New York v. Next Millennium Realty, LLC (160 F. Supp. 3d 485, 2016)

OPINION & ORDER

FEUERSTEIN, District Judge

Pending before the Court are, inter alia, (1) the motion of plaintiffs State of New York and Basil Seggos, as Acting Commissioner of the NYDEC (collectively, “the State”), pursuant to Rule 56 of the Federal Rules of Civil Procedure for partial summary judgment on their claims against defendants Next Millennium Realty LLC (“Next Millennium”); 101 Frost Street Associates, L.P. (“101 FSA”); and Alan Ei-dler, Lise Spiegel Wilks and Pamela Spie-gel Sanders, as co-executors of the Last Will and Testament of Jerry Spiegel and duly authorized administrators of the Estate of Jerry Spiegel (collectively, “the Spiegel Defendants”) seeking judgment declaring (a) that Next Millennium, 101 FSA and the Spiegel Defendants (collectively, “the Frost Street Defendants”) are jointly and severally liable under Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a), for all response costs incurred and to be incurred by the State in responding to contamination at and emanating from the New Cassel Industrial Area (“NCIA”) Site, and specifically into the off-site area designated as Operable Unit No. 3 by the NYDEC; (b) that the State’s response actions with respect to the NCIA are not inconsistent with the national contingency plan under Section 107 of CERCLA, 42 U.S.C. § 9607(a); (c) that the Frost Street Defendants are jointly and severally liable for further response costs incurred by the State in responding to contamination at and emanating from the NCIA Site under Section 113(g)(2) of CERCLA, 42 U.S.C. § 9613(g)(2); and (d) that the Frost Street Defendants are liable for damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such damages, pursuant to Sections 107(a) and 113(g) of CERCLA, 42 U.S.C. §§ 9607(a) and 9613(g)(2), respectively (“the Natural Resource Damage Claim” or “the NRD Claim”); and (2) the Frost Street Defendants’ (a) cross motion pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment on their fifth affirmative defense for divisibility of harm, and (b) motion pursuant to Rule 56 of the Federal Rules of Civil Procedure for partial summary judgment dismissing the State’s NRD Claim. For the reasons set forth below, the State’s motion is granted in part and denied in part and the Frost Street Defendants’ cross motion and motion are denied.

I. Factual Background

The NCIA encompasses approximately one hundred seventy (170) acres of land in the Town of North Hempstead in the County of Nassau; is comprised of numerous industrial facilities; and is bounded by the Long Island Railroad to the north, Frost Street to the east, Old Country Road to the south and Grand Boulevard to the southwest. (State’s Statement of Material Facts Pursuant to Local Rule 56.1 [“State 56.1”], ¶ 1; Frost Street Defendants’ Counter-Statement of Material Facts Pursuant to Local Rule 56.1 and Statement of Additional Undisputed Facts [“FSD Counter.”], ¶ 1). The NCIA was first recognized as an area -with widespread groundwater contamination during a county-wide groundwater investigation conducted by the Nassau County Department of Health (“NCDH”) in 1986. (FSD Counter., ¶ 3). Past industrial .activities conducted within the NCIA resulted in extensive volatile ' organic compound (“VOC”) contamination of groundwater in the vicinity of the NCIA Site. (Id., ¶ 2). Specifically, disposal activities at industrial facilities within the NCIA resulted in the disposal of hazardous wastes, including the VOCs tretrachloroethylene (“PCE”), trichloroethylene (“TCE”) and 1,1,1-trichloro-ethane (“1,1,1-TCA”), which are hazardous substances under CERCLA. (Id., ¶¶ 5, 8).

It is undisputed that releases of hazardous waste from facilities within the NCIA Site migrated from the facilities to surrounding areas, including State OU-3/EPA OU-1. (FSD Counter., ¶ 6). Although the State contends that the surrounding area also includes the Bowling Green Water District well field, (State 56.1, ¶ 6), the Frost Street Defendants “dispute!] that any hazardous waste originating from the Frost Street Sites or the eastern Plume have migrated into the Bowling Green Water District Well.” (FSD Counter., ¶ 6).

In 1988, the NYDEC listed the NCIA as a Class 2 site in the Registry of Inactive Hazardous Waste Disposal Sites in New York, thereby indicating that hazardous waste was disposed at the site and constituted a significant threat to public health or the environment. (FSD Counter., ¶ 4). The NYDEC divided the NCIA Site into three (3) “operable units,” (a) Operable Unit 1 (“OU-1”), which is the sources of contaminants at individual industrial facilities located within the NCIA, including the on-site soils at each of the Frost Street Sites; (b) Operable Unit 2 (“OU-2”), which is groundwater contamination at each such facility, including groundwater contamination between the Frost Street Sites; and (c) Operable Unit 3 (“State OU-3/EPA OU-1”), which is groundwater contamination downgradient from the NCIA Site, ie., south of Old Country Road and Grand Boulevard. (Id., ¶ 7). The NCIA and State OU-3/EPA OU-1 are directly above an EPA-designated sole source aquifer, which is the principal source of drinking water on Long Island. (Id., ¶ 10). Groundwater sampling in the NCIA and State OU-3/EPA OU-1 found concentrations of VOCs, including PCE, TCE and 1,1,1-TCA, in excess of state drinking water standards. (Id., ¶ 11).

In order to identify the sources of contamination within the NCIA, the NYDEC conducted Preliminary Site Assessments (“PSAs”) within the NCIA. (FSD Counter., ¶ 12). As a result of the PSAs, the NYDEC listed seventeen (17) facilities within the NCIA as Class 2 sites in the New York Registry of Inactive Hazardous Waste Disposal Sites (“the Registry”) between May 1995 and September 1999. (Id., ¶ 13). Of the seventeen (17) Class 2 sites, three (3) were investigated and de-listed from the Registry; two (2) were investigated, reme-diated and de-listed from the Registry; and one (1) was investigated, remediated and re-classified as a Class 4 site. (Id., ¶ 14). The NYDEC designated the 89 Frost Street Site, 101 Frost Street Site and 770 Main Street Site (collectively, “the Frost Street Sites”) as Class 2 sites in 1996. (Id, ¶ 15).

As a result of the release of hazardous substances at the NCIA Site, the NYDEC, using funds from the State’s Inactive Hazardous Waste Remedial Fund, undertook investigation, remediation, and other actions to respond to the contamination in State OU-3/EPA OU-1. (FSD Counter., ¶ 16).

New York State regulations incorporate by reference the federal National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 C.F.R. Part 300, at N.Y. Comp. Codes R. & Regs. tit. 6, § 375-1.1(g)(2). (FSD Counter., ¶ 17).

