Niagara Mohawk v. Consolidated Rail, No. 08-3843 (2d Cir. 2010)

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08-3843-cv(L); 08-4007-cv(XAP) Niagara Mohawk v. Consolidated Rail 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 UNITED STATES COURT OF APPEALS F OR THE S ECOND C IRCUIT August Term, 2008 (Argued: June 9, 2009 Decided: February 24, 2010) Docket Nos. 08-3843-cv (L); 08-4007-cv (XAP) Niagara Mohawk Power Corporation, Plaintiff-Appellant-Cross-Appellee, v. Chevron U.S.A., Inc., Defendant-Appellee-Cross-Appellant, United States Steel Company, Richard B. Slote, in his capacity as personal representative of the estate of Edwin D. King, and Portec, Inc., Defendants-Appellees-Cross-Appellees, King Services, Inc., Richard B. Slote, and Lawrence King, Defendant-Cross-Appellees, County of Rensselaer and The County of Rensselaer Sewer District No. 1, Third-Party-Defendants-Cross-Appellees, Consolidated Rail Corporation, American Premier Underwriters, Inc., The Foundation Company and Pittsburgh Page 1 of 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Business, Defendants. Before: C ALABRESI, W ESLEY, Circuit Judges, and V ITALIANO, * District Judge. Niagara Mohawk Power Corporation ( NiMo ) commenced this action to recover costs pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( CERCLA ), Pub. L. No. 96-510, 94 Stat. 2767, and the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613, codified together at 42 U.S.C. §§ 9601-75, from the defendants for cleanup of properties previously owned by NiMo and once either owned, leased, or used by the defendants. In this appeal, NiMo challenges orders of the United States District Court for the Northern District of New York (Hurd, J.) denying NiMo s motion for summary judgment, granting summary judgment in favor of the defendants, and denying NiMo s motion for reconsideration. We are called upon to determine whether NiMo, as a potentially responsible party under CERCLA, can seek response and cleanup costs under either § 107(a)(4)(B) or § 113(f)(3)(B), after having settled its CERCLA liability with the New York State Department of Environmental Conservation ( DEC ) but not with the Environmental Protection Agency ( EPA ), where the EPA has not expressly authorized the DEC to settle CERCLA liability relating to the property at issue. We hold that NiMo may seek contribution costs under § 113(f)(3)(B) because NiMo has settled with the DEC, but consequently NiMo may not seek reimbursement for response costs under § 107(a). We hold that the district court erred in granting summary judgment 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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 material fact with regards to their respective liabilities. We hold that the district court erred by holding that NiMo did not comply with the National Continency Plan. We hold that the district court erred in part by dismissing NiMo s New York Navigation Law claims. Finally, we hold that the district court erred in dismissing Chevron s third party action against the County of Rensselaer and others. We affirm, however, the district court s dismissal of NiMo s state contribution, indemnity, and unjust enrichment claims because they are preempted by CERCLA. 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 A FFIRMED in part and R EVERSED in part. J OHN T. P ARKINSON, Syracuse, NY (Thomas R. Lotterman, Robert V. Zener, Milissa A. Murray, Sandra P. Franco, Bingham McCutchen LLP, Washington, DC, on the brief), for Plaintiff-Appellant-CrossAppellee Niagara Mohawk Power Corporation. P ATRICK J. H IGGINS, Powers & Santola, LLP, Albany, NY, for Defendant-Appellee-Cross-Appellant Chevron U.S.A., Inc. K EVIN C. M URPHY, The Wladis Law Firm, Syracuse, NY (David L. Smiga, on the brief, Pittsburgh, PA), for Defendant-Appellee-Cross-Appellee United States Steel Corporation. K IMBERLEE S. P ARKER, Bond, Schoeneck & King, PLLC, Albany, NY, for Defendant-Appellee-CrossAppellee Portec, Inc. W ESLEY, Circuit Judge: 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 ). 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 However, because 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. 2 NiMo did not comply with the National Contingency Plan. 3 reverse in part the district court s dismissal of NiMo s 4 Navigation Law contribution claim. 5 court s dismissal of NiMo s state contribution, 6 indemnification, and unjust enrichment claims as preempted 7 under CERCLA. 8 dismissal of Chevron s third-party action against the County 9 of Rensselaer and others. 10 11 I. The district court erred in finding that We We affirm the district Finally, we reverse the district court s BACKGROUND 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. 17 disposal of toxic substances, many subject to liability 18 under CERCLA. 19 Each use led to the release or 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. 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. 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 9 Coal tar, which By 1951, In December of 1992, NiMo entered into an Order on 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. 13 Order was to control and/or remove residual [manufactured 14 gas plant] waste sources. 