Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

---------------------------------------------------------------

THE BROOKLYN UNION GAS COMPANY,

doing business as NATIONAL GRID NY,

Plaintiff, MEMORANDUM & ORDER

24-CV-6993 (MKB)

v.

CONSOLIDATED EDISON COMPANY OF NEW

YORK, INC., THE CITY OF NEW YORK, THE

UNITED STATES OF AMERICA, THE UNITED

STATES DEPARTMENT OF DEFENSE, THE

UNITED STATES DEPARTMENT OF THE

NAVY, THE UNITED STATES DEPARTMENT

OF THE ARMY, THE UNITED STATES COAST

GUARD, THE FEDERAL MARITIME

COMMISSION, THE UNITED STATES POSTAL

SERVICE, THE UNITED STATES GENERAL

SERVICES ADMINISTRATION, ASTORIA

GENERATING COMPANY, L.P., BALLANTYNE

LEGACY HOLDINGS, LLC, BAYSIDE FUEL

OIL CORPORATION, BEAZER EAST, INC., THE

BRINK’S COMPANY, BROOKLYN

IMPROVEMENT COMPANY, DUN AND

BRADSTREET CORP., HESS CORP., THE

KRAFT HEINZ COMPANY, MCIZ CORP., 36-

2ND J CORP., 15 SECOND AVENUE LLC, 107

SIXTH STREET LLC, METROPOLITAN

TRANSPORTATION AUTHORITY, MRC

HOLDINGS, INC., NEW YORK CITY

ECONOMIC DEVELOPMENT CORP., NEW

YORK CITY INDUSTRIAL DEVELOPMENT

AGENCY, NEW YORK CITY TRANSIT

AUTHORITY, NL INDUSTRIES, INC.,

NORTHVILLE INDUSTRIES CORP., PHILLIPS

66 COMPANY, POWER AUTHORITY OF THE

STATE OF NEW YORK, PUGET SOUND

COMMERCE CENTER, INC., REXAM

BEVERAGE CAN COMPANY, SPX

TECHNOLOGIES, INC., STAUFFER

MANAGEMENT COMPANY, TDA

INDUSTRIES, INC., TEXACO, INC., UNION OIL

COMPANY OF CALIFORNIA, and VERIZON

NEW YORK INC.,

Defendants.

---------------------------------------------------------------

MARGO K. BRODIE, United States District Judge:

I. Background ............................................................................................................................. 3

a. The Gowanus Canal superfund site .................................................................................... 4

i. The EPA’s 2013 record of decision ................................................................................ 5

ii. Subsequent administrative orders ................................................................................... 7

b. TDA’s alleged involvement .............................................................................................. 10

c. This action ......................................................................................................................... 12

II. Discussion ............................................................................................................................. 17

a. Standards of review........................................................................................................... 17

i. Rule 12(b)(6) ................................................................................................................. 17

ii. CERCLA ....................................................................................................................... 19

iii. CERCLA’s de micromis exemption ......................................................................... 24

b. At the motion to dismiss stage, TDA is not entitled to dismissal under a de micromis

exemption .................................................................................................................................. 26

i. Brooklyn Union has sufficiently pled TDA’s potential CERCLA liability as an

owner/operator of the Carroll Street Facility ........................................................................ 31

ii. Based on the RD UAO, EPA guidance and case law, the Court finds that the Gowanus

Canal Superfund Site includes the Carroll Street Facility and TDA can be held liable as a

subsequent owner of a contaminating “facility” ................................................................... 38

iii. The Court is not persuaded by TDA’s arguments to find the CERCLA “facility” at

issue is only that of the Canal and that TDA should be treated as an “arranger” or

“generator” under Section 107(a)(3) ..................................................................................... 45

III. Conclusion ........................................................................................................................ 53

Plaintiff The Brooklyn Union Gas Company, doing business as National Grid NY

(“Brooklyn Union”), commenced the above-caption action on October 3, 2024, against several

Defendants, including TDA Industries, Inc. (“TDA”), alleging claims for (1) cost recovery under

the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”);

(2) contribution under CERCLA; (3) contribution under New York Navigation Law § 176(8); (4)

strict liability under New York Navigation Law § 181; and also seeks (5) declaratory judgment

for recovery of further response costs. (Compl. ¶¶ 199–235, Docket Entry No. 1.) Brooklyn

Union alleges that Defendants are each partially responsible for contaminating the Gowanus

Canal (the “Canal”) in Brooklyn, New York, and “asks the Court to hold all parties liable for

their equitable share” of cleaning up the Canal. (Id. ¶ 7.)

On July 28, 2025, TDA moved to dismiss the Complaint for failure to state a claim

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing it is entitled to the de

micromis exemption under CERCLA § 107(o) (42 U.S.C. 9607(o) (“Section 107(o)”)); Brooklyn

Union opposed the motion.1 For the reasons explained below, the Court denies TDA’s motion to

dismiss.

I. Background

The Court assumes the truth of the factual allegations in the Complaint for the purpose of

deciding TDA’s motion to dismiss. The Court also considers documents attached to and

incorporated by reference in the Complaint and takes judicial notice of relevant state laws, state

regulations, case law, and public documents that are not subject to dispute.2 See Fed. R. Evid.

1 (Def.’s Notice of Mot. to Dismiss (“Def.’s Mot.”), Docket Entry No. 251; Def.’s Mem.

in Supp. of Def.’s Mot. (“Def.’s Mem.”), appended to Def.’s Mot., Docket Entry No. 251-1;

Cert. of Lee Henig-Elona, Esq. in Supp. of Def.’s Mot. (“Henig-Elona Aff.”), appended to Def.’s

Mot., Docket Entry No. 251-2; Pl.’s Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), appended to Def.’s

Mot., Docket Entry No. 251-13; Def.’s Reply in Supp. of Def.’s Mot. (“Def.’s Reply”),

appended to Def.’s Mot., Docket Entry No. 251-14; Second Cert. of Lee Henig-Elona, Esq. in

Supp. of Def.’s Reply (“Henig-Elona Reply Aff.”), appended to Def.’s Mot., Docket Entry No.

251-15.)

2 In deciding a Rule 12(b)(6) motion, “the district court is normally required to look only

to the allegations on the face of the complaint,” but “may consider documents that ‘are attached

to the complaint,’ ‘incorporated in it by reference,’ ‘integral’ to the complaint, or the proper

subject of judicial notice.” United States v. Strock, 982 F.3d 51, 63 (2d Cir. 2020) (quoting Roth

v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)); see Pearson v. Gesner, 125 F.4th 400, 406 (2d

201(b) (permitting judicial notice of facts “not subject to reasonable dispute”); Giraldo v.

Kessler, 694 F.3d 161, 164 (2d Cir. 2012) (stating that “relevant matters of public record” are

susceptible to judicial notice).

a. The Gowanus Canal superfund site

The Gowanus Canal is a “highly polluted” 1.8-mile waterway located in Brooklyn, New

York, that has served as a “municipal sewer and [industrial] dumping ground” for more than 150

years. (Compl. ¶ 1.) Completed in 1867, the Canal became a central hub for Brooklyn’s rapid

industrial growth, housing factories, manufactured gas plants (“MGPs”), and shipyards. (Id. ¶¶

13–15, 17–21.) Over the decades since the Canal opened, the surrounding operations, along with

untreated municipal waste and stormwater runoff, transformed the Canal into what has been

described as a “liquid and sediment landfill.” (Id. ¶¶ 1, 15–21.)

Cir. 2025) (first citing Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002); and

then quoting Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016))). In addition, “[i]t is well

established that a district court may rely on matters of public record in deciding a motion to

dismiss under Rule 12(b)(6), including case law and statutes.” Pani v. Empire Blue Cross Blue

Shield, 152 F.3d 67, 75 (2d Cir. 1998); see Hudson Shore Assocs. LP v. New York, 139 F.4th 99,

104 n.1 (2d Cir. 2025) (quoting Giraldo v. Kessler, 694 F.3d 161, 164 (2d Cir. 2012)); Goe v.

Zucker, 43 F.4th 19, 29 (2d Cir. 2022) (first citing Territory of Alaska v. Am. Can Co., 358 U.S.

224, 226-27 (1959); and then citing Kavowras v. N.Y. Times Co., 328 F.3d 50, 57 (2d Cir.

2003)); see also Williams v. N.Y.C. Hous. Auth., 816 F. App’x 532, 534 (2d Cir. 2020) (quoting

Pani, 152 F.3d at 75); Owens v. N.Y.S. Dep’t of Corr. & Cmty. Supervision, No. 24-CV-1037,

2025 WL 1795063, at *7 n.4 (N.D.N.Y. June 30, 2025); McConkey v. Churchill Sch. and Ctr.,

No. 24-CV-6091, 2025 WL 2062195, at *4 n.1 (S.D.N.Y. July 23, 2025) (“Though the [c]ourt

may take judicial notice of “documents in the public record at the [m]otion [t]o [d]ismiss stage, it

considers them only to establish their existence and legal effect, or to determine what statements

they contained not for the truth of the matters asserted.” (quoting 2002 Lawrence R. Buchalter

Alaska Tr. v. Phila. Fin. Life Assur. Co., 96 F. Supp. 3d 182, 206 (S.D.N.Y. 2015))). The Court

may also take judicial notice of “documents retrieved from official government websites.”

Warner v. Garland, No. 20-2197, 2023 WL 3220459, at *1 n.2 (2d Cir. May 3, 2023) (summary

order) (quoting Vill. Green at Sayville, LLC v. Town of Islip, 43 F.4th 287, 299 n.7 (2d Cir.

2022)); see Zapata v. Stefanski, No. 24-CV-3785, 2026 WL 292148, at *3 n.1 (E.D.N.Y. Feb. 4,

2026) (“The Court may take judicial notice ‘of all documents in the public record,’ including

‘documents retrieved from official government websites.’” (quoting Mallett v. Town of

Huntington, 799 F. Supp. 3d 117, 122 (E.D.N.Y. 2025))).

Since 2001, the United States Army Corps of Engineers (“USACE”), the New York State

Department of Environmental Conservation (“NYSDEC”), and the United States Environmental

Protection Agency (the “EPA”) have been investigating the Canal. (Id. ¶ 172.) Between 2004

and 2006, Brooklyn Union conducted additional investigatory activities at the Canal under the

direction of NYSDEC. (Id.) These preliminary investigations identified contaminants including

polycyclic aromatic hydrocarbons (“PAHs”), polychlorinated biphenyls (“PCBs”), pesticides,

metals, and volatile organic compounds (“VOCs”). (Id. ¶ 173.) These hazardous substances

entered the Canal through direct discharges from outfalls, groundwater seepage, and over-water

industrial operations. (Id. ¶ 171.)

In 2010, the EPA officially declared the Canal and its surrounding area a “Superfund

site” (the “Gowanus Canal Superfund Site”) and listed it on the EPA’s National Priorities List

(“NPL”). (Id. ¶¶ 1, 174.) NPL sites are areas that the EPA has determined are the “highest

priority for cleanup.” (Id. ¶ 1.) “[T]he entire remediation of the Canal is anticipated to cost

more than $1 billion.” (Id. ¶ 2.)

i. The EPA’s 2013 record of decision

In 2013, the EPA issued a Record of Decision (“ROD”) for the Gowanus Canal

Superfund Site selecting the remedy and source controls for the cleanup of the Canal. (Id. ¶ 178;

ROD, annexed to Henig-Elona Reply Aff. as Ex. K, Docket Entry No. 251-16.) See EPA,

Record of Decision (Sep. 2013), https://semspub.epa.gov/work/02/692106.pdf. The EPA created

the ROD using the results of the EPA’s Remedial Investigation and Feasibility Study (“RI/FS”).

(Compl. ¶ 24.) The RI/FS is typically undertaken by one or more potentially responsible party

(“PRPs”), but the RI/FS for the Gowanus Canal Superfund Site was atypical as the EPA

conducted the study. (Id.)

The RI/FS and ROD describe how the “contamination of the Canal has created a many-

foot-thick layer of sludge in the upper sediment layers of the Canal bed that lie on top of the

native soils” that “requires dredging and off-site disposal of this sludge” to remedy. (Id. ¶ 25.)

Specifically, the ROD determined that “the soft sediments contain hazardous contaminants that

must be removed from the Canal . . . because of their threat to human health” and identified the

three principal contaminants of concern. (Id. ¶ 26; ROD 44–45.) First, PCBs, which are

associated with shipbuilding operations, electric power generation and component

manufacturing, hydraulic fluids used in foundry and metal-cutting operations, and printing

activities. (Compl. ¶¶ 10, 179–80.) Second, PAHs, which are primarily byproducts of the MGP

process, as well as power generation, petroleum storage, refining and distribution operations, tar

production and distillation, shipbuilding, and urban runoff. (Id. ¶¶ 10, 18, 179, 181.) Third,

heavy metals, particularly lead and copper, released by incinerators and industrial and municipal

operations. (Id. ¶¶ 10, 179, 182.) The ROD also set the preliminary remediation goals (“PRGs”)

for the Canal and concluded that the concentrations of these contaminants exceeded the PRGs.

(Id. ¶¶ 179–82, 188; ROD 45–50.) “The sheer volume of the surface and soft sediments is the

primary driver of the remediation costs.” (Compl. ¶ 26.)

In addition to the dredging of the contaminated sediments, “the cleanup entails stabilizing

or replacing the bulkheads that support the banks of the Canal,” many of which have not been

replaced since the original structures were built in the nineteenth century. (Id. ¶ 29.) After the

Canal has been dredged, “an engineered cover or cap . . . [must] be laid after the surface and soft

sediments are removed” to protect the “native soils” underneath which the “EPA has determined

do not require excavation.” (Id. ¶ 27.)

This process is summarized in the ROD which outlines the EPA’s selected remedy and

comprehensive remediation plan for the Gowanus Canal Superfund Site. (ROD i–v.) The

technical procedure is as follows: (1) dredging and off-site disposal of approximately 700,000

cubic yards of contaminated “soft sediment” accumulated above the native sediments in the mid-

and upper reaches of the Canal, (Compl. ¶¶ 10, 25–26, 28, 178); (2) in-situ stabilization in

certain areas of the upper and mid-reaches, (id. ¶¶ 10, 27–29, 178); (3) armored capping of

native sediments in specified areas over the Canal floor to prevent further contamination, (id. ¶¶

10, 27–28, 178); (4) stabilization or replacement of deteriorated bulkheads to prevent structural

collapse during dredging activities, (id. ¶¶ 29–30, 191–92); and (5) excavation and restoration of

certain turning basins, (id. ¶ 178). The EPA estimated the “present-worth cost of the selected

remedy” to be approximately $506 million.3 (ROD iv.)

ii. Subsequent administrative orders

Following the publication of the ROD, the EPA issued numerous administrative orders to

implement the processes outlined in the ROD.

