Id.

20         In each case, the consent order at issue did not

21   purport to resolve CERCLA liability and hence, in the

22   panel’s view, did not qualify as an administrative

                             Page 25 of   67
1    settlement under § 113.    But neither Consolidated Edison nor

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

3    CERCLA claims nor did either case conclude that CERCLA

4    settlement authority required explicit authorization from

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

6    423 F.3d at 95-97.   Moreover, unlike the consent agreements

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

8    Order specifically released NiMo from CERCLA liability.     The

9    2003 Consent Order released NiMo from liability under

10   “[f]ederal statutory . . . law involving or relating to

11   investigation or remedial activities relative to or arising

12   from the disposal of hazardous wastes or hazardous

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

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

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

16   § 9613(f)(2)].”   Under the 2003 Consent Order, the remedial

17   activities performed by NiMo were consideration for “a

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

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

20   law involving or relating to investigative or remedial

21   activities relative to or arising from the disposal of

22   hazardous wastes or hazardous substances.”    Once NiMo

                               Page 26 of   67
1    completed the Consent Order responsibilities, NiMo was

2    “deemed to have resolved its liability to the State for

3    purposes of contribution protection provided by CERCLA

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

5    contribution.”    The 2003 Consent Order qualifies as an

6    administrative settlement of liability for purposes of

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

8           Our interpretation of the Consent Order fits squarely

9    within the type of contribution claims contemplated by §

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

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

12   42 U.S.C. § 9613(f)(3)(B) (emphasis added).      The statute

13   does not require that the United States acquiesce in the

14   administrative settlement — it does not read the “United

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

16   there be a federal delegation of settlement authority to a

17   state — the statute does not say the “United States or a

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

19   the district court’s interpretation of the statute would

20   compel such a result.    If Congress wanted to constrict the

21   authority of state environmental agencies in settling CERCLA

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

                              Page 27 of   67
1   chose the disjunctive and established a dual track for the

2   resolution of CERCLA liability.

3        As the EPA’s amicus brief points out, “[b]ecause of the

4   number and variety of contaminated sites across the country,

5   states play a critical role in effectuating the purposes of

6   CERCLA.” 15   Brief for United States as Amicus Curiae

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

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

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



         15
           The EPA brief understandably takes issue with our
    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.
                            Page 28 of 67
1    must coordinate with an affected state before deciding on an

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

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

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

5    9604(c), 9628(a).   The EPA is expressly authorized to enter

6    into contracts or agreements with states to carry out CERCLA

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

8        Under CERCLA, states have causes of action independent

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

10   PRP is liable for clean up costs “incurred by the United

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

12   We have previously held that a state does not need the

13   approval of the United States before it can remediate

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

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

16   CERCLA views the states as independent entities that do not

17   require the EPA’s express authorization before they can act.

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

19   The 2003 Consent Order between NiMo and the DEC qualifies as

20   “an administrative or judicially approved settlement” under

21   § 113(f)(3)(B); NiMo is entitled to seek contribution under

22   CERCLA.

                             Page 29 of   67
1                 3.   Section 107(a) Claim

2         NiMo contends that it may also have a claim under §

3    107(a). 16    Section 107(a) claims are brought by federal or

4    state agencies that have incurred response costs or PRPs who

5    incur CERCLA clean up costs without judicial or

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

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

8    reimbursement from other PRPs of cleanup costs for a PRP

9    that has resolved its CERCLA liability for some or all of

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

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

12   Clearly, the two sections have differing restrictions and




          16
            While we normally would not consider an alternative
     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.
          17
            In Atlantic Research, the Supreme Court left open the
     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.
                             Page 30 of 67
1    different purposes. 18   Moreover, § 113(f) was enacted by

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

3    codifying the contribution remedy that most courts had

4    already read into the statute.    It was designed to

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

6    jointly and severally liable under CERCLA to seek

7    contribution from other potentially liable parties, when the

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

9    cost that may be greater than its equitable share under the

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

11        NiMo’s claim fits squarely within the more specific

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


          18
            To the extent that NiMo seeks recovery of its actual
     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
1    responsibility and paid for response costs under the

