Full opinion text
MEMORANDUM-DECISION AND ORDER HURD, District Judge. ABBREVIATIONS USED THROUGHOUT: APU — defendant American Premier Underwriters, Inc. BTEX — benzene, toluene, ethylbenzene and zylenes BTU — British Thermal Unit Chevron — defendant & third-party plaintiff Chevron U.S.A., Inc. CERCLA — Comprehensive Environmental Response Compensation & Liability Act of 1980 Conrail — defendant Consolidated Rail Corporation Consent Order — Order on Consent between NiaMo and DEC DEC — New York State Department of Environmental Conservation GC/FID — gas chromatography/flame ionization detection GC/MS — gas chromatography/mass spectrometry 1-787 Interstate Highway 787 King — defendants King Service, Inc., Edwin D. King, Lawrence King & Richard B. Slote MGP — manufactured gas plant NiaMo — plaintiff Niagara Mohawk Power Corporation NCP — National Contingency Plan PAHs — polynuclear aromatic hydrocarbons Portee — defendant Portee, Inc. PRP — potentially responsible person under CERCLA, 42 U.S.C. § 9607(a) PSA — Preliminary Site Assessment Rensselaer defendants — third-party defendants County of Rensselaer & County of Rensselaer Sewer District No. 1 Republic Steel- — Republic Steel Corporation SVOCs — semivolatile organic compounds TCA — trichloroethane TCE — trichloroethylene Water Street Site — Troy Water Street Site in Troy, New York UCM — -unresolved complex mixture found on chromatogram USX — defendant United States Steel Company VOCs — volatile organic compounds TABLE OF CONTENTS I. INTRODUCTION. y-t rH rH II. BACKGROUND. (M tH rH A. The NiaMo/DEC Consent Order. N tH rH B. Water Street Site and the Parties. 03 r — I rH C. Manufactured Gas Plant Operation. Uí rH rH D. Theories of CERCLA Liability. ÍO rH rH 1. Conrail. CO rH rH 2. APU.116 3. King.116 4. USX.116 5. Chevron.117 6. Portee.117 7. Rensselaer Defendants.117 8. Counterclaims and Cross-claims.117 E. State Law Theories of Liability.117 III.LEGAL STANDARDS .. 118 A. Motion to Dismiss .. OC t — I r — \ B. Summary Judgment .. 118 C. Expert Testimony .. OO rH r — I D. 05 .. 119 IV.ANALYSIS .. 121 A. NiaMo's Motion t 1. CERCLA Contribution Protection .. 121 2. Failure to State a Claim. .. 122 3. Compliance with Fed.R.Civ.P. 8. .. 122 B. Conrail’s Cross-motion for Judgment on the Pleadings. .. 123 C. Summary Judgment Motions on the Merits-CERCLA Claims .. 124 1. Conrail. .. 124 2. APU. .. 127 3. King .. 128 4. USX .. 128 5. Chevron. .. 130 a. as 3. .. 130 b. Chevron as Former Owner/Operator or Arranger/Transporter of Area .. 133 c. Rensselaer Defendants CO .. 134 6. Portee CO .. 135 1. N.Y. Navigation Law Claims. .. 137 2. Other State Law Claims. CO .. 137 D. Summary Judgment Motions on the Merits-Remaining Claims CO .. 137 V.CONCLUSION. .138 I. INTRODUCTION Plaintiff Niagara Mohawk Power Corporation (“NiaMo” or “plaintiff’) brought this action by complaint filed on July 1, 1998, pursuant to the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-75, (“CERCLA”) seeking to recover costs that it has incurred and will incur in remediating hazardous substances present at the Troy Water Street Site in Troy, New York (“Water Street Site”). Plaintiff filed an amended complaint on May 26, 1999, with leave of court. In addition to its CERCLA- claims, NiaMo invokes the supplemental jurisdiction of the court pursuant to 28 U.S.C. § 1367 over New York Navigation and Civil Practice Law claims as well as common law indemnification, unjust enrichment, and public nuisance claims. Each defendant has answered the complaint denying the material allegations and bringing counterclaims against NiaMo and cross-claims against each other defendant for indemnification and/or contribution for any liability incurred above and beyond that defendant’s proportionate share. In addition, defendant Chevron U.S.A., Inc. (“Chevron”) brought a third-party action against the County of Rensselaer and the County of Rensselaer Sewer District No. 1 (“Rens-selaer defendants”) alleging claims pursuant to CERCLA, federal common law, and state law for indemnification and/or contribution for any liability incurred above and beyond its proportionate share. The Rensselaer defendants answered denying the allegations of the third-party complaint and bringing counterclaims against Chevron for indemnification and/or contribution for any liability incurred above and beyond their proportionate share. As is typical in CERCLA actions, this litigation was bifurcated, with Phase I proceedings related to liability to be followed by Phase II proceedings regarding damages. The parties have filed various motions as detailed below. Oral argument was heard on April 24 and 25, 2002, in Utica, New York. Decision was reserved. II. BACKGROUND A. The NiaMo/DEC Consent Order In December 1992 NiaMo and the New York State Department of Environmental Conservation (“DEC”) entered into an Order on Consent (“Consent Order”) requiring NiaMo to investigate the nature and extent of hazardous substances present at twenty-one former manufactured gas plant (“MGP”) sites across the state, develop plans for remediation, and implement the remediation plan as directed by DEC. The purpose of the Consent Order was to “control and/or remove residual MGP waste sources” at the former MGP sites. (Capra Aff. Ex. D at NMPC100003 ¶ 5.) The Consent Order provided that NiaMo would develop and implement, for each site, a Preliminary Site Assessment (“PSA”), that would permit DEC to determine which hazardous substances present posed a significant threat to the public health or the environment, thus necessitating remediation. The Consent Order further requires NiaMo to develop and implement a Remedial Investigation and prepare a Feasibility Study for any site found through the PSA to require more comprehensive evaluations. NiaMo must then remediate to the DEC’S satisfaction each site found to be in need of remediation. The Water Street Site, which is at Issue in this litigation, was divided into four parts that were treated separately for the purposes of assessment, reporting, and remediation. (See Troy Water Street Site Map, infra at 110.) Area 1 runs along the western shore of the Hudson River. It is bordered on the south by the village of Menands and on the west by the Interstate Highway 787 (“I-787”). The 1-787 interchange with the Troy-Menands Bridge is on the southern part of Area 1. It was previously the site of an ironworks as well as a coke plant. Area 1 covers approximately 111 acres. NiaMo has performed some removal of discrete areas of visible tar on Area 1 and continues to monitor it for signs of visible tar weeps. NiaMo concluded in its PSA/Interim Remedial Measures Study that no remedial investigation or feasibility study should be done because there was no source area of polynuclear aromatic hydrocarbons (“PAHs”) or significant concentration of MGP-related by-products present. (Pi’s. Ex. 1 at R-NMPC 00390.) No Record of Decision finalizing a remedy has been issued. Area 2 covers approximately 33 acres along the eastern shore of the Hudson River. It is bordered on the west by approximately 1,200 shoreline feet, on the east by railroad tracks, and on the south by Area 3. The