On March 20, 2014, the EPA issued a Unilateral Administrative Order for Remedial

Design for the Canal (the “RD UAO”) to twenty-seven parties, including Brooklyn Union and

numerous Defendants.4 (Compl. ¶ 187.) See In the Matter of the Gowanus Canal Superfund

3 The ROD names Brooklyn Union and the City of New York as the “[m]ain PRPs.”

(ROD 7.)

4 The RD UAO names as a PRP: Brooklyn Union Gas Co. d/b/a National Grid New

York; TDA; Beam Inc.; Beazer East, Inc.; Brink’s Inc.; CBS Corp.; Citigroup, Inc.; Consolidated

Edison Co. of New York, Inc.; Dun and Bradstreet Corp.; ExxonMobil Oil Corp.; Hauck

Manufacturing Co.; Hess Corp.; Honeywell International Inc.; Kraft Foods Global, Inc.; MCIZ

Corp., Fifteen Second Avenue LLC, 36-2nd-J Corp., and 107 Sixth Street LLC; MRC Holdings,

Inc.; NL Industries, Inc.; Northville Industries Corp.; Patterson Fuel Oil Co., Inc.; Phillips 66

Company; Puget Sound Commerce Center, Inc.; Rexam Beverage Can Co.; SPX Corp.; Stauffer

Management Company, LLC; The Brooklyn Improvement Co.; The Union Oil Company of

Site, Administrative Order for Remedial Design, No. CERCLA-02-2014-2001 (EPA Mar. 20,

2014). The RD UAO mandated the parties “undertake Remedial Design work” (“RD”) of the

Canal and required them to “investigate, characterize, and plan a remediation for the [Gowanus

Canal Superfund] Site.” (Compl. ¶ 187.) See In the Matter of the Gowanus Canal Superfund

Site, Administrative Order for Remedial Design 2, No. CERCLA-02-2014-2001. In addition, the

RD UAO holds the parties “jointly and severally liable for [the RD] work.” (Compl. ¶ 187.) See

In the Matter of the Gowanus Canal Superfund Site, Administrative Order for Remedial Design

2, No. CERCLA-02-2014-2001.

In response to the RD UAO, Brooklyn Union undertook the work required by the order

and coordinated with other PRPs. (Compl. ¶ 189.) Approximately twenty PRPs entered into a

confidential agreement among themselves to allocate and resolve liability for RD work (the

“Agreement”).5 (Id.) Beazer East, NL Industries, Inc., and The Union Oil Company of

California, however, declined to participate in, cooperate with, or support the RD work. (Id. ¶

190.)

On May 28, 2014, the EPA named the City of New York in a separate Administrative

California; and Verizon New York Inc. See In the Matter of the Gowanus Canal Superfund Site,

Administrative Order for Remedial Design, No. CERCLA-02-2014-2001 (EPA Mar. 20, 2014).

The PRPs listed in the Bulkhead Unilateral Administrative Order, the Remediation Target

Area 1 Unilateral Administrative Order, and the Unilateral Administrative Order for

Remediation Target Area 2, as discussed infra, are subsets of the PRPs identified in the RD

UAO.

5 The PRP’s that entered into the Agreement are Brooklyn Union; TDA; Brink’s Inc.;

Citigroup, Inc.; the City of New York; Consolidated Edison Co. of New York, Inc.; Dun and

Bradstreet Corp.; ExxonMobil Oil Corp.; Hauck Manufacturing Co.; Hess Corp.; Honeywell

International Inc.; Kraft Foods Global, Inc.; MCIZ Corp.; MRC Holdings, Inc.; Northville

Industries Corp.; Phillips 66 Company; Puget Sound Commerce Center, Inc.; Rexam Beverage

Can Co.; SPX Corp.; Stauffer Management Company, LLC; The Brooklyn Improvement Co.;

and Verizon New York Inc. (Compl. ¶ 189.)

Order for Remedial Design (the “NYC UAO”), which required the City’s cooperation in the

performance of RD, as well as individually cleaning up turning basin #1 and construct combined

sewer overflow (“CSO”) retention tanks to prevent CSOs from re-contaminating the Canal. (Id.

¶ 188.) See In the Matter of the Gowanus Canal Superfund Site, Administrative Order for

Remedial Design, No. CERCLA-02-2014-2019 (EPA May 28, 2014).

On April 11, 2019, the EPA issued the Bulkhead Unilateral Administrative Order (the

“BH UAO”), requiring respondents to undertake bulkhead stabilization and replacement as part

of a removal action in preparation for the broader remedial action.6 (Compl. ¶¶ 192–93.) See In

the Matter of the Gowanus Canal Superfund Site, Administrative Order for Removal Action, No.

CERCLA-02-2014-2010 (EPA Apr. 11, 2019). Among the BH UAO PRPs, Beazer East, the

MCIZ Corp., 36-2nd J Corp., 15 Second Avenue LLC, 107 Sixth Street LLC, NL Industries,

Inc., Phillips 66 Company, and The Union Oil Company of California “flatly refused” to

contribute to the BH UAO work. (Compl. ¶ 194.) Brooklyn Union further alleges that “no

[p]arty has contributed its equitable share to [the bulkhead reconstruction] work.”7 (Id.)

On January 29, 2020, the EPA issued a Remediation Target Area 1 Unilateral

6 The PRPs named in the BH UAO (the “BH UAO PRPs”) are Brooklyn Union, TDA,

Beazer East, Inc., Brink’s Inc., Citigroup, Inc., the City of New York, Consolidated Edison Co.

of New York, Inc., Dun and Bradstreet Corp., ExxonMobil Oil Corp., Hauck Manufacturing Co.,

Hess Corp., Honeywell International Inc., Kraft Foods Global, Inc., MCIZ Corp., Fifteen Second

Avenue LLC, 36-2nd-J Corp., 107 Sixth Street LLC, MRC Holdings, Inc., NL Industries, Inc.,

Northville Industries Corp., Phillips 66 Company, Puget Sound Commerce Center, Inc., Rexam

Beverage Can Co., SPX Corp., Stauffer Management Company, LLC, The Brooklyn

Improvement Co., The Union Oil Company of California, and Verizon New York Inc. (Id. ¶¶

192–94.)

All BH UAO PRPs, other than the ExxonMobil Oil Corp. and Hauck Manufacturing Co.

(both of whom are contributing responsible parties, (see Compl. ¶ 4), are named as Defendants in

this action. See infra Section I.c.

7 The EPA later issued amendments to the BH UAO on March 3, 2020, September 18,

2020, and June 8, 2023. (Compl. ¶ 193.)

Administrative Order (the “RTA1 UAO”) to six entities: Brooklyn Union; the City of New York;

Consolidated Edison Co. of New York; Hess Corporation; Honeywell International, Inc.; and

The Brooklyn Improvement Company (the “RTA1 UAO PRPs”). (Id. ¶ 195.) See In the Matter

of the Gowanus Canal Superfund Site, Administrative Order for Remedial Action ¶ 6(k), No.

CERCLA-02-2020-2023 (EPA Jan. 28, 2020). The RTA1 UAO directed these parties to

implement the dredging and capping design for the First Street Turning Basin and Remediation

Target Area 1 (“RTA1”), thus initiating the first phase of the formal remedial action. (Compl. ¶

195.)

On June 28, 2024, the EPA issued a subsequent Unilateral Administrative Order for

Remediation Target Area 2 (“RTA2 UAO”) to the same six respondents. (Id. ¶ 197.) See In the

Matter of the Gowanus Canal Superfund Site, Amendment to Administrative Order for Remedial

Action, No. CERCLA-02-2020-2003 (EPA June 28, 2024). Other PRPs were excluded from

these two orders “so long as they are acting in good faith with respect to the requirements and

agreements reached under prior orders and negotiating a potential settlement in good faith.”

(Compl. ¶ 196 (citation omitted).)

b. TDA’s alleged involvement

TDA’s predecessor, Northeastern Plastics, Inc. (“Northeastern”), owned and operated a

manufacturing facility at 420 Carroll Street from 1963 to 1999 (the “Carroll Street Facility”).

(Compl. ¶ 156.) Northeastern used the Carroll Street Facility to manufacture “plastic boxes,

cases, slide rules, trays, and housewares and extruded polyvinyl chloride [ ] insulated conductor

products (jumper cables and non[-]UL Listed cord sets) on-site.” (Id. ¶ 156(a).) Brooklyn Union

alleges that the Carroll Street Facility included a machinery repair shop and a gasoline

underground storage tank. (Id.)

First, Brooklyn Union alleges that the Carroll Street Facility generated contaminated

wastewater “from [] plastic molding and forming processes,” and that this wastewater “contained

petroleum, VOCs, [semi-volatile organic compounds (‘SVOCs’)], and metals.” (Id. ¶ 156(b).)

Second, Brooklyn Union contends that hazardous substances were released to the Canal through

“direct discharge via stormwater and surface runoff and connections to the sewer system and

private outfalls,” as well as through “seepage.” (Id. ¶ 156(c).) Third, Brooklyn Union asserts

that the sewer system included “outfalls and overflow points to the Canal,” and that the Carroll

Street Facility had “a floor drain that discharged to the City sewers and two floor drains that

discharged directly to subsurface soils at the [Canal].” (Id.) Brooklyn Union cites to the 2005

Subsurface Investigation Report (the “SIR”)8 to support of its allegations, alleging that the SIR

“documented PAHs, copper, and lead in site soils and groundwater.” (Id.)

The EPA formally notified TDA of its potential liability through a general notice letter

(“GNL”) issued on October 5, 2012. (Compl. ¶ 185.) The RD UAO subsequently listed TDA as

one of the respondents, requiring TDA and other PRPs to “investigate, characterize, and plan a

remediation for the [Gowanus Canal Superfund] Site.” (Id. ¶ 187.) Under the RD UAO, TDA

and the other PRPs are “jointly and severally liable for this work.” (Id.) Subsequently, TDA and

certain other PRPs entered into a confidential agreement, the “Agreement,” among themselves to

8 TDA requests that the Court take judicial notice of the SIR, which is specifically

referenced in the Complaint at ¶ 156(c), in an attempt to dispute the allegations in the Complaint.

(Def.’s Mem. 6 n.2; see SIR, annexed to Henig-Elona Aff. as Ex. B, Docket Entry No. 251-4.)

While the Court can consider documents incorporated by reference in the Complaint, see supra

footnote 2, it is inappropriate at the motion to dismiss stage for the Court to consider the validity

of Brooklyn Union’s allegations. See Greene v. City of New York, 773 F. Supp. 3d 94, 106 (“At

[the motion to dismiss] stage, the task ‘is merely to assess the legal feasibility of the complaint,

not to assay the weight of the evidence which might be offered in support thereof.’” (quoting

Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir. 2011))). Thus, the Court will judicially

notice the SIR for the purposes of this Memorandum and Order but will not rely upon its

contents to make any factual determination.

allocate and resolve liability for the remedial design work and to facilitate completion of the

required design activities.9 (Id. ¶ 189.) The EPA also named TDA in the BH UAO and ordered

TDA to perform bulkhead stabilization and replacement work. (Id. ¶ 192.) Brooklyn Union

alleges that TDA has not “contributed its equitable share to this work.” (Id. ¶ 194.)

c. This action

Brooklyn Union commenced the above-caption action on October 3, 2024, against

Defendants TDA, Consolidated Edison Company of New York, Inc., The City of New York, The

United States of America, The United States Department of Defense, The United States

Department of the Navy, The United States Department of the Army, The United States Coast

Guard, The Federal Maritime Commission, The United States Postal Service, The United States

General Services Administration,10 Astoria Generating Company, L.P., Ballantyne Legacy

Holdings, LLC, Bayside Fuel Oil Corporation, Beazer East, Inc., The Brink’s Company,

Brooklyn Improvement Company, Dun and Bradstreet Corp., Hess Corp., The Kraft Heinz

Company,11 MCIZ Corp., 36-2nd J Corp., 15 Second Avenue LLC, 107 Sixth Street LLC,

Metropolitan Transportation Authority, MRC Holdings, Inc., New York City Economic

Development Corp., New York City Industrial Development Agency, New York City Transit

9 See supra footnote 5.

10 The Court refers to Defendants The United States of America, The United States

Department of Defense, The United States Department of the Navy, The United States

Department of the Army, The United States Coast Guard, The Federal Maritime Commission,

The United States Postal Service, and The United States General Services Administration

collectively as the “Federal Government Defendants.”

11 On October 13, 2025, Plaintiff, Brooklyn Union, and Defendant and Cross-Plaintiff

NL Industries, Inc., see infra footnote 12, filed a stipulation of dismissal dismissing The Kraft

Heinz Company and Stauffer Management Company. (Stip. of Dismissal, Docket Entry No.

265.) The Court approved the dismissal on October 14, 2025. (Order dismissing parties dated

Oct. 14, 2025.)

Authority, NL Industries, Inc.,12 Northville Industries Corp.,13 Phillips 66 Company,14 Power

Authority of the State of New York, Puget Sound Commerce Center, Inc., Rexam Beverage Can

Company, SPX Technologies, Inc.,15 Stauffer Management Company,16 Texaco, Inc., Union Oil

12 On December 2, 2024, NL Industries, Inc. filed its answer, a counterclaim against

Brooklyn Union, and cross-claims against all other Defendants. (NL Industries’ Answer,

Counterclaim, and Crossclaims, Docket Entry No. 95.) NL Industries alleged that to the extent it

“is held responsible for the alleged injury and harm, the injury was the proximate result of the

acts and/or omissions of the Plaintiff and [other D]efendants” and thus NL Industries, Inc. “is

entitled to contribution from Plaintiff and [other D]efendants for their proportionate share of the

response costs incurred and to be incurred in connection with the work performed at the

[Gowanus] Canal.” (Id. at 19.)