2    statute.      NiMo settled its CERCLA liability with DEC by

3    agreeing to identify and to remediate some of the hazardous

4    substances present at the Water Street Site.      NiMo presses a

5    claim for a sharing of those costs with other PRPs

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

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

8    NiMo’s contribution claims in light of its more specific

9    requirements, the nature of NiMo’s claims, and the amendment

10   of the statute to provide the right of contribution.      We

11   agree.      Congress recognized the need to add a contribution

12   remedy for PRPs similarly situated to NiMo.      To allow NiMo

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

14   amendment and abrogate the requirements Congress placed on

15   contribution claims under § 113. 19    “When Congress acts to

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

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

18   U.S. 386, 397 (1995).

19   III.         SUMMARY JUDGMENT

20          In Niagara I, the district court denied NiMo’s motion


            19
            Claims under § 107 do enjoy a six-year statute of
     limitations while claims under § 113 have a three-year
     statute of limitations. 42 U.S.C. § 9613(g).
                             Page 32 of 67
1    for summary judgment with respect to King Service and

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

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

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

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

6    evidence that it engaged in the appropriate inquiry when it

7    purchased the property in 1968 to qualify for the innocent

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

9    genuine issue of material fact as to whether response costs

10   incurred by NiMo were consistent with the National

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

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

13   that NiMo’s expert testimony that U.S. Steel had released

14   hazardous substances onto the Water Street Site during the

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

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

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

18   to whether hazardous substances were released when U.S.

19   Steel owned the property.     Id. at 130.

20       With respect to Chevron, the district court first

21   determined that although the DEC had suspended its

22   investigation of Area 3, which Chevron currently owns,

                               Page 33 of   67
1    Chevron was a PRP because the entire Water Street Site,

2    including Area 4 that Chevron had also owned, remained at

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

4    found that NiMo had not provided any evidence to support its

5    claim that Republic, Chevron’s tenant on Area 4 when Chevron

6    owned that portion of the property, had dispersed hazardous

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

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

9    The district court reserved decision for the damages phase

10   on the degree to which Chevron would be liable for response

11   costs.   Id. at 133.

12       Portec never owned or occupied any part of the Water

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

14   NiMo pursued costs from Portec because NiMo believed Portec

15   deposited waste in the Wynantskill Creek that then traveled

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

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

18   as a result of the hazardous substances found on Portec’s

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

20   held that NiMo must prove a nexus between Portec’s release

         20
            The district court dismissed Chevron’s claims against
     the Rensselaer defendants as moot. Niagara I, 291 F. Supp.
     2d at 135.
                             Page 34 of 67
1    of hazardous substances and NiMo’s cleanup costs.         Id. at

2    136.    The district court found that NiMo had not provided

3    evidence of causation.      Id. at 137.

4           The district court dismissed NiMo’s New York Navigation

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

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

7    The district court also held that NiMo could not bring a

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

9    remediated only manufactured gas hazardous wastes and not

10   petroleum.    Id.

11          The district court ruled that NiMo’s state law

12   contribution and indemnification claims were preempted by

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

14   to the other defendants because the defendants were not

15   subject to liability for damages for the same injury to

16   property.    Id.    The district court then denied NiMo’s motion

17   for summary judgment on its unjust enrichment claim against

18   King and Chevron because NiMo failed to prove that there was

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

20   the district court held that NiMo’s public nuisance claim

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

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

                                Page 35 of   67
1    793, 794-95 (3d Dep’t 1998), did not counsel extending it.

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

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

4    along with defendants not party to this appeal, moved under

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

6    judgment.   The district court granted summary judgment in

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

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

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

10   ensuing years the case came to this Court on two occasions

11   and on each visit we remanded the matter to the district

12   court for reconsideration of an intervening ruling from the

13   Supreme Court that gave greater definition to the statutory

14   scheme for potentially responsible parties seeking recovery

15   of response costs from other PRPs.

16       Following the second remand, the district court decided

17   that NiMo’s cleanup costs with regard to Chevron were not

18   recoverable under CERCLA “because of the type of substances

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

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



         21
            This includes King Service, Edwin King, Lawrence
     King, and Slote.
                             Page 36 of 67
1    noted that pursuant to the 1992 and 2003 Consent Orders,

2    NiMo was “responsible for removal and remediation of

3    manufactured gas plant-related hazardous waste contamination

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

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

6    dismissed by the district court.     Again NiMo appealed. 22

7        The standard is well known: summary judgment is

8    appropriate when there exists no dispute of material fact.

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

10   292, 300 (2d Cir. 2003).     But the standard’s utility

11   functions only in the context of the statute that imposes or

12   absolves a litigant from liability.     All of the parties

13   asked the district court to resolve the liability question

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

15   expressed by the district court in its rulings that began in

16   November of 2003 and culminated with the second remand

17   decision now before us.     We have already concluded that the

18   district court erred in its conclusion that NiMo could not

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

20   liability calculation.