Wynantskill Creek runs from east to west across the northern part of area 2. Area 2 has been the site of a steel manufacturing plant, a manufactured gas plant, a petroleum distribution facility, and various commercial uses (such as parking of buses and refuse container storage). Contamination found includes PAHs (surface soil and groundwater), volatile organic compounds (“VOCs”) (subsurface soils and groundwater), semivolatile organic compounds (“SVOCs”) (surface and subsurface soils), and metals (surface soil). (Capra Aff. Ex. J at R-NMPC 005631-32.) Sediment samples from the Wynantskill Creek with high PAH levels were upgra-dient from Area 2, indicating that the source was upstream rather than Area 2 and that further investigations of the stream were unnecessary. Id. at R-NMPC 005633. NiaMo issued its Final Feasibility Study Report presenting an evaluation of remedial alternatives for Area 2 on June 15, 2001. (Capra Aff. Ex. J.) The DEC has not issued a Record of Decision selecting the remedy. Area 3 is bordered on the north by Area 2, on the west by the Hudson River, on the east by the railroad tracks, and on the south by Area 4. Area 3, covering 11 acres, is positioned under the Troy-Menands Bridge. An asphalt terminal was previously operated on Area 3. The only MGP-related activity that occurred on Area 3 was coal storage. Therefore, NiaMo requested that Area 3 be deleted from the remediation plan. (Higgins Aff. Ex. FF.) DEC agreed to postpone, rather than delete, any investigation of Area 3 after expressing concern regarding possible MGP-related contamination in the Hudson River sediment adjacent to Area 3. Id. Area 4 is bordered on the north by Area 3, on the west by the Hudson River, and on the east by the railroad tracks. It comprises 9 acres. Area 4 has been subdivided into operable unit 1, the land portion; and operable unit 2, the Hudson River sediments along Areas 2, 3, and 4. Area 4 had no industrial uses except manufactured gas plant waste disposal. Contamination found in the soil and sediments includes VOCs (specifically benzene, toluene, ethylbenzene and xylenes, or “BTEX”), and semivolatile organic compounds (“SVOCs”) (specifically PAHs). (Capra Aff. Ex. F at NMPC 127475-76.) The largest contributor to human health risk was identified as carcinogenic PAHs associated with the tar lagoons. (Pl.’s Ex. 3 NMPC 004101.) Hazardous substances dismissed as contaminants of concern are: VOCs other than BTEX, PCBs, pesticides, metals (other than arsenic, mercury and lead found coincident with PAH contamination at the tar disposal sites), and cyanide (other than in areas of visual tar). (Capra Aff. Ex. F. at NMPC 127476.) The remediation plan for Area 4, Operable Unit 1 was selected by Record of Decision dated November 2000. The remedy includes excavating about 19,000 cubic yards of tar, treating or disposing of contaminated soils off-site, placing an impermeable cap over the area, implementing deed restrictions, and monitoring in the future. (Capra Aff. Ex. F at NMPC 127469.) Remediation will also include removal of visual tar in peripheral areas. (Capra Aff. Ex. F. at NMPC 127482.) A remedy has not yet been advanced for Operable Unit 2. Id. at NMPC 127473. B. Water Street Site and the Parties The Water Street Site has historically been the site of industrial activity. In the middle 1800’s a steam mill and a Bessemer Steel Works were operated there. By 1867 output from the steel works was five tons per day. In the late 1800’s coal gas from coking ovens was produced for use in the forges and steel furnaces. Manufacturing activities prior to 1902 are not at issue in this action. Defendant United States Steel (“USX”) or its predecessors owned the Water Street Site from 1902 to 1922. It operated iron and steel manufacturing facilities at Areas 1 and 2. It also dismantled some dilapidated buildings on Area 2 and an ironworks on Area 1 that had ceased operations in 1897. NiaMo (or its predecessors) purchased the Water Street Site in 1922. It operated a manufactured gas plant, coke plant, and blast furnace on Areas 1 and 2 of the Water Street Site since about 1925. By 1927 NiaMo had 106 operational coke ovens there. Additional capacity was added over the years. As the manufactured gas operation is of primary interest in this matter, it will be described in more detail below. The coke plant and blast furnace produced for sale coke, creosote oil, hard pitch, tar, sulphate, benzol, phenol, pig iron, and manufactured gas. Any unsold hard pitch was burned on the site. There was also a tar distillation process that produced and sold gas oil. Coal tar was also a by-product of the manufactured gas plant operation but it had no commercial use. Also unusable for commercial purposes was purifier box waste. In about 1930 NiaMo completed moving the Wynantskill Creek from a northwesterly running channel to a directly westerly path. Coal tar was used to fill the old channel. Additionally, coal tar was moved by truck or rail to Area 4 to be dumped into waste disposal pits. The pits were 75 to 100 feet long, 25 feet wide, and 10 to 12 feet deep. In 1935 New York State appropriated about 3.5 acres of Area 1 for reconstruction of the Troy-Menands bridge. In 1940 the blast furnace and water gas and coke rights were sold to Republic Steel Corporation (“Republic Steel”). The blast furnace remained operational until 1969. In 1951, NiaMo sold the coke plant to Republic Steel. Republic Steel operated the coke plant until 1955. In 1960 Republic Steel scrapped the coke ovens and breaker house. Reportedly Republic Steel covered one of the tar pits on Area 4 with soil and slag after it caught fire sometime around 1960. In 1957 defendant King Service, Inc. (“King”) began operating a petroleum distribution facility on Area 2. King purchased most of Area 2 in 1968. NiaMo retained a very small piece of the property where the Wynantskill Creek enters the Hudson River for a gas regulator station. King demolished the coke plant and used the bricks as fill in various places in Area 2. King presently owns Area 2. In 1955 Chevron purchased Areas 3 and 4. At that time it also leased a right-of-way for above-ground pipelines from Area 3 running north across Area 2 in the vicinity of the Hudson River shoreline to a barge dock. Chevron operated an asphalt terminal on Area 3. In 1974 Chevron sold Area 4 to the Rensselaer defendants, who currently own it. Chevron currently owns Area 3. Also associated with the Water Street Site are two additional parcels of real property. The railroad tracks at the eastern border of Areas 2, 3, and 4 are located upon a narrow strip of land that was owned or leased by defendant American Premier Underwriters (“APU”) or its predecessors. This parcel is referenced as the “Railway Property.” The Railway Property is now owned by defendant Consolidated Rail Corporation (“Conrail”). ■ A railroad has been operated along this property since approximately 1845. Coal tar from a disposal pit on Area 4 has migrated to an access road on the Railway Property. The tar weep on the access road is addressed by the remediation plan for Area 4. (Capra Aff. Ex. F. at NMPC 