15 implement plans for remediation of the pollution under the 16 direction of the DEC. 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. 21 identified by the Preliminary Site Assessment as requiring 22 comprehensive evaluation was then subject to a Remedial The purpose of the NiMo agreed to develop and For each site, NiMo developed and Page 6 of 67 Any site 1 Investigation conducted by NiMo, which consequently prepared 2 a Feasibility Study. 3 deemed in need. 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 NiMo agreed to remediate sites the DEC In 2003, NiMo and the DEC executed an 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. 11 reports, and remediation, the DEC divided the property into 12 four parts, corresponding to historical ownership and 13 property lines. 2 14 For purposes of the assessments, 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. 18 removed some tar and continued to monitor Area 1 for any new 19 tar leaks. 20 NiMo did take some action in Area 1, however; it 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. 2 soil and groundwater, NiMo discovered evidence of hazardous 3 materials in the sediment of the Wynantskill Creek, which 4 runs through Area 2. 5 Study Report evaluating remedial options for the area; the 6 Report and its recommendations await a final DEC decision. 7 In addition to hazardous materials in the NiMo prepared a Final Feasibility 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. 11 postpone any investigation of Area 3, fearing that Area 3 12 may have some contamination from nearby Hudson River 13 deposits. 14 The DEC agreed only to Area 4 had substantial contamination in its soil and 15 sediments. 16 included excavation, placement of an impermeable cap over 17 the area, certain use restrictions for the property, and 18 future monitoring. 19 20 The DEC approved a remediation plan that NiMo began this action on July 1, 1998, 3 seeking to 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. 2 cross-claimed for contribution; the parties ultimately moved 3 for summary judgment. 4 2003, the district court thoroughly recounted the 5 complicated facts of the case and disposed of a number of 6 matters. 7 ( Niagara I ), 291 F. Supp. 2d 105 (N.D.N.Y. 2003). 8 November 7, 2003, the day after the district court s opinion 9 in Niagara I, the 2003 Order of Consent was executed. 10 Order was intended to supercede and replace the 1992 11 Consent Order. 12 the sites. 13 its liability to the State for purposes of contribution 14 protection provided by CERCLA Section 113(f)(2). 15 Defendants counterclaimed and In its first opinion in November of Niagara Mohawk Power Corp. v. Consol. Rail Corp. On That NiMo agreed to continue the remediation of Under the terms of the agreement, NiMo resolved 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. 3 CERCLA 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. 7 Rep. No. 96-848, at 13 (1980). 8 is designed to encourage prompt and effective cleanup of 9 hazardous waste sites. S. CERCLA, remedial in nature, 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. 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. 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). 9 liability only if the pollution results from an act of God Somewhat like the common law of ultra- See New York v. Owners can escape 10 or an act of war, or if the owners establish they are 11 innocent owners under the statute. 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 42 U.S.C. § 9607(b); 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). 6 This reprieve is 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). 3 United States, a state, or any other person to seek 4 reimbursement for all removal or remedial costs 7 associated Section 107 authorizes the (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. 5 language any other person includes a PRP that voluntarily 6 cleans the site. 7 551 U.S. 128, 135-36 (2007). 8 PRPs who have been sued under § 107 a right of contribution 9 from other PRPs, including the plaintiff. Id. § 9607(a)(4). The See United States v. Atl. Research Corp., Section 113(f)(1) provides 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. 14 9613(f)(3)(B). 15 parties, the statute instructs the court to use such 16 equitable factors as the court determines are appropriate. 42 U.S.C. § In allocating the response costs among the 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 6 Victor, 457 F.3d 188, 195 (2d Cir. 2006). 7 first enacted, this was the only remedy available. 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. 12 States, 511 U.S. 809, 816 (1994). 13 language, some courts filled in the obvious gap and 14 recognized a common law right to contribution between PRPs. 15 Id. 16 necessary to authorize a contribution right under CERCLA See Schaefer v. Town of When CERCLA was Courts See Key Tronic Corp. v. United In the absence of express Congress finally provided the express language 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. 3 499, 100 Stat. 1613, 1647-48. 4 Pub. L. No. 99- 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. 