Full opinion text
ORDER ARCARA, District Judge. This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1), on February 9, 1996. On May 15, 2001, plaintiff Pfohl Brothers Landfill Steering Committee filed a motion for partial summary judgment and defendants Allied Waste Systems, Inc. and GSX Polymers, Inc. (“GSX”) filed a motion for summary judgment. On August 12, 2002, Magistrate Judge Foschio filed a Report and Recommendation, recommending that plaintiffs motion for partial summary judgment be granted in part and denied in part and that defendants’ motion for summary judgment be granted in part and denied in part. Specifically, the Magistrate Judge recommended that summary judgment should: (1) as to whether the record establishes that defendant GSX’s predecessor, U.S. Rubber Reclaiming Co., Inc. (“U.S.Rubber”), deposited hazardous substances into the Pfohl Brothers Landfill such that defendants are subject to CERCLA generator liability, be granted as to plaintiff and denied as to defendants; (2) as to plaintiffs CERCLA contribution claim based on successor liability of defendants, be granted in favor of plaintiff; (3) as to the imposition of a constructive trust upon defendants as requested by plaintiff in connection with the CERCLA contribution claim, be granted in favor of plaintiff; (4) as to plaintiffs fraudulent conveyance claim, be granted as to defendants because the claim is time-barred or, alternatively, plaintiffs constructive fraud claim should be granted as to plaintiff although the existence of material issues of fact preclude summary judgment on plaintiffs actual fraud claim; and (5) as to plaintiffs claim for piercing the corporate veil, be denied as to plaintiff and granted as to defendants. Defendants filed objections to the Report and Recommendation on September 19, 2002. Plaintiff filed a response to the objections on October 18, 2002. Defendants filed a reply thereto on October 29, 2002. Oral argument on the objections was held on March 19, 2003. Pursuant' to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation. Accordingly, for the reasons set forth in Magistrate Judge Foschio’s Report and Recommendation, summary judgment: (1) as to whether the record establishes that defendant GSX’s predecessor, U.S. Rubber, deposited hazardous substances into the Pfohl Brothers Landfill such that, defendants are subject to CERCLA generator liability is granted as to plaintiff and denied as to defendants; (2) as to plaintiffs CERCLA contribution claim based on successor liability of defendants is granted in favor of plaintiff; (3) as to the imposition of a constructive trust upon defendants as requested by plaintiff in connection with the CERCLA contribution claim is granted in favor of plaintiff; (4) as to plaintiffs fraudulent conveyance claim is granted as to defendants because the claim is time-barred; and (5) as to plaintiffs claim for piercing the corporate veil is denied as to plaintiff and granted as to defendants. The case is hereby referred back to Magistrate Judge Foschio for further proceedings. IT IS SO ORDERED. REPORT and RECOMMENDATION JURISDICTION FOSCHIO, United States Magistrate Judge. This case was referred to the undersigned by Honorable Richard J. Arcara on February 9, 1996, for pretrial matters including report and recommendation on dis-positive motions. The matter is presently before the court on motions filed on May 15, 2001 by Plaintiff for partial summary judgment (Docket No. 187), and by Defendants Allied Waste Systems, Inc. and GSX Polymers, Inc. (collectively, “Defendants”) for summary judgment (Docket No. 191). BACKGROUND Plaintiff Pfohl Brothers Landfill Site Steering Committee commenced this contribution action on November 7, 1995, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601 et seq., as amended, seeking to recover from defendants Allied Waste Systems, Inc. and GSX Polymers, Inc. a portion of the costs Plaintiff voluntarily incurred in connection with the removal of various hazardous substances from a landfill located in the town of Cheektowaga, New York. Five amended complaints have been filed, and claims were first asserted against Defendants in the Fourth Amended Complaint, filed on June 11, 1999 (Docket No. 107) (“the Complaint” or “Complaint”), including a claim for contribution under CERCLA § 113(f)(1) (Count Four, ¶¶ 168-79), a claim for declaratory relief establishing the parties’ rights and responsibilities with regard to the costs Plaintiff incurred in the investigation and remediation of hazardous substances at the Landfill based on corporate successor liability, constructive trust and alter ego (Count Five ¶¶ 180-83), and a claim for fraudulent conveyance in violation of the New York Uniform Fraudulent Conveyance Act, New York Debtor and Creditor Law (“N.Y. Debt. & Cred. Law”) §§ 273 and 276 (McKinney 1990) (Count Seven, ¶¶ 184-87). On May 15, 2001, Plaintiff filed a motion for partial summary judgment as to the Fourth, Fifth and Seventh Causes of Action set forth in the Fourth Amended Complaint. In support of the motion, Plaintiff filed a memorandum of law (Docket No. 188) (“Plaintiffs Memorandum”), a statement of facts pursuant to Fed. R.Civ.P. 56 (Docket No. 189) (“Plaintiffs’ Rule 56 Statement of Facts”), and six volumes of exhibits. Also filed on May 15, 2001 was Defendants’ motion for summary judgment seeking to dismiss all causes of action as against them. Defendants’ motion was accompanied by a memorandum of law (Docket No. 192) (“Defendants’ Memorandum”), the Affidavit of Nelson Perel, Esq. (Docket No. 193) (“Perel Affidavit”), a statement of facts pursuant to Fed.R.Civ.P. 56 (Docket No. 194) (“Defendants’ Rule 56 Statement of Facts”) and four volumes of exhibits. On June 29, 2001, Defendants filed in opposition to Plaintiffs request for partial summary judgment an affidavit by Nelson Perel, Esq. (Docket No. 202) (“Perel Affidavit in Opposition to Partial Summary Judgment”), a memorandum of law (Docket No. 203) (“Defendants’ Response Memorandum”), a response in opposition to Plaintiffs Rule 56 Statement of Facts (Docket No. 204), and two volumes of exhibits. In opposition to Defendants’ motion for summary judgment Plaintiff, on June 29, 2001, filed a memorandum of law (Docket No. 207) (“Plaintiffs Response Memorandum”), a response in opposition to Defendants’ Rule 56 Statement of Facts (Docket No. 208), and a Supplemental Appendix of exhibits. Replies in further support of the summary judgment motions were filed on July 27, 2001. In particular, Plaintiff filed a reply memorandum of law (Docket No. 211) (“Plaintiffs Reply Memorandum”), the Declaration of Daniel M. Krainin (Docket No. 212) (“Krainin Declaration”), and another Supplemental Appendix of Exhibits. Defendants filed a reply memorandum of law (Docket No. 214) (“Defendants’ Reply Memorandum”), an affidavit by Nelson Perel, Esq. (Docket No. 215) (“Perel Reply Affidavit”), and a volume of exhibits. ' By letter dated August 21, 2001, Attorney Perel advised the court that a case on which they relied in their previous motion papers in support of their argument that the Complaint fails to state a claim for a CERCLA contribution action had recently been affirmed. (Docket No. 236) (“August 21, 2001 Perel Letter”). Oral