13 On September 22, 2025, Plaintiff Brooklyn Union and Defendant and Cross-Plaintiff

NL Industries, Inc., filed a stipulation of dismissal dismissing Northville Industries Corp. (Stip.

of Dismissal, Docket Entry No. 263.) The Court approved the dismissal on September 23, 2025.

(Order dismissing parties dated Sep. 23, 2025.)

14 On December 2, 2024, Phillips 66 Company (“Phillips”) filed counterclaims against

Brooklyn Union. Phillips alleges Brooklyn Union breached the Agreement by filing this case.

See supra Section I.A.ii and footnote 5. (Phillips’ Answer and Counterclaims, Phillips’

Counterclaims, ¶¶ 31–62, Docket Entry No. 91; Agreement, annexed to Phillips’ Answer and

Counterclaims as Ex. 1, Docket Entry No. 91-1.) In support, Phillips argues that Brooklyn

Union’s claims are barred by the Agreement and seeks to introduce the Agreement, including its

allocated percentage for costs related to cleaning up the canal, as a defense to Brooklyn Union’s

claims. (Phillips’ Answer and Counterclaims, Affirmative Defenses, ¶ 5.) Phillips

counterclaims against Brooklyn Union for (1) contribution under CERCLA; (2) contribution

under New York Navigation Law; and (3) contribution under New York common law and the

New York Civil Practice Law and Rules. (Phillips’ Answer and Counterclaims, Phillips’

Counterclaims, ¶¶ 63–130.) On June 11, 2025, Brooklyn Union moved for summary judgment

on Phillips’ counterclaims, Phillips opposed and cross-moved for summary judgment on its

counterclaims. (See Pl.’s Mot. for Summ. J., Docket Entry No. 237; Phillips’ Cross-Mot. for

Summ. J., Docket Entry No. 240.) These motions are currently pending before the Court.

15 On December 11, 2024, Brooklyn Union filed a stipulation of dismissal dismissing

SPX Technologies, Inc., (Stip. of Dismissal, Docket Entry No. 124), and the Court approved the

dismissal, (Order dismissing parties dated Dec. 11, 2024). On December 19, 2024, Cross-

Plaintiff, NL Industries, Inc., filed a stipulation of dismissal dismissing SPX Technologies, Inc.,

as cross-defendant. (Stip. of Dismissal, Docket Entry No. 140.) The Court approved the

dismissal on December 23, 2024. (Order dismissing parties dated Dec. 23, 2024.)

16 See supra footnote 11.

Company of California, and Verizon New York Inc. (Compl. ¶¶ 38–69.)

Brooklyn Union alleges claims for (1) cost recovery under CERCLA against each

Defendant; (2) contribution under CERCLA against Defendants TDA, The Brink’s Company,

Brooklyn Improvement Company, the City of New York, Consolidated Edison Company of New

York, Inc., Dun and Bradstreet Corp., Hess Corp., MCIZ Corp., 36-2nd J Corp., 15 Second

Avenue LLC, 107 Sixth Street LLC, MRC Holdings, Inc., Phillips, Puget Sound Commerce

Center, Inc., Rexam Beverage Can Company, and Verizon New York, Inc.; (3) contribution

under New York Navigation Law § 176(8) against all Defendants except the Federal

Government Defendants; (4) strict liability under New York Navigation Law § 181 against all

Defendants except the Federal Government Defendants; and also seeks (5) declaratory judgment

for recovery of further response costs against all Defendants. (Id. ¶¶ 199–235.)

Brooklyn Union alleges it “alone is spearheading efforts to investigate and clean up

contamination at the [Canal]” and is seeking to hold other PRPs responsible for paying their

“equitable share of the [cleanup] costs.”17 Brooklyn Union “does not dispute that, through the

discharge of wastewater and likely through leaks and spills, its historical operations contributed

to the PAH contamination in the Canal.” (Id. ¶ 19.) However, “Brooklyn Union asks the Court

to hold all parties liable for their equitable share so that the burden of funding the cleanup may

be divided among all PRPs with each Defendant paying a just and reasonable portion of the total

cost.” (Id. ¶ 7.) Brooklyn Union brings this action under CERCLA § 107(a) (42 U.S.C. §

17 (Compl. ¶¶ 4, 22; see id. ¶ 177 (“Brooklyn Union undertook the work that was

required by the RI/FS AOC.”); ¶ 211 (“Brooklyn Union has incurred tens of millions of dollars

in necessary costs of response pursuant to the [unilateral administrative orders (“UAOs”)] as

well as voluntary costs incurred beyond the scope of the RD UAO, Bulkhead UAO, RTA1 UAO,

and RTA2 UAO. Brooklyn Union will continue to incur additional response costs in the

future.”).)

9607(a) (“Section 107”)) for cost recovery, (id. ¶¶ 199–211), CERCLA § 113(f)(3)(B) (42

U.S.C. § 9613(f) (“Section 113”)) for contribution action, (id. ¶¶ 212–19), New York Navigation

Law § 176(8) for contribution, (id. ¶¶ 220–24), and New York Navigation Law § 181 for strict

liability, (id. ¶¶ 225–29).

Brooklyn Union contends that “[e]ach of the [forty] [D]efendants in this action is a [PRP]

for the [Gowanus Canal Superfund Site],” as determined by the EPA’s issuance of GNLs and

UAOs, and as such are “jointly and severally liable for cleanup costs at the Canal.” (Id. ¶¶ 3,

187.) In particular, Brooklyn Union contends that “all of these parties contributed to the

pollution in the Canal through three path ways that allowed hazardous substances to release into

the Canal: [(]1) direct discharge via stormwater runoff, private outfalls, and public outfalls; [(]2)

seepage; and [(]3) on/over water operations.” (Id. ¶ 171; see id. ¶ 209 (“The release of

hazardous substances at and from the Defendants’ facilities has caused the incurrence of

response costs.”).)

The PRPs identified in the RD UAO together with the NYC UAO represent the full

universe of PRPs the EPA identified through UAOs for the Canal.18 Each of the PRPs in the

18 To identify the PRPs, first, the “EPA issued questionnaires to the parties it recognized

had a historical presence at the Canal, pursuant to its authority under CERCLA § 104(e).”

(Compl. ¶ 183.) Using the responses, the EPA “develop[ed] a nexus between each individual

party and the hazardous substances that have been released to the Canal.” (Id.) Next, the “EPA

sent general notice letters to the PRPs it believed were liable for response costs at the [Canal].”

(Id. ¶ 184.) EPA sent a GNL to each individual PRP notifying the PRP of its potential liability,

stating: “EPA has evaluated information obtained in connection with the Site. . . . By this letter

we are notifying you that we have reason to believe that your company . . . is a potentially

responsible party . . . with respect to the Site.” (Id.)

The EPA sent GNLs to: Defendants The Brink’s Company and Beazer East, Inc. on

December 17, 2009; Defendants Consolidated Edison Co. of New York, Inc., The City of New

York, The United States Department of the Navy, Hess Corp., The Kraft Heinz Company,

Stauffer Management Company, MCIZ Corp., Fifteen Second Avenue LLC, 36-2nd-J Corp., 107

Sixth Street LLC, Bayside Fuel Oil Corporation, Phillips, MRC Holdings, Inc., NL Industries,

universe are named as a Defendant in this action with the following exceptions — (1) Among the

PRPs identified in the RD UAO and BH UAO, the following are not named by Brooklyn Union

as Defendants: Beam, Inc.; CBS Corp.; and Patterson Fuel Oil Co., Inc., (compare Compl., with

RD UAO ¶ 6(o)); (2) Citigroup, Inc. resolved their liability for the RD UAO pursuant to a

confidential agreement with Brooklyn Union, (Compl. ¶ 189); and (3) Brooklyn Union has

reached settlements with ExxonMobil Oil Corporation, Hauck Manufacturing Co., and

Honeywell International Inc. (the “Contributing Responsible Parties” or “CRPs”), which include

financial commitments toward funding the cleanup, (id. ¶ 4). The remaining PRPs “have refused

to pay anything.” (Id. ¶¶ 5, 190, 194.)

“In addition, Brooklyn Union [ ] discovered several entities that were not included in

[the] EPA’s original review that are also liable based on their operations that have released

hazardous substances to the Canal.” (Id. ¶ 3.) Brooklyn Union has named Astoria Generating

Company, L.P.; Ballantyne Legacy Holdings, LLC; Bayside Fuel Oil Corporation (“Bayside

Fuel”) and Texaco, Inc. as Defendants, although these entities are not identified as PRPs in the

Inc., the Union Oil Company of California (c/o Chevron U.S.A. Inc.), Verizon New York Inc.,

SPX Technologies, Inc., The United States Postal Service, The United States General Services

Administration, Dun and Bradstreet, Corp., Rexam Beverage Can Company, Northville

Industries Corp., and The Federal Maritime Commission on September 21, 2010; TDA on

October 5, 2012; and Puget Sound Commerce Center, Inc. and Brooklyn Improvement

Company, on September 30, 2013. (Id. ¶ 185.)

After receipt of a GNL, Brooklyn Union “agreed to continue to cooperate with [the] EPA

on the cleanup of the [Canal].” (Id. ¶ 186.) On April 29, 2010, Brooklyn Union entered into an

Administrative Order and Settlement Agreement with the EPA (Index Number CERCLA-12-

2010-2009) “pursuant to which Brooklyn Union conducted response actions in support of [the]

EPA’s performance of a RI/FS of the Site.” (Id. ¶ 175.) Subsequently, on January 23, 2014,

Brooklyn Union entered into an Amendment to the Administrative Order and Settlement

Agreement with the EPA “pursuant to which Brooklyn Union agreed to conduct further

sampling, analysis, and other pre-design tasks necessary to begin the remedial design phase of

remediation at the [Canal].” (Id. ¶ 186.)

RD UAO or any subsequent administrative order. (Compare Compl., with RD UAO ¶ 6(o);

Compl. ¶¶ 117, 118, 157.)

Brooklyn Union alleges that the EPA issued a GNL to Bayside Fuel, on September 21,

2010, (Compl. ¶ 185), and while the RD UAO does not list Bayside Fuel as a respondent, on July

9, 2015, the entity signed an Administrative Settlement Agreement and Order on Consent for a

Removal Action with the EPA concerning implementation of bulkhead upgrades at Bayside

Fuel’s property and coordination with other PRPs regarding the remedial design. (Id. ¶ 191; see

RD UAO 31.) “Despite this requirement, Bayside Fuel has not performed or otherwise

contributed to the RD work.” (Compl. ¶ 191.)

Brooklyn Union proposes that each Defendant “bear financial responsibility for the

cleanup consistent with its contributions to the contaminants in the Canal.” (Id. ¶ 9.) It proposes

each share “be calculated by understanding [(]1) the Defendant’s former operations along the

Canal; [(]2) the hazardous substances used during those operations; [(]3) the waste streams

generated by the Defendant’s operations; [(]4) the pathways for those waste streams to reach the

Canal; and [(]5) the level of participation in the remedial action.” (Id.)

II. Discussion

a. Standards of review

i. Rule 12(b)(6)

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, a court “must construe [the complaint] liberally, accepting all factual allegations

therein as true and drawing all reasonable inferences in the plaintiff[’s] favor.” Sacerdote v. N.Y.

Univ., 9 F.4th 95, 106–07 (2d Cir. 2021) (citing Palin v. N.Y. Times Co., 940 F.3d 804, 809 (2d

Cir. 2019)); see also Vaughn v. Phoenix House N.Y. Inc., 957 F.3d 141, 145 (2d Cir. 2020)

(“[The Second Circuit] review[s] de novo a district court’s dismissal of a complaint pursuant to

Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” (quoting

Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002))). A complaint must plead

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007); New Yorkers for Religious Liberty, Inc. v. New York, 125 F.4th 319,

327 (2d Cir. 2024) (quoting Twombly, 550 U.S. at 570). A claim is plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d

57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see Roe v. St. John’s

Univ., 91 F.4th 643, 651 (2d Cir. 2024) (quoting Matson, 631 F.3d at 63) (same); Cavello Bay

Reinsurance Ltd. v. Shubin Stein, 986 F.3d 161, 165 (2d Cir. 2021) (quoting Iqbal, 556 U.S. at

678) (same); see also Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533, 544 (2d Cir. 2024)

(“[T]he plaintiff’s allegations must enable the court to reasonably infer that the defendant is

liable for the alleged misconduct”), cert. denied sub nom., NBA v. Salazar, 146 S. Ct. 880

(2025); Emilee Carpenter, LLC v. James, 107 F.4th 92, 99 (2d Cir. 2024) (“[S]urviv[ing] a

motion to dismiss . . . requires ‘factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.’” (quoting Iqbal, 556 U.S. at

678)). Although all allegations contained in the complaint are assumed to be true, this tenet is

“inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678; see Roe, 91 F.4th at 651 (“Although

all factual allegations contained in the complaint are assumed to be true, this rule does not extend

‘to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by

mere conclusory statements, do not suffice.’” (quoting Iqbal, 556 U.S. at 678)).

ii. CERCLA

CERCLA is a comprehensive federal statute with two primary purposes: “(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., 748 F.3d 75, 79 (2d Cir. 2014) (quoting W.R. Grace & Co.–Conn. v. Zotos

Int’l, Inc., 559 F.3d 85, 88 (2d Cir. 2009)). The statute is designed to “promote the ‘timely

cleanup of hazardous waste sites’ and to ensure that the costs of such cleanup efforts [a]re born

by those responsible for the contamination.” Burlington N. & Sante Fe Ry. Co. v. United States,

556 U.S. 599, 602 (2009) (quoting Consol. Edison Co. of N.Y., Inc. v. UGI Utils, Inc., 423 F.3d

90, 94 (2d Cir. 2005)); see also United States v. Bestfoods, 524 U.S. 51, 55 (1998) (“In 1980,

CERCLA was enacted in response to the serious environmental and health risks posed by

industrial pollution . . . [and] is a comprehensive statute that grants the President broad power to

command government agencies and private parties to clean up hazardous waste sites.” (citations

omitted)); MPM Silicones, LLC v. Union Carbide Corp., 966 F.3d 200, 228 (2d Cir. 2020), as

amended (Aug. 13, 2020) (noting that “CERCLA’s manifest purpose [is] to ‘encourag[e] the

timely cleanup of hazardous waste sites’ by private parties by ‘placing the cost of that cleanup on

those responsible for creating or maintaining the hazardous condition’” (second alteration in

original) (quoting Consol. Edison Co. of N.Y., Inc., 423 F.3d at 94)); Niagara Mohawk Power

Corp. v. Chevron U.S.A., Inc., 596 F.3d 112, 120 (2d Cir. 2010) (“CERCLA empowers the

federal government and the states to initiate comprehensive cleanups and to seek recovery of

expenses associated with those cleanups.”); Next Millennium Realty LLC v. Util. Mfg. Co., No.