8 the Court issued the first of two opinions attempting to 9 clarify the interaction between §§ 107 and 113. After the district court s first decision, 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. 13 Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 160-61 14 (2004). 15 concluded that contribution was only available during or 16 following an action under § 106 or § 107. 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. 21 briefed the issue, the Court expressly refused to decide 22 whether the plaintiff could have sued under § 107. Cooper Looking to the text of § 113(f)(1), the Court Id. at 168. Id. at 165-66. Because the parties had not Page 15 of 67 Id. at 1 2 169-70. After Cooper Industries, we remanded Niagara I back to 3 the district court for reconsideration in light of that 4 decision. 5 ( Niagara II ), 436 F. Supp. 2d 398, 399-400 (N.D.N.Y. 6 2006). 7 not proceed with a contribution claim under § 113(f)(1) it 8 had not been sued under § 106 or § 107(a). 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. 12 disagreed. 13 granted authority to settle CERCLA claims by the EPA, the 14 settlement did not qualify under § 113. 15 district court viewed the consent orders as reaching only 16 state law-based liability. 9 9 Niagara Mohawk Power Corp. v. Consol. Rail Corp. In Niagara II, NiMo correctly conceded that it could Id. at 401. Id. at 400-01. The district court It concluded that because the DEC had not been Id. at 402. The 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). 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. 7 37. 8 claims under § 107 from contribution claims under § 113, 9 identifying each as distinct causes of action [available] The Court read any other Id. at 135- The Court differentiated joint and several liability 10 to persons in different procedural circumstances. Id. at 11 139 (internal quotation marks omitted). 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 Section 107, the 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). 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. 7 403. The Id. at 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 20 1. 2003 Consent Order Before the district court, NiMo sought to recover the 21 costs of its remediation efforts under § 107 or, 22 alternatively, under § 113(f)(1). Page 18 of Following the first 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. 4 436 F. Supp. 2d at 401. 5 entitled to contribution under § 113(f)(3)(B) because the 6 2003 Consent Order qualified as an administrative 7 settlement. 8 Consent Order. 11 9 Id. Niagara II, However, NiMo argued it was The court refused to consider the 2003 Id. The parties argue quite vigorously over whether the 10 2003 Consent Order is before us. 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 stress Chevron and Portec are right about the standard of 16 review, but wrong about the result. 17 court s decision whether to reopen the record to admit new 18 evidence for abuse of discretion. 19 W. Pub. Co., 158 F.3d 674, 679 (2d Cir. 1998). 11 We review a district Matthew Bender & Co. v. A district 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. 6 (2d Cir. 2008) (internal quotation marks and citations 7 omitted). 8 discretion by failing to admit the 2003 Consent Order. In re Sims, 534 F.3d 117, 132 In our view the district court abused its 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. 15 Order as not part of the record and noted that no motion to 16 supplement the record had been made. 17 Supp. 2d at 401. 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. The district court rejected the 2003 Consent Niagara II, 436 F. The district court added the following 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. 4 Id. at 401 n.3 (emphasis added). 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. 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. ). 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. 16 Niagara II, 436 F. Supp. 2d at 401. 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. 21 district court regained jurisdiction following the remand, 22 NiMo attempted to admit the document with its first See Int l Bus. Mach. Corp. v. That ruling was not premised on NiMo s See Niagara I, 291 F. Supp. 2d at 105; see also Page 21 of 67 But, in these As soon as the 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. 9 supplement the record, there is no evidence that any of the And, although NiMo did not make a formal motion to 10 defendants made a formal motion to strike the document or 11 even disputed its authenticity. 12 12 penalized only NiMo for a trivial procedural shortcoming; 13 this was error. 2. 14 15 The district court Section 113(f)(3)(B) Claims In our view, only § 113(f)(3)(B) provides the proper 16 procedural mechanism for NiMo s claims. 17 113(f)(3)(B), a person who has resolved its liability to 12 Under § 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. 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. 42 U.S.C. § 113(f)(3)(B). As noted, the 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. 13 Id. at 404. Some of our earlier cases could be mistaken for 14 supporting the district court s view. 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 In Consolidated 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). 