As of February 11, 2015, the NYDEC and the Department of Health (“DOH”) have incurred four million nine hundred eighty-six thousand four hundred thirteen dollars and fifty-five cents ($4,986,413.55) in unreimbursed response costs related to State OU-3/EPA OU-1 and attributed to the thirteen (13) facilities at issue in this case. (FSD Counter., ¶ 18).

A. The 89 Frost Street Site

The 89 Frost Street Site is comprised of approximately three and a half (3.5) acres of land located at 89 Frost Street in North Hempstead. (FSD Counter., ¶ 20). Tenants and subtenants utilized a fifty-five thousand (55,000) square foot facility on the property for commercial manufacturing from approximately 1964, when it was built, through 1998, when the structures on the site were demolished. (Id., ¶ 21).

The environmental investigations carried out by the NYDEC and its consultants identified numerous hazardous substances present in the shallow soil, deep soil and groundwater at the 89 Frost Street Site. (FSD Counter., ¶ 23). Specifically, concentrations of PCE in on-site groundwater were as high as thirty-seven thousand micrograms per liter (37,000 ¡x/L), at a location downgradient of two (2) drywell/cesspools at the western part of the 89 Frost Street Site. (Id., ¶32). Later, during the NY-DEC’s Remedial Investigation, (1) PCE was detected in on-site groundwater at a concentration of one hundred twenty thousand micrograms per liter (120,000 fx/L), (id., ¶ 33); and (2) “PCE and TCE were detected at concentrations above guidance levels in soils at the 89 Frost Street Site,” including PCE at forty-seven thousand micrograms per kilogram (47,000 p/kg) in soil in a drywell, (id., ¶ 30). During a subsequent investigation at the 89 Frost Street Site, PCE and TCE were detected in numerous soil samples, including PCE concentrations of forty-five million micrograms per kilogram (45,000,000 p/kg) and TCE concentrations of 'four hundred thousand micrograms per kilogram (400,000 p/kg). (Id., ¶ 31). Contamination in the on-site soil and groundwater indicates past disposal on the 89 Frost Street Site. (Id., ¶ 29).

The 89 Frost Street Site utilized an on-site sanitary system and numerous dry-wells until February 1983, when it was connected to the municipal sewer system. (FSD Counter., ¶ 22). It is undisputed that solvents were located in the old septic system utilized at the 89 Frost Street Site. (Id., ¶ 26). The State contends that the old septic system “was taken out of service following a fire that destroyed the building in or about 1976[;]” that a new septic system was installed at the property when the building was reconstructed on the site; and that “[t]he source area investigation performed at the 89 Frost Street Site identified significant levels of contamination in and downgradient from the location of the old septic system.” (State 56.1, ¶ 27). Although the Frost Street Defendants do not dispute those contentions, (FSD Counter., ¶ 27), the third-party defendants do, claiming that “[t]here is no evidence that the septic system at the 89 Frost Street Site was taken out of service or that a new septic system was installed following the 1976 fire that destroyed the building.” (TPD Counter., ¶ 27).

Beginning in 1966, the 89 Frost Street Site was leased and subleased to various entities, including, inter alia, Marvex Processing and Finishing Co. (“Marvex”), which conducted manufacturing operations that utilized hazardous substances and disposed of chlorinated solvents at the 89 Frost Street Site. (FSD Counter., ¶24). Marvex, a subtenant, utilized solvents in its manufacturing process and discharged the solvents into the 89 Frost Street Site on-site sanitary system. (Id., ¶ 25). Marvex released PCE at the 89 Frost Street Site both through its operation at the site of a dry cleaning machine that utilized PCE as a solvent, and as a result of the 1976 fire that destroyed Marvex’s dry cleaning machine, a still containing solvents associated with the dry cleaning machine, a storage tank holding PCE and drums possibly stored at the site that may have contained PCE. (Id., ¶ 28).

B. The 101 Frost Street Site

The 101 Frost Street Site, also known as the Former Autoline Automotive Site, is comprised of approximately one and seven-tenths (1.7) acres of land in North Hemp-stead. (FSD Counter., ¶ 34). A thirty-five thousand (35,000) square foot facility located on the site was used by a number of tenants for commercial activities. (Id., ¶ 35). An on-site sanitary system was utilized at the 101 Frost Street Site until approximately February 1983, when the site was connected to the municipal sewer system. (Id., ¶ 36). There are approximately six (6) drywells on the 101 Frost Street Site. (Id., ¶ 37).

The State contends (a) that environmental investigations carried out by the NY-DEC and its consultants in the 1990s identified numerous hazardous substances, including PCE and TCE, present in the shallow soil, deep soil and groundwater at the 101 Frost Street Site, (State 56.1, ¶¶ 38, 46); (b) that “[t]he OU-2 ROD [Record of Decision] for combined groundwater beneath the Frost Street Sites identifies numerous VOCs, including PCE, and TCE, in the groundwater under and adjacent to the 101 Frost Street Site[,]” (id., ¶ 47); (c)'that “[contamination in the on-site soil and on-site groundwater indicates past disposal on the Former Autoline Automotive Site/101 Frost Street Site[,]” (id., ¶ 53); and (d) that “the initial groundwater investigations conducted by [the NYDEC] in 1995 as part of the multisite [sic] PSA indicated groundwater contaminated with PCE at the [101 Frost Street Site], with concentrations of PCE as high as 20,000 p/L on the western side of the site, which correlates with the suspected location of two dry wells/cesspools, and as high as 2,200 p/L on the southern boundary of the site[.]” (id., ¶ 55). Although the Frost Street Defendants dispute those contentions on the basis that the source and origin of the contamination is unknown and that “[i]t is believed that the contamination on 101 Frost Street originated from the activities conducted on the 89 Frost Street Site[,]” (FSD Counter., ¶¶ 38, 46, 47, 53, 55), they do not support those assertions with any admissible evidence in the record. Although they cite to a report prepared by a purported expert, Lori Goetz, there is no such report in the record before this Court. Accordingly, the Frost Street Defendants’ contentions are insufficient to raise a genuine issue of material fact; for trial. In any event, it is undisputed that PCE and TCE were detected above guidance levels during the NYDEC’s Remedial Investigation at the 101 Frost Street Site, with the highest PCE concentration at twenty-four thousand two hundred nine micrograms per kilogram (24,209 p/kg), and the highest concentration of TCE at three thousand seven hundred seventy-five micrograms per kilogram (3775 p/kg). (FSD Counter., ¶ 54).