22-CV-2529, 2025 WL 2689701, at *4 (E.D.N.Y. Sep. 20, 2025) (“CERCLA was enacted to

ensure that those responsible for any damage, environmental harm, or injury from hazardous

substances released into the environment bear the costs of their actions.” (citing Niagara

Mohawk Power Corp., 596 F.3d at 120)). The statute directs the EPA to compile a prioritized

list of contaminated sites, commonly referred to as “Superfund sites,” on the NPL and

“empowers the federal government and the states to initiate comprehensive cleanups and to seek

recovery on expenses associated with those cleanups.” 42 U.S.C. § 9605; Niagara Mohawk

Power Corp., 596 F.3d at 120.

“Under CERCLA, responsible parties are strictly liable for the costs of the cleanup.”

Revitalizing Auto Cmtys. Env’t Response Trust v. Nat’l Grid USA (RACER), 92 F.4th 415, 439

(2d Cir. 2024). The statute “imposes strict liability on facility owners and 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, often collectively referred to as [PRPs].” Asarco

LLC v. Goodwin, 756 F.3d 191, 198 (2d Cir. 2014). “CERCLA imposes strict liability for

environmental contamination upon four broad classes of PRPs:

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

(2) any person19 who at the time of disposal of any hazardous

substance owned or operated any facility at which such hazardous

substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged

for disposal or treatment, or arranged with a transporter for

transport for disposal or treatment, of hazardous substances owned

or possessed by such person, by any other party or entity, at any

facility or incineration vessel owned or operated by another party

or entity and containing such hazardous substances, and

(4) any person who accepts or accepted any hazardous substances

for transport to disposal or treatment facilities, incineration vessels

or sites selected by such person, from which there is a release, or a

threatened release which causes the incurrence of response costs,

of a hazardous substance . . . .

19 For purposes of the statute, a “person” is defined as “an individual, firm, corporation,

association, partnership, consortium, joint venture, commercial entity, United States

Government, State, municipality, commission, political subdivision of a State, or any interstate

body.” 42 U.S.C. § 9601(21).

Burlington N. & Santa Fe Ry. Co., 556 U.S. at 608–09 (quoting 42 U.S.C. § 9607(a)); see MPM

Silicones, 966 F.3d at 214 n.16 (Section 107(a) enumerates four classes of PRPs: “(1) owners of

facilities with hazardous substances; (2) former owners of facilities with hazardous substances;

(3) generators of hazardous substances; and (4) transporters of hazardous substances.” (quoting

Schaefer v. Town of Victor, 457 F.3d 188, 195 (2d Cir. 2006) (citing 42 U.S.C. § 9607(a)(1)-

(4)))); B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1198 (2d Cir. 1992) (“CERCLA establishes

four classes of responsible parties liable for the costs of responding to releases or threatened

releases of hazardous substances . . . [which] include past and present owners or operators of

facilities, transporters of hazardous substances, and those . . . who generate or arrange for the

disposal or treatment of hazardous substances.” (citing 42 U.S.C. § 9607(a))). While “‘CERCLA

does not specifically provide that a successor corporation may be liable for response costs,’ [the

Second Circuit] has held that CERCLA encompasses such successor liability.” Goodwin, 756

F.3d at 198–99 (quoting New York v. Nat’l Serv. Indus., Inc., 460 F.3d 201, 206 (2d Cir. 2006));

New York v. Nat’l Serv. Indus., Inc., 460 F.3d 682, 693 n.4 (2d Cir. 2003) (Leval, J., concurring)

(“[The Second Circuit has stated] that courts ‘have read CERCLA as making successor

corporations liable, in certain circumstances, for their predecessors’ acts.’” (quoting B.F.

Goodrich v. Betkoski, 99 F.3d 505, 518 (2d Cir. 1996))).

“CERCLA does provide property owners an avenue of reprieve; it allows them to seek

reimbursement of their cleanup costs from others in the chain of title or from certain polluters —

the so-called [PRPs]” with remedies “available through three separate provisions, namely §§

107, 113(f)(1), and 113(f)(3)(B).” Niagara Mohawk Power Corp., 596 F.3d at 120; see Key

Tronic Corp. v. United States, 511 U.S. 809, 814 n.13 (1994) (“CERCLA is designed to

encourage private parties to assume the financial responsibility of cleanup by allowing them to

seek recovery from others.” (y citation omitted)); MPM Silicones, 966 F.3d at 214 (“Among

other measures, CERCLA ‘authoriz[es] private parties to pursue contribution or indemnification

from potentially responsible parties [‘PRPs’] for expenses incurred responding to environmental

threats.’” (first alteration in original) (quoting Commander Oil Corp. v. Barlo Equip. Corp., 215

F.3d 321, 326 (2d Cir. 2000))).

CERCLA also “authorize[s] parties in different procedural positions to recover costs

incurred in cleaning up contamination: ‘(1) section 107(a), which permits the general recovery of

cleanup and prevention costs; (2) section 113(f)(1), which creates a contribution right for parties

liable or potentially liable under CERCLA; and (3) section 113(f)(3)(B), which creates a

contribution right for parties that have resolved their liability by settlement.’” W.R. Grace & Co.

–Conn., 559 F.3d at 89 (quoting Consol. Edison Co. of N.Y., Inc., 423 F.3d at 94). The statutory

framework authorizes parties “to recoup money spent to clean up and prevent future pollution at

contaminated sites or to reimburse others for cleanup and prevention at contaminated sites.”

Consol. Edison Co. of N.Y., Inc., 423 F.3d at 94. “Where the environmental harm is indivisible,

multiple responsible persons will be jointly and severally liable for cleanup costs.” Bedford Affs.

v. Sills, 156 F.3d 416, 423 (2d Cir. 1998) (citing B.F. Goodrich Co., 958 F.2d at 1198); see

Niagara Mohawk Power Corp., 596 F.3d at 121 (“Section 107 allows for complete cost recovery

under a joint and several liability scheme.”).

Section 107 “authorizes the United States, a state, or ‘any other person,’” Niagara

Mohawk Power Corp., 596 F.3d at 120–21 (citing 42 U.S.C. § 9607(a)(4)), “to recover ‘all costs

of [a] removal or remedial action’ from ‘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,’”

Territory of Guam v. United States, 593 U.S. 310, 314 (2021) (alteration in original) (quoting 42

U.S.C. § 9607(a)(4)); see also Schaefer, 457 F.3d at 195 (Section 107(a) “provides ‘a cause of

action for private parties to seek recovery of cleanup costs’ because PRPs are liable for ‘any

other necessary costs of response incurred by any other person consistent with the national

contingency plan.’” (first quoting Key Tronic Corp., 511 U.S. at 814; and then quoting 42 U.S.C.

§ 9607(a)(4)(B))).

“Section 113(f)(1) provides PRPs who have been sued under section 107 with a right of

contribution from other PRPs, including the plaintiff,” and “Section 113(f)(3)(B) also provides a

right of contribution to PRPs that have settled their CERCLA liability with a state or the United

States through either an administrative or judicially approved settlement.” Niagara Mohawk

Power Corp., 596 F.3d at 121 (first citing United States v. Atl. Rsch. Corp., 551 U.S. 128, 135–

36 (2007); then citing 42 U.S.C. § 9613(f)(3)(B)); see also Territory of Guam, 593 U.S. at 315

(noting that “[a] person who has resolved its liability to the United States or a State in an

administrative or judicially approved settlement shall not be liable for claims for contribution

regarding matters addressed in the settlement” (alteration in original) (quoting 42 U.S.C. §

9613(f)(2))); Consolidated Edison Co. of N.Y., Inc., 423 F.3d at 95 (“Section 113(f)(1) expressly

creates a contribution right for parties liable or potentially liable under CERCLA” and “section

113(f)(3)(B) creates contribution rights for settling parties.”).20 Therefore, “[w]hile [Section]

107(a) cost recovery actions and [Section] 113(f) contribution actions offer ‘complementary yet

distinct’ remedies, there is overlap between them.” Asarco LLC v. Atlantic Richfield Co., 866

20 The Second Circuit has “noted that while § 107(a) permits recovery of all remedial

costs, it does not preclude defendant PRPs from asserting counterclaims (or cross-claims) for

contribution under § 113(f)(1), effectively converting the § 107(a) action into an apportionment

of liability among jointly and severally liable parties.” Niagara Mohawk Power Corp. v.

Chevron U.S.A., Inc., 596 F.3d 112, 121 n.8 (2d Cir. 2010) (citations omitted).

F.3d 1108, 1116 (9th Cir. 2017) (quoting Atl. Rsch. Corp., 551 U.S. at 139); see Next Millennium

Realty LLC, 2025 WL 2689701, at *5–6 (explaining in detail the interplay between Sections

107(a) and 113(f)).

iii. CERCLA’s de micromis exemption

Section 107(o) of CERLA provides a de micromis exemption to liability for arrangers

and transporters of hazardous substances. 42 U.S.C. § 9607(o); see 42 U.S.C. § 9607(a)(3)

(outlining liability for arrangers or generators); 42 U.S.C. § 9607(a)(4) (outlining liability for

transporters); see also PCS Nitrogen Inc. v. Ashley II of Charleston LLC, 714 F.3d 161, 168 (4th

Cir. 2013) (Under CERCLA, “Section [1]07(a) establishes strict liability . . . subject only to a

few narrow defenses and exemptions,” including the de micromis exemption under Section

107(o) (citations omitted)); Emhart Indus., Inc. v. New England Container Co., Nos. 06-218, 11-

023, 2025 WL 2589311, at *11 n.19 (D.R.I. Sep. 8, 2025) (“CERCLA contains a ‘de micromis’

exemption under which certain entities are not liable if the materials containing hazardous

substances for which they arranged for treatment or disposal amount to [less than the statutorily

prescribed amount].’” (quoting 2 U.S.C. § 9607(o))). “First, an arranger (or generator) is a

person or entity who by contract or agreement 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.” Metro

Container Grp. v. AC&T Co., 450 F. Supp. 3d 583, 592 (E.D. Pa. 2020) (citing 42 U.S.C. §

9607(a)(3)); see also Niagara Mohawk Power Corp., 596 F.3d at 136 n.26 (quoting same); State

of New York v. Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir. 1985) (quoting same); Seggos

v. Datre, No. 17-CV-2684, 2024 WL 4120401, at *3 (E.D.N.Y. July 18, 2024) (quoting same).

“Second, a transporter is 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.” Metro Container Grp., 450 F. Supp. 3d at 592 (citing 42

U.S.C. § 9607(a)(4)); see also Freeman v. Glaxo Wellcome, Inc., 189 F.3d 160, 163 (2d Cir.

1999) (quoting same); Betkoski, 99 F.3d at 520 (quoting same); Seggos, 2024 WL 4120401, at *3

(quoting same).

Pursuant to Section 107(o)(1), those persons who can demonstrate that “the total amount

of the material containing hazardous substances that the person arranged for disposal or

treatment of, arranged with a transporter for transport for disposal or treatment of, or accepted

for transport for disposal or treatment, at the facility was less than 110 gallons of liquid materials

or less than 200 pounds of solid materials” are exempt from liability. 42 U.S.C. § 9607(o)(1);

see Metro Container Grp., 450 F. Supp. 3d at 602 n.14 (quoting id.); Hobart Corp. v. Dayton

Power & Light Co. (Hobart II), No. 13-CV-115, 2019 WL 4621034, at *13 (S.D. Ohio Sep. 23,

2019) (quoting same). “Section 107(o) is the codified version of the de micromis exemption . . .

meant to protect those entities who may have contributed miniscule amounts (less than 110

gallons or 200 pounds) of material containing hazardous waste to a site.” 68th St. Site Work Grp.

v. Airgas, Inc., No. 20-3385, 2021 WL 4255030, at *24 (D. Md. Sep. 16, 2021); see In re

Voluntary Purchasing Grps. Inc. Litig., No. 39-CV-2477, 2002 WL 31156535, at *8 (N.D. Tex.

Sep. 26, 2002) (“This exemption . . . was created by Congress to provide a means by which very

small companies and organizations which contributed only ‘miniscule’ amounts of waste could

escape from the joint and several liability imposed on them by CERCLA. These parties have

included such organizations as the Elks Club, the Little League, a pizza parlor, and the Salvation

Army.” (internal citation omitted)).