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. 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 The Voluntary Cleanup Agreement indicated Id. at 97. The state 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. 9 91 (2d Cir. 2009). 559 F.3d 85, 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. 6 423 F.3d at 95-97. 7 in Consolidated Edison and W.R. Grace, the 2003 Consent 8 Order specifically released NiMo from CERCLA liability. 9 2003 Consent Order released NiMo from liability under See W.R. Grace, 559 F.3d at 90-91; Consol. Edison, Moreover, unlike the consent agreements The 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)]. 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. Under the 2003 Consent Order, the remedial Page 26 of 67 Once NiMo 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. 6 administrative settlement of liability for purposes of 7 CERCLA pursuant to the plain text of § 113(f)(3)(B). 8 9 The 2003 Consent Order qualifies as an Our interpretation of the Consent Order fits squarely 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). 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. 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. 19 the district court s interpretation of the statute would 20 compel such a result. 21 authority of state environmental agencies in settling CERCLA 22 claims, it could have easily done so. The statute Nor does § 113(f)(3)(B) require that But If Congress wanted to constrict the Page 27 of 67 Instead, Congress 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 7 Supporting Appellant at 4, Niagara Mohawk v. Consol. Rail, 8 Nos. 08-3843-cv; 08-4007-cv (2d Cir. 2009) 9 not only critical, it is autonomous. Brief for United States as Amicus Curiae That role is 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. 083843-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. 5 9604(c), 9628(a). 6 into contracts or agreements with states to carry out CERCLA 7 response actions. 8 9 42 U.S.C. §§ The EPA is expressly authorized to enter 40 C.F.R. § 300.515(a)(1). Under CERCLA, states have causes of action independent from the federal government. For example, under § 107, a 10 PRP is liable for clean up costs incurred by the United 11 States Government or a state. 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. 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. 42 U.S.C. § 9607(a)(4)(A). Page 29 of 67 See N.Y. v. 3. 1 2 Section 107(a) Claim NiMo contends that it may also have a claim under § 3 107(a). 16 4 state agencies that have incurred response costs or PRPs who 5 incur CERCLA clean up costs without judicial or 6 administrative intervention. 17 7 at 135. 8 reimbursement from other PRPs of cleanup costs for a PRP 9 that has resolved its CERCLA liability for some or all of Section 107(a) claims are brought by federal or See Atl. Research, 551 U.S. Section 113(f)(3)(B) claims seek proportionate 10 the costs of a response action through a judicial or agency- 11 approved settlement. 12 Clearly, the two sections have differing restrictions and See 42 U.S.C. § 9613(f)(3)(B). 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 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. 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 11 12 circumstances. Moreover, § 113(f) was enacted by It was designed to H.R. Rep. No. 99-253(I), at 79 (1985). NiMo s claim fits squarely within the more specific requirements of § 113(f)(3)(B). 18 NiMo acknowledged 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. 3 agreeing to identify and to remediate some of the hazardous 4 substances present at the Water Street Site. 5 claim for a sharing of those costs with other PRPs 6 consistent with § 113(f)(3)(B). 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 NiMo settled its CERCLA liability with DEC by NiMo presses a The EPA in its amicus brief 10 of the statute to provide the right of contribution. 11 agree. 12 remedy for PRPs similarly situated to 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 16 amend a statute, [courts] presume it intends its amendment 17 to have real and substantial effect. 18 U.S. 386, 397 (1995). 19 III. 20 We Congress recognized the need to add a contribution To allow NiMo When Congress acts to Stone v. INS, 514 SUMMARY JUDGMENT 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. 4 Supp. 2d at 140-41. 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 Niagara I, 291 F. The district court found that although 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. 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. 20 Id. at 129. The district court concluded that Id. at 130. 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. 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. 8 Chevron was not liable for the cleanup of Area 4. 9 The district court reserved decision for the damages phase 10 on the degree to which Chevron would be liable for response 11 costs. 12 Id. at 131. Id. at 134. However, the district court Therefore, the district court held Id. 20 Id. at 133. 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. 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. 