The 101 Frost Street Site was occupied by (a) Bronco Model Aircraft and its affiliated company, Physio-Chem Corp., as tenants, between 1964 and 1972; (b) Nat Bas-sen Textiles, as a tenant, between in or about 1972 and 1982; and (c) Autoline Automotive Corp., US-1 Marketing Group Inc. and Cobraline Manufacturing Corp. (collectively, “the Autoline tenants”), as tenants, between 1982 and 1990. (FSD Counter., ¶¶ 39-40, 45). According to the State, from 1972 to 1982, Kleartone Inc. (“Kleartone”) occupied a solvent storage room at the 101 Frost Street Site which had a floor drain that discharged to the cesspool on the site. (State 56.1, ¶¶ 42-43). The Frost Street Defendants dispute those contentions only on the basis that “[t]here is no evidence in the record that the solvent room had any releases of hazardous substances.” (FSD Counter., ¶42). Nonetheless, it is undisputed that the solvents used by Kleartone included TCE and 1,1,1-TCA. (FSD Counter., ¶ 44).

According to the State, Nat Bassen Textiles used the 101 Frost Street Site for textile manufacturing and had documented use of de-greasers and other unknown chemicals. (State 56.1, ¶ 41). Although the Frost Street Defendants do not dispute that Nat Bassen Textiles used de-greasers, they contend that “[t]here is no evidence in the record the use of degreasers resulted in a release at the site.” (FSD Counter., ¶ 41).

The Autoline tenants conducted manufacturing and/or assembly activity at the site. (FSD Counter., ¶ 45). The State contends (a) that “[m]any of the soil and groundwater contaminants identified in the OU-2 ROD were utilized in the manufacturing process carried out by Autoline tenants at the 101 Frost Street Site[,]” (State 56.1, ¶ 48); (b) that “many of the VOCs identified in the OU-2 ROD were utilized by the Autoline tenants for cleaning and manufacturing products at the 101 Frost Street Site[,]” (id., ¶ 49); (c) that those “VOCs were discharged by the Autoline tenants into the 101 Frost Street Site’s septic system that discharged into a number of drywells located at the 101 Frost Street Site[,]” (id., ¶ 50); (d) that “many of the heavy metals and semi-volatile compounds found in materials used by the Autoline tenants in their manufacturing process have been identified in the RODs as present in the soils and groundwater[,]” (id., ¶ 51); and (e) that “[t]he Autoline tenants also discharged and/or spilled th[o]se compounds in the onsite sanitary and leaching system!,]” (id., ¶ 52). However, the Frost Street Defendants dispute those contentions on the basis that they were “alleged in the [Frost Street Defendants’] Third-Party Complaint based upon statements in the OU-3 ROD[ ]” and that “[n]o factual basis for [those contentions] was revealed during discovery.” (FSD Counter., ¶¶ 48-52).

C. The 770 Main Street Site

The 770 Main Street Site, also known as the Former Applied Fluidics Site, is comprised of approximately one (1) acre of land in North Hempstead. (FSD Counter., ¶ 56). The 770 Main Street Site utilized an on-site sanitary system and numerous dry-wells until February 1983, when it was connected to the municipal sewer system. (Id., ¶ 58).

Certain tenants and subtenants utilized a facility located on the site for commercial activities and warehousing between approximately 1958 through 1998, when the structure was demolished. (FSD Counter., ¶ 57). Specifically, the 770 Main Street Site was occupied, (a) by defense contractors Allard Instruments and Applied Fluidics, Inc. (“Applied Fluidics”), which engaged in manufacturing activities at the site, between 1969 and 1982, (id., ¶ 59); and (b) by Applied Fluidics, which used TCE and compounds containing PCE in its operations, from 1974 to 1982. (Id., ¶¶ 60-62).

The NYDEC’s investigations of the 770 Main Street Site in the 1990s found PCE and TCE in the soil and groundwater at the site. (FSD Counter., ¶ 63). The environmental investigations carried out by the NYDEC and its consultants identified numerous hazardous substances present in the shallow soil, deep soil and groundwater at the 770 Main Street Site. (Id., ¶ 64). During a PSA in 1995, soil samples containing PCE up to 0.39 parts per million (“ppm”) were collected near the northwest corner of the 770 Main Street Site, in close proximity to a former cesspool. (Id., ¶ 65). The Frost Street Defendants dispute the State’s contention that those soil sample are an indication of past disposal and contend that “[t]here are no facts in the record indicating that disposal occurred on the 770 Main Street Site[.] ... [and] many soil samples collected from the site had no indication of contamination.” (Id.) However, it is undisputed (a) that PCE contamination was found in soils at two (2) locations within the 770 Main Street Site during the PSA, including at a concentration of three hundred ninety parts per billion (390 ppb), or three hundred ninety micrograms per kilogram (390 ¡x/kg), (id., ¶ 66); and (b) that concentrations of PCE as high as fifty thousand micrograms per kilogram (50,000 p/kg) were detected in a sample collected directly below the location of a suspected cesspool at the site. (Id., ¶ 67).

D. The Frost Street Defendants

Next Millennium currently owns the 89 Frost Street Site and the 770 Main Street Site; has owned those properties since January 8, 1998; and is the successor-in-interest to various prior owners of those properties, including Jerry Spiegel (“Spiegel”). (FSD Counter., ¶¶ 68-69). Spiegel, now deceased, owned (a) the 89 Frost Street Site between 1958 and 1995, and during the time hazardous substances, including PCE, were released at the site; and (b) the 770 Main Street Site between 1964 and 1979. (Id., ¶¶ 73-73).

101 FSA currently owns the 101 Frost Street Site; has owned that property since February 24, 1997; and is the successor-in-interest to various prior owners of that property, including Spiegel. (FSD Counter., ¶¶ 70-71). Spiegel owned the 101 Frost Street Site between 1958 and 1966. (Id., ¶ 73).

Next Millennium and 101 FSA are real estate holding companies without employees, and are managed by Jerry Spiegel Associates, Inc. (“Spiegel Associates”), which is owned by the Estate of Jerry Spiegel. (FSD Counter., ¶¶ 72, 77). Prior to his death in 2009, Spiegel was a managing member of Next Millennium and the president of 101 Frost Street Corp., the general partner of 101 FSA. (Id., ¶ 76).