Pursuant to Section 107(o)(4), “[i]n the case of a contribution action, with respect to

response costs at a facility on the [NPL], brought by a party, other than a Federal, State, or local

government, under this chapter, the burden of proof shall be on the party bringing the action to

demonstrate that the conditions described in paragraph (1) . . . of this subsection are not met.” 42

U.S.C. § 9607(o)(4); see City of Bangor v. Citizens Comm’ns Co., 437 F. Supp. 2d 180, 215 n.13

(D. Me. 2006) (quoting id.)); see also Hobart Corp. v. Dayton Power & Light Co. (Hobart I),

No. 13-CV-115, 2017 WL 5956911, at *15 (S.D. Ohio Nov. 30, 2017) (holding that as the case

was a contribution action, “the burden of proof is on [the p]laintiffs to show that [the de

micromis] exemption does not apply”).

b. At the motion to dismiss stage, TDA is not entitled to dismissal under a de

micromis exemption

TDA argues it “is entitled to the de micromis liability exemption.”21 (Def.’s Mem. 5.) In

support, TDA contends that “Brooklyn Union has the burden of pleading that TDA is not entitled

to the exemption” under Section 107(o)(4) and “fails to do so.” (Id. at 5–6.) TDA claims that

21 The Court notes that the de micromis exemption on its face appears to apply only to

the causes of action in the Complaint brought under CERCLA — i.e., count one (CERCLA §

107), count two (CERCLA § 113(f)), and potentially count five (pursuant to the Declaratory

Judgment Act). TDA has not explained how the de micromis exemption under CERCLA would

apply to the New York state claims alleged in the Complaint — count three (New York

Navigation Law § 176(8)) and count four (New York Navigation Law § 181). The Court

therefore construes TDA’s motion to dismiss as a partial motion to dismiss the CERLA claims

and will only address counts one, two and five of the Complaint. See Ochoa v. N.Y.C. Dep’t of

Ed., No. 20-CV-9014, 2021 WL 5450343, at *1 n.1 (S.D.N.Y. Nov. 22, 2021) (interpreting the

defendants’ motion to dismiss as a partial motion to dismiss where the defendants’ memoranda

and supporting papers did not address all of the plaintiff’s claims); BaRoss v. Greenlawn

Volunteer Fire Dep’t, Inc., No. 16-CV-4805, 2017 WL 2124424, at *5 (E.D.N.Y. May 16, 2017)

(construing the defendants’ motion to dismiss as a partial motion to dismiss where the

defendant’s briefing did not address “every one of the [p]laintiff’s claims”); Torres v. Postmaster

Gen., No. 05-CV-1692, 2006 WL 1525981, at *1–2 (D. Conn. May 26, 2006) (treating the

defendants’ motion to dismiss as a partial motion to dismiss where the defendants argued the

plaintiff “failed to state a claim upon which relief may be granted pursuant to Title VII” while

the plaintiff’s amended complaint “assert[ed] other claims for relief”).

while this action is brought under both CERLCA Section 107 and 113, “[o]nce a plaintiff asserts

a cost recovery claim and defendants assert counterclaims seeking contribution, the entire case

becomes a contribution action subject to the [c]ourt’s allocation among all of the parties based on

the equities.” (Def.’s Reply 10 (citing Atl. Rsch. Corp., 551 U.S. at 140).) TDA argues first,

under Section 107(a), TDA is a “generator” or “arranger” entitled to the de micromis exemption,

“not an owner or operator of the Gowanus Canal Superfund Site.” (Def.’s Mem. 12; Def.’s

Reply 2, 6.) Second, TDA contends that “Brooklyn Union describes a generic plastics operation

‘in general’ and ‘upon information and belief’ — without any reference to TDA’s actual

operation” and the “Complaint does not allege that TDA’s actual operations resulted in

discharges of hazardous substances in a quantity sufficient to be ineligible for the exemption.”22

Third, TDA argues that because Brooklyn Union “has failed to meet its burden to allege that

TDA is not entitled to a de micromis exemption,” it is entitled to attorneys’ fees. (Def.’s Mem. 9

(citing 42 U.S.C. § 9607(o)(7)).)

Brooklyn Union argues first that, in the Complaint, it “sufficiency alleges . . . that TDA,

as an ‘owner’ and ‘operator’ of a facility, is expressly not eligible for the de micromis exemption

to liability under [CERCLA].” (Pl.’s Opp’n 1; see id. at 5.) Second, Brooklyn Union contends

that “even if the allegations of the Complaint were somehow not taken as true, as they must be

for TDA’s motion, [the motion] still fails” because even if TDA was deemed an “arranger” or

“transporter,” the “Complaint still alleges sufficient facts for the Court to reasonably conclude

22 (Def.’s Mem. 6 (citing Compl. ¶¶ 156(b), (c)); see id. at 5 (“TDA is entitled to the

exemption because hazardous substance discharged to the Gowanus Canal, if any, were in

quantities below the limit set forth in the de micromis exemption”); id. at 9 (“Brooklyn Union did

not allege that the purported runoff and seepage exceeded 110 gallons of liquid containing

hazardous substances.”); id. at 12 (“Brooklyn Union has not alleged that TDA contributed more

than 110 gallons of liquid waste to the Gowanus Canal.”); see also Def.’s Reply 9–10.)

that TDA would not qualify for the exemption because TDA discharged hazardous substances to

the Gowanus Canal in excess of the exemption’s threshold amount.” (Id. at 1; see id. at 5, 9.)

Third, Brooklyn Union contends that even if TDA was potentially entitled to a de micromis

exemption, it’s motion is premature as the determination “would be a wholly fact-dependent

question that would require discovery as to the amount and character of the hazardous substances

released by TDA, the nature of TDA’s connection to the Canal, and the nature of TDA’s historic

manufacturing processes.” (Id. at 13.) Fourth, Brooklyn Union alleges that “TDA misreads

other key statutory provisions, including the de micromis exemption’s burden of proof

provisions.” (Id. at 5.) It argues that the “burden of proof provision cited by TDA on its face is

applicable only ‘[i]n the case of a contribution action’ under CERCLA Section 113(f)” while

“[t]his case involves a cost recovery claim under CERCLA Section 107.” (Id. at 12 (first

alteration in original).) Brooklyn Union therefore argues that “the burden is on TDA to

demonstrate that the de micromis provision would exempt it from liability, which it simply

cannot do in its motion to dismiss.” (Id.) Fifth, Brooklyn Union further argues that “[e]ven if

the burden of proof were on Plaintiff, Brooklyn Union is at least entitled to discovery on the

issue (i.e., the burden would not be on Brooklyn Union until the motion for summary judgment

stage, not in the present motion to dismiss).”23 (Id. at 12 n.9.)

23 Section 107(o)(4) specifies that in a contribution action, such as those brought under

Section 113, the “party bringing the action” bears the burden to prove that the de micromis

exemption does not apply to the party claiming the exemption. 42 U.S.C. § 9607(o)(4); see 68th

St. Site Work Grp. v. Airgas, Inc., No. 20-3385, 2021 WL 4255030, at *24 (D. Md. Sep. 16,

2021) (Section 107(o) “places the burden of proof on [a] private plaintiff to demonstrate that

defendant entities do not qualify for CERCLA’s statutory exemptions.”); Hobart Corp. v.

Dayton Power & Light Co. (Hobart I), No. 13-CV-115, 2017 WL 5956911, at *15 (S.D. Ohio

Nov. 30, 2017) (analyzing whether the plaintiffs proved the de micromis exemption did not apply

because it was “a contribution action”); City of Bangor v. Citizens Comm’ns Co., 437 F. Supp.

A prima facie case under CERCLA Section 107(a) requires a plaintiff to establish: (1)

“the defendant falls within one of the four categories of potentially responsible parties set forth

in § 107(a) (42 U.S.C. § 9607(a))”; (2) “the facility is indeed a ‘facility’ as defined by § 101(9)

of CERCLA (42 U.S.C. § 9601(9))”; (3) “there is a release or a threatened release of hazardous

substances at the facility”; (4) “the plaintiff incurred costs in responding to the release or

threatened release”; and (5) “the costs incurred conform to the National Contingency Plan.”

Prisco v. A & D Carting Corp., 168 F.3d 593, 602–03 (2d Cir. 1999) (internal citations omitted);

see Niagara Mohawk Power Corp., 315 F.3d at 178 (“In order to establish liability under

2d 180, 215 n.13 (D. Me. 2006) (analyzing whether “the party seeking contribution” satisfied its

“burden of demonstrating that the de micromis exemption did not apply”).

While Section 107(o)(4) does not mention cost recovery actions brought under Section

107, the Court infers that the burden to prove that the de micromis exemption applies is on the

party asserting the exemption as it is a defense to liability. See Caroline N. Broun and James T.

O’Reilly, Equitable Defenses in CERCLA actions — De Minimis Waste Contribution, 2 RCRA

and Superfund: A Practice Guide, 3d § 14:114 (Oct. Update 2025); Damon D. Tanck, Getting

Snagged in the Environmental Liability Web: The Trouble with CERCLA and Why the

Brownfields Act Provides Only Modest Relief, 35 Tex. Tech L. Rev. 1325, 1349–51 (2004);

Mark S. Dennison, Current Landowner’s Right to Recover Cleanup Costs From Other Liable

Parties Under § 107(a) of CERCLA, 80 Am. Jur. Proof of Facts 3d 281 (2025) (see discussion in

§ 19 De micromis exemption).

TDA argues that because Brooklyn Union brings a contribution claim under Section 113,

Brooklyn Union bears the burden to prove TDA is not entitled to the de micromis exemption.

(Def.’s Mem. 7.) Brooklyn Union argues that because it brings both a cost recovery claim under

Section 107 and a contribution claim under Section 113, the statutory provision is not applicable

“on its face.” (Pl.’s Opp’n 12.) Neither party cites to case law applying the de micromis

exemption in a cause of action under both Sections 107 and Section 113, nor did the Court find

any relevant cases.

However, at the motion to dismiss stage, the Court declines to conclude on this novel

legal question. To survive the motion, Brooklyn Union only needs to “plead[] factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Matson v. Bd. of Educ. of City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir.

2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Court can revisit the burden of

proof question at a later stage if TDA moves for summary judgment claiming the de micromis

exemption and Brooklyn Union maintains both Sections 107 and 113 causes of action against

TDA.

CERCLA, a plaintiff must make a prima facie showing that includes evidence that the defendant

is a responsible party”); N.J. Turnpike Auth. v. PPG Indus., Inc., 197 F.3d 96, 103–04 (3d Cir.

1999) (“In order to prove CERCLA liability under section 107, a plaintiff must prove: [(]1) that

the defendant is a PRP; [(]2) that hazardous substances were disposed of at a ‘facility’; [(]3) that

there has been a ‘release’ or ‘threatened’ release of hazardous substances from the facility into

the environment; and [(]4) that the release or threatened release has required or will require the

plaintiff to incur ‘response costs.’” (first citing 42 U.S.C. § 9607(a); and then citing United

States v. CDMG Realty Co., 96 F.3d 706, 712 (3d Cir. 1996))).

“The elements of an action under § 113(f)[] are the same as those under § 107(a).”

Bedford Affs., 156 F.3d at 427; see Metro Container Grp., 450 F. Supp. 3d at 600 (“[T]he

elements of the prima facie case for contribution [under Section 113] are the same as those for a

cost recovery action under Section 107(a).” (alteration in original) (quoting Champion Lb’ys,

Inc. v. Metex Corp., No. 02-5284, 2009 WL 2496888, at *23 (D.N.J. Aug. 13, 2009) (citing N.J.

Tpk. Auth. v. PPG Indus., Inc., 197 F.3d 96, 104 (3d Cir. 1999)))); Lammers Barrell PRP Grp. v.

Carboline Co., No. 17-CV-135, 2020 WL 1503244, at *5 (S.D. Ohio Mar. 27, 2020) (“In order

to establish CERCLA § 113(f) liability . . . [the p]laintiff ‘must look to § 107 to establish the

basis and elements of the liability’ of [the defendant].” (quoting Kalamazoo River Study Grp. v.

Menasha Corp., 228 F.3d 648, 656 (6th Cir. 2000))); Town of Oyster Bay v. Northrop Grumman

Sys. Corp., No. 05-CV-1945, 2009 WL 10691086, at *10 (E.D.N.Y. May 14, 2009) (recognizing

that the prima facie elements required to show liability pursuant to CERCLA Sections 107 and

113 are the same).24

i. Brooklyn Union has sufficiently pled TDA’s potential CERCLA

liability as an owner/operator of the Carroll Street Facility

TDA contends “CERCLA Section 107(a) creates four categories of potentially

responsible parties: [(]1) the current owners and operators of a NPL Site (in this case, the [ ]

Canal); [(]2) the past owners and operators of the NPL Site at the time of disposal of any

hazardous substance; [(]3) ‘arrangers’ who arranged for the disposal of a hazardous substance

owned or possessed by such person; and [(]4) ‘transporters’ who accepted for transportation any

hazardous substances for disposal.” (Def.’s Mem. 8 (citing 42 U.S.C. § 9607(a)).) First, TDA

claims that its “property at 420 Carroll Street was never a Superfund [s]ite; therefore TDA is not

a former owner or operator of a Superfund [s]ite” — instead “[t]he only Superfund [s]ite at issue

in this litigation is the [ ] Canal.”25 TDA contends that the language of the ROD which states

“that [the] EPA regards the[] upland parcels [to the Canal] as separate and distinct from the

[Gowanus Canal] Superfund Site itself” and the EPA “does not include TDA’s former parcel as

part of the Gowanus Canal Superfund Site.” (Def.’s Reply 4–5.) Second, TDA relies on this

ROD language in response to Brooklyn Union’s argument that the EPA’s guidance creates an

expansive definition of “site” despite the absence of the term in the statute. (Id. at 7.) Third,

TDA acknowledges that the RD UAO included “sources of contamination to the Canal” in its

definition of the Site but argues “that unilateral declaration does not make it so.” (Id. at 9.)

24 TDA does not allege that Brooklyn Union fails to state a claim by insufficiently

pleading a prima facie cause of action. Instead, TDA’s argument focuses on its status as that of

an “arranger” or “generator” and not an “owner or operator.”

25 (Def.’s Mem. 5; see Def.’s Reply 2 (“TDA accepts Plaintiff’s allegation that TDA

owned and operated on a parcel of land (which Plaintiff incorrectly labels a ‘facility’) at 420

Carroll Street from 1963 to 1999.”).)

Fourth, as to the fact that the EPA named TDA in the RD UAO, TDA contends the UAO

“incorrectly identifie[d] TDA as an ‘owner’ or ‘operator’” as the EPA “seems to have unartfully

used those as general words rather than as their CERCLA-defined terms of art, i.e., as the current

or former owner or operator of a location that is being remediated as an NPL “facility.” (Id. at 9

n.5.) Lastly, TDA contends that under Section 107(a), it is potentially only “a generator of

hazardous substances that were transported to the Canal.” 26 (Id. at 2, 6.)

Brooklyn Union first argues that TDA’s motion “either ignores or misapplies the

appropriate standard of decision in a Rule 12(b)(6) motion to dismiss” by “not accept[ing] as true

the factual allegations of [the] Complaint” which alleges that TDA’s predecessor, Northeastern,

“owned and operated a plastics manufacturing facility located at 420 Carroll Street . . . from

1963 to 1999” which released PAHs, VOCs, and SVOCs “to the Canal via direct discharge

through runoff and sewer discharges.” (Pl.’s Opp’n 6 (quoting Compl. ¶¶ 156, 205).) Second,

Brooklyn Union contends that even “TDA recognizes that it was indeed the owner/operator of

the 420 Carroll Street Facility, and that is sufficient to establish ownership liability based on the

facility’s discharge of hazardous substances to the Canal.” (Id. at 7.) Third, Brooklyn Union

argues that “Superfund ‘sites’ can legally include the sources of the contamination.”27 In

support, Brooklyn Union relies on the RD UAO which defines the Gowanus Canal Superfund

Site as the “100-foot wide, 1.8-mile-long canal located in the New York City borough of

26 The Court notes that TDA’s argument, that TDA is not an owner and/or operator of a

“facility” because it is not the owner and/or operator of the Canal, would entitle all Defendants to

potentially claim a de micromis exemption, depending on the amount of liquids each party

released. The Court notes that no other Defendants have made such an argument at this time.