20 held that NiMo must prove a nexus between Portec s release 20 The district court first held that NiMo was Id. at 135. In other words, the district court 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. 2 136. 3 evidence of causation. Id. at The district court found that NiMo had not provided 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). 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 11 petroleum. Id. Id. 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. 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. 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 Id. The district court then denied NiMo s motion Page 35 of Id. at 140. 67 Finally, 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. 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. The district court granted summary judgment in 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. 21 The district court 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. 6 dismissed by the district court. 7 Id. at 402-03. Thus all of NiMo s claims were Again NiMo appealed. 22 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). 11 functions only in the context of the statute that imposes or 12 absolves a litigant from liability. 13 asked the district court to resolve the liability question 14 as a matter of law. 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. 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 But the standard s utility All of the parties NiMo lost for a number of reasons We have already concluded that the 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. 5 Congress wanted owners and polluters to identify and clean 6 up all the hazardous waste they discover. 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 The logic is straightforward and simple To further 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. 13 9613(f)(1) (emphasis added). 14 15 42 U.S.C. § Congress 23 noted examples of the factors that it thought 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 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 (1) The ability of the party to demonstrate that his contribution to the release can be distinguished; (2) The amount of hazardous substance involved. Of course, a small quantity of highly toxic material, or above which releases or makes more dangerous another hazardous substance, would be a significant factor; (3) The degree of toxicity of the hazardous substance involved; (4) The degree of involvement of the person in the manufacture, treatment, transport, or disposal of the hazardous substance; and (5) The degree of cooperation between the person and the Federal, State, or local government in preventing harm to public health or the environment from occurring from a release. This includes efforts to mitigate damage after a release occurs. S. Rep. No. 96-848, at 345-46 (1980). While these factors may seem relevant to a liability 19 determination, CERCLA purposefully lowered the liability bar 20 required to be a PRP. As we have observed previously: 21 22 23 24 25 26 27 28 29 30 United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d 31 Cir. 1993) (emphasis in original). 32 The plain meaning of th[e statutory] language dictates that [a party seeking costs] need only prove: [ ] there was a release or threatened release, which [ ] caused incurrence of response costs, and [ ] that the defendant generated hazardous waste at the cleanup site. What is not required is that the government [or another authorized party] show that a specific defendant s waste caused incurrence of cleanup costs. 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). 6 appropriate when evaluating a motion for summary judgment to 7 dismiss a claim against a PRP in a CERCLA case. 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. 14 Both goals suggest that caution is As we have Alcan Aluminum, 990 F.2d at 716-17. 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. 21 available evidence of who did what at the relevant site is 22 often dependent on inference. The 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. 5 Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 6 534, 547 (6th Cir. 2001). 7 Franklin County Convention 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. 11 Aluminum, 990 F.2d at 720. 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. 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. 18 at 721. 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 Id. See Alcan We have previously commented on The traditional tort concept of Id. The First Circuit defines liability similarly: To Page 41 of 67 1 in CERCLA; and that reasonable costs were expended during 2 the operation. 3 77 (1st Cir. 1999). 4 agrees, labeling CERCLA as a statute that allows broad 5 discretion to impose liability on anyone who disposes of 6 just about anything. 7 Clinton, 146 F.3d 1107, 1110 (9th Cir. 1998). 8 9 Acushnet Co. v. Mohasco Corp., 191 F.3d 69, The Ninth Circuit quite dramatically A&W Smelter & Refiners, Inc. v. It is in Phase II, when damages are apportioned, that 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 ). 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. 