E. The State’s Response Costs at the Frost Street Sites

In 1998, the NYDEC conducted a state-funded Remedial Investigation/Feasability Study (“RI/FS”) at the Frost Street Sites and determined the presence of hazardous substances, including PCE, TCE and 1,1,1-TCA, in the soil and groundwater beneath and downgradient of the Sites in excess of State soil and groundwater standards. (FSD Counter., ¶ 78). The State contends: (1) that “[d]uring its investigation, DEC discovered that the Frost Street Sites are composed of numerous pits, wells, leaching pools, ditches, and lagoons wherein hazardous substances have been deposited, disposed, placed and located[,]” (State 56.1, ¶ 79); and (2) that “[hjazardous waste at the Frost Street Sites was disposed through the sanitary system and other systems[,]” (id., ¶ 80). Although the Frost Street Defendants do not dispute that disposal occurred at the 89 Frost Street Site, they contend that their “Third-Party Complaint alleges releases occurred at the 770 Main Street Site and 101 Frost Street Site based upon statements in the OU-1, OU-2 [and/or] OU-3 RODs[,] [but] Hollowing completion of discovery, no information exists supporting the discharge of hazardous substance at these two sites.” (FSD Counter., ¶¶ 79-80). ■

The State further contends that since “[t]here was no public sewer service for the Frost Street Sites until 1983[,] [a]ll effluent generated at the sites was disposed of by pumping, pouring, emitting, emptying, discharging, dumping and disposing of commercial waste generated into the septic and leaching system that serviced the sites.” (State 56.1, ¶¶ 81-82). The Frost Street Defendants dispute those contentions on the basis that “[t]here is insufficient evidence in the record to determine if waste generated at the 770 Main Street Site and the 101 Frost Street Site were disposed of off-site.” (FSD Counter., ¶¶ 81-82).

Although it is undisputed that the operations conducted at the 89 Frost Street Site generated hazardous substances as defined by 42 U.S.C. § 9601(14), the Frost Street Defendants dispute the State’s contentions (a) that the operations conducted at the 770 Main Street Site and the 101 Frost Street Site generated hazardous substances, (FSD Counter., ¶ 83); (b) that “[t]he hazardous substances were released at [those] sites by the disposal of the hazardous substances into the sanitary septic, leaching system, and onto the soils and into the groundwater[,]” (State 56.1, ¶ 84); and (c) that “[b]ased on the RI/FS, [the NYDEC] issued three Records of Decision in March 2000 that described the selected remedies for the contaminated soils at each of the three sites[,]” (id., ¶ 85), on the basis that “[following the completion of discovery, there are no facts in the record supporting [the] allegation [that hazardous waste was generated at the 770 Main Street Site and 101 Frost Street Site].” (FSD Counter., ¶¶ 83-85).

Nonetheless, it is undisputed that “[t]he groundwater contamination emanating from each of the Frost Street Sites comin-gle [sic], such that the contamination from one site mixes with the contamination from the adjacent sites as the groundwater moves downgradient under each site, forming a common plume of contaminants.” (FSD Counter., ¶87) (emphasis added). Since the contamination emanating from each of the three (3) Frost Street Sites is co-mingled and forms a single plume of VOC contamination, the NYDEC addressed groundwater contamination beneath the Frost Street Sites as a single operable unit, i.e., OU-2. (Id., ¶88). The OU-2 ROD requires the installation of an air sparging/soil vapor extraction (“AS/ SVE”) system to address the VOC contamination in the groundwater source areas and an in-well vapor stripping system to address the deeper contamination along Old Country Road. (Id., ¶ 89). It is also undisputed that “[disposal of hazardous substances on the three Frost Street Sites has contaminated the groundwater beneath the sites and migrated off-site into [State OU-3/EPA-OU-1]”. (FSD Counter., ¶ 90) (emphasis added).

The Frost Street Defendants dispute the State’s contention that in January 2003, Next Millennium and 101 FSA “entered into Remedial Design/Remedial Action consent orders to implement the soil and groundwater remedies selected in the March 2000 RODs[,]” (State 56.1, ¶ 91), on the basis that “[t]here is no factual evidence in the record that disposal of hazardous waste occurred at the 101 Frost Street' [S]ite or the 770 Main Street [S]ite.” (FSD Counter., ¶ 91). However, the Frost Street Defendants do not dispute that hazardous substances released at the 89 Frost Street Site migrated into State OU-3/EPA OU-1. (Id.)

The Frost Street Defendants also dispute the State’s contention that they “have not implemented the selected remedy for OU-2 of the Frost Street Sites[,]” (State 56.1, ¶ 92), and contend that they “have implemented and operated an [AS/SVE system] for nearly 10 years as required by the OU-2 remedy... [and] have a pending request with the [NY]DEC to do pre design [sic] investigation work on a second system, which [the NY]DEC refuses to permit.” (FSD Counter., ¶ 92).

F. The Frost Street Defendants’ Additional Undisputed Facts

The following are the only undisputed facts relating to the Frost Street Defendants’ cross motion for summary judgment on their affirmative defense of divisibility of damages:

In its Record of Decision pertaining to State OU-3/EPA OU-1 dated October 2003 (“the NYDEC OU-3 ROD”), the NYDEC identifies (a) three (3) separate plumes; (b) the sites that contributed to each plume; and (c) the Frost Street Defendants’ properties and the property of Utility Manufacturing Corp. as the contributors to the Eastern Plume. (State’s Counter-Statement of Material Facts pursuant to Local Rule 56.1 and Statement of Additional Undisputed Facts [“State Counter.”], ¶ 7). In the section of the NYDEC’s OU-3 ROD entitled “Area of Historically Impacted Groundwater: 1977 to 2000,” the NYDEC indicates that “[h]ydropunch data collected during the installation of the early warning wells indicate that below 150 ft bgs [feet below ground surface], the contaminant concentrations [in the Eastern Plume] drop off rapidly,” and that

“[i]t appears that the [Eastern] [P]lume has not migrated vertically downward in this area [within the NCI A, north of Old Country Road]. It is not known whether this is a function of the time required to migrate to this depth or whether the fine-grained' nature of the material at this depth is preventing downward migration.”

(Declaration of Kevin Maldonado in Support of the Frost Street Defendants’ Cross Motion for Summary Judgment [“Maldonado Decl.”], Attachment [“A.”] 4, p. 15-16). However, according to the State, subsequent testing, as set forth in the Pre-Design Investigation Evaluation Report for State OU-3/EPA OU-1 (“PDIE Report”) prepared by HDR for the NYDEC in March 2010 and the Supplemental Feas-ability Study Technical Memorandum for State OU-3/EPA OU-1 (“SFS Memorandum”) prepared by HDR/O’Brien & Gere Joint Venture (“HDR/OG”) for the United States Army Corps of Engineers in July 2013, “reveal[ed] significant contamination in the Eastern Plume at depths far greater than 150 feet bgs.” (State Counter., ¶ 8).