         22
            We review the district court’s summary judgment
     conclusions de novo. See Commander Oil Corp. v. Barlo
     Equip. Corp., 215 F.3d 321, 326 (2d Cir. 2000).
                             Page 37 of 67
1             CERCLA is a remedial statute; it reaches as far back

2    into the past as necessary to identify both the hazardous

3    wastes present at a site and those responsible for them

4    under the statute.     The logic is straightforward and simple

5    — Congress wanted owners and polluters to identify and clean

6    up all the hazardous waste they discover.     To further this

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

8    liable for the hazardous materials they contributed.

9    Recognizing, however, the practical difficulties of this

10   statutory scheme, Congress also empowered the court through

11   § 113 to use “such equitable factors as the court determines

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

13   9613(f)(1) (emphasis added).

14       Congress 23 noted examples of the factors that it thought

15   courts should consider in apportioning costs:

         23
            CERCLA was hastily enacted and was a combination of
     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
 1       (1) The ability of the party to demonstrate that his
 2       contribution to the release can be distinguished; (2)
 3       The amount of hazardous substance involved. Of course,
 4       a small quantity of highly toxic material, or above
 5       which releases or makes more dangerous another
 6       hazardous substance, would be a significant factor; (3)
 7       The degree of toxicity of the hazardous substance
 8       involved; (4) The degree of involvement of the person
 9       in the manufacture, treatment, transport, or disposal
10       of the hazardous substance; and (5) The degree of
11       cooperation between the person and the Federal, State,
12       or local government in preventing harm to public health
13       or the environment from occurring from a release. This
14       includes efforts to mitigate damage after a release
15       occurs.
16
17   S. Rep. No. 96-848, at 345-46 (1980).

18       While these factors may seem relevant to a liability

19   determination, CERCLA purposefully lowered the liability bar

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

21       The plain meaning of th[e statutory] language dictates
22       that [a party seeking costs] need only prove: [ ] there
23       was a release or threatened release, which [ ] caused
24       incurrence of response costs, and [ ] that the
25       defendant generated hazardous waste at the cleanup
26       site. What is not required is that the government [or
27       another authorized party] show that a specific
28       defendant’s waste caused incurrence of cleanup costs.
29
30   United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d

31   Cir. 1993) (emphasis in original).

32       This relaxed liability standard is appropriate when

33   viewed in the context of the language of CERCLA.   The

34   statute focuses on two important goals: remediation of sites

35   that present a clear and present danger to the health and
                             Page 39 of 67
1    well-being of the communities in which they are located and

2    identification of the source, or sources, of hazardous

3    materials at sites that may have experienced commercial

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

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

6    appropriate when evaluating a motion for summary judgment to

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

8    noted, “Congress faced the unenviable choice of enacting a

9    legislative scheme that would be somewhat unfair to

10   generators of hazardous substances or one that would

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

12   Congress imposed responsibility on generators of hazardous

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

14       Each hazardous waste site is unique in its combination

15   of commercial activities, substances present, and history.

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

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

18   degree impeded by the passage of time and the lack of

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

20   industries then present at the Water Street Site.     The

21   available evidence of who did what at the relevant site is

22   often dependent on inference.    When determining CERCLA

                              Page 40 of   67
1    liability, “there is nothing objectionable in basing

2    findings solely on circumstantial evidence, especially where

3    the passage of time has made direct evidence difficult or

4    impossible to obtain.”    Franklin County Convention

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

6    534, 547 (6th Cir. 2001).

7        In practice, courts generally bifurcate a CERCLA

8    proceeding, determining liability in Phase I, and then

9    apportioning recovery in Phase II.      During Phase I, courts

10   have engaged in a very limited liability inquiry.      See Alcan

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

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

13   of hazardous waste brings a party under the purview of the

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

15   causation plays little or no role in the liability scheme.