127482.) The second parcel of interest is referenced as the “Portee Property.” The Por-tee Property was the site of a rail splicing plant operated by defendant Portee, Inc. (“Portee”) from 1900 to 1989. Portee owned the property from 1968 to 1997. The railroad tracks that form the eastern border of Area 2 form the western border of the Portee Property. In other words, if the narrow Railway Property were not there, Area 2 and the Portee Property would be adjacent. Further, the Wynants-kill Creek runs through the northern portion of the Portee Property, before it crosses Area 2 and empties into the Hudson River. C. Manufactured Gas Plant Operation The following non-technical description of the operation of a manufactured gas plant is provided as background to enable a better understanding of the nature of the contamination at the Water Street Site. The background may also shed light on the relationship among the parties and between the parties and the contamination. To manufacture gas, bituminous, or soft, coal is heated to redness in an enclosed space from which the air has been removed. The process of cooking the coal in this manner is called coking. The temperature in the coking ovens can reach 2500 F. and the process takes from 14 to 24 hours. Coking transforms the coal into coke, gas, tar, light oil and ammonia. Gas is collected and cooled in the gas handling system during the process. The gas is cooled by passing between boards over which cooling water trickles in a cooling tank. Tar fog condenses out of the gas as it cools, and tar falls to the bottom of the tank. The manufactured gas is then purified by forcing the gas through oxide boxes that contain wood chips imbedded with iron. The iron removes contaminants such as cyanide, sulfur, and any remaining coal tar. Occasionally wood chips are “aired out” so that they can be reused. Eventually, however, the iron-imbedded wood chips become ineffective at removing contaminants and they would be disposed of by burning or use as fill. When the process is complete, the coke, still red-hot, is “quenched” by pouring water on it in order to cool it enough so that it does not damage the conveyor belts used for transport, but not so much that it is cool enough to absorb water. The coke is then crushed and separated by size for different uses. For example, the largest size is used in blast furnaces and gas plants, while the medium sizes are used for domestic purposes. This process produces a lower British Thermal Unit (“BTU”) gas, which was used to heat the coking plant as well as be sold. In order to produce a higher BTU gas, water is added to coke during the heating process to produce water gas. The gas is collected and cooled, and the coke is quenched, in the same manner as described above. The higher BTU water gas was sold as is or mixed with the lower BTU gas in order to provide gas of standard heating power to customers. Byproducts of the gas manufacturing process include heavy oils; light oils; coal tar; ash; clinker (pieces of unburned coal); oil/tar sludges; and ammonia, cyanide, and sulfur salts. Coal tar and the sludges contain a high concentration of PAHs. Coal tar has been found in or on Area 1, Area 2, Area 4, Hudson River sediments adjacent to Area 4, and the Rahway Property adjacent to Area 4. Oxide box by-products including free sulfur, ferrocyanide, thiocyanate, and nap-thalene also resulted from the gas manufacturing process. Oxide box wastes have been found in Area 2. Typical hazardous contamination found at MGP sites includes coal tar, ash, clinker, phenol, benzene, sulfur products, and cyanide. The principle hazardous substance associated with coal tar deposits is PAH contamination of the soil. D. Theories of CERCLA Liability 1. Conrail NiaMo seeks to hold Conrail liable as a current owner pursuant to 42 U.S.C. § 9607(a)(1). Conrail is the current owner and operator of the Railway Property. NiaMo contends that the Railway Property is contaminated with coal tar and PAHs and therefore Conrail must be held strictly liable as the owner. NiaMo also asserts that Conrail released hazardous substances when it relocated tracks in the vicinity of the tar weep adjacent to Area 4. Conrail asserts the innocent owner affirmative defense. 2. APU NiaMo seeks to hold APU hable as the owner and/or operator of property at the time of a disposal of hazardous waste. See 42 U.S.C. § 9607(a)(2). The basis for this theory of liability is that APU owned the Railway Property at the time when by products of railroad operations were released constituting a disposal of hazardous substances. NiaMo also contends that APU relocated tracks in the vicinity of the coal tar lagoons on Area 4, thereby releasing coal tar, a hazardous substance. 3. King NiaMo seeks to hold King liable as current owner/operator pursuant to 42 U.S.C. § 9607(a)(1). NiaMo further alleges that King is not entitled to assert the petroleum exclusion set forth in 42 U.S.C. § 9601(14). King is the current owner and operator of Area 2. NiaMo alleges that when King demolished the former coke ovens and used the brick as fill it released hazardous substances into Area 2. King asserts the innocent owner defense and the petroleum exclusion to this claim. NiaMo also seeks to hold King liable as an arranger for the use of the coke oven bricks as fill and for storing leaking drums. 4. USX NiaMo seeks to hold USX liable as the owner and/or operator of property at the time of a disposal of hazardous waste and as an arranger. See 42 U.S.C. § 9607(a)(2)-(3). NiaMo contends that USX is liable under this theory because it demolished buildings on Area 2 and dismantled an ironworks on Area 1, releasing hazardous waste. NiaMo also contends that a release of hazardous substances occurred on Area 4 during USX’s ownership as demonstrated by an increase in acreage of Area 4 during the time of USX’s ownership. The alleged basis for liability as an arranger again is the demolition and dismantling of buildings. 5. Chevron NiaMo seeks to hold Chevron liable as current owner/operator pursuant to 42 U.S.C. § 9607(a)(1). NiaMo further alleges that Chevron is not entitled to assert the petroleum exclusion set forth in 42 U.S.C. § 9601(14). Chevron is the current owner of Area 3, which NiaMo argues is part of the Water Street Site which is contaminated with hazardous substances. NiaMo contends that Chevron is liable as the current owner of an easement over Area 2 in the vicinity of the pipeline. NiaMo also seeks to hold Chevron liable as a former owner/operator based upon (1) its operation of the pipeline, and (2) it permitting its lessee Republic Steel to cover the coal tar lagoons on Area 4 while Chevron owned the property. Chevron asserts the petroleum exclusion on both claims of current and former owner/operator. Finally, NiaMo seeks to hold Chevron liable as an arranger pursuant to 42 U.S.C. § 9607(a)(3). NiaMo contends arranger liability based upon Chevron permitting Republic Steel to cover the Area 4 tar pits. 6. Portee NiaMo seeks to hold Portee liable as the owner and/or operator of property at the time of a disposal of hazardous waste and as an arranger. See 42 U.S.C. § 9607(a)(2)-(3). NiaMo contends that Portee, as leader of the Wynantskill Improvement Association, “operated” a portion of Area 2 by virtue of its control of the flow of water of the Wynantskill Creek from the early 1900s to 1997, during the time that hazardous releases occurred. NiaMo also contends that Portee allowed disposal of hazardous substances on its property, facilitating the transport of the hazardous waste into the Wynantskill Creek, Area 2, and the Hudson River. 