HDR installed a monitoring well (MW-15) between the known location of the Eastern Plume and the Central Plume and Bowling Green wells, and a single sample taken at a single depth of that monitoring well was non-detect for PCE and TCE. (State Counter., ¶ 10).

The SFS Memorandum “purport[s] to summarize historical groundwater data, characterize the nature and extent of contamination, and provide the basis for EPA’s remedy selection.” (State Counter., ¶ 1). However, based upon the opinion of its expert, Peter F. Andersen (“Andersen” or “the State’s expert”), the State disputes the Frost Street Defendants’ “assertion that the SFS Memorandum summarized all historical groundwater data, or that it fully characterized the nature and extend of contamination.” (Id.)

A public hearing was conducted on August 15, 2013. (State Counter., ¶ 6).

Jeffrey Dyber, the NYDEC’s project manager for State OU-3/EPA OU-1, reviewed the SFS Memorandum and the EPA’s Record of Decision pertaining to State OU-3/EPA OU-1 dated September 2013 (“the EPA ROD”), (State Counter., ¶ 4), and the NYDEC concurred with the remedy selected by the EPA in the EPA ROD. (Id., ¶¶ 4-5).

G. Undisputed Facts Regarding the State’s NRD Claim

The following are the undisputed facts with respect to the Frost Street Defendants’ motion for partial summary judgment dismissing the State’s NRD Claim:

The State is seeking judgment declaring that the Frost Street Defendants are jointly and severally liable for natural resource damages, including the costs of assessing such damages. (State’s Counter-Statement of Material Facts pursuant to Local Rule 56.1 and Statement of Additional Undisputed Facts [“State NRD Counter.”], ¶¶ 1-2).

In the State’s Memorandum of Law in Support of the Approval of the Consent Decrees, dated August 22, 2014, the State indicated that its settlement of the NRD claim and potential future NRD assessment “will focus on the impact of the downgradient groundwater contamination on Long Island’s sole-source aquifer.” (State NRD Counter., ¶ 3).

The State has not yet performed “an NRD pre-assessment or NRD Assessment,” (State NRD Counter., ¶ 5), nor “assessed or calculated the damages to natural resources resulting from releases of contaminants at the NCIA.” (Id., ¶¶ 4, 6-7).

In the opinion of Francis Reilly, the Frost Street Defendants purported expert on natural resource damages, groundwater is the only impacted natural resource in the NCIA. (State NRD Counter., ¶ 8).

The NYDEC OU-3 ROD and EPA ROD do not mention any well field or wells as being impacted by releases of contaminants at the NCIA other than the Bowling Green well field and wells, (State NRD Counter., ¶¶ 9, 10), but the State has not yet performed a natural resource damages assessment. (Id.)

At all relevant times, State Maximum Contaminant Levels (“MCLs”) for all VOCs of concern at the NCIA was and is 5 parts per billion. (State NRD Counter., ¶ 11). In late 1989, during the course of routine sampling by Bowling Green, amounts of TCE and PCE were detected in the Bowling Green wells below MCLs. (Id., ¶ 12). In response, the Town of Hempstead purchased and installed a granulated activated carbon (“GAC”) treatment system in 1990, (id., ¶ 13), but, according to the State, VOCs were detected at levels above MCLs during subsequent sampling of untreated water at the Bowling Green wells. (Id.)

In the summer of 1995, an air stripper tower was installed on the Bowling Green wells, which has since “worked in conjunction with the GAC system to treat and polish the water before it is distributed to the public.” (State NRD Counter., ¶ 14). That same year, the NYDEC “agreed to repay 100% of the cost of the supplemental air stripper tower as a State Superfund remedial expense.” (Id., ¶ 15). The NY-DEC OU-3 ROD indicates that as of October 2003, “no site specific contaminants exceeding groundwater or drinking water standards were detected in water distributed to the public” based upon the use of the air stripping tower and GAC systems at Bowling Green. (Id., ¶ 17). The “same system of treating with the air stripping tower and polishing with the GAC remains in effect to this date at Bowling Green.” (Id., ¶ 16). The Bowling Green Water District Commissioners from 1998 to the present each testified during their respective depositions (a) that the treatment systems used during their tenures effectively removed VOCs from the groundwater prior to providing the water to the public, (id., ¶ 18); (b) that the water is routinely sampled for VOCs and they were not aware of any “exceedances of MCLs” after the treatment of the water, (id., ¶ 19); and (c) that the Bowling Green wells were never taken out of service for VOC contamination during their time as Commissioners, (id., ¶20).

VOCs taken from the water are emitted into the air. (Frost Street Defendants’ Counter-Statement of Material Facts pursuant to Local Rule 56.1 to Additional Facts Presented by State in its Rule 56.1 Counter-Statement of Fact [“FSD NRD Counter.”], ¶ 1).

The NYDEC has hired HDR to design a remedy for treatment of the OU-2 plume deeper than one hundred fifty feet below .ground surface (150 ft. bgs). (State HDR Counter., ¶ 23). In addition, the NYDEC “has prepared a remedial design plan and hired a standby contractor to address portions of the plume beneath the Frost Street [S]ites that is deeper than 150 [feet] bgs.” (Id., ¶25).

The EPA estimates that remediation of State OU-3/EPA OU-1 will take thirty (30) years. (FSD NRD Counter., ¶ 4).

II. Discussion

A. Standard of Review

“A motion for summary judgment may properly be granted * * * only where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant judgment for the moving party as a matter of law.” In re Dana Corp., 574 F.3d 129, 151 (2d Cir.2009); see Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”) In ruling on a summary judgment motion, the district court must first “determine whether there is a genuine dispute as to a material fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotations and citations omitted); see Ricci v. DeStefano, 557 U.S. 557, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009) (“On a motion for summary judgment, facts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” (emphasis added) (internal quotations and citation omitted)); Vermont Right to Life Comm., Inc, v. Sorrell, 758 F.3d 118, 142 (2d Cir.2014), cert. denied, — U.S. -, 135 S.Ct. 949, 190 L.Ed.2d 830 (2015) (“The role of the court on a summary judgment motion is to determine whether, as to any material issue, a genuine factual dispute exists.” (quotations and citation omitted)). “On a motion for summary judgment, a fact is material if it ‘might affect the outcome of the suit under the governing law.’” Royal Crown Day Care LLC v. Dep’t of Health & Mental Hygiene of City of New York, 746 F.3d 538, 544 (2d Cir.2014) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

In reviewing the record to determine whether there is a genuine issue for trial, the court must “construe the evidence in the light most favorable to the nonmoving party,” Dalberth v. Xerox Corp., 766 F.3d 172, 182 (2d Cir.2014) (quotations and citation omitted), and “resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Smith v. County of Suffolk, 776 F.3d 114, 121 (2d Cir.2015) (quotations and citation omitted); accord Delaney v. Bank of America Corp., 766 F.3d 163, 167 (2d Cir.2014). “An issue of fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Dalberth, 766 F.3d at 182 (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); see also Delaney, 766 F.3d at 168. “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Ricci, 557 U.S. 557, 129 S.Ct. at 2677 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)); accord Baez v. JetBlue Airways Corp., 793 F.3d 269, 274 (2d Cir.2015).