16   A party seeking to establish liability under CERCLA need not

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

18   at 721.   The First Circuit defines liability similarly: “To

19   satisfy the causal element, it is usually enough to show

20   that a defendant was a responsible party within the meaning

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

22   the presence of one or more hazardous substances identified

                               Page 41 of   67
1    in CERCLA; and that reasonable costs were expended during

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

3    77 (1st Cir. 1999).     The Ninth Circuit quite dramatically

4    agrees, labeling CERCLA as a statute that allows “broad

5    discretion” to impose liability on “anyone who disposes of

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

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

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

9    the relative strength of the evidence of liability becomes a

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

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

12   “spills may have been too inconsequential to affect the cost

13   of cleaning up significantly, and in that event a zero

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

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

16   that, in the context of CERCLA, “causation is being brought

17   back into the case — through the backdoor, after being

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

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

20   authorized to use their broad discretion under CERCLA to

21   employ the equitable factors, including consideration of the

22   quality of the evidence that lead to liability.       See

                               Page 42 of   67
1    Goodrich Corp. v. Town of Middlebury, 311 F.3d 154, 170 (2d

2    Cir. 2002).

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

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

5    claim under CERCLA might seem limited and constrained.    The

6    party seeking contribution must, of course, establish that

7    the defendants qualify as PRPs under the statute and must

8    demonstrate that it is probable that the defendants

9    discharged hazardous material.    But the party seeking

10   contribution need not establish the precise amount of

11   hazardous material discharged or prove with certainty that a

12   PRP defendant discharged the hazardous material to get their

13   CERCLA claims past the summary judgment stage.      By

14   referencing “equitable factors,” the statute requires

15   district courts to consider the practical difficulties in

16   these cases.   Summary judgment is only proper when a

17   defendant establishes it is not liable at all under CERCLA —

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

19   plausible evidence that it discharged hazardous materials,

20   or it is eligible for one of the three affirmative defenses

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

22       Defenses of minimal involvement or limited proof of

                              Page 43 of   67
1    responsibility do have a role in the CERCLA scheme; they

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

3    charged with equitably apportioning the costs of the cleanup

4    among the PRPs.   That a party seeking contribution can only

5    demonstrate a minimal amount of hazardous discharge from a

6    particular PRP, or that the exact origin proportions are

7    unknown, are the types of equitable factors a court should

8    consider in the apportionment process.

9        Congress sought to further incentivize PRPs to pay for

10   their role in the creation of a hazardous waste site

11   regardless of when they polluted.    See Toxic Substances

12   Control Act Amendments: Hearings Before the Subcommittee on

13   Consumer Protection and Finance of the Committee on

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

15   that end, parties seeking contribution — by definition PRPs

16   who have already been charged with liability and resolved

17   their exposure or PRPs confronted with reimbursement claims

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

19   opportunity to pursue other PRPs and have the costs of

20   cleanup borne equitably with others liable under the

21   statute.

22        This summary judgment standard is in keeping with our

                             Page 44 of   67
1    previous directive to liberally construe CERCLA in order to

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

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

4    Construction of CERCLA Under the Remedial Purpose Canon:

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

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

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

8    Shambie Singer, eds., 2009).

9        A.   Chevron

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

11   Street Site from the Republic Steel Company, and leased an

12   easement over Area 2 for above-ground pipelines originating

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

14   from approximately 1953 to 1998.      Chevron is the current

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

16   Rensselaer County in 1974.     During the time when Chevron

17   owned Area 4, Chevron leased the land back to Republic

18   Steel.

19       Chevron argues that NiMo is only obligated to cleanup

20   waste from manufactured gas production and, since Chevron

21   was not in the business of manufacturing gas, Chevron cannot

22   be liable for any of NiMo’s costs.      Chevron is correct that,
                              Page 45 of   67
1    under the Consent Order, NiMo was responsible for

2    remediating the waste specifically related to manufactured

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

4    all hazardous waste present.    Investigation costs are

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

6    9601(23).    Thus, even if a PRP disposed of hazardous waste

7    that was not related to manufactured gas, NiMo may pursue

8    contribution for the PRP’s share of the investigation costs.

9           The District Court originally held, in Niagara I, that

10   “the CERCLA facility at issue here is the MGP facility,” and

11   that Chevron, as “a current owner of a portion of the former

12   MGP facility . . . [was] a ‘covered person’ liable for

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

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

15   the various areas as severable parts, we would reach the

16   same conclusion.

17          For the easement over Area 2 and the entirety of Area

18   3, Chevron qualifies as a PRP under the statute because

19   Chevron is “the owner or operator” of Area 3 and the

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

21   to the easement over Area 2, there is evidence that

22   hazardous substances may have leaked from Chevron’s pipes

                              Page 46 of   67
1    and may have been released when Chevron moved asphalt and

2    other substances from barges onto its dock and through the

3    pipes.   Chevron does not deny the evidence that there were

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

5    that its asphalt and petroleum products are not hazardous

6    substances under CERCLA, and thus Chevron cannot be held

7    liable for their discharge.   Chevron is correct that

8    petroleum products are expressly excluded from the

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

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

11   introduced evidence that this asphalt facility produced or

12   used hazardous materials that may have been released with

13   the asphalt.   In response, Chevron produced evidence that

14   the waste products from manufactured gas contain “different

15   and greater amounts” of hazardous materials than asphalt.