7. Rensselaer Defendants Chevron asserts liability on the part of the Rensselaer defendants because they are the current owners of Area 4, upon which hazardous substances are located. See 42 U.S.C. § 9607(a), 9613(f)(1). Chevron also asserts liability based upon federal common law and state law. 8. Counterclaims and Cross-claims As noted above, all defendants brought counterclaims against NiaMo and cross-claims against each other defendant for indemnification and/or contribution for any liability incurred above and beyond that defendant’s proportionate share. See 42 U.S.C. § 9613(f)(1). The basis for the counterclaims and cross-claims is that when equitable factors are considered, response costs should be allocated among the liable parties and each party should only be responsible for its proportionate share. E. State Law Theories of Liability NiaMo brings claims against all defendants pursuant to New York Navigation Law § 181(1), (5), which provides for strict, joint and several, liability for any petroleum discharge. NiaMo also brings claims for contribution for clean up costs against all defendants pursuant to New York Navigation Law § 176(8). NiaMo asserts claims against all defendants for contribution from joint tortfeasors pursuant to New York C.P.L.R. § 1401, indemnification pursuant to New York common law, public nuisance, and for a declaration that all defendants are liable for past and future response costs. Finally, NiaMo brings claims for unjust enrichment against King and Chevron, asserting that they have an obligation to clean up their property and have been unjustly enriched by not doing so. Chevron brings counterclaims and cross-claims for any contamination to Area 3 based upon New York Navigation Law, negligence, trespass, nuisance, and federal common law, against NiaMo and the other defendants. Chevron also alleges that NiaMo caused the MGP-related hazardous contamination and should be responsible for the damage to its land. III. LEGAL STANDARDS A. Motion to Dismiss A cause of action shall not be dismissed for failure to state a claim under Fed. R.Civ.P. 12(b)(6), “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). In considering a motion brought pursuant to Fed.R.Civ.P. 12(b), the court must assume all of the allegations in the complaint are true. Id. In reviewing the sufficiency of a complaint at the pleading stage, “[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Where a motion to dismiss is made prior to any discovery or the filing of an answer, the court is loath to dismiss the complaint, regardless of whether the plaintiff is unlikely to prevail, unless the defendant can demonstrate that plaintiff is unable to prove facts which would entitle him to relief. Wade v. Johnson Controls, Inc., 693 F.2d 19, 22 (2d Cir.1982); see also Egelston v. State Univ. College at Geneseo, 535 F.2d 752, 754 (2d Cir.1976). B. Summary Judgment Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Richardson v. New York State Dep’t of Correctional Serv., 180 F.3d 426, 436 (2d Cir.1999). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Richardson, 180 F.3d at 436; Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir.1983). Once the moving party has met the initial burden of demonstrating the absence of a genuine issue of material fact, the nonmov-ing party “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505; Celotex Corp. v. Catrett, All 477 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. At that point the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S.Ct. 1348. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-9, 106 S.Ct. 2505; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348. C.Expert Testimony Expert testimony is appropriate where “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702. A witness may qualify as an expert by knowledge, skill, experience, training, or education. Id. Expert testimony must be relevant and reliable. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594-95, 113 S.Ct. 2786, 2797, 125 L.Ed.2d 469 (1993); Amorgianos v. National R.R. Passenger Corp., 303 F.3d 256, 265 (2d Cir.2002); McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1042 (2d Cir.1995). Such testimony must be “based upon sufficient facts or data, ... [be] the product of reliable principles and methods, ... and the witness [must have] applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702. Factors that may be considered in assessing the reliability and relevance of the expert testimony are whether the theory has been or could be tested, whether it has been subjected to peer review and publication, and whether the theory enjoys general acceptance in the relevant scientific community. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97; Amorgianos, 303 F.3d at 266; McCullock, 61 F.3d at 1042. Neither peer review and publication nor general acceptance are dispositive in the reliability assessment. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97. Moreover, extensive practical experience may provide the basis for an expert opinion. McCulloch, 61 F.3d at 1043. The inquiry must be flexible, focusing “solely on principles and methodology, not on the conclusions that they generate.” Daubert, 509 U.S. at 595, 113 S.Ct. at 2797; Amorgianos, 303 F.3d at 266. The reliability and relevance assessment is applicable to technical and other specialized knowledge, as well as scientific knowledge. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999). D. CERCLA CERCLA section 9607 imposes strict liability upon “covered persons.” 42 U.S.C.A. § 9607(a) (West 1995). A covered person, also known as a potentially responsible person (“PRP”), may fall within one or more of four groups: the owner and operator of a facility; “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;” and “any person who ... arranged for disposal or treatment, or arranged for transport for disposal or treatment, of hazardous substances owned or possessed by such person;” and “any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities ... from which there is a release, or a threatened release which causes the incurrence of response costs.” Id.; United States v. Alcan Aluminum Corp., 315 F.3d 179, 184 (2d Cir.2003). Response costs can be recovered if “(1) there was a release or threatened release, which (2) caused incurrence of response costs, and (3),. the defendant generated hazardous waste at the clean-up site.” Alcan Aluminum, 315 F.3d at 184. No showing that “a specific defendant’s waste caused the incurrence of cleanup costs” is required in order to impose strict liability. Id. A defendant PRP in a direct action to recover response costs under § 9607 is jointly and severally liable for response costs unless it falls within a special exception or it establishes divisibility of harm. Id. at 185. The special exception permits a defendant to escape liability entirely if it proves that “its pollutants did not contribute more than background contamination and also cannot concentrate.” Id. If a defendant does not qualify for the special exception, it may establish that it “contributed at most to only a divisible portion of the harm.” Id. The defendant bears the burden of establishing divisibility of harm. Id. It may do so by introducing evidence such as “ ‘relative toxicity, migratory potential, and synergistic capacities of the hazardous substances at the site.’ ” Id. (quoting United States v. Alcan Aluminum Corp., 990 F.2d 711, 722 (2d Cir.1993)). Section 9607 also provides for affirma-’ tive defenses to liability. An otherwise responsible person is not liable if it is established that the release or threat of release of a hazardous substance and the resultant damages were caused solely by an act of God or an act of war. 42 U.S.C. § 9607(b)(1)-(2). Liability can also be avoided upon proof that the release or threatened release and resultant damages were caused by a third party, where the third party is not an employee or agent, nor did the release or threatened release occur in connection with a contractual relationship with the otherwise responsible person. Id. § 9607(b)(3). In order to succeed with the third-party defense, the defendant must establish that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions. Id. § 9607(b)(3). A PRP who is not entitled to a statutory defense cannot bring a direct cost recovery action pursuant to § 9607 against other PRPs. Bedford Affiliates v. Sills, 156 F.3d 416, 425 (2d Cir.1998). Rather, such a PRP may only recover from other PRPs via a contribution action pursuant to § 9613. Id. Section 9613 provides that liable or potentially liable persons may seek contribution from any other person who is liable or potentially liable under § 9607(a). 42 U.S.C. § 9613(1). A prima facie contribution case under § 9613 has the same elements as a prima facie case for cost recovery under § 9607. Bedford Affiliates, 156 F.3d at 427. Thus, the elements of a prima facie case are (1) the defendant is a covered person as defined by § 9607, (2) the site is a facility as defined by CE RO-LA, (3) there is a release or threatened release of hazardous substances at the facility, (4) costs were incurred in response, and (5) the costs and response were consistent with the National Contingency Plan (“NCP”). Id. at 427. In resolving contribution claims, the court allocates response costs among liable parties using such equitable factors as the court determines are appropriate. 42 U.S.C. § 9613(f)(1). Thus, in an action for contribution the court determines the proportionate share of responsibility of each PRP to determine the percentage of the total damages for which each PRP is liable. Contribution is not available from a party “who has resolved its liability to the United States or a State in an administrative or judicially approved settlement.” Id. § 9613(f)(2). This contribution protection applies to matters addressed in the settlement. Id. Such a settlement does not affect the liability of others, but it does reduce “the potential liability of the others by the amount of the settlement.” Id. Thus, when a PRP settles with the government, the settlement amount is deducted from the total response costs and the remainder is divided proportionally among the non-settling PRPs. IV. ANALYSIS A. NiaMo’s Motion to Dismiss Counterclaims 1. CERCLA Contribution Protection NiaMo moves to dismiss all defendants’ counterclaims for contribution, contending that it is entitled to contribution protection under CERCLA, § 9613(f)(2). Each defendant opposes contending that NiaMo is not entitled to contribution protection for various reasons. Defendants’ strongest argument against contribution protection is that due process requires notice and an opportunity to be heard before denying a PRP contribution from another PRP. Here, defendants were not notified that they were considered PRPs, were not notified that NiaMo was negotiating with DEC regarding remediation at the Water Street Site, were not involved in settlement discussions, and were not given the opportunity to also settle with the DEC. Thus, they argue, contribution protection for NiaMo would result in an unconstitutional taking (of their right to contribution) in violation of the Fifth Amendment. There is some case law in support of this argument. In General Time Corp. v. Bulk Materials, Inc., 826 F.Supp. 471 (M.D.Ga.1993), the court found that the “right of contribution is a property interest, which cannot be extinguished without procedural due process of law.” Id. at 477. The court reasoned that since the non-settling PRP was not given notice or an opportunity to be heard, the settling PRP was not entitled to contribution protection. Id. at 478; see also, American Special Risk Ins. Co. v. City of Centerline, 180 F.Supp.2d 903, 910 (E.D.Mich.2001) (expressing due process concerns but not deciding on constitutional grounds because the current claims were not “matters addressed” in the purported settlement agreement); Kelley v. Wagner, 930 F.Supp. 293, 298 (E.D.Mich.1996) (finding due process satisfied where the consent decree was submitted to the court for approval and the non-settling PRP was a defendant in the case). This apparent question of first impression need not be reached in this case. In this contribution action any counterclaims for contribution are superfluous and thus the issue of contribution protection is moot. NiaMo essentially admitted liability for the response costs at the Water Street Site by entering into the Consent Order. Accordingly, NiaMo is a covered person, or PRP, under § 9607. Thus, NiaMo is precluded from bringing a direct cost recovery action against the defendants. See Bedford Affiliates, 156 F.3d at 425. It is limited to bringing a contribution action pursuant to § 9613, as it did. See id. As noted, in an action for contribution first it must be determined whether a defendant is a responsible person under § 9607. Id. at 427. If the other elements of a prima facie case are established (facility, release, costs incurred, and NCP conformance), see id., then the court determines the proportional share for which each responsible person, including NiaMo, is liable. Each defendant, and in this case, the plaintiff, is assigned a proportionate share of liability for the total response costs at the facility. See 42 U.S.C. § 9613. Thus, by the very nature of a contribution action, counterclaims for contribution are superfluous. All defendants’ counterclaims for contribution pursuant to CERC-LA must be dismissed. 