“The moving party bears the initial burden of showing that there is no genuine dispute as to a material fact.” CILP Assocs., L.P. v. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir.2013) (quotations, brackets and citation omitted); see also Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir.2014) (“The moving party bears the burden of showing the absence of a genuine dispute as to any material fact[.]”) “[W]hen the moving party has carried its burden * * *, its opponent must do more than simply show that there is some metaphysical doubt as to the material facts * * *[,]” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoting Matsushita Elec., 475 U.S. at 586-87, 106 S.Ct. 1348), and must offer “some hard evidence showing that its version of the events is not wholly fanciful.” Miner v. Clinton County, N.Y., 541 F.3d 464, 471 (2d Cir.2008) (quotations and citation omitted). The nonmoving party can only defeat summary judgment by “adducing] evidence on which the jury could reasonably find for that party.” Lyons v. Lancer Ins. Co., 681 F.3d 50, 56 (2d Cir.2012) (quotations, brackets and citation omitted). ‘“The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient’ to defeat a summary judgment motionf,]” Fabrikant v. French, 691 F.3d 193, 205 (2d Cir.2012) (quoting Anderson, 477 U.S. at 252,106 S.Ct. 2505); and “[a] court cannot credit a plaintiffs merely speculative or conclusory assertions.” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir.2012); see also Fabrikant, 691 F.3d at 205 (“[C]onclusory statements or mere allegations will not suffice to defeat a summary judgment motion.” (quotations and citation omitted)).

B. Liability under Section 107(a) of CERCLA

“CERCLA’s primary purposes are axiomatic: (1) to encourage the timely cleanup of hazardous waste sites; and (2) to place the cost of that cleanup on those responsible for creating or maintaining the hazardous condition.” Price Trucking Corp. v. Norampac Indus., Inc., 748 F.3d 75, 79 (2d Cir.2014) (quotations and citation omitted); accord ASARCO LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir.2014), cert. denied, - U.S. -, 135 S.Ct. 715, 190 L.Ed.2d 441 (2014). “In furtherance of these purposes, the statute imposes strict liability on owners and facility operators, on persons who arranged for the disposal or treatment of hazardous waste at the relevant site, and on persons who transported hazardous waste to the site.” Price Trucking, 748 F.3d at 79-80.

“To make out a prima facie case for liability under [CERCLA], a plaintiff must establish that: (1) the defendant is an ‘owner’ or is otherwise liable under 42 U.S.C. § 9607(a)(l)-(4); (2) the site is a ‘facility’ as defined by 42 U.S.C. § 9601(9); (3) there has been a release or threatened release of hazardous substances at the facility; (4) the plaintiff incurred costs responding to the release or the threat; and (5) the costs and response conform to the National Contingency Plan.” Price Trucking, 748 F.3d at 80; see also Freeman v. Glaxo Wellcome, Inc., 189 F.3d 160, 163 (2d Cir.1999) (“[T]o establish a prima facie case of liability, a plaintiff must- show that (1) the site is a ‘facility’ as defined in CERCLA, (2) a release or threatened release of a hazardous substance has occurred, (3) the release or threatened release has caused the plaintiff to incur response costs that were necessary and consistent with the National Contingency Plan set up by CERCLA, and (4) the defendants fall -within one or more of the four classes of responsible persons described in CERCLA § 107(a).”) “Once the plaintiff establishes these elements, the defendant is strictly liable for the presence of the hazardous substances unless it succeeds in invoking one of the statutory defenses set forth in § 107(b) (42 U.S.C. § 9607(b)).” Prisco v. A & D Carting Corp., 168 F.3d 593, 603 (2d Cir.1999).

1. The Frost Street Defendants are Responsible Parties

Section 107(a) of CERCLA imposes liability upon the following four (4) classes of responsible parties: (4)any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance.... ”

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

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and

42 U.S.C. § 9607(a). “Section 9607(a)(1) applies to all current owners and operators, while [S]ection 9607(a)(2) primarily covers prior owners and operators.” State of New York v. Shore Realty Corp., 759 F.2d 1032,1044 (2d Cir.1985).

Since “section 9607(a)(1) unequivocally imposes strict liability on the current owner of a facility from which there is a release or threat of release, without regard to causation[,]” Shore Realty, 759 F.2d at 1044, and it is undisputed that Next Millennium and 101 FSA are the current owners of the Frost Street Sites, they are responsible parties under Section 107(a) of CERCLA. See, e.g. State of New York v. Lashins Arcade Co., 91 F.3d 353, 359 (2d Cir.1996) (holding that the current owner of the facility was a responsible party under Section 9607(a)(1), notwithstanding that it did not own the facility at the time of disposal of the hazardous substances, and, thus, could be held strictly liable for the State’s response costs unless it could satisfy one of CERCLA’s affirmative defenses).

For purposes of Section 9607(a)(2), CERCLA provides that the term “disposal” “shall have the meaning provided in section 1004 of the Solid Waste Disposal Act [42 U.S.C.A. § 6903],” 42 U.S.C. § 9601(29) (brackets in original), which defines the term “disposal” to mean “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” 42 U.S.C. § 6903(3); see also Niagara Mohawk Power Corp. v. Jones Chem. Inc., 315 F.3d 171, 178 (2d Cir.2003). Accordingly, to make out a prima facie case under Section 9607(a)(2), the State must “establish that a spill, discharge, leak, etc., occurred at the time the defendants controlled the site.” ABB Indus. Sys., Inc, v. Prime Tech., Inc., 120 F.3d 351, 356 (2d Cir.1997); see also Shore Realty, 759 F.2d at 1044 (“Prior owners and operators are liable only if they owned or operated the facility ‘at the time of disposal of any hazardous substance’; this limitation does not apply to current owners[.]”)