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. Page 42 of In pushing such District courts are 67 See 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. 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. The 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. 14 referencing equitable factors, the statute requires 15 district courts to consider the practical difficulties in 16 these cases. 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. 22 By Summary judgment is only proper when a See 42 U.S.C. § 9607(b). 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. 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 That a party seeking contribution can only 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. 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). 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 See Toxic Substances To 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. 3 F.3d at 89. 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. W.R. Grace, 559 See generally Blake A. Watson, Liberal 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. 14 from approximately 1953 to 1998. 15 owner of Area 3 and the easement; it sold Area 4 to 16 Rensselaer County in 1974. 17 owned Area 4, Chevron leased the land back to Republic 18 Steel. 19 Chevron used Area 3 for an asphalt terminal Chevron is the current During the time when Chevron 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. Page 45 of Chevron is correct that, 67 1 under the Consent Order, NiMo was responsible for 2 remediating the waste specifically related to manufactured 3 gas. 4 all hazardous waste present. 5 recoverable as response costs under CERCLA. 6 9601(23). 7 that was not related to manufactured gas, NiMo may pursue 8 contribution for the PRP s share of the investigation costs. 9 But NiMo first had to investigate the site to identify Investigation costs are See 42 U.S.C. § Thus, even if a PRP disposed of hazardous waste 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. 14 have no problem with that holding. 15 the various areas as severable parts, we would reach the 16 same conclusion. 17 Niagara I, 291 F. Supp. 2d at 131. We But even if one treated 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. 21 to the easement over Area 2, there is evidence that 22 hazardous substances may have leaked from Chevron s pipes 42 U.S.C. § 9607(a)(1). Page 46 of 67 With regard 1 and may have been released when Chevron moved asphalt and 2 other substances from barges onto its dock and through the 3 pipes. 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. 8 petroleum products are expressly excluded from the 9 definition of hazardous substances. Chevron does not deny the evidence that there were Chevron is correct that 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. 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. 19 is sufficient to present a genuine issue of material fact to 20 defeat Chevron s motion for summary judgment. 21 22 In response, Chevron produced evidence that The evidence presented As for Area 3, there was evidence that, in the early 1980s one of Chevron s railroad hoses ruptured and Page 47 of 67 1 discharged coal tar product into the ground. 2 Chevron discovered a pinhole leak of coal tar from a tank on 3 its property. 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. 8 its preliminary research found no hazardous substances at 9 Area 3 and that no further investigation was necessary. 10 would seem that in order for NiMo to recover costs, NiMo 11 must prove first that it incurred them. 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 In 1987, Chevron claims these are microscopic In fact, NiMo reported to the DEC that Area 4 is more complicated. It See United States While Chevron owned Area 17 4, it leased the property to Republic Steel. 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. Page 48 of 67 Though Chevron 42 U.S.C. § 9607(a)(2). 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. 5 capping the tar pits was supposedly a state-of-the-art 6 technique. 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. Relative to the standards at the time, NiMo, however, presented evidence that capping 10 Under CERCLA, disposal means the discharge, deposit, 11 injection, dumping, spilling, leaking, or placing of any . . 12 . hazardous waste. 13 by placing the caps, Republic Steel caused the tar from the 14 pits to leak out into the surrounding area. 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. 18 evidence to create a genuine issue of material fact as to 19 whether the placement of the caps played a role in 24 42 U.S.C. § 6903(3). We agree. NiMo argues that, NiMo claims NiMo presented sufficient 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 2 redistributing the hazardous materials at Area 4. In addition, the DEC noted that some of the hazardous 3 materials found at Area 4 did not originate from NiMo s 4 activity. 5 Chevron or Republic Steel contributed other deposits, in 6 addition to causing the leak in the pits. This raises a question of fact as to whether 7 B. 8 Portec has never owned any of the land at the Water 9 Portec 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. 13 ran along the northern part of Portec s property, crossed 14 Area 2, and emptied into the Hudson River. 