2. Failure to State a Claim NiaMo further contends that counterclaims brought pursuant to New York Navigation Law should be dismissed for failure to state a claim. Conrail, King, Chevron, and Portee argue that the Navigation Law counterclaims state causes of action. Section 181 of the New York Navigation Law imposes strict liability “for all cleanup and removal costs and all direct and indirect damages” upon anyone who discharged petroleum. N.Y. Nav. L. § 181(1) (McKinney Supp.2003). A party held liable under the provisions of the New York law may bring a claim against another party who actually caused or contributed to the discharge. White v. Long, 85 N.Y.2d 564, 569-70, 626 N.Y.S.2d 989, 650 N.E.2d 836 (N.Y.Ct.App.1995). Here, defendants bring claims against NiaMo alleging they are entitled to contribution from NiaMo for the removal costs of the petroleum it discharged on their property. Taking the allegations as true, these defendants could be entitled to relief. NiaMo has not shown that there are no sets of facts which, if proven, would entitle defendants to relief. See Wade, 693 F.2d at 22. Thus, the counterclaims brought pursuant to the Navigation Law will not be dismissed. Chevron cross moves in the alternative to amend its complaint, in the event it is determined that the counterclaims fail to state a cause of action. Given the determination that the counterclaims state a cause of action, this cross motion is moot. 3. Compliance with Fed.R.Civ.P. 8 Finally, NiaMo argues that the state and federal common law counterclaims (brought by Conrail, King, Chevron, and Portee) and N.Y. C.P.L.R. § 1401 counterclaims (brought by APU) should be dismissed as lacking specificity, for failure to comply with Fed.R.Civ.P. 8. Defendants argue that these counterclaims are sufficiently specific and comply with notice pleading requirements. Rule 8 requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988). The purpose of this requirement “is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial.” Id. Defendants’ counterclaims assert their entitlement to contribution from NiaMo for any amount greater than their proportionate share of response costs at the Water Street Site. The counterclaims provide NiaMo with sufficient notice of the claim asserted, and NiaMo has answered the counterclaims. See id. Accordingly, the counterclaims will not be dismissed for lack of specificity. B. Conrail’s Cross-motion for Judgment on the Pleadings Conrail moves to dismiss NiaMo’s claim for contribution pursuant to § 9613. Relying upon a case from the United States Court of Appeals for the Fifth Circuit, Conrail argues that since NiaMo was never subject to a current or past CERCLA enforcement action it is statutorily precluded from bringing a contribution claim. See Aviall Servs., Inc. v. Cooper Indus., Inc., 263 F.3d 134 (5th Cir.2001) (“Aviall I”), reversed, 312 F.3d 677 (5th Cir.2002) (en banc) (“Aviall II ”). Conrail’s argument and the Aviall I Court’s rationale were based upon the text of CERCLA, which provides that “[a]ny person may seek contribution from any other person who is liable or potentially liable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title.” 42 U.S.C. § 9613(f)(1) (emphasis added); see Aviall I, 263 F.3d at 138. The reasoning is that the statutory text “during or following” any CERCLA action requires that a party seeking contribution must have been subject to a direct cost recovery action during or following the filing of the claim for contribution. Aviall I, 263 F.3d at 138. Additionally, the court determined that the savings clause of the provision, that “[n]othing 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[s] 9606” and 9607, applied only to state law actions for contribution. Id. at 139. The court reasoned that this interpretation was required in order to prevent “rendering] superfluous the ... enabling clause.” Id.; see also Aviall II, 312 F.3d at 680 (explaining the panel decision). The en banc court rejected the panel’s determination, holding that a PRP may sue other PRPs for contribution at any time. Aviall II, 312 F.3d at 681. The court found that this interpretation is supported by “CERCLA’s twin purposes [of] promoting] prompt and effective cleanup of hazardous waste sites and the sharing of financial responsibility among the parties whose actions created the hazards.” Id. The court noted that prior to the addition of section 9613 to CERCLA, a federal common law permitting causes of action for contribution among PRPs had developed. Id. at 683. The common law causes of action for contribution were not dependent upon prior CERCLA cost recovery actions. Id. Section 9613 was promulgated “to give PRPs the ‘explicit right to sue’ for contribution and to ‘confirm’ the decisions of federal courts that had so construed CERCLA.” Id. at 684 (quoting H.R.Rep. No. 99-253 pt. I, at 59, 79 (1985), reprinted in 1986 U.S.C.C.A.N. 2835, 2841, 2861; and citing S.Rep. No. 99-11, at 44 (1985)). Additionally, the court noted that its interpretation was supported by other federal court decisions. Id. at 682 & n. 7. The Aviall II Court reached the correct conclusion, in light of the case law developed prior to passage of section 9613, the statutory language, and the legislative history. As that court stated, “[S]ound interpretation reconciles the text of a disputed provision with the structure of the law of which it is a part; may draw strength from the history of enactment of the provision; and acknowledges the legislature’s general policies so that the interpretation does not become absurd.” Id. at 680. Given this backdrop, it must be concluded that a PRP may bring a contribution action at any time, without regard to whether it has been or is subject to a direct cost recovery action. See id. at 681; 1325 “G” Street Assocs., LP v. Rockwood Pigments NA, Inc., 235 F.Supp.2d 458, 464 (D.Md.2002) (agreeing with the Aviall II Court); Ninth Ave. Remedial Group v. Allis Chalmers Corp., 974 F.Supp. 684, 691 (N.D.Ind.1997) (finding that a PRP can bring a contribution claim although there is or has been no cost recovery action against it); Johnson County Airport Comm’n v. Parsonitt Co., 916 F.Supp. 1090, 1095 (D.Kan.1996) (finding that contribution action can proceed in absence of action under sections 9606 or 9607); Mathis v. Velsicol Chem. Corp., 786 F.Supp. 971, 975-76 (N.D.Ga.1991) (contribution action can proceed regardless of action brought pursuant to sections 9606 or 9607); Alloy Briquetting Corp. v. Niagara Vest, Inc., 756 F.Supp. 713, 718 (W.D.N.Y.1991); see also Geraghty & Miller, Inc. v. Conoco, Inc., 234 F.3d 917, 924-25 (5th Cir.2000) (implicitly recognizing that a contribution action can proceed without a cost recovery action by stating that where “there has been no prior section 107 cost-recovery action, a contribution action ... must be brought within” the appropriate limitations period), cert. denied, 533 U.S. 950, 121 S.Ct. 2592, 150 L.Ed.2d 751 (2001); Sun Co. v. Browning-Ferris, Inc., 124 F.3d 1187, 1192-93 (10th Cir.1997) (discussing statute of limitations differences for contribution actions where plaintiff was subject to direct cost recovery action and where plaintiff incurred response costs in some other manner); Coastline Terminals of Connecticut, Inc. v. USX Corp., 156 F.Supp.2d 203, 208 (D.Conn.2001) (rejecting defendant’s argument that contribution claim precluded because plaintiff was not subject to a 9606 or 9607 claim; relying