It is undisputed that Jerry Spiegel owned the 89 Frost Street Site between 1958 and 1995, and during the time hazardous substances were disposed of at that site. Thus, Alan Eidler, Lise Spiegel Wilks and Pamela Spiegel Sanders, as co-executors of the Last Will and Testament of Jerry Spiegel and duly authorized administrators of the Estate of Jerry Spiegel, who were substituted for Jerry Spiegel following his death, are responsible parties, at least with respect to the 89 Frost Street Site, under Section 9607(a)(2). See, e.g. United States v. Atlas Lederer Co., 494 F.Supp.2d 649, 654-57 (S.D.Ohio 2007) (granting the plaintiffs motion to substitute the estate and executor of the deceased defendant in a CERCLA cost recovery action); Canadyne-Georgia Corp. v. Bank of America, N.A., 174 F.Supp.2d 1337, 1354 (M.D.Ga.2001) (“If a decedent would have been a liable party under CERCLA were he presently alive, the plaintiff should be allowed to look to the decedent’s assets, in the hands of the estate or the estate’s beneficiaries, to satisfy that liability.” (quotations and citation omitted)); Bowen Eng’g v. Estate of Reeve, 799 F.Supp. 467, 475 (D.N.J.1992) (“[A] decedent’s estate may be liable for cleanup costs.”)

2. The Frost Street Sites are “Facilities”

Section 101(9) of CERCLA defines the term “facility” to mean “(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 yessel.” 42 U.S.C. § 9601(9). Since, inter alia, it is undisputed that hazardous substances were found to be located in the soil and groundwater on each of the Frost Street Sites, each site is clearly a “facility” within the meaning of CERCLA.

3. Release of a Hazardous Substance

Section 101 (22) defines the term “release” to mean

“any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant), but excludes (A) any release which results in exposure to persons solely within a workplace, with respect to a claim which such persons may assert against the employer of such persons, (B) emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel, or pipeline pumping station engine, (C) release of source, byproduct, or special nuclear material from a nuclear incident, as those terms are defined in the Atomic Energy Act of 1954 [42 U.S.C.A. § 2011 et seq.], if such release is subject to requirements with respect to financial protection established by the Nuclear Regulatory Commission under section 170 of such Act [42 U.S.CA. § 2210], or, for the purposes of section 9604 of this title or any other response action, any release of source byproduct, or special nuclear material from any processing site designated under section 7912(a)(1) or 7942(a) of this title, and (D) the normal application of fertilizer.”

42 U.S.C. § 9601(22). The term “leaching” within that definition “is commonly used to describe passive migration[.]” ABB Indus., 120 F.3d at 358; see also Westfarm Assocs. Ltd. P’ship v. Washington Suburban Sanitary Comm’n, 66 F.3d 669, 680 (4th Cir.1995) (‘“[L]eaking,’ ‘leaching,’ and ‘escaping’ are all words which imply passive conduct.”) The term “environment” includes “surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.” 42 U.S.C. § 9601(8)(B).

Since CERCLA’s definition of the term “release” “contemplates a broad, remedial view of how hazardous substances can find their way into the environment without their affirmative discharge by an owner or operator of a facility[,] ... only minimal thresholds are necessary to demonstrate a release.” Rhodes v. County of Darlington, S.C., 833 F.Supp. 1163, 1178 (D.S.C.1992); see also Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 669 (5th Cir.1989) (“[T]he definition of ‘release’ should be construed broadly..., to avoid frustrating the beneficial legislative purposes.” (quotations, brackets and citations omitted)); United States v. Domenic Lombardi Realty, Inc., 204 F.Supp.2d 318, 329-30 (D.R.I.2002) (“Courts have interpreted th[e] definition [of ‘release’] broadly and have consistently rejected attempts to limit CERCLA’s reach [ ] through restrictive interpretations of the term ‘release.’” (quotations and citation omitted)).

Section 101(14) of CERCLA defines the term “hazardous substance” to mean:

“(A) any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act [33 U.S.C.A. § 1321(b)(2)(A)], (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.CA. § 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.CA. § 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 307(a) of the Federal Water Pollution Control Act [33 U.S.CA. § 1317(a)], (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.CA. § 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 7 of the Toxic Substances Control Act [15 U.S.CA. § 2606]. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subpara-graphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).”

42 U.S.C. § 9601(14). “A substance need only be designated as hazardous under any one of the four environmental statutes or under Table 302.4 [of 40 C.F.R. § 302] to be a hazardous substance under CERCLA.” B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1200 (2d Cir.1992) (emphasis in original). “Liability under CERCLA depends only on the presence in any form of listed hazardous substances.” Id. at 1201.

“Pursuant to subsection (B) [of Section 101(14) of CERCLA] and under § 9602, the EPA has listed over 700 hazardous substances in Table 302.4 of 40 C.F.R. § 302[,]” B.F. Goodrich, 958 F.2d at 1200, including PCE , TCE and 1,1,1-TCA. See Table 302.4 of 40 C.F.R. § 302. It is undisputed, inter alia: (a) that solvents containing one or more of those hazardous substances were located in the septic system utilized at the 89 Frost Street Site before it was connected to the municipal sewer system in 1983; (b) that Marvex, one of the tenants at the 89 Frost Street Site, discharged the solvents it used in its manufacturing process into the on-site sanitary system; (c) that Marvex released PCE at the 89 Frost Street Site; (d) that hazardous PCE and/or TCE were used by at least two (2) of the tenants that occupied the 101 Frost Street Site, and one of the tenants that occupied the 770 Main Street Site, prior' to February 1983, when those sites utilized only an on-site sanitary system; (e) that PCE and TCE were detected above guidance levels in the soil at the 101 Frost Street Site; (f) that PCE and TCE were found in the soil and groundwater, and PCE was found in close proximity to a former cesspool, and directly below a suspected cesspool, at the 770 Main Street Site; (g) that “[disposal of hazardous substances on the three Frost Street [S]ites has contaminated the groundwater beneath the sites and migrated offsite into OU-3[,]” (FSD Counter., ¶ 90) (emphasis added); (h) that “groundwater contamination emanating from, each of the Frost Street Sites comingle, such that the contamination from one sites [sic] mixes with the contamination from the other adjacent sites as the groundwater moves downgra-dient under each site, forming a common plume of contaminants[,]” (FSD Counter., ¶ 87) (emphasis added); and (i) that the NYDEC “addressed groundwater contamination beneath the Frost Street Sites as a single operable unit (‘OU-2’) because the contamination emanating from the three sites is comingled and forms a single plume of VOC contamination[,]” (id., ¶ 88) (emphasis added). Accordingly, the State has established that hazardous substances were released at each of the Frost Street Sites. See, e.g. Westfarm Assocs., 66 F.3d at 680 (finding that the term “release” includes migrating releases which travel through various properties); Canadyne-Georgia, 174 F.Supp.2d at 1349 (finding that evidence, inter alia, of hazardous substances in the soil at the site “sufficiently establishes a release of a hazardous substance into the environment.”); Artesian Water Co. v. Gov’t of New Castle County, 659 F.Supp. 1269, 1281-82 (D.Del.1987), aff'd, 851 F.2d 643 (3d Cir.1988) (finding that the plaintiff had made a showing of a release or threatened release of hazardous substances from, inter alia, the undisputed fact that hazardous substances were present in the groundwater around the site); Domenic Lombardi Realty, 204 F.Supp.2d at 330-31 (holding that the presence of contaminated soil at the site constituted a “release.”); HRW Systems, Inc. v. Washington Gas Light Co., 823 F.Supp. 318, 341 (D.Md.1993) (“Given the breadth of the definitional language in CERCLA, it seems virtually impossible to conceive of a situation where hazardous substances are found in the soil and not ipso facto ‘released’ into the environment.”); Mid Valley Bank v. North Valley Bank, 764 F.Supp. 1377, 1387 (E.D.Cal.1991) (finding that the “release of a hazardous substance” element was satisfied by evidence supporting the presence of allegedly elevated levels of hazardous substances in the soil samples of the site); U.S. v. Hardage, 761 F.Supp. 1501, 1510 (W.D.Okla.1990) (“The presence of hazardous substances in the soil, surface water, or groundwater of a site demonstrates a release.”)