27 (Pl.’s Opp’n 7 (citing EPA, Clarifying the Definition of “Site” Under the National

Priorities List, at 1 (May 1996) (“EPA Guidance of ‘Site’ Definition”), annexed to Henig-Elona

Reply Aff. as Ex. L, Docket Entry No. 251-17).)

Brooklyn, Kings County, New York, and also includes any areas which are sources of

contamination to the Canal, areas where contamination has migrated from the Canal, and/or

suitable areas in very close proximity to the contamination which are necessary for

implementation of the [w]ork.” (Id. (emphasis added) (quoting RD UAO 5).) Moreover, the

EPA identified TDA as a PRP by issuing it a GNL and naming it in both the RD UAO and the

Bulkhead UAO. (Id. at 7 (citing Compl. ¶¶ 187, 192), 12.) Fourth, Brooklyn Union also notes

that the EPA is authorized to “enter into administrative and judicial settlements with de micromis

parties” and has not done so with TDA. (Id. at 12.)

A facility is defined under CERCLA as:

(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.

ELG Utica Alloys, Inc. v. Niagara Mohawk Power Corp., 144 F.4th 360, 368 n.2 (2d Cir. 2025)

(quoting 42 U.S.C. § 9601(9)); see also Prisco, 168 F.3d at 602 n.6 (quoting same); Bestfoods,

524 U.S. at 56 n.2 (quoting same); New York v. Next Millennium Realty, LLC, 160 F. Supp. 3d

485, 506 (E.D.N.Y. 2016) (quoting same). Courts have interpreted “facility” broadly. See

Bestfoods, 524 U.S. at 56 (“[T]he term ‘facility’ enjoys a broad and detailed definition.”); ELG

Utica Alloys, Inc., 144 F.4th at 368 (“CERCLA broadly defines ‘facility’ to include ‘any site or

area where a hazardous substance has been deposited.’” (quoting 42 U.S.C. § 9601(9))); Cyprus

Amax Minerals Co. v. TCI Pacific Commc’ns., LLC, 28 F.4th 996, 1013 (10th Cir. 2022) (“Given

the statutory definition of ‘facility,’ ‘CERCLA’s remedial purpose,’ and cases from other federal

courts, this court recognizes that the definition of ‘facility’ is broad: ‘facility means whatever is

appropriate for the facts at hand . . . . Simply put, the term “facility” includes every place where

hazardous substances come to be located.’” (quoting Sierra Club v. Seaboard Farms Inc., 387

F.3d 1167, 1176 (10th Cir. 2004))); United States v. Ne. Pharm. & Chem. Co., Inc., 810 F.2d

726, 743 (8th Cir. 1986) (“The term ‘facility’ should be construed very broadly to include

virtually any place at which hazardous wastes have been dumped, or otherwise disposed of.”

(citation and internal quotation marks omitted)); Anspec Co. v. Johnson Controls, Inc., 922 F.2d

1240, 1247 (6th Cir. 1991) (recognizing that “the First and Second Circuits have joined in

proclaiming that [w]e will not interpret section [1]07(a) in any way that apparently frustrates the

statute’s goals, in the absence of specific congressional intent otherwise,” the court found “the

remedial nature of CERCLA’s scheme requires the courts to interpret its provisions broadly to

avoid frustrating the legislative purposes” (first alteration in original) (citations and internal

quotation marks omitted)); see also Cytec Indus., Inc. v. The B.F. Goodrich Co., 232 F. Supp. 2d

821, 836 (S.D. Ohio 2002) (finding that “usually, although perhaps not always, the definition of

facility will be the entire site or area, including single or contiguous properties, where hazardous

wastes have been deposited as part of the same operation or management”); Clear Lake Props. v.

Rockwell Int’l Corp., 959 F. Supp. 763, 768 (S.D. Tex. 1997) (rejecting the argument that a

laboratory building and the ground upon which it sits constitute two distinct facilities); S. Pac.

Transp. Co. v. Voluntary Purchasing Grps., Inc., No. 94-CV-2477, 1997 WL 457510, at *5

(N.D. Tex. Aug. 7, 1997) (finding that “[u]nder the broad statutory definition, the presence of

arsenic in these locations is sufficient to establish that the entire [c]ommerce [s]ite is a ‘facility’

within the meaning of CERCLA”).

While “those actually responsible for any damage, environmental harm, or injury from

chemical poisons [may be tagged with] the cost of their actions,” “[t]he phrase ‘owner or

operator’ is defined only by tautology, however, as ‘any person owning or operating’ a facility,

and it is this bit of circularity that prompts our review.” Bestfoods, 524 U.S. at 56 (first alteration

in original) (internal quotation marks and citation omitted) (quoting 42 U.S.C. § 9601(20(A)(ii));

see Exxon Corp. v. Hunt, 475 U.S. 355, 363 (1986) (CERCLA “unfortunately is not a model of

legislative draftsmanship.”); Metro Container Grp., 450 F. Supp. 3d at 592 (“CERCLA is

‘notorious for its lack of clarity and poor draftsmanship.’” (quoting Cranbury Brick Yard, LLC v.

United States, 943 F.3d 701, 704 (3d Cir. 2019))). “Under the plain language of the statute, any

person who operates a polluting facility is directly liable for the costs of cleaning up the

pollution.” Bestfoods, 524 U.S. at 65; see Niagara Mohawk Power Corp., 596 F.3d at 130

(“CERCLA is a remedial statute; it reaches as far back into the past as necessary to identify both

the hazardous wastes present at a site and those responsible under the statute. The logic is

straightforward and simple — Congress wanted owners and polluters to identify and clean up all

the hazardous waste they discovery.”) “Recognizing, however, the practical difficulties of this

statutory scheme, Congress also empowered the court through § 113 to use ‘such requirable

factors as the court determines are appropriate’ to reach a just result.” Niagara Mohawk Power

Corp., 596 F.3d at 130 (citing 42 U.S.C. § 3613(f)(1) (emphasis added)).

Brooklyn Union sufficiently alleges in the Complaint that TDA is an “owner and/or

operator” of the Carroll Street Facility, a polluting “facility” liable under Section 107(a)(1) or (2)

and 113(f). (Compl. ¶ 205.) Brooklyn Union alleges, and TDA acknowledges, that TDA’s

predecessor, Northeastern, owned and operated the Carroll Street Facility from 1963 to 1999.28

28 Neither TDA nor Brooklyn Union argues that TDA should not be held accountable as

a successor corporation to TDA’s predecessor, Northeastern. (See generally Def.’s Mem; Pl.’s

Opp’n; Def.’s Reply.) Given the supporting case law and the lack of objection, the Court does

not address this issue further. See United States v. Iron Mountain Mines, Inc., 812 F. Supp.

(Id. ¶ 156.) Brooklyn Union also alleges that the Carroll Street Facility “released hazardous

substances to the Canal.” (Id. ¶ 156(c.)) Accepting these allegations as true, these contentions

are sufficient for Brooklyn Union to withstand TDA’s motion to dismiss. (See Pl.’s Opp’n 6–7.)

See Metro Container Grp., 450 F. Supp. 3d at 601 (finding on a motion to dismiss that the

amended complaint’s allegations that all defendants were either generator/arrangers, or

transporters, was sufficient to establish the first element to a cause of action under CERCLA);

City of Colton v. Am. Promotional Events, Inc., No. 09-CV-1864, 2012 WL 32606, at *6 (C.D.

Cal. Jan. 5, 2012) (striking a de micromis exemption affirmative defense because the plaintiff, in

the complaint, “proceeds under Section 107(a)(2) under a theory of ‘owner or operator’ liability”

thus making the exemption inapplicable); United States v. Iron Mountain Mines, Inc., 812 F.

Supp. 1528, 1535–36 (E.D. Cal. 1992) (finding the plaintiff did state a claim upon which relief

could be granted as the complaint sufficiently pleaded each of the elements required for a

CERCLA Section 107 claim).29

1528, 1535, 1537 (E.D. Cal. 1992) (finding a defendant liable under Section 107(a)(2) based “on

its alleged status as successor in interest” to the facility during the time in which hazardous

substances were allegedly disposed of).

29 TDA objects to Brooklyn Union’s reliance on City of Colton v. American Promotional

Events, Inc. arguing that the defendant in City of Colton “did not oppose the government’s

motion to strike its de micromis exemption” and therefore “the court did not opine on the

viability of the exemption.” (Def.’s Mem. 11.) No. 09-CV-1864, 2012 WL 32606, at *6 (C.D.

Cal. Jan. 5, 2012). The Court finds TDA’s objection unpersuasive.

First, TDA incorrectly asserts that the defendant did not oppose the government’s motion

— the defendant in City of Colton did submit opposition papers to oppose the government’s

motion to strike its de micromis exemption. See id. at *1. TDA submits the defendant’s

opposition briefing, although it does not cite to a page or quote to support its argument. (See

Def.’s opposition in City of Colton, No. 09-CV-1864, (C.D. Cal. Sep. 26, 2011) (“City of Colton

Opp’n”), annexed to Henig-Elona Aff. as Ex. H, Docket Entry No. 251-10.) In the briefing, the

de micromis exemption under Section 107(o) is only discussed once, in a section titled

“Goodrich [h]as [p]roperly [r]aised [d]efenses [c]hallenging [t]he United States’ [a]ttempt [t]o

[i]mpose [j]oint [a]nd [s]everal [l]iability,” where the defendant explains that a party that is

Brooklyn Union’s allegations are sufficient to withstand TDA’s motion to dismiss.

Courts typically analyze whether a party is entitled to the de micromis exemption at the summary

judgment stage after the parties have conducted discovery. See 68th St. Site Work Grp., 2021

WL 4255030, at *23–24 (finding the contractual equivalent of the de micromis exemption

“constitute[d] [an] affirmative defense[] inappropriate to consider with respect to the pending

12(b)(6) motions” and while the defendants attempted to label their motions as summary

judgment motions, which would be the appropriate stage to consider affirmative defenses, the

court was “not convinced” that the burden of proof could be satisfied “on what amounts to a ‘no-

evidence’ motion” as discovery was yet to be completed); Metro Container Grp., 450 F. Supp.

3d at 602 n.14 (holding that the allegations in the complaint were sufficient to overcome the

motion to dismiss, finding “proper stage of proceedings to determine [whether the de micromis

exemption applied] is for a future date” as “[s]ome courts have made the [ ] determination at

summary judgment”); Hobart II, 2019 WL 4621034, at *14 (finding the defendant was not

entitled to the statutory de micromis exemption in deciding a summary judgment motion);

Hobart I, 2017 WL 5956911, at *16 (determining, at the summary judgment stage, whether the

defendant disposed of more than the de micromis volume of contaminants relying on the

testimony of two witnesses and other discovery); In re Voluntary Purchasing Grps. Inc. Litig.,

2002 WL 31156535, at *8 (holding, on a motion for summary judgment, that the defendant was

entitled to the exemption cannot be held liable for its contribution. (City of Colton Opp’n 21–

22.) Thus, this briefing demonstrated that the defendant did oppose the government’s motion to

strike its de micromis exemption, contrary to TDA’s argument

Second, while TDA is correct that the court did not elaborate or further analyze the de

micromis exemption, TDA fails to mention that the court struck the affirmative defense because

the government “proceed[ed] under Section 107(a)(2) under a theory of ‘owner or operator’

liability” which made the de micromis exemption inapplicable. See City of Colton, 2012 WL

32606 at *6.

not entitled to the de micromis exemption because all of the elements required to claim the

exemption were not satisfied).

ii. Based on the RD UAO, EPA guidance and case law, the Court finds

that the Gowanus Canal Superfund Site includes the Carroll Street

Facility and TDA can be held liable as a subsequent owner of a

contaminating “facility”

TDA argues that the CERCLA “facility” is the Canal, i.e., the Gowanus Canal Superfund

Site exclusive of the surrounding businesses and thus TDA cannot be liable as an “owner” and or

“operator” of the “facility.”30 As supported by the language of the RD UAO, EPA guidance, and

case law, the Court finds otherwise.

First, under the RD UAO, TDA’s argument that the “facility,” or the “Superfund site,” is

only that of the Canal, i.e., the Gowanus Superfund Site excluding the surrounding businesses, is

incorrect. (Def.’s Mem. 8.) The RD UAO defines the “the Gowanus Canal Superfund Site” as

“an approximately 100-foot wide, 1.8-mile-long canal located in the New York City borough of

Brooklyn, Kings County, New York, and includes any areas which are sources of contamination

to the Canal . . . .” In the Matter of the Gowanus Canal Superfund Site, Administrative Order for

Remedial Design 5, No. CERCLA-02-2014-2001 (EPA Mar. 20, 2014) (emphasis added). As

the subsequent owner of a site which is alleged to have released hazardous substances into the

Canal, defined as a “facility” under CERCLA, TDA, as subsequent owner of the Carroll Street

Facility located at 420 Carroll Street from 1963 to 1999, can be subject to owner and operator

liability under Section 107(a)(1) and/or Section 107(a)(2) and therefore is not entitled to a de

micromis exemption. See Occidental Chem. Corp. v. 21st Century Fox Am., No. 18-CV-11273,

30 (Def.’s Mem. 8 (arguing CERCLA section 107(a) holds “the current owners and

operators of a NPL Site (in this case, the Gowanus Canal)” and/or “the past owners and operators

of the NPL Site at the time of disposal of any hazardous substance” liable); Def.’s Reply 3–6; see

also Def.’s Mem. 5 (“TDA is not a former owner or operator of a Superfund [s]ite . . . [t]he only

Superfund [s]ite at issue in this litigation is the Gowanus Canal.”).)