argument on the pending motions was deemed unnecessary. Based on the following, the court finds that summary judgment should (1) as to whether the record establishes Defendant GSX Polymers, Inc.’s predecessor, U.S. Rubber, deposited hazardous substances into the Landfill such that Defendants are subject to CERCLA generator liability, be GRANTED as to Plaintiff and DENIED as to Defendants; (2) as to Plaintiffs CERCLA contribution claim based on successor Lability of Defendants, be GRANTED in favor of Plaintiff; (3) as to the imposition of a constructive trust upon Defendants as requested by Plaintiff in connection with the CERCLA contribution claim, be GRANTED in favor of Plaintiff; (4) as to Plaintiffs fraudulent conveyance claim, be GRANTED as to Defendants because the claim is time-barred or, alternatively, Plaintiffs constructive fraud claim should be GRANTED as to Plaintiff but DENIED as to the actual fraud claim as the existence of material issues of fact preclude summary judgment on Plaintiffs actual fraud claim; and (5) as to Plaintiffs claim for piercing the corporate veil, be DENIED as to Plaintiff and GRANTED as to Defendants. FACTS Plaintiff Pfohl Brothers Landfill Site Steering Committee (“the Steering Committee” or “Plaintiff’), is comprised of various corporations that have voluntarily participated in the remediation measures at the Pfohl Brothers Landfill (“the Landfill”), which comprises 120 acres in the Town of Cheektowaga, New York. Beginning in the 1930s and continuing until approximately 1969, the Landfill began accepting waste materials from numerous companies. According to Plaintiff, in 1982, the New York State Department of Environmental Conservation (“the DEC”) issued a Record of Decision delineating interim remedial measures (“IRM”) required to remove certain waste, an offsite remedial investigation and a permanent remedy for the Landfill. In response to the DEC’S IRM, the Steering Committee has implemented the remediation measures, as directed by the DEC’s IRM, at the Landfill and, in doing so, have incurred response costs in excess of $30 million. In this action, the Steering Committee seeks contribution from other companies, including Defendants, which did not participate in the remediation, and which allegedly are also responsible for the presence of hazardous substances in the Landfill. Among the companies the Steering Committee alleges deposited waste containing hazardous substances into the Landfill is U.S. Rubber Reclaiming Co., Inc. (“U.S.Rubber”), a publicly held corporation which was engaged in the business of processing rubber waste products, including passenger vehicle tires, to produce “reclaimed” rubber that was then sold as a commercial product. U.S. Rubber maintained and operated a rubber reclamation plant in Buffalo, New York (“the Buffalo plant”) during the 1930s and 1940s when it opened a second rubber reclamation plant located in Cheektowaga, New York (“the Cheektowaga plant”) approximately three miles from the Landfill, and the Buffalo plant was closed. Over a period of years, U.S. Rubber’s Cheektowaga operations were moved to its manufacturing plant in Vicksburg, Mississippi and the Cheektowa-ga plant was closed in 1966. The parties do not dispute that between 1948 and 1966, U.S. Rubber disposed of waste materials from its Cheektowaga plant, including baled wastes, liquid wastes and general plant waste, into the Landfill. Whether such wastes contained substances considered hazardous under CERCLA regulations, however, is contested by Defendant GSX Polymers, Inc. Following a 1979 merger with Genstar Merger Corp., a wholly owned subsidiary of Genstar, Ltd. (“Genstar”), Genstar became the sole shareholder of U.S. Rubber. In 1985, Genstar created GSX, Inc. (“GSX”) as a wholly owned subsidiary under which certain acquired and existing corporations, including U.S. Rubber, were organized as GSX divisions. By 1986, GSX consisted of three separate waste business operational groups: solid waste, hazardous waste and waste technology. U.S. Rubber, a GSX subsidiary in the waste technology group, changed its name to GSX Polymers, Inc. (“GSX Polymers”), and operated three manufacturing plants located in Mississippi, Arizona and Illinois. While owned by Genstar and GSX, U.S. Rubber and GSX Polymers, Inc. Vice President and President Bobby D. La-Grone was responsible for U.S. Rubber’s daily operations. The market for reclaimed rubber collapsed in the 1980s when innovations in the tire manufacturing process contributed to a decreased demand for reclaimed rubber products, and Mr. LaGrone was instructed to sell GSX Polymers. Laidlaw, Inc. (“Laidlaw”) purchased the stock of GSX Polymers in 1986 from Genstar. By letter to U.S. Rubber dated April 29, 1986, the DEC advised that the Landfill had been identified as an inactive hazardous waste disposal site under. New York law and U.S. Rubber had been identified as a generator of wastes disposed of at the Landfill. The DEC sent a further letter dated August 15, 1986 to GSX Polymers as U.S. Rubber’s successor in interest. Both letters requested information for use in determining whether U.S. Rubber and GSX Polymers should be considered potentially responsible parties (“PRPs”) with regard to the Landfill’s remediation. GSX Polymers responded with the requested information by letter to the DEC dated January 30,1987. Meanwhile, Defendants maintain that prior to acquiring the stock of GSX, Laid-law intended to expand its presence in the solid waste industry by integrating GSX’s solid waste companies into Laidlaw’s existing operations and selling the remaining GSX operations, including GSX Polymers, the hazardous waste and waste technology operations. Defendants further maintain that because Laidlaw intended to sell GSX Polymers before acquiring it, there was no effort to integrate GSX Polymer’s daily operations with those of Laidlaw, GSX Polymers was never added to Laidlaw’s main accounting system and Mr. LaGrone never became an employee of Laidlaw, but remained employed by GSX Polymers which he continued to operate as he had prior to Laidlaw’s acquisition. Rather, GSX Polymers, as well as the other GSX subsidiaries acquired by Laidlaw, had the same board of directors and officers as prior to the Laidlaw stock acquisition, although each subsidiary maintained separate minute books, financial books and records. GSX Polymers also had its own employees, headquarters, business address, office space and telephone number. By letter to Laidlaw dated February 11, 1987, the DEC advised it was aware Laid-law was the new owner of U.S. Rubber. The DEC also requested information pertaining to solvent waste and a fine rubber and oil-mixing operation at U.S. Rubber’s Cheektowaga plant, as well as a diagram of the Cheektowaga plant’s waste flow. In Laidlaw’s response letter dated March 30, 1987, Laidlaw informed the DEC that it was difficult to provide answers to the DEC’s requests as there had been no Buffalo operations for twenty years, few records remained and no present employee had ever worked in the Buffalo operations. Laidlaw further advised that the information it did provide was based on its present operations in the Vicksburg, Mississippi plant and that it “assume[d] that the