15 During the time in question, the Wynantskill Creek 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. 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. The Wynantskill Improvement Association was a Page 50 of 67 Portec is 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. 7 Association s control of the Wynantskill Creek makes it 8 liable for waste in the Creek. 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. 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. 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 To NiMo, the NiMo alternatively claims Portec counters that We need 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). 2 of operator is very broad in the CERCLA context. 3 States v. Bestfoods, 524 U.S. 51, 65-66 (1998). 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. 8 definition, Portec is a PRP under CERCLA because Portec 9 conducted operations specifically related to pollution at Id. at 66-67. The definition See United To be an Under this 10 the Wynantskill Creek. 11 activities on its property resulted in hazardous waste 12 deposits. 13 properly removed from the plant. 14 fuel oil. 15 sampling from the Portec property revealed a number of 16 hazardous substances in the ground. 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. 20 discharge waste from its plant. 21 traveled across Portec s property into the Creek. 25 There is evidence that Portec s Spent solvents and quench oils 25 were not Underground pipes leaked Neighboring properties suffered spills. Soil More importantly for Portec used the Wynantskill Creek to Surface and ground water The 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. 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. 12 statutory elements to attach liability to Portec. 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. In the planned This meets the necessary Because 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. 21 1973, King purchased Area 2, save a bit of land where the 22 Wynantskill Creek enters the Hudson River. In a series of transactions between 1968 and Page 53 of 67 King is the 1 2 current owner of Area 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. 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. See 42 U.S.C. § 9607(a)(1). The district court 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. 14 1922, U.S. Steel dismantled structures and equipment at an 15 idle steel plant on Area 1. 16 old Bessemer Steel Works that had been in use since the late 17 1860s to convert iron to steel on Area 2. 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. 21 U.S. Steel s dumping at Area 4, this area allegedly grew in 22 acreage. From 1907 to U.S. Steel also demolished the The demolition As a result of 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. 3 9607(a)(2)-(3). 26 4 hazardous waste from its demolition and industrial 5 activities. 6 based on speculation and are without evidentiary basis. 7 42 U.S.C. § NiMo contends that U.S. Steel deposited U.S. Steel contends that NiMo s allegations are 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). 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. 16 battle bespeaks of a dispute of material fact for purposes 17 of CERCLA liability. 26 Because the relevant time period was from 1902 until The 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. 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. 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. CERCLA does not require a smoking gun. The At 15 E. 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. 19 never squarely addressed whether compliance with a state 20 consent decree is sufficient to prove adherence to the 21 National Contingency Plan. 22 National Contingency Plan Under § 107, a PRP is liable for cleanup costs Page 56 of 67 We have 1 consistent with the national contingency plan. 42 U.S.C. § 2 9607(a)(4)(A)-(B). 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. 7 Wagner, The Complete Guide to the Hazardous Waste 8 Regulations: RCRA, TSCA, HMTA, EPCRA, and Superfund, 3d, 9 326-27 (1999). The National Contingency Plan is See 40 C.F.R. part 300; see also Travis Adherence to the plan is the gatekeeper to 10 seeking reimbursement of response costs. 11 goal is consistency and cohesiveness to response planning 12 and actions. 13 Ultimately, the H. Rep. 96-1016, at 30 (1980). Courts presume that actions undertaken by the federal, 14 or a state, government are consistent with the National 15 Contingency Plan. 16 Commc ns Co., 532 F.3d 70, 91 (1st Cir. 2008). 17 private parties that have responded to hazardous substances 18 must establish compliance. 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. 22 v. X-L Eng g Co., 227 F.3d 776, 791 (7th Cir. 2000). See, e.g., City of Bangor v. Citizens Id. However, One way of establishing Id.; see also NutraSweet Co. Page 57 of 67 This 1 is consistent with the state s power to settle CERCLA 2 liability without the express approval of the EPA. 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 9 It would NiMo s adherence to the DEC Consent Decree established 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. 