2020 WL 13890454, at *4 (D.N.J. Sep. 11, 2020) (finding successor company, located within the

Superfund site, that released hazardous substances into the Lower Passaic River and elsewhere

within the Superfund Site as liable under CERCLA Section 107(a)); United States v. Honewell

Int’l, Inc., 542 F. Supp. 2d 1188, 1195, 1198 (E.D. Cal. 2008) (finding the third-party defendant

who owned a facility that disposed of a hazardous substance and was “located within the

boundaries of the [Superfund] [s]ite as determined by the U.S. EPA” as potentially liable within

Section 107(a)(1)); Carrier Corp. v. Piper, 460 F. Supp. 2d 827, 836, 836 n.7 (W.D. Tenn. 2006)

(finding the owner of a property located within the Superfund site, as defined by the

administrative order, was potentially liable because that property was “part of the same facility”

as the Superfund site); City of Wichita v. Aero Holdings, Inc., 177 F. Supp. 2d 1153, 1162, 1165–

66 (D. Kan. 2000) (finding the city liable under CERCLA Section 107(a)(1)), where it was the

current owner or operator of a “facility,” and the property was found to be within the Superfund

site as defined by the EPA).

Second, even if the Court were to disregard the RD UAO and interpret the EPA’s plain

designation of the Gowanus Canal Superfund Site to only mean the area of the Canal, the

conclusion would be the same — the owners of the businesses surrounding the Canal would still

be held liable for their contamination contribution.31 The definition of a “facility” under

CERCLA and the general meaning of a “site” within CERCLA differ, although their

connotations are interconnected — a Superfund site may include one or more facilities and a

facility may include one or more areas (or sites) of hazardous substances. (See EPA Guidance of

31 (See Def.’s Mem. 8 (“CERCLA Section 107(a) creates four categories of potentially

responsible parties: [(]1) the current owners and operators of a NPL Site (in this case, the

Gowanus Canal); [(]2) the past owners and operators of the NPL Site at the time of disposal of

any hazardous substance . . . .”).)

“Site” Definition 1.) See Lockheed Martin Corp. v. United States, 35 F. Supp. 3d 92, 121 n.35

(D.D.C. 2014) (“Under CERCLA, the term ‘facility’ has two meanings”: the first “serves as a

catch-all for almost any original source from which a disposal might have occurred” and the

second “includes any site or area where a hazardous substance has been deposited, stored,

disposed of, or placed, or otherwise come to be located.” (internal quotation marks and citations

omitted)); United States v. Atchison, Topeka & Santa Fe Ry. Co., No. 92-5068, 2003 WL

25518047, at *45 (E.D. Cal. July 15, 2003) (“CERCLA’s definition of ‘facility’ suggests several

different concepts or applications.”); Lincoln Props. Ltd. v. Higgins, No.91-760, 1993 WL

217429, at *19 (E.D. Cal. Jan. 21, 1993) (finding that each “site” where hazardous substances

were disposed of or otherwise came to be located was a “facility” within the meaning of

CERCLA); see also United States v. Asarco Inc., 214 F.3d 1104, 1105 n.1 (9th Cir. 2000) (“For

CERCLA purposes, the EPA utilizes the terms ‘facility,’ ‘site,’ and ‘release’ interchangeably.”).

In fact, the definition of a “facility” is explicitly “any site or area where a hazardous substance

has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C. §

9601(9) (emphasis added); Bestfoods, 524 U.S. at 56 n.2. TDA misapplies CERCLA’s terms,

incorrectly equating the “facility” as only that of the Gowanus Canal Superfund Site, but arguing

that Superfund site is only the Canal, while erroneously arguing that the EPA “unartfully”

confuses CERCLA’s terms, the statutory scheme it regularly administers and enforces.32

While the term “site” is not defined in the statute, the EPA has issued guidance clarifying

the term under the NPL:

32 (See Def.’s Reply 9 n.5 (arguing the RD UAO “incorrectly identifie[d] TDA as an

‘owner’ or ‘operator’” as the EPA “seems to have unartfully used those as general words rather

than as their CERCLA-defined terms of art, i.e., as the current or former owner or operator of a

location that is being remediated as an NPL ‘facility’).)

Although CERCLA does not define the term ‘site,’ it does explain

related terms such a ‘facility.’ . . . According to CERCLA, there

are two definitions of facility. The first definition is in broad terms

of operable portions of properties . . . [while] [t]he second

CERCLA definition of facility is essentially synonymous with the

definition of ‘site’ as defined in the Hazard Ranking System

(HRS), a screening tool that is EPA’s primary mechanism for

placing sites on the NPL . . . [h]owever, the CERCLA definition . .

. is broader than the HRS definition of site.

(EPA Guidance of “Site” Definition 1.)

Based on these descriptions, a ‘site’ is best defined as that portion

of a facility that includes the location of a release (or releases) of

hazardous substances and wherever hazardous substances have

come to be located.” As such, the extent of a site is not limited by

property boundaries.

(Id.)

“Identifying property that is part of an NPL site does not establish

CERCLA liability. CERCLA liability is determined under

CERCLA § 107, which makes no reference to NPL listing.

Placing a site on the NPL does not create CERCLA liability where

it would not otherwise exist. The fact that a parcel lies within the

areas used to describe an NPL site does not impose liability on the

owner or subsequent purchaser; liability is based on a release or

threatened release of a hazardous substance from a facility.

(Id. at 3.)

“If it is unclear who is or was the operator, or whether there are

more than three [PRPs], a geographic-based name can be assigned.

A site does not necessarily correspond to boundaries of any

specific property that may give the site its name . . . [and] the name

itself does not imply that the site is within the property boundary of

a certain plant or installation or that all parts of the named property

are contaminated.”

(Id. at 2.)

Applying the above, the EPA’s broad definition of a Superfund site includes the “sites”

where hazardous substances were deposited and/or released as part of a “facility.” Therefore, the

Court would reach the same conclusion applying the EPA Guidance of “Site” Definition as it

would if it applied the language of the RD UAO —that the Gowanus Canal Superfund Site

includes the Canal, the site where hazardous substances have been deposited, and the

surrounding businesses, sites (or definitionally “facilities”) which released hazardous substances

into the Canal. See RD UAO 5. (See Pl.’s Opp’n 7.)

Even if the Court were to ignore the RD UAO and EPA guidance, case law demonstrates

that the Canal itself would not be found to be the “facility” — instead, the polluting businesses

would be held as one or several “facilities” and the owners and operators would still be held

accountable — meaning, as applied to this case, TDA would still be held liable as a subsequent

owner of the Carroll Street Facility. In Asarco LLC v. Cemex, Inc., a case factually similar to the

case before the Court, the “diversion of water from the Rio Grande River to the American Canal

[ ], a two-mile canal that the United States uses to remove its agreed-upon allotment of water

from the river,” oversaw by the United States International Boundary and Water Commission

(the “USIBWS”), was found to be polluted (the “USIBWC Site”). 21 F. Supp. 3d 784, 789

(W.D. Tex. 2014). The USIBWC sought to resolve joint-and-several CERCLA liability against

the plaintiff, ASARCO, LLC (“Asarco”), who operated various metal-smelting plants in El Paso,

Texas, located just east of the USIBWC Site. Id. at 790. Asarco subsequently brought a

CERCLA Section 113(f) contribution claim against the defendant, CEMEX, Inc. (“Cemex”),

who was a successor in interest to Southwestern Portland Cement Company, which owned and

operated a cement plant and limestone quarry located to the north of the USIBWC Site, alleging

Cemex was also responsible for the pollution at the USIBWC Site. Id. at 790–91. The court

found the plant was a “facility as defined by CERCLA.” Id. at 809. The facts of this case are

almost identical to Asarco LLC – the owners and/or operators of contaminating facilities

surrounding a polluted public waterway may be held to be responsible under CERCLA. There is

no claim or discussion in Asarco LLC that the Asarco or Cemex sites are not “facilities” nor that

the USIBWC Site is the “facility” and thus only the United States could be held accountable.

See generally id. Asarco LLC is one case in a long line of cases that demonstrates that when a

public waterway is polluted, the polluting businesses are held to be “facilities,” and thus the

owners and operators will be held liable. See Wash. State Dep’t of Transp. v. U.S.E.P.A., 917

F.2d 1309, 1310–12 (D.C. Cir. 1990) (confirming that the owners and/or operators of two

facilities, identified by two EPA investigations, who were responsible for polluting the

Commencement Bay within the broader “Commencement Bay Nearshore/Tideflats” NPL site

could be held liable under CERCLA); Town of Halfmoon v. General Elec. Co., 105 F. Supp. 3d

202, 207–11 (N.D.N.Y. 2015) (the plaintiff brought CERCLA claims against the defendant for

operating two plants that discharged PCBs into the Hudson River, several sections of the Hudson

River were designated as “Superfund sites” and both parties agreed that the plants were

“facilities” and the defendant could be held liable as owner and operator of the plants);

Kalamazoo River Grp. v. Rockwell Int’l, 107 F. Supp. 2d 817, 819–21 (W.D. Mich. 2000) (an

approximately 130-mile polluted length of the Kalamazoo River was named a Superfund site and

the owners and operators of the disposing sites were named PRPs under the broader Superfund

site, which consisted of one facility that each PRP released hazardous substances within). As

supported by these cases, the Court finds unpersuasive TDA’s argument that the Canal, or the

Gowanus Canal Superfund Site excluding the surrounding businesses, is the “facility.”

Based on the RD UAO and the EPA’s guidance, as supported by case law, the Court

finds that the Gowanus Canal Superfund Site is a Superfund site defined as the broader

geographic area. (See EPA Guidance of “Site” Definition 2.) Within the Gowanus Canal

Superfund Site are one or more “facilities,” defined under CERCLA to include sites where

hazardous substances were released and/or deposited. This conclusion is supported by the EPA’s

guidance which provides that “[i]dentifying property [a]s part of an NPL site does not establish

CERCLA liability” because “CERCLA liability is determined under CERCLA § 107, which

makes no reference to NPL listing.” (Id. at 3.) Instead, “liability is based on a release or

threatened release of a hazardous substance from a facility,” which encompasses “site[]s” where

“hazardous substances have come to be located,” in this case the Canal, and “the location[s] of a

release (or releases) of hazardous substances,” in this case the surrounding businesses that

allegedly contributed to the pollution, which includes the Carroll Street Facility. (Id. at 1).

Therefore, the owners of these “sites” that contributed to the contamination, which are defined in

CERCLA as “facilities”, (see id.), may be held responsible. See First State Ins. Co. v. XTRA

Intermodal, Inc., No. 22-CV-216, 2024 WL 1345646, at *2 (S.D. Ill. Mar. 29, 2024) (discussing

the defendant’s potential liability under Section 107 where the defendant was the subsequent

owner and operator of “facility,” located within the broader Superfund Site, that released

hazardous substances into the Superfund site); Arkema, Inc. v. Asarco, Inc., No. C05-5087, 2007

WL 1821024, at *8–9 (W.D. Wa. June 22, 2007) (finding the parties who owned/operated any of

the numerous industrial facilities located on or near the Hylebos Waterway, which was part of

the larger Superfund site, who released hazardous substances into the waterway were liable

under CERCLA 107(a)(1) as owner and/or operators of “facilities”); see also United States v.

Meyer, 120 F. Supp. 2d 635, 638 (W.D. Mich. 1999) (holding the sewer line built on the

perimeter of the Superfund site which contributed to the contamination was a “facility” under

CERCLA and thus the owner of that private sewer line could be held accountable).

As TDA is a subsequent owner of the Carroll Street Facility, a facility that is alleged to

have released hazardous substances into the Gowanus Canal Superfund Site, TDA can be held

liable as an “owner” and/or “operator” of a “facility” under CERCLA Section 107(a)(1) or (2).

iii. The Court is not persuaded by TDA’s arguments to find the

CERCLA “facility” at issue is only that of the Canal and that TDA

should be treated as an “arranger” or “generator” under Section

107(a)(3)

The Court is not persuaded by TDA’s arguments that the Canal should be considered the

“facility” and thus TDA can only be found to be an “arranger” or “generator” under CERCLA

Section 107(a)(3), not an “owner or operator” under Section 107(a)(1) or (2). If the Court were

to accept TDA’s narrow definition, the results would contradict the statutory scheme, limit

potential liability, and frustrate CERCLA’s goals.33 See Niagara Mohawk Power Corp., 596

F.3d at 130 (CERCLA’s “logic is straightforward and simple — Congress wanted owners and

polluters to identify and clean up all the hazardous waste they discovery.”); Freeman, 189 F.3d

at 163 (“It was Congress’ intent that CERCLA be construed liberally in order to accomplish [the

statute’s] goals.” (quoting General Elec. Co. v. AAMCO Transmissions, Inc., 962 F.2d 281, 285

(2d Cir. 1992) (per curiam))); Anspec Co., 992 F.2d at 1247 (finding “the remedial nature of

CERCLA’s scheme requires the courts to interpret its provisions broadly to avoid frustrating the

legislative purposes”); BASF Corp. v. Albany Molecular Research, Inc., No. 19-CV-134, 2020

WL 3271316, at *14 (N.D.N.Y. June 17, 2020) (accepting the defendant’s interpretation “would

open a huge loophole in CERCLA’s coverage” and thus “frustrate[ ] the statute’s goals”

33 (Compare Def.’s Mem. 8 (“CERCLA Section 107(a) creates four categories of

[PRPs]: [(]1) the current owners and operators of a NPL Site (in this case, the Gowanus Canal);

[(]2) the past owners and operators of the NPL Site at the time of disposal of any hazardous

substance . . . .” (emphasis added)) to 42 U.S.C. § 9607(a) (Creating liability for four categories

of PRPs including: (1) the owner and operator of 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 . . . .” (emphasis added)).)