experience of the Buffalo operations would have been similar in nature.” Pi’s Exhibit 35. GSX Polymers’ assets were sold by Laidlaw in 1987. Specifically, by agreements dated May 14, 1987 and June 2, 1987 the Arizona and Illinois plants were sold for $ 675,000 to Tonson, Inc. (“Ton-son”), and, by agreement dated September 1, 1987, the Vicksburg, Mississippi plant was sold for $1,443,340 to U.S. Rubber Reclaiming, Inc. (“U.S. Rubber Indiana”), a wholly-owned subsidiary of The Curtis Publishing Company (“Curtis”). GSX Polymers discontinued active operations as of October 1987, all of its assets having been sold and no employees were retained or hired. GSX Polymers’ remaining financial transactions and legal matters were handled by Laidlaw employees Susan Whittaker (“Whittaker”), a CPA, and attorney Thomas Fowler (“Fowler”). In a Memorandum dated November 13, 1989, Whittaker directed Laidlaw employees Carol Sandwell (“Sandwell”) and in-house counsel Dick van Wyck (“van Wyck”) to issue a dividend from GSX Polymers to Laidlaw in the amount of $2,588,649.56. Defs’ Ex. 42. In another Memorandum dated April 9, 1990, Whit-taker directed Sandwell and van Wyck to declare a second dividend in the amount of $ 207,853 representing a pension refund. Defs’ Ex. 44. The $2.8 million distributed as dividends to Laidlaw represented the total amount remaining on GSX Polymers’ books, including the proceeds from the sale of GSX Polymers’ assets and the pension plan termination. Plaintiffs Memorandum at 32-33; Defendants’ Memorandum at 16-17. Rather than merging GSX Polymers into Laidlaw, Whittaker, upon the advice of van Wyck, undertook the process to liquidate and dissolve GSX Polymers as a business entity, allegedly to terminate GSX Polymers’ tax obligations. Plaintiffs Memorandum at 33-37; Defendants’ Memorandum at 17-19. In November 1991, the DEC issued its Proposed Remedial Action Plan (“the PRAP”) for the Landfill. Pi’s Ex. 58. Laidlaw officers Richard Norris and van Wyck executed a Certificate of Dissolution (“the Certificate of Dissolution”) dated November 7, 1991 to dissolve GSX Polymers. Pi’s Ex. 60. The Certificate of Dissolution was sent to CT Corporation for filing with New York State. On May 4, 1992, Laid-law received from the DEC a Remedial Design/Remedial Action notice letter (“the RD/RA notice”), advising that Laidlaw was, pursuant to New York Environmental Conservation Law § 27-1313 and CERC-LA § 107(a), a “PRP” with regard to the Landfill. Pi’s Ex. 59. Laidlaw engineer Doug Borro represented Laidlaw at a May 5, 1992 meeting between the DEC and the PRPs, including Laidlaw as owner of GSX Polymers, who had received the RD/RA notice regarding potential liability for the Landfill. On May 6, 1992, Laidlaw moved to expedite completion of GSX Polymers’ dissolution. Meanwhile, by letter dated May 6, 1992, DEC attorney Cheryl Peterson informed Laidlaw that if negotiations regarding an On-site RD/RA Consent Order between the PRP members of the Steering Committee and the DEC were not successful, the DEC would pursue legal action, including pursuant to CERCLA § 107, against those identified as PRPs. By letter to Laidlaw and other PRPs dated May 21, 1992, a Mr. Joseph Heimbuch of Technical Environmental Consultants, on behalf of the PRPs and many Steering Committee Members, described what transpired at the May 5,1992 meeting with the DEC officials, explaining that New York State would likely litigate the matter if the parties declined to negotiate with the DEC, and that all PRPs would likely be named as defendants in such a law suit. New York’s tax authority filed its consent to the dissolution of GSX Polymers on June 29, 1992 and, on July 8, 1992, the New York Secretary of State filed GSX Polymers’ Certificate of Dissolution. Laidlaw never informed New York’s Secretary of State that it had been noticed as a PRP with regard to the Landfill, nor did Laidlaw, despite continuing to participate in negotiations relating to liability for the Landfill, ever inform the Steering Committee members or the DEC that GSX Polymers’ remaining cash assets had been liquidated and distributed, that paperwork to dissolve GSX Polymers had been prepared and filed, or that Laidlaw intended to interpose such actions as a defense to liability. On December 30, 1996, Defendant Allied Waste Systems, Inc. (“Allied”), purchased Laidlaw. On April 9, 2001, the members of the Steering Committee and the DEC reached a settlement on cost recovery'with regard to the Landfill and an administrative Order on Consent was entered to that extent. To date, the Steering Committee has paid out $ 32 million to remediate the Landfill as required by the DEC’s Order on Consent. DISCUSSION 1. Summary Judgment Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The court is required to construe the evidence in the light most favorable to the non-moving party. Tenenbaum v. Williams, 193 F.3d 581, 593 (2d Cir.1999) (citing Anderson, supra, at 255, 106 S.Ct. 2505). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party’s favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, supra, at 322, 106 S.Ct. 2548; see Anderson, supra, at 247-48, 106 S.Ct. 2505 (“summary judgment will not lie if the dispute about a material fact is “genuine,” that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party”). “[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the ‘pleadings, depositions, answers to interrogatories, and admissions on file.’ Such a motion, whether or not accompanied by affidavits, will be ‘made and supported as provided in this rule [FRCP 56],’ and Rule 56(e) therefore requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’” Celotex Corp. supra, at 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R.Civ.P. 56). Thus, “as to issues on which the non-moving party bears the burden of proof, the moving party may simply point out the absence of evidence to support the non-moving party’s case.” Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir.1998). Once a party moving for summary judgment has made a properly supported showing as to the .absence of any genuine issue as to all material facts, the nonmov-ing party must, to defeat summary judgment, ■ come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995). In opposing a motion for summary judgment a party “may not simply rely on conclusory statements or on contentions that the affidavits supporting the motion are not credible.” Goenaga, supra, at 18 (citing cases). Summary judgment may be granted where the evidence proffered in support is sufficient to sustain a directed verdict in the movant’s favor. Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir.1997) (“Summary judgment is designed to pierce the pleadings to flush out those cases that are predestined to result in a directed verdict.”). In this case, Plaintiff has moved for partial summary judgment on its Fourth, Fifth and Seventh Causes of Action asserted against Defendant in the Fourth Amended Complaint. Defendants have moved for summary judgment on all causes of action asserted against them. 2. Plaintiff’s § 113(f) Contribution Claim CERCLA § 107(a) imposes liability upon four classes of “persons,” including: present owners and operators of facilities that accepted hazardous substances; (2) past owners and operators of such facilities; (3) generators of hazardous substances; and (4) certain transporters of hazardous substances. 