17 includes costs incurred from investigation and remediation 18 of petroleum. 19 A.D.3d 519, 521 (2d Dep t 2009). 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. § 181(1). This See, e.g., New York v. LVF Realty Co., 59 A party who shoulders the N.Y. Nav. L. §§ 172(3), 181(5). Page 58 of 67 NiMo brought 1 Navigation Law claims against the defendants for their 2 discharge of petroleum. 3 petroleum at the Water Street Site. 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 9 However, NiMo had also discharged As the district court However, there is an additional provision of New York 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. 13 L. § 176(8). 14 language other responsible party indicates that the 15 drafters were aware that every person could encompass a 16 responsible party. 17 for its response costs related to petroleum discharges. 18 We agree with the district court that NiMo did not N.Y. Nav. Every person is obviously inclusive and the NiMo is entitled to seek contribution 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. 22 materials, some of which contained petroleum and petroleum NiMo cleaned up a variety of Page 59 of 67 1 products. 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 6 7 8 9 B. There is a genuine issue of material fact as to Contribution, Indemnification, and Unjust Enrichment Claims The district court dismissed NiMo s claims against King and Chevron for contribution under New York law, concluding 10 that CERCLA preempted the state claims. 11 Supp. 2d at 137. 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. 16 Niagara I, 291 F. The district court also dismissed NiMo s Id. 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. 22 272, 280-81 (1987). 23 does not expressly preempt applicable state law. See Cal. Fed. Sav. & Loan Ass n v. Guerra, 479 U.S. We have previously held that CERCLA Page 60 of 67 Marsh v. 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. 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 Bedford 10 objectives of Congress. 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 Pac. Capital Bank, N.A. v. 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. 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. But while a state can settle a 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. 7 see also Marsh, 499 F.3d at 180. 8 standardize the statutory right of contribution and, in 9 doing so, avoid the possibility of fifty different state See Atl. Research, 551 U.S. at 141; Section 113 is intended to 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. 13 113 was intended to provide the only contribution avenue for 14 parties with response costs incurred under CERCLA. 27 15 U.S.C. § 9613(f)(3)(C) ( Any contribution action brought 16 under this paragraph shall be governed by Federal law. ). 17 Thus we conclude that state law contribution claims for 27 Based on the text, § See 42 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. 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 11 Because NiMo We are left then with NiMo s indemnification and unjust enrichment claims. 28 We have previously concluded that state 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. 3 F.3d at 427. 29 4 unjust enrichment are preempted for substantially the same 5 reasons as detailed above allowing unjust enrichment 6 claims for CERCLA expenses would again circumvent the 7 settlement scheme, as PRPs could seek recompense for a 8 legally unjustifiable benefit outside the limitations and 9 conditions of CERCLA. Bedford Affiliates, 156 We also hold that the state law claims for 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. 14 we affirm the district court. 15 V. Therefore, CHEVRON S CROSS-APPEAL 16 Chevron cross-appeals on several grounds. 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. 20 district court reasoned that the third-party action was moot 29 First, 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 The 1 because the district court had absolved Chevron of liability 2 for Area 4. 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. 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 Id. at 135. Chevron argues that, should we We agree. Chevron also appeals the district court s dismissal of 10 Portec and U.S. Steel from the case. 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. 16 As we have reversed CONCLUSION We reverse the orders of the district court dismissing 17 U.S. Steel, Chevron, Portec, and King Service from the 18 litigation. 19 respect to the defendants contribution liability to NiMo. 20 There are genuine issues of material fact with 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. 4 Contingency Plan by settling its CERCLA liability with New 5 York. 6 administrative settlement, it is not entitled to bring a 7 claim under § 107(a)(4)(B). 8 NiMo satisfied the requirements of the National Because NiMo resolved its CERCLA liability through an 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. 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 We reinstate Chevron s 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 Page 66 of 67 1 APPENDIX A 2 Page 67 of 67

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