upon Bedford Affiliates, 156 F.3d at 424, to find that plaintiff could assert a contribution claim although precluded from bringing a direct cost recovery claim). Therefore, Conrail’s motion for judgment on the pleadings must be denied. C. Summary Judgment Motions on the Merits — CERCLA Claims 1. Conrail The issue with respect to Conrail is whether the Railway Property is a “facility” making Conrail, as a current owner/operator, a responsible person under CERCLA. A facility is (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel. 42 U.S.C. § 9601(9). It is undisputed that the Railway Property contains coal tar that migrated there from Area 4, and that coal tar is a hazardous substance. Thus, the Railway Property is a place where a hazardous substance (coal tar) has come to be located, and by definition Conrail could be considered the owner of a facility. However, the “facility” for which NiaMo seeks contribution for response costs is the former manufactured gas plant facility, including the coal tar disposal lagoons located in Area 4 adjacent to the Railway Property. NiaMo attempts to redefine the MGP facility to include the Railway Property. Separate parcels should be considered as a single facility if they “ ‘cannot be reasonably or naturally divided into multiple parts or functional units.’ ” United States v. 150 Acres of Land, 204 F.3d 698, 709 (6th Cir.2000) (quoting United States v. Township of Brighton, 153 F.3d 307, 313 (6th Cir.1998)). Similarly, where parcels are naturally divisible into parts or functional units, they should not be considered as a single facility. Cf. id. The Railway Property and the property upon which the MGP operated have not shared an owner since at least 1845. There is no evidence that they have ever been under common control. The Railway Property is a narrow parcel upon which a railroad has been operated for over 100 years. This parcel was never operated in conjunction with the MGP operations. It is undisputed that the areas of hazardous substances on the Railway Property that NiaMo is required to remediate are areas of coal tar that had migrated from the disposal lagoons to the adjacent property. The Consent Order contemplated that NiaMo would be responsible for remediation of off-site contamination that resulted from disposal of hazardous MGP wastes. (See Capra Aff. Ex. D at NMPC100020 ¶ XVII(A)). Off site occurrences of hazardous substances that were derived or otherwise related to MGP wastes on the site were “(deemed subject to [the Consent Order] to the extent [Nia-Mo] is able to obtain access for purposes of investigation and/or removal).” Id. at NMPC100008 ¶ III(B)(2)(I)(i>). Further, the Record of Decision for Area 4 directs that “ [peripheral areas of visual tar” on the Railway Property be excavated and the area backfilled with uncontaminated soil. Id. Ex. F at NMPC 127482. Thus, the DEC and NiaMo considered and treated the Railway Property as separate and distinct from the Water Street Site MGP facility. Because the Railway Property is naturally divisible from the remainder of the Water Street Site, and, at least in the last 150 years has had no connection with the property upon which the MGP operated, NiaMo’s current attempts to integrate the Railway Property into the Water Street Site in order to hold Conrail hable as a current owner must be rejected. Cf. 150 Acres of Land, 204 F.3d at 708-09 (finding a single facility where three parcels were commonly owned, investigated for contamination at the same time, transferred by the same deed, and were in the same undeveloped state). Even if the contaminated portion of the Railway Property was considered part of the Water Street Site because of the source of the contamination, it would be untenable to hold Conrail liable as a current owner since the undisputed cause of the contamination was the MGP, and Nia-Mo has already accepted responsibility for remediation. See New York v. Westwood-Squibb Pharm. Co., 138 F.Supp.2d 372, 382-83 (W.D.N.Y.2000) (finding that creek adjacent to former MGP property was part of same CERCLA facility because there was a common source of contamination, therefore holding the owner of the MGP property liable); see also Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 178 (2d Cir.2003) (stating, “If a person merely controlled a site on which hazardous chemicals have spread without that person’s fault, that person is not a polluter and is not one upon whom CERC-LA aims to impose liability”); City of Portland v. Boeing Co., 179 F.Supp.2d 1190, 1201 (D.Or.2001) (finding that where hazardous substances migrated from defendant and other sources to plaintiffs property, plaintiff is not liable under § 9607; stating, “The fact that Plaintiff owns property contaminated by other sources does not make it a liable party”). As the Boeing Co. Court noted, it would be an irrational result if the owner of an adjacent, contaminated, property such as the Railway Property were designated part of the CERCLA facility, thus subjecting the owner to liability for all of the contamination at the entire facility, “absent any relationship to the party or its property.” See Boeing Co., 179 F.Supp.2d at 1201. Furthermore, if the Railway Property were considered a separate facility because of the presence, of the coal tar, Conrail would be entitled to the innocent owner defense, as the contamination migrated onto its property and there was no contractual relationship with NiaMo, the party causing the contamination. See Bedford Affiliates, 156 F.3d at 425; § 9607(b)(3). In the event that Conrail incurred resulting response costs, it would be entitled to bring a direct cost recovery action against NiaMo pursuant to § 9607. See Bedford Affiliates, 156 F.3d at 425. NiaMo argues that there is contamination elsewhere on the Railway Property unrelated to MGP operations, requiring Conrail to be held liable. However, as previously noted, it is only MGP-related contamination for which NiaMo is responsible. Contamination from other sources on property unrelated to NiaMo would not result in NiaMo incurring response costs, an element of a prima facie contribution claim. NiaMo contends that it has incurred investigatory costs on the Railway Property. However, there is no question of material fact regarding these costs-they were incurred due to the migration of coal tar onto the adjacent property from Area 4. While NiaMo is correct that causation is irrelevant in this strict liability matter, it would be absurd to permit the party responsible for the release of hazardous substances to search adjacent property, onto which that responsible party’s own contaminants have migrated, for some other, any other, trace of hazardous substance in order to hold that adjacent property owner liable as a “current owner” of a facility upon which hazardous substances are found. That is exactly what NiaMo is attempting here. It found trace amounts of what it alleges are hazardous substances released by historical locomotive operations on the Railway Property, and now attempts to hold Conrail liable for NiaMo’s own contamination. To follow NiaMo’s argument to its conclusion, if Conrail were held liable under this argument, then during apportionment it would certainly submit evidence that any locomotive-related substances were merely background amounts and required no remediation. Then, NiaMo would be apportioned the greatest liability (with respect to the Railway Property) because it indisputably caused the coal tar contamination. However, even if Conrail were found .05 percent liable, it would still be responsible for that proportionate share of any orphan shares, despite having no culpability. This result cannot be sustained. The cases relied upon for this argument are inapposite because of the different relationship among the parties and the properties. For example, in Westwood-Squibb Pharm. Co. the current owner of a creek adjacent to a former MGP sued the current owner of the MGP property to recover for costs incurred in remediating contamination. 