16   Whether the amount of hazardous materials deposited is

17   minimal is an equitable consideration the court may note

18   during the apportionment of costs.    The evidence presented

19   is sufficient to present a genuine issue of material fact to

20   defeat Chevron’s motion for summary judgment.

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

22   1980s one of Chevron’s railroad hoses ruptured and

                             Page 47 of   67
1    discharged coal tar product into the ground.        In 1987,

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

3    its property.   Chevron claims these are “microscopic

4    incidents” and that it is entitled to summary judgment.

5    Regardless of the characterization of these spills, NiMo has

6    taken no remedial action and incurred no cost to investigate

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

8    its preliminary research found no hazardous substances at

9    Area 3 and that no further investigation was necessary.        It

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

11   must prove first that it incurred them.        See United States

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

13   The district court correctly concluded that, at this stage

14   of the cleanup process, NiMo cannot maintain a contribution

15   claim against Chevron for Area 3.

16       Area 4 is more complicated.      While Chevron owned Area

17   4, it leased the property to Republic Steel.        Though Chevron

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

19   Steel disposed of any hazardous substances at the Site

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




                             Page 48 of    67
1    In 1960, after animals 24 and people got stuck in the open

2    tar pits and one pit caught fire, Republic Steel attempted

3    to remediate the pits on Area 4 by covering them with

4    “earthen material.”    Relative to the standards at the time,

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

6    technique.   NiMo, however, presented evidence that capping

7    could spread contamination by creating pressure that forced

8    the hazardous materials to surface at the sides of the site

9    and mix with surface water.

10       Under CERCLA, “disposal” means “the discharge, deposit,

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

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

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

14   pits to leak out into the surrounding area.     NiMo claims

15   leaking qualifies as disposal, and thus Chevron is liable

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

17   hazardous substance.    We agree.   NiMo presented sufficient

18   evidence to create a genuine issue of material fact as to

19   whether the placement of the caps played a role in


         24
            There is particularly evocative testimony in the
     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
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 50 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

                            Page 51 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 25 were not

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


         25
              Quench oil is oil used to cool heat-treated metal.
                               Page 52 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 53 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

                               Page 54 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). 26   NiMo contends that U.S. Steel deposited

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.



          26
            Under CERCLA, “arranger” is shorthand for “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.” 42 U.S.C. § 9607(a)(3).
                             Page 55 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 56 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 57 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 58 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 59 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 60 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

                              Page 61 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. 27   See 42

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


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

         28
            We are not the first circuit to reach this result.
     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    law indemnification claims were preempted by CERCLA, a

2    conclusion that we reiterate today.    Bedford Affiliates, 156

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

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

          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    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.

15   VI.   CONCLUSION

16         We reverse the orders of the district court dismissing

17   U.S. Steel, Chevron, Portec, and King Service from the

18   litigation.   There are genuine issues of material fact with

19   respect to the defendants contribution liability to NiMo.

20         NiMo is entitled to bring a claim for contribution

21   under § 113(f)(3)(B).   A potentially responsible party’s

22   CERCLA liability settlement with a state qualifies the PRP

                             Page 65 of   67
1    for contribution under § 113(f)(3)(B) and the state agency

2    does not need express authorization for the settlement from

3    the EPA.      NiMo satisfied the requirements of the National

4    Contingency Plan by settling its CERCLA liability with New

5    York.      Because NiMo resolved its CERCLA liability through an

6    administrative settlement, it is not entitled to bring a

7    claim under § 107(a)(4)(B).

8         We reverse the district court’s dismissal of NiMo’s

9    claim for contribution under New York Navigation Law, and

10   affirm the district court with respect to its dismissal of

11   NiMo's remaining state law claims.          We reinstate Chevron’s

12   third-party claims against Rensselaer County for

13   consideration by the district court in light of our

14   reinstating NiMo’s claims against Chevron and we further

15   reinstate Chevron’s cross-claims for contribution against

16   Portec and U.S. Steel.

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

18   11, 2004, June 28, 2006, and July 16, 2008 are hereby

19   AFFIRMED   in part and REVERSED in part.

20




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1    APPENDIX A




2




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