42 U.S.C. § 9607(a); Betkoski, supra, at 514 (CERCLA’s “broad reach extends liability to all those contributing— from generation through disposal to—the problems caused by hazardous substances.”) (quoting B.F. Goodrich v. Murtha, 958 F.2d, 1192, 1198 (2d Cir.1992)). These so-called PRPs are held strictly liable for “a broad range of remediation expenses, including all costs of removal of the substances not inconsistent with the national contingency plan, other necessary response costs, damages for injury to natural resources, and the cost of health assessments.” Betkoski, supra (citing 42 U.S.C. § 9607(a)(4)). See also Bedford Affiliates, supra, at 423. Such liability is joint and several unless the PRP can prove the harm is divisible. Betkoski, supra, at 513. As a broad remedial statute, CERCLA should be given a liberal construction in order to effect its purposes of “assuring that those responsible for environmental damage and injury from hazardous substances “bear the costs of their actions.” ” Betkoski, supra, at 513 (citing S. Rep. 848, 96th Cong., 2d Sess. 13 (1980) (Senate Report), reprinted in 1 Senate Comm, on Env’t and Pub. Works, Legislative History of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (Superfund), at 305, 320 (1983) (Leg.Hist.)). Such purpose includes prompt and efficient cleanups and settlements to avoid unnecessary expense to the public of lengthy litigation. Id. In the instant case, it is undisputed that U.S. Rubber (later, as noted, renamed “GSX Polymers”) qualifies as a person subject to CERCLA liability provided the waste it generated in its rubber reclaiming process at its Cheektowaga facility and which was subsequently deposited into the Landfill contained hazardous substances as defined under CERCLA. As originally enacted, CERCLA did not expressly authorize a defendant PRP to bring a contribution action to recover from other PRPs, although many judicial decisions recognized an implied cause of action for contribution under § 107(a). Key Tronic Corporation v. United States, 511 U.S. 809, 816, 114 S.Ct. 1960, 128 L.Ed.2d 797 (1994) (citing cases); Bedford Affiliates, supra, at 423. However, only “innocent persons,” i.e., persons who are not PRPs, often the federal or a state government, may recover environmental response costs from a PRP under § 107(a). Bedford Affiliates, supra, at 423-24. Accordingly, § 113(f), enacted as part of the 1986 amendments to CERCLA, expressly created a cause of action for contribution against another PRP to be brought by a PRP who is subject to liability under § 107(a). See 42 U.S.C. § 113(f). See Bedford Affiliates, supra, at 423-25. To date, a contribution action pursuant to § 113(f) remains a PRP’s only federal remedy for recovery of any of its incurred response costs under CERCLA. See Bedford Affiliates, supra, at 424. Such actions are governed by federal, not state, law. 42 U.S.C. § 9613(f)(1). In the instant case, the Steering Committee asserts 42 U.S.C. § 9613(f)(1) in seeking contribution from Defendants. Complaint, ¶¶ 2,113, 115, 123,125; Fourth Amended Complaint, ¶¶ 171, 179, 183. As relevant, 42 U.S.C. § 9613(f)(1) provides that [a]ny person may seek contribution from any other person who is liable or potentially hable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title .... Hi H* ‡ H* H« H* Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 of this title or section 9607 of this title. 42 U.S.C. § 9613(f)(1) (“§ 113(f)(1)”) (emphasis added). Defendants argue that the phrase “during or following any civil action under section 9606 of under section 9607(a) of this title” requires that a claim for contribution is authorized by § 113(f)(1) only if an action pursuant to CERCLA § 106 (“§ 106”) or § 107(a) (“§ 107” or “§ 107(a)”) has been commenced against the PRP from whom contribution is sought. Defendants’ Memorandum at 56-57. As it is not disputed that the instant case does not derive from a pending or completed civil action pursuant to § 106 or § 107(a), Defendants accordingly maintain that the Complaint fails to state a claim and must be dismissed. Id. at 57-58. Thé Steering Committee, in contrast, maintains that the last sentence of § 113(f)(1) is intended as a ‘savings clause’ to establish the right to a contribution action even in the absence of a previously commenced § 106 or § 107(a) action. Plaintiffs Response Memorandum at 38. Alternatively, Plaintiff maintains that even if it has failed to allege a claim for relief specifically under § 113(f)(1), the Complaint states a claim for relief under § 113(f)(3)(B). Id. at 38-39. In support, the Steering Committee relies on the principle that federal “notice” pleading rules require the liberal construction of a complaint so as to allow valid causes of action where supported by the facts to be decided on the merits, especially where a broad interpretation will not prejudice a defendant. Id. at 38-39. Specifically, the Steering Committee maintains that the allegation in the Fourth Amended Complaint asserting a cause of action against Defendants based on “Plaintiffs right to contribution under § 113(f)” should be liberally construed as including a claim under § 113(f)(3)(B). Id. at 39-40. CERCLA § 113(f)(3)(B) provides that “[a] person who has resolved its liability to the United States or to a State for some or. all of a response action of for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party [sic] to a settlement referred to in paragraph (2).” 42 U.S.C. § 9613(f)(3)(B). Paragraph (2) of § 113(f) refers to any person who has “resolved its liability to the United States or to a State in an administrative or judicially approved settlement,” (emphasis added) as to matters covered by such settlement and grants such person protection from future contribution claims by other PRPs who are not parties to the settlement and reduces the amount of response costs recoverable from such non-settling PRPs, unless discharged from liability by the settlement, in further CERCLA claims. 42 U.S.C. § 9613(f)(2). Alternatively, the Steering Committee requests permission to file a further amended complaint specifically alleging a cause of action against Defendants pursuant to § 113(f)(3)(B). Plaintiffs Response Memorandum at 39-40. Defendants reply that earlier allegations in the Complaint, as amended, demonstrate that the claim is brought pursuant to § 113(f)(1), and that the Steering Committee should not be permitted to file another amended complaint asserting a claim under § 113(f)(3)(B) as such an assertion would require reopening discovery. Defendants’ Reply Memorandum at 28-29. However, Defendants have not articulated any specific reasons why such additional pleadings may be required simply because a different provision within § 113 may be relied upon to sustain the Complaint. Defendants’ challenge to Plaintiffs contribution cause of action fails for several reasons. First, in Bedford Affiliates, supra, the Second Circuit upheld an action for contribution pursuant to § 113(f)(1) brought by a PRP against other PRPs in the absence of any prior action for response