138 F.Supp.2d at 374. The owner of the MGP property had been found liable for contamination on the 8.8 acre site. Id. However, it argued that because the MGP was operated prior to its ownership, the 8.8 acre site and the MGP were two different facilities for the purposes of CERCLA. The court rejected this argument (finding that there was one facility, including the 8.8 acres, the MGP, and the creek) and went on to note that a current owner’s liability is strict, joint, and several. Id. at 381. Thus, the creek owner was not required to prove that the release of contaminated groundwater from the MGP facility contributed to its response costs in order to seek recovery from the MGP property’s owner. Id. at 381-82. In the instant action, however, it is the former owner of the MGP property (NiaMo) seeking to recover from the adjacent landowner (Conrail), despite the fact that the contamination undoubtedly migrated from the MGP property. Clear Lake Props. v. Rockwell Int’l Corp., 959 F.Supp. 763 (S.D.Tex.1997), is similarly inapposite. In that case, a PRP lessee of land sued owners of adjacent properties claiming that the adjacent properties had contributed to the contamination on the land. Id. at 765. The operator of a laboratory, also a PRP, argued that the laboratory and the land/groundwater underneath it should be considered two separate facilities. Id. at 768. The court rejected this theory and found that the building and the land/groundwater were a single CERCLA facility. Id. This differs from the instant case in important respects. In Clear Lake Props, property was contaminated in part by hazardous substances in groundwater from the adjacent property. Id. at 765. Suit was brought by one PRP against other PRPs in order to recover response costs incurred for which the other PRPs were responsible. Id. The party seeking to avoid liability had released hazardous substances into the environment. Id. That party sought to sever a building from the ground on which it sat in order to avoid liability. Id. at 767-68. In this case, the property was contaminated with coal tar from NiaMo’s former operations. The contamination migrated to an adjacent property. NiaMo seeks to integrate the whole of the Railway Property, which has been completely separate property in all ways for over 150 years, into the MGP facility in order to obtain contribution from Conrail for contamination that it alone caused. This is not a case, as in Clear Lake Props., where a landowner is seeking contribution from a polluter. Rather, NiaMo, the polluter, is seeking contribution from the very landowner whose property it polluted. Thus, while Clear Lake Props, supports the proposition that contaminated property should not be unnaturally divided, it is unhelpful to NiaMo’s proposed unnatural integration of separate property. No genuine issues of material fact exist as to the bounds of the CERCLA facility as it relates to the Railway Property. Conrail is entitled to judgment as a matter of law dismissing all contribution claims against it. Moreover, Conrail’s cross-claims for contribution must be dismissed as moot and its motion for summary judgment on its cross-claims against APU must be denied as moot. 2. APU NiaMo’s claims against APU are similarly based upon defining the Railway Property as part of the facility for which NiaMo is responsible for remediating. NiaMo again argues that APU historically operated locomotives through the Railway Property that released hazardous substances. Therefore, NiaMo argues, APU is liable as a former operator of a site where hazardous substances were released. NiaMo’s argument fails, as set forth with regard to Conrail. Additionally, NiaMo contends that there was a release of hazardous substances when a track was relocated, some time prior to April 15, 1975. The only evidence NiaMo points to is the opinion of its expert that if a track was relocated where there was a tar weep, then it would “likely” result in movement of the tar. This is insufficient to create an issue of fact in the face of evidence from the same expert that the only evidence of tar on the Railway Property is south of the Area 4 lagoons, which is not where the track relocation occurred. Thus, there is no genuine issue of material fact as to contribution claims against APU and APU is entitled to judgment as a matter of law. Cross-claims for contribution by and against APU must also be dismissed as moot. 3. King NiaMo seeks summary judgment against King as the current owner of Area 2 and as an arranger. King is the current owner of Area 2, the portion of the property where the MGP was located. There is undisputed evidence that MGP-related hazardous wastes are located on Area 2. Thus, King is liable as a current owner unless it can demonstrate entitlement to an affirmative defense. King asserts that it is an innocent owner under § 9601(35)(B). King contends that it engaged in all appropriate inquiry when it purchased the property in 1968. However, it has adduced no evidence of any inquiry. Accordingly, it has not established entitlement to the innocent owner defense. NiaMo has adduced evidence that King used coke oven bricks for fill, thus transporting and disposing of hazardous substances. King makes no argument regarding this issue. The undisputed facts establish that King is liable both as a current owner and as an arranger. NiaMo is not entitled to summary judgment on these claims, however, because a genuine issue of fact remains for trial as to whether the response costs incurred by NiaMo are consistent with the NCP. See Buffalo Color Corp. v. Alliedsignal, Inc., 139 F.Supp.2d 409, 417-18 (W.D.N.Y.2001) (finding it improper to grant summary judgment before it is determined whether any costs incurred were consistent with the NCP). Also remaining for trial is the allocation of damages relating to King. 4. USX It is undisputed that USX owned portions of the Water Street Site until it was sold to NiaMo in 1922. NiaMo thereafter established its MGP operation, marking the advent of widespread contamination with MGP wastes. Accordingly, in order to establish USX’s liability, NiaMo must demonstrate that a release or threatened release of hazardous substances occurred prior to the advent of the MGP. USX contends that there wa