(alteration in original) (quoting Shore Realty Corp., 759 F.2d at 1045)); New York v. Solvent

Chemical Co., Inc., 218 F. Supp. 2d 319, 336 (W.D.N.Y. 2002) (holding that for a term not

defined in CERCLA, “a liberal judicial interpretation of the term is required in order to achieve

CERCLA’s ‘overwhelmingly remedial’ statutory scheme.’” (quoting United States v. Pesses,

794 F. Supp. 151, 157 n.21 (W.D. Pa. 1992))); Int’l Clinical Lab’ys, Inc. v. Stevens, 710 F. Supp.

466, 472 (E.D.N.Y. 1989) (rejecting the defendant’s argument because “[t]o adopt such a rule

would do little to promote the effectiveness of private actions and would not further CERCLA’s

goal of encouraging environmental cleanup activities” (citing City of New York v. Exxon Corp.,

663 F. Supp. 609, 616–17 (S.D.N.Y. 1986))).

First, TDA’s arguments that the “facility” is the Gowanus Canal Superfund Site,

excluding the surrounding areas, aligns with Superfund sites that are privately owned where the

owner could clearly be held liable. See Dent v. Beazer Materials and Servs. Inc., 156 F.3d 523,

529–31 (4th Cir. 1998) (finding the three parties who collectively owned the properties

comprising the Superfund site were liable under 107(a) as owners or operators of a “facility”);

Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1497–98 (11th Cir. 1996) (finding

the Superfund site was a facility under CERCLA and thus the defendant, who the parties did not

dispute held the title to the Superfund site, could be held liable as the current owner or operator

of a facility under Section 107(a)(1)). In support of its argument, TDA states that “[a]t the time

that CERCLA was enacted, and ever since, Superfund [s]ites have typically been chemical or

hazardous wastes processing or recycling facilities, landfills, or other land-based hazardous

waste disposal properties.” (Def.’s Mem. 8.) In contrast to TDA’s listed “typical” Superfund

sites, the Canal is a public waterway without a singular owner and therefore the Gowanus Canal

Superfund Site requires further analysis than simply concluding based on how Superfund sites

have historically been defined.34 Instead, TDA’s listed applications further support the Court’s

finding that the broader Gowanus Canal Superfund Site includes the polluting “land-based

hazardous waste disposal properties,” such as the Carroll Street Facility — because Superfund

sites typically have included “land-based hazardous waste disposal properties,” a holding that the

Gowanus Canal Superfund Site only includes the Canal would be in opposite. See In the Matter

of the Gowanus Canal Superfund Site 5, Administrative Order for Remedial Design, No.

CERCLA-02-2014-2001 (EPA Mar. 20, 2014) (the EPA defined the “Gowanus Canal Superfund

Site” to include both the Canal and “any areas which are sources of contamination to the Canal”

(emphasis added)).

Second, TDA’s interpretation equating “facility” with that of a “Superfund site” is

contrary to the extensive case law about Superfund sites that encompass multiple parcels of land,

expanding beyond traditional property borders and thus implicating numerous “facilities” and/or

owners of land. See Next Millennium Realty LLC, 2025 WL 2689701, at *1, *9 (denying motion

to dismiss where the plaintiff alleged that the defendants were current or former owners of

34 Further differentiating TDA’s listed “typical” Superfund sites is the fact that the Canal

is a public waterway not owned by any one entity. Applying TDA’s logic — that the Canal is

the “facility” and thus only the Canal’s owner is liable — would potentially eliminate all liability

because no one entity owns the Canal. Extending TDA’s theory, each contaminator would then

be considered a “generator” or “transporter,” and thus possibly entitled to the de micromis

exemption, which could lead to no person being required to clean up the Canal. This situation

would lead to an outcome contrary to the statutory spirit and goals of CERCLA. See BASF

Corp. v. Albany Molecular Research, Inc., No. 19-CV-134, 2020 WL 3271316, at *14

(N.D.N.Y. June 17, 2020) (accepting the defendant’s interpretation “would open a huge loophole

in CERCLA’s coverage” and thus “frustrate[ ] the statute’s goals” (alteration in original)

(quoting Shore Realty Corp., 759 F.2d at 1045)); Int’l Clinical Lab’ys, Inc. v. Stevens, 710 F.

Supp. 466, 472 (E.D.N.Y. 1989) (rejecting the defendant’s argument because “[t]o adopt such a

rule would do little to promote the effectiveness of private actions and would not further

CERCLA’s goal of encouraging environmental cleanup activities” (citing City of New York v.

Exxon Corp., 663 F. Supp. 609, 616–17 (S.D.N.Y. 1986))).

numerous properties located within the Superfund site); Atchison, Topeka & Santa Fe Ry. Co.,

2003 WL 25518047, at *47 (The “EPA need not designate one facility per owner or otherwise

prove that an owner owns an entire facility to establish liability under Section 107 of CERCLA .

. . . CERCLA expressly contemplates that there can be more than one owner of a facility.”

(citations omitted)); Meyer, 120 F. Supp. 2d at 638 (“Because hazardous substances may come to

be located in several discrete locations in a given case, there may be several ‘facilities’ related to

a single hazardous waste discharge or disposal.”) In these cases, one or more “facilities” can be

designated for a single Superfund site, or alternatively, one or more parcels of land can be jointly

designated as a single facility within a Superfund site — this is a fact-based determination for the

court to decide when analyzing where the contamination originated and is located. See United

States v. Township of Brighton, 153 F.3d 307, 313 (6th Cir. 1998) (“The words of the statute

suggest that the bounds of a facility should be defined at least in part by the bounds of the

contamination.”); Niagara Mohawk Power Corp. v. Consol. Rail Corp., 291 F. Supp. 2d 105,

125 (N.D.N.Y. 2003) (“Separate parcels should be considered as a single facility if they ‘cannot

be reasonably or naturally divided into multiple parts or functional units[,]’ . . . [but] where

parcels are naturally divisible into parts or functional units, they should not be considered as a

single facility.” (quoting United States v. 150 Acres of Land, 204 F.3d 698, 709 (6th Cir. 2000))),

rev’d on other grounds, Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112

(2d Cir. 2010); Alprof Realty LLC v. Corp. of the Presiding Bishop of the Church of Jesus Christ

of Latter-Day Saints, No. 09-CV-5190, 2012 WL 4049800, at *8 (E.D.N.Y. Sep. 13, 2012) (“The

cases cited by the parties establish that a contaminated site that is or was managed as a whole

constitutes a single facility for CERCLA purposes — regardless of whether the area crosses

property lines — and that a widely contaminated area should not unnaturally be divided into

multiple facilities in order to limit a party’s liability.”). Therefore, the Court finds that the

Carroll Street Facility is a “facility” within the Gowanus Canal Superfund Site, and as such,

TDA can be held liable as subsequent owner. (See Def.’s Mem. 5 (The “property at 420 Carroll

Street was never a Superfund [s]ite; therefore, TDA is not a former owner or operator of a

Superfund [s]ite.”).)35

Third, TDA’s reliance on the EPA explicitly excluding contaminated upland parcels of

the Canal in the ROD is misplaced. (Def.’s Reply 4.) TDA argues the “ROD simply does not

include TDA’s former parcel as part of the Gowanus Canal Superfund Site . . . [n]or was it

identified by [the] EPA as an upland source that was referred to NYSDEC for investigation or

remediation.” (Id. at 5–6.) However, the Carroll Street Facility is not “upland” from the Canal,

instead it is directly located on the Canal. The examples of the “upland” parcels explicitly stated

in the ROD consist of facilities “[a]djacent to the Canal,” not facilities located on the Canal.

(ROD 4 (emphasis added).) In addition, while the ROD generally discusses the Gowanus Canal

Superfund Site and the Canal, the subsequent UAOs, especially the RD UAO, further elaborated

on the RD phase — specifically relevant, the RD UAO expanded geographically on the

definition of the Superfund site and included the Carroll Street Facility. (See ROD 10.) See In

the Matter of the Gowanus Canal Superfund Site 5, Administrative Order for Remedial Design,

No. CERCLA-02-2014-2001 (EPA Mar. 20, 2014). This aligns with the EPA historically “not

specif[ing] any exact geographic boundaries” of an NPL site, but later clarifying the exact

boundaries based on “additional stud[ies].” See Wash. State Dep’t of Transp., 917 F.3d at 1910,

1910 n.1. TDA cannot argue in good faith that the Court should rely on the Superfund site’s

35 For clarity, neither party asks the Court to determine if the Gowanus Canal Superfund

Site consists of one or more “facilities” for CERCLA purposes. Therefore, the Court does not

opine on this issue.

definition in the EPA’s ROD, while also arguing that the Court should not rely on the definition

in the EPA’s RD UAO because “that unilateral declaration does not make it so.” (Def.’s Reply

9.)

Lastly, the Court is not convinced by TDA’s argument that it should be held to be a

“generator” or “arranger” under CERCLA Section 107(a). (Id.; Def.’s Mem. 10.) In support of

this argument, TDA cites only one case — City of Bangor v. Citizens Communications Co., 437

F. Supp. 2d 180 (D. Me. 2006) — arguing that “the [c]ourt recognized that a former owner of a

facility that discharged to a waterway was an ‘arranger’ who could qualify as a de micromis

party (not an ‘owner’ or ‘operator’ who would be disqualified for the exemption).” (Def.’s

Mem. 10.) In City of Bangor, the city brought a claim under CERCLA Section 107 against the

defendant based on arranger or generator liability, alleging the defendant company was involved

in contaminating an approximately ten-acre section of the Penobscot River, known as Dunnett’s

Cove. 437 F. Supp. 2d at 182, 214. Following trial, the court made numerous findings of fact

and conclusions of law including that the defendant, Citizens Communications, had primary

responsibility for the contamination as the owner of a manufactured gas plant (the “Bangor

MGP”) that disposed of tar-laden wastewater through the “Old Stone Sewer” which discharged

directly into Dunnett’s Cove. Id. The court also held that the city was responsible as owner of

the now defunct Old Stone Sewer and the sewer that replaced it. Id. at 191–93, 214. In footnote

13 of the decision, the court briefly addressed the de micromis exemption. Id. at 215 n.13. The

court found that the amount of tar discharge into Dunnett’s Cove after January 1963 was

“relatively minimal,” and explained that “[i]n light of these factual findings, it would appear that

an entity responsible for any post-January 1963 tar discharged from the Bangor MGP during

regular plant operations could fall under the ‘de micromis exemption’ to CERCLA liability.” Id.

The footnote concludes with the court stating that “[the defendant] ha[d] presented no evidence

suggesting that the de micromis exemption would not apply to any successor operator of the

Bangor MGP.” Id.

While City of Bangor is factually similar, involving a public water body contaminated by

a MGP, TDA misses two key distinctions. First, the City of Bangor opinion is the court’s

findings of fact and conclusions of law following a twelve-day trial, where the court heard

evidence, and received “additional evidence in the form of exhibits, stipulations and one trial

deposition,” and closing arguments from both parties, in addition to the parties’ closing briefs.

437 F. Supp. 2d at 182. In comparison, this decision is predicated on a motion to dismiss which

the Court must decide without reference to any evidentiary record. Second, the type of liability

differed in City of Bangor compared to this case. City of Bangor involved liability against the

city as an “owner or operator” of the Old Stone Sewer and liability against Citizens

Communications as an “arranger” who contributed to the contamination through use of the Old

Stone Sewer — the court found the city was required to pay for the cleanup and the defendant

Citizens Communications required to contribute to the costs the city incurred for such cleanup.

437 F. Supp. 2d at 214–15. In this case, Brooklyn Union proceeds against all defendants as

“owners and operators” of facilities that directly contributed to the Canal’s pollution, arguing

each are independently liable for the costs which Brooklyn Union incurred to initiate cleanup of

the Canal. (Compl. ¶ 205; see also id. ¶ 156(c) (alleging TDA’s predecessor released hazardous

substances into the Canal both directly, through “two floor drains that discharged directly to . . .

the Canal” and stormwater and surface runoff, and also indirectly, through use of “a floor drain

that discharged to the [New York] City sewers”).) TDA’s liability is more similar to that of the

city in City of Bangor, an owner and operator which directly contributed to the waterway’s

pollution, as compared to Citizens Communications, an arranger who used a third party’s sewer

to contribute to the contaminated waterway. Therefore, given the differing procedural posture

and the factual distinctions in liability described above, the Court finds City of Bangor does not

impact the Court’s analysis.

Regardless, the Court finds that accepting the allegations contained within the Complaint

as true, Brooklyn Union has sufficiently alleged that TDA is a successor owner or operator of the

Carroll Street Facility that contributed to the contamination of the Gowanus Canal Superfund

Site, and therefore can be accountable under Section 107(a)(1). Bestfoods, 524 U.S. at 65

(“Under the plain language of the statute, any person who operates a polluting facility is directly

liable for the costs of cleaning up the pollution.”). The Court therefore cannot find on this

motion to dismiss that TDA is entitled to a de micromis exemption under CERCLA.36

36 Because the Court finds that Brooklyn Union sufficiently alleges that TDA is an

owner and operator (under successor liability) and thus ineligible for the de micromis exemption

at this stage, the Court declines to discuss TDA’s second argument — that Brooklyn Union does

not allege TDA’s contribution exceeded the 110-gallon threshold amount that would exclude it

from the de micromis exemption. Moreover, even if the Court found that TDA is entitled to the

de micromis exemption under Section 107(o) as an arranger or transporter, Brooklyn Union’s

allegations in the Complaint are sufficient at the motion to dismiss stage and entitle Brooklyn

Union to discovery to determine the amount of TDA’s contributions. See Metro Container Grp.

v. AC&T Co., 450 F. Supp. 3d 583, 602 n.14 (E.D. Pa. 2020) (holding that plaintiff was “entitled

to discovery as to the exact contours of the amount [of hazardous waste]” where the complaint

imprecisely alleged that “each defendant [was] responsible for the contribution of drums of

hazardous substances, which themselves surpass the threshold”). Because the Court denies

TDA’s motion to dismiss, it also denies TDA’s request for attorneys’ fees. (See Def.’s Mem. 9.)

See supra Section II.b; Seoul Viosys Co., Ltd. v. P3 Int’l Corp., No. 16-CV-6276, 2017 WL

6942744, at *6 (S.D.N.Y. Sep. 22, 2017) (denying the defendant’s request for attorney’s fees

where it did not prevail on its Rule 12 motion); Carlton Grp., Ltd. v. Mirabella SG SpA, No. 16-

CV-6649, 2017 WL 3530370, at *5 (S.D.N.Y. Aug. 16, 2017) (denying the defendant’s request

for fees and costs where the court denied the defendant’s Rule 12(b)(6) motion to dismiss the

complaint).

III. Conclusion

For the foregoing reasons, the Court denies TDA’s motion to dismiss