costs pursuant to either § 106 or § 107(a). In Bed-ford Affiliates, the plaintiff held title to the site at issue since 1952 and, as such, was subject to CERCLA liability under § 107(a)(2) as owner of the site on Long Island, New York, during the period of disposal of hazardous substances. Bedford Affiliates, supra, at 416. During that time, the site had been subleased to dry cleaning businesses which caused contamination through repeated releases of tetracholoroethylene, a dry cleaning solvent constituting a hazardous substance for CERCLA purposes. Id. Eventually, the DEC was informed of the releases and because the level of tetracholoroethylene at the site was 170 times greater than the DEC’S standard, the site was declared to be a significant threat to health and the environment. Id. at 420. Plaintiff, Bed-ford Affiliates, owner of the site throughout the period at issue, then entered into a consent order with the DEC permitting immediate remediation steps in contemplation of a final consent order with the DEC. Id. at 420-21. Bedford Affiliates sued its lessee and a sublessee, Sills, as a PRP primarily responsible for the contaminating releases for response costs pursuant to § 107(a) and, in the same action, asserted a claim against the lessee and sublessee for contribution pursuant to § 113(f)(1). Bedford Affiliates, supra, at 421. The district court rejected the plaintiffs § 107(a) claim as one not available to a PRP under CERCLA but found for the plaintiff on its contribution claim apportioning 95% of the plaintiffs liability for past and future response costs against the tenant/sublessor (5%) and the subtenant polluter, defendant Sills, (95%). Id. Reasoning that as a PRP is, under CERCLA, a joint tortfeasor severally ha-ble for § 107(a) response costs, the Second Circuit held that such PRP cannot seek indemnification for its response costs from other PRPs as being itself a non-innocent PRP it cannot recover 100% of its liability from its other PRPs and to permit a PRP to • bring a § 107(a) action would render § 113(f)(1) a nullity. Bedford Affiliates, supra, at 423-24. However, the court held that under CERCLA § 113(f)(1), any PRP, including the plaintiff, could seek, in contribution, equitable apportionment of any response costs for which it became hable to pay which, under the facts the case included the plaintiffs obligation to remed-iate the site pursuant to the interim consent order and the expectation it would be liable for future remeditation costs imposed pursuant to a final consent order with the DEC. Id. at 415. According to the Second Circuit, a prima facie cause of action for relief pursuant to § 113(f)(1) requires allegations (and proof) that (1) the defendant is a responsible party as defined in § 107(2); (2) the site is a facility; (3) there is a release or threatened release of hazardous substances at the facility; (4) the plaintiff has incurred response co§ts; and (5) the plaintiffs response actions and costs conform to the national contingency plan. Bedford Affiliates, supra, at 427 (citing Betkoski, supra, at 514, and Murtha, supra, at 1198). No requirement for-a precedent § 106 or § 107(a) action is stated by the court to be among the required elements for a contribution action pursuant to § 113(f)(1). Id. Thus, this court finds that commencement of a § 106 or § 107(a) action for response costs against a PRP seeking contribution from other PRPs pursuant to § 113(f)(1) is not a necessary prerequisite to such contribution claim and that the absence of such response cost recovery actions is not a bar to a § 113(f)(1) action. See Coastline Terminals of Connecticut, Inc. v. USX Corporation, 156 F.Supp.2d 203, 207 (D.Conn.2001) (sustaining § 113(f)(1) action by corporate purchaser of contaminated property which, as a PRP under § 107(a)(2), initiated cleanup of property in accordance with state law conditioning real property transfers upon purchaser’s certification that it would investigate and remediate property known to be contaminated by hazardous waste against defendant’s contention that plaintiff was not subject to prior § 106 or § 107(a) action and therefore was prevented from suing for contribution under CERCLA, citing Bedford Affiliates, supra). Second, Defendants’ reliance on caselaw, e.g., Aviall Services, Inc., supra, (and citing authorities at 141-42), holding that § 113(f)(1) precludes an action for contribution under it unless preceded by a § 106 or § 107(a) response cost action, Defendants’ Memorandum at 56-58; Defendants’ Reply Memorandum at 28-29; August 21, 2001 Perel Letter, is misplaced. This court is not bound to follow such non-circuit caselaw. In re Ramaekers, 33 F.Supp.2d 312, 315 (S.D.N.Y.1999) (citing In re Korean Air Lines Disaster, 829 F.2d 1171, 1175 (D.C.Cir.1987) (“ ‘There is no room in the federal system of review for rote acceptance of the decision of a court outside the chain of direct review. If a federal court simply accepts the interpretation of another circuit without independently addressing the merits, it is not doing its job.’ ”) (quoting R.L. Marcus, Conflict Among Circuits and Transfers Within the Federal Judicial System, 93 Yale L.J. 677, 702 (1984))). The court, moreover, finds the reasoning of such cases unpersuasive. Specifically, in Aviall, the majority found as a matter of statutory construction that the word “may” in the first sentence of § 113(f)(1) should be read to mean that a plaintiff in a § 113(f)(1) action must “be or have been, a defendant in a § 106 or § 107(a) action,” Aviall, supra, at 140, because (1) canons of statutory construction require the legislated word “may” receive a mandatory or exclusive sense as in “must” or “shall,” Aviall, supra, at 138; (2) reading the last sentence of § 113(f)(1) to permit a contribution action absent a prior § 106 or § 107 action would render the first sentence of § 113(f)(1) surplusage, Aviall, supra, at 140; and (3) the last sentence of § 113(f)(1), which states that the absence of a § 106 or § 107(a) action “shall not diminish the right of any person to bring an action for contribution,” is a congressional statement that § 113(f) does not preempt contribution actions based on state law. Id. The difficulty with the Aviall majority’s interpretation of the word “may” in § 113(f)(l)’s first sentence is that it fails to recognize the explicit authorization for contribution actions in cases provided for elsewhere in § 113(f) in which no § 106 or § 107(a) action will necessarily have been brought. Specifically, CERCLA § 113(f)(3)(B) authorizes a PRP who has administratively settled its liability under CERCLA § 106 or § 107(a) to the federal or a state government regarding its response and remediation costs to seek contribution against other non-settling PRPs without regard to a previously commenced § 106 or § 107 action. 