4. The State Incurred Response Costs

Section 107(a) CERCLA imposes upon the responsible parties designated therein liability for, inter alia, “all costs of removal or remedial action incurred by ... a State ... not inconsistent with the national contingency plan[.]” 42 U.S.C. § 9607(a)(4)(A); see also 42 U.S.C. § 9601(25) (defining the terms “respond” or “response” to mean “remove, removal, remedy, and remedial action;, [sic] all such terms (including the terms ‘removal’ and ‘remedial action’) include enforcement activities related thereto.”); New York v. Next Millenium Realty, LLC, 732 F.3d 117, 124 (2d Cir.2013) (“Section 107 of CERCLA authorizes federal and state governments to recover response costs from potentially responsible parties (‘PRPs’) for both removal and remedial actions.”); Shore Realty, 759 F.2d at 1041 (finding that Section 107(a) of CERCLA authorizes states to “sue responsible parties for remedial and removal costs if such efforts are ‘not inconsistent with’ the NCP.”) CERCLA defines the terms “remove” or “removal” to mean:

“the cleanup or removal of released hazardous substances from the environment, such actions as may be necessary taken in the event of the threat of release of hazardous substances into the environment, such actions as may be necessary to monitor, assess, and evaluate the release or threat of release of hazardous substances, the disposal of removed material, or the taking of such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment, which may otherwise result from a release or threat of release. The term includes, in addition, without being limited to, security fencing or other measures to limit access, provision of alternative water supplies, temporary evacuation and housing of threatened individuals not otherwise provided for, action taken under section 9604(b) of this title, and any emergency assistance which may be provided under the Disaster Relief and Emergency Assistance Act [42 U.S.C.A. § 5121 et seq.].”

42 U.S.C. § 9601(23). “Removal actions are generally clean-up measures taken in response to immediate threats to public health and safety[,]” New York State Elec. & Gas -Corp. v. FirstEnergy Corp., 766 F.3d 212, 230 (2d Cir.2014); accord Next Millenium, 732 F.3d at 124-25, and “are also generally designed to address contamination at its endpoint and not to permanently remediate the problem.” FirstEnergy, 766 F.3d at 231. “Measures taken to minimize and mitigate contamination, but not to permanently eliminate it, are properly classified as removal actions.” Id. at 233.

The terms “remedy” or “remedial action” are defined as:

“those actions consistent with permanent remedy taken instead of or in addition to removal actions in the event of a release or threatened release of a hazardous substance into the environment, to prevent or minimize the release of hazardous substances so that they do not migrate to cause substantial danger to present or future public health or welfare or the environment. The term includes, but is not limited to, such actions at the location of the release as storage, confinement, perimeter protection using dikes, trenches, or ditches, clay cover, neutralization, cleanup of released hazardous substances and associated contaminated materials, recycling or reuse, diversion, destruction, segregation of reactive wastes, dredging or excavations, repair or replacement of leaking containers, collection of leachate and runoff, onsite treatment or incineration, provision of alternative water supplies, and any monitoring reasonably required to assure that such actions protect the public health and welfare and the environment. The term includes the costs of permanent relocation of residents and businesses and community facilities where the President determines that, alone or in combination with other measures, such relocation is more cost-effective than and environmentally preferable to the transportation, storage, treatment, destruction, or secure disposition offsite of hazardous substances, or may otherwise be necessary to protect the public health or welfare; the term includes offsite transport and offsite storage, treatment, destruction, or secure disposition of hazardous substances and associated contaminated materials.”

42 U.S.C. § 9601(24). “Remedial actions are typically actions designed to permanently remediate hazardous waste[,]” FirstEnergy, 766 F.3d at 231; accord Next Millenium, 732 F.3d at 125, and “generally refer[] to the final remedy selected to address the contamination at the hazardous waste site.” W.R. Grace & Co.-Conn. v. Zotos Int’l, Inc., 559 F.3d 85, 92 (2d Cir.2009).

“Generally, response costs are liberally construed under CERCLA[,]” W.R. Grace, 559 F.3d at 92, and include, inter alia, investigation costs, see Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 133 (2d Cir.2010); enforcement activities, see W.R. Grace, 559 F.3d at 92; and “costs in assessing the conditions of the site and supervising the removal of the ... hazardous [substances] ...” from the site. Shore Realty, 759 F.2d at 1042-43. The State has established that it incurred response costs related to State OU-3/EPA OU-1 as a result of the releases of hazardous substances from the Frost Street Sites in the total amount of four million nine hundred eighty-six thousand four hundred thirteen dollars and fifty-five cents ($4,986,413.55) for its investigation of the sites and actions undertaken to respond to immediate threats to public health, including, inter alia, reimbursing the Town of Hempstead for the construction of an air stripper tower. See, e.g. Next Millenium, 732 F.3d at 126-27 (holding, inter alia, that the construction of the air stripper tower was a removal action).

5. Consistency with the NCP

“The National Contingency Plan is essentially the federal government’s toxic waste playbook, detailing the steps the government must take to identify, evaluate, and respond to hazardous substances in the environment.” Chevron, 596 F.3d at 136. “Adherence to the [NCP] is the gatekeeper to seeking reimbursement of response costs.” Id.

“Courts presume that actions undertaken by the federal, or a state, government are consistent with the National Contingency Plan.” Chevron, 596 F.3d at 13