42 U.S.C. § 9613(f)(3)(B). As § 113(f)(3)(B) also permits a § 113(f) contribution claim in the case of a “judicially” settled response cost claim, such reference reasonably attaches to litigation; however, an administrative settlement by definition does not refer to formal judicial proceedings. Additionally, neither CERCLA § 122(a), 42 U.S.C. § 9622(a) (“The President “may enter into an agreement with any person ... to perform any response action” ”), nor § 122(h), 42 U.S.C. § 9622(h) (the head of any agency “may ... settle a claim under section [107]”), which authorizes the President and federal agencies, e.g., the Environmental Protection Agency, to enter into settlements with PRPs for response costs, require that such settlements be only in regard to a pending or completed § 106 or § 107(a) action. Further, as CERCLA explicitly provides that state law, including common law, is not affected by CERCLA with regard to the obligations or liabilities of persons “with respect to releases of hazardous substances,” 42 U.S.C. § 9652(d), there is no basis to conclude that the last sentence of § 113(f)(1) is, as the majority in Aviall found, a statement that state contribution remedies not be preempted. To do so would render § 9652(d) itself surplusage to that extent. However, the Second Circuit has explicitly held that § 113(f) in its entirety preempts state law contribution remedies. Bedford Affiliates, supra, at 425-26. In Bedford Affiliates, the Second Circuit held that CERCLA’s contribution provision, 42 U.S.C. § 9613, preempts New York’s state common law remedies for restitution and indemnification. Bedford Affiliates, supra, at 426-27. Specifically, the court held that permitting common law restitution and indemnification actions to proceed in state court would bypass CERCLA’s “carefully crafted settlement system” and create an actual conflict between CERCLA and state common law causes of action in the nature of contribution claims which could be brought pursuant to § 113(f). Id. at 427. The context in which in which the court’s discussion occurs, however, establishes that CERCLA’s contribution provision preempts a cause of action under New York common law for contribution, rather than for restitution. Id. Thus, the Aviall court’s view that the last sentence of § 113(f)(1) is a statement of non-preemption is at odds with the express holding in Bedford Affiliates that § 113(f) preempts contribution claims for CERCLA response costs under state law and other provisions of CERCLA itself. Furthermore, the Aviall majority’s restrictive reading of § 113(f) fails to recognize that there is no prohibition in § 113 against a PRP plaintiffs establishment of its, as well as a defendant’s, liability for § 106 or § 107(a) as an element of its contribution action nor does § 113(f)(1) mandate that the amount of the plaintiffs response cost liability sought to be equitably apportioned be exclusively determined in a precedent § 106 or § 107(a) action. Indeed, even if a § 107(a) action were filed and then terminated in connection with the settlement procedures contemplated by § 113(f)(2), the amount sought in contribution is established by the settlement, rather than by a judicial determination on the merits of the § 107(a) action. Aviall’s holding interpretation that § 113(f)(1) necessitates a predicate § 107(a) action would thus require commencing a § 107(a) action despite the fact that response cost liability and the cost of remediation had been resolved by the parties to a settlement as expressly provided for in § 113(f)(2) and (f)(3)(B). It is unlikely Congress intended to mandate such an unnecessary and counterproductive formality. Therefore, the court reads the word “may” in § 113(f)(1) in its ordinary permissive, not mandatory, sense and, in the absence of controlling authority to the contrary, rejects the Aviall court’s unduly narrow interpretation. See WebsteR’s ThiRD New International Dictionary, 1396 (defining “may” as having permission or the liberty to do something). Finally, to apply the construction adopted in Aviall would engender costly and time consuming litigation, contrary to Congress’ purpose in enacting § 113 to promote “efficient responses to environmental harm” and “to encourage settlements that reduce the inefficient expenditure of public funds on lengthy litigation.” Betkoski, supra, at 513. For these reasons, the court declines to follow Aviall and other similar cases. See Coastline Terminals, supra, (sustaining § 113(f)(1) actions in absence of either § 107(a) action or state administrative consent order). The court’s examination of the exhibits submitted in connection with the summary judgment motions demonstrates that in this case a cause of action exists under § 113(f)(1), 42 U.S.C. § 9613(f)(1), based on Bedford Affiliates, supra, and, alternatively, under § 113(f)(3)(B), 42 U.S.C. § 9613(f)(3)(B), based on the April 9, 2001 Order on Consent between the Steering Committee and DEC establishing the Steering Committee’s liability for response costs at the Landfill, in accordance with 42 U.S.C. § 9607(a), and pursuant to which the Steering Committee members agreed to remediate the Landfill at their expense. The Steering Committee has submitted copies of two Orders on Consent entered into by the Steering Committee members and the DEC, including a preliminary one dated October 4, 1993 (Pi’s Ex. 93) (“1993 Order on Consent”), and the final one dated April 9, 2001 (Pi’s Exhibit 92) (“2001 Order on Consent”). Both Orders on Consent state that they are entered into pursuant to the DEC’s authority under New York Environmental Conservation Law § 27-1301 et seq., and 42 U.S.C. § 9607, and that the Orders on Consent qualify as State administrative settlements within the meaning of 42 U.S.C. § 9613(f). 1993 Order on Consent, ¶ 1; 2001 Order on Consent, ¶ 1. The 1993 Order on Consent provides for the Steering Committee members to reimburse the DEG for the $1.8 million already incurred in carrying out any interim remedial measures designed to cleanup the Landfill, as well as additional costs the DEC was expected to incur in connection with the cleanup. 1993 Order on Consent, ¶¶ 6-8 and § VII. Similarly, the 2001 Order on Consent provides for the Steering Committee members to reimburse the DEC $ 4.8 million plus 50% of any additional costs recovered by the Steering Committee in the instant case, not to exceed $ 1.5 million. 2001 Order on Consent, ¶¶ 6-8 and § VIII. The Orders on Consent thus establish that they are administrative settlements by which the. Steering Committee members have settled their liability to New York in connection with the cleanup and remediation of the Landfill, in accordance with 42 U.S.C. § 9613(f)(3)(B). The Orders on Consent also demonstrate that the Steering Committee members as PRPs faced liability to New York under 42 U.S.C. § 9607(a) and therefore the Complaint, as amended, states a claim for contribution under 42 U.S.C. §§ 9613(f)(1) and 9613(f)(3)(B). Thus, as in Bedford Affiliates, because Plaintiff here has sued for contribution after having entered into an administrative settlement with the DEC, it has a cause of action against Defendants pursuant to § 113(f)(1), as well as under § 113(f)(3)(B). Either way, a prior § 107(a) action is not requisite to Plaintiffs claim. Accordingly, as it is undisputed that the Steering Committee is a party which has resolved its liability as a § 107(a) PRP to the state, it is permitted under § 113(f)(1) and § 113(f)(3)(B) to bring an action for contribution against Defendants. 3. Generator Liability The parties dispute whether U.S. Rubber generated any of the substances considered hazardous under CERCLA regulation 40 C.F.R. § 302.1 et seq. A determination that U.S. Rubber did not generate any such substances would negate any generator liability against U.S. Rubber’s corporate successor in interest. It is not necessary that a specific mixture or waste solution be included on CERCLA’s list of hazardous substances, i.e., 42 U.S.C. § 9601(14), to fall within CERCLA’s coverage. Betkoski, supra, at 515. Rather, “ ‘[w]hen a mixture or waste solution contains hazardous substances, that mixture is itself hazardous for purposes of determining CERCLA liability. Liability under CERCLA depends only on the presence in any form of listed hazardous substances.’ ” Id. (quoting B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1201 (2d Cir.1992)) (emphasis added). Nor does it matter that the waste contained only a minuscule amount of a hazardous substance as Congress, in enacting CERC-LA, did not provide for. distinguishing liability based on quantity. Betkoski, supra, at 517. The mere presence of some waste containing a CERCLA hazardous substance is sufficient to impose CERCLA’s strict liability based on a release or threatened release of a hazardous substance requiring response costs. Id. Simply put, so long as some constituent part of the wastes disposed of at the Landfill contained some substance denominated as hazardous under § 107(a), liability under CERCLA will attach, and independent releasability of the substance, i.e., without effect of an intervening force, need not be established. Id., at 515. At most, Defendants’ concede the existence of material issues of fact precluding summary judgment on this issue. Defendants’ Response Memorandum at 6-12. However, Defendants also assert that no witness testified that traces of “all” process materials would have been in the waste streams generated by U.S. Rubber. Id. at 9, 10. In particular, Defendants take issue with the report prepared by Dr. Gary Hamed, the Steering Committee’s expert witness, arguing that Dr. Hamed has no experience with the chemical analysis of plant trash, performed no investigation or testing, and his findings were based on the Steering Committee’s legal counsel’s speculation. Id. at 12-13. Defendants further maintain that the Steering Committee has failed to establish both that U.S. Rubber dumped its waste exclusively at the Landfill as well as the amount of waste dumped there. Id. at 13-14. However, thorough review of the record demonstrates that the Steering Committee has established, as a matter of law, that U.S. Rubber generated waste containing substances considered hazardous under CERCLA, and that at least some portion of those substances were transported as waste to the Landfill. The Steering Committee submits voluminous exhibits in support of summary judgment, including, for example, copies of correspondence between the DEC and Laidlaw and GSX Polymers and their attorneys regarding the DEC’S investigation of the Landfill (e.g., Pi’s Exs. 32, 88), affidavits and transcripts of deposition testimony of various former employees of U.S. Rubber and the Landfill describing the rubber reclamation- process, the waste generated by U.S. Rubber and its waste disposal procedures (e.g., Pl’s Exs. 2, 11, 12, 109, 111, 112, 113, 114, 117, 118), portions of the Landfill’s business records indicating U.S. Rubber was a regular Landfill customer {e.g., Pi’s Ex. 3), the Cheektowa-ga plant’s facilities and how they contributed to the generation of toxic waste (e.g., Pl’s Ex. 9), and various articles describing the rubber reclaiming process and resultant waste (see, e.g., Pl’s Exs. 4, 10, 86). Included in some of these exhibits are unrefuted statements that U.S. Rubber generated substances classified under CERCLA as hazardous and that such substances were subsequently deposited into the Landfill as waste. For example, former U.S. Rubber employee Walter J. Ma-zur testified that some of the reclaiming oils and compounding agents used in the rubber reclaiming process, including carbon black and other substances, spilled onto the plant floor and would have been swept up as waste, deposited into a waste barrel. Pl’s Ex. 58 at 30-31, 76-77. Machine oil spills were sometimes part of the waste cleared from the plant’s floor. Id. at 37-38, 74. On average, there were three fires at the plant each month and those fires were extinguished chemically. Id. at 41-42, 74. Afterward, the plant would be cleaned with all debris swept off the floor with squeegees and the waste water pumped into drums with the general plant waste. Id. at 42-45, 74. Moreover, Mr. Mazur testified that although for a time some of U.S. Rubber’s waste was hauled to the Buffalo city dump, all of U.S. Rubber’s waste, including “[a]ny thing they scraped off the floor,” and bags and barrels of waste, was otherwise dumped into the Landfill. Id. at 58-60. U.S. Rubber’s general office, cafeteria and janitorial wastes were also transported to the Landfill. Id. at 66-69. Mr. Mazur did not recall ever seeing any waste dumped at the plant. Id. at 61. Other unchallenged evidence also demonstrates that U.S. Rubber generated some waste containing hazardous substances, including florescent light bulbs and ballasts (Deposition Testimony of William J. Fritton, II, Pi’s Ex. 107 at 106-07), which contain mercury and PCBs. Former U.S. Rubber employee Charles Zizzi testified at his deposition that while he was employed as a janitor at the Cheektowaga plant, he was required to sweep the plant floor and clean the plant. Pi’s Ex. 117 at 18. Zizzi later worked in the plant’s storeroom where he unloaded shipments of carbon black from boxcars, and loaded the garbage for dumping. Id. At 18, 22-28. The garbage that was collected daily at the plant was swept into barrels, loaded into a dump truck and dumped into the Landfill. Id. at 28-29, 31, 34-36. Rather than challenging the Steering Committee’s assertions that the waste U.S. Rubber generated and deposited into the Landfill contained substances considered hazardous under CERCLA, Defendants’ argument in opposition to summary judgment addresses the releasability of such toxic substances. Indeed, Defendants concede that the rebuttal report of their expert witness, Dr. Ian Webber, “establishes that there are fact issues regarding ‘re-leasability.’ ” Defendants’ Response Memorandum at 7. Whether a substance’s hazardous components are “releasable” in a given environment, however, is a different inquiry than whether a particular substance contains a hazardous component such that the substance’s presence in the Landfill qualifies as a “release, or threatened release ... of a hazardous substance” as required to make out a prima facie case for CERC-LA liability under 42 U.S.C. § 9607(a). “It is enough that a mixture of waste solution contain a hazardous substance for that mixture to be deemed hazardous under CERCLA. The waste product itself ‘need not be listed by name — instead of its constituent components — to fall within the Act.’ ” Betkoski, supra, at 516 (quoting Murtha, supra, at 1201). Further, while [ijndependent releasability is not required to establish Lability ... a defendant otherwise hable may show ‘nonre-leasability’ in order to mitigate its share of damages. It follows logically that a defendant who disposes of hazardous substances that are not independently releasable may still be held liable, even though that defendant may not be required to pay damages when the cost apportionment phase of the litigation is reached. Betkoski, supra, at 516-17. Significantly, Defendants have not produced any evidence establishing the absence of any CERCLA denominated hazardous substance within any of U.S. Rubber’s waste streams. Moreover, insofar as Defendants assert that the Steering Committee has failed to establish that U.S. Rubber dumped its waste exclusively at the Landfill, the precise amount of waste dumped there and the releasability of the waste, Defendants’ Response Memorandum at 13-14, such issues go to the allocation of Lability and equitable sharing of response costs, an issue not before the court on summary judgment. As such, the opinion of Defendants’ expert witness Dr. Ian Webber regarding the releasability of the waste, see Defendants’ Ex. 64, is irrelevant to this aspect of the Steering Committee’s contribution claim, i.e., whether Defendants are Lable for the cleaup of hazardous waste deposited into the Landfill by U.S. Rubber. Accordingly, Defendants have failed to rebut the Steering Committee’s proof demonstrating that U.S. Rubber generated waste containing CERCLA-listed hazardous substances which was deposited into the Landfill. Accordingly, summary judgment on this aspect of the motions should be GRANTED as to Plaintiff and DENIED as to Defendants. 4. Capacity to be Sued .• Plaintiffs claims for contribution under § 113(f), for declaratory relief regarding the' parties’ specific responsibilities, and for fraudulent conveyance are asserted against both Allied and GSX Polymers. Defendants maintain that GSX Polymers lacks the capacity to be sued because all of its assets have been distributed and its corporate existence dissolved. Defendants’ Memorandum at 55-56; Defendants’ Reply Memorandum at 8. Defendants also dispute that there is any basis on which to hold Allied liable for any actions by U.S. Rubber, Laidlaw or GSX Polymers. Defendants’ Memorandum at 54; Defendants’ Reply Memorandum at 14-23. • ' - A. GSX Polymers, Inc. Defendants maintain that when the instant action was commenced, GSX Polymers lacked the capacity to be sued because all of its assets have been liquidated and the corporate entity dissolved. Defendants’ Memorandum at 55. Defendants further maintain that in the absence of a valid CERCLA claim against GSX Polymers, any claim against Allied based on a transfer of GSX Polymers’ assets is barred. Id. at 55-56. Plaintiff, however, maintains that GSX Polymers was improperly dissolved when the instant action was filed -and, as such, remains subject to CERCLA liability. Plaintiffs Response Memorandum at 36. Alternatively, Plaintiff asserts that even if GSX Polymers had been properly dissolved when this action was commenced, it was not dissolved when its assets were disposed of, a fact relevant to the instant analysis. Id. at 37. This court has held that “CERCLA preempts state capacity laws to the extent their operation would shield a dissolved corporation from CERCLA liability.” Idylwoods Associates v. Mader Capital, Inc., 956 F.Supp. 421, 426 (W.D.N.Y.1997) (citing Idylwoods Associates, supra, 915 F.Supp. at 1303). Further, a corporation that is ‘dead’ but not ‘buried’, i.e., a dissolved corporation whose assets have yet to be distributed, would fall within CERCLA’s definition of a person amenable to suit under CERCLA, 42 U.S.C. § 9607(a)(2). Idylwoods Associates v. Mader Capital, Inc., 915 F.Supp. 1290, 1303 (W.D.N.Y.1996). The Steering Committee cites Idyl-woods Associates in support of its assertion that a corporation that is both ‘dead’ and ‘buried’ is also amenable to suit under CERCLA. Plaintiffs’ Response Memorandum at 36-38. However, a plain reading of this court’s decision in Idylwoods Associates, 915 F.Supp. at 1303, shows that the court did not reach the issue. See Idylwoods Associates, supra, 956 F.Supp. at 426 (declining to certify to Second Circuit Court of Appeals question as to whether CERCLA preempted state capacity laws to extent that their operation would shield dissolved corporation from CERCLA liability). Idylwoods Associates is also distinguishable from the instant case with regard to one crucial aspect: the assets of the defendant dissolved corporation in Idylwoods Associates had yet to be distributed. Idylwoods Associates, supra, 915 F.Supp. at 1304. Accordingly, in Idyl- woods Associates the defendant corporation was ‘dead’ but not ‘b.uried’. See, e.g., Oyster Bay v. Occidental Chemical Corporation, 987 F.Supp. 182, 202-04 (E.D.N.Y.1997) (discussing in the context of CERC-LA action that ‘dead and buried’ corporation may be subject to action based on the trust fund doctrine or to pierce the corporate veil if it is shown that dissolution or distribution of assets occurred under fraudulent circumstances). Moreover, whether GSX Polymers, despite being both ‘dead and buried’, can be subject to liability under CERCLA is merely academic. Notably, because GSX Polymers’ assets have been sold and the proceeds distributed to Laidlaw, its sole shareholder, which has since been purchased by Allied, any recovery against GSX Polymers in this CERCLA action could not be collected from GSX Polymers. Instead, such judgment could only be recovered from Allied based on theories of successor liability and constructive trust or, possibly, from Allied’s shareholders upon demonstrating that Allied’s corporate veil should be pierced. Nor does State of Rio De Janeiro v. E.H. Rollins & Sons, Inc., 299 N.Y. 363, 87 N.E.2d 299 (1949) on which Defendants rely for the proposition that in the absence of a valid CERCLA claim against GSX Polymers, any claim against Allied based on a transfer of GSX Polymers’ assets is barred, Defendants’ Memorandum at 55-56, require a different outcome. At issue in State of Rio De Janeiro, supra, was whether a claimant could maintain an action to set aside as fraudulent a corporation’s transfer of assets where any action on the underlying contract for the sale and purchase of bonds was time-barred. The court held that the action attacking the alleged fraudulent transfer was properly dismissed because it was an action for equitable relief which was “adjective and ancillary only, to the creditor’s right to collect his original debt from the transfer- or company” which was time-barred. Id. at 300, 87 N.E.2d 299. In contrast, in the instant case, the CERCLA contribution claims asserted against GSX Polymers is not time-barred, having accrued with the April 9, 2001 Order on Consent, and Defendants do not assert otherwise. As such, insofar as the CERCLA contribution claim against GSX Polymers is timely, the CERCLA contribution claim against Allied is also timely. Thus, State of Rio De Janeiro, does not support Defendants’ position; rather, by implication, it supports Plaintiffs position. B. Allied Waste Systems, Inc. The Steering Committee seeks to hold Allied hable for the hazardous waste dumped into the Landfill under a theory of corporate successor liability, arguing that Allied is the successor to Laidlaw which remained responsible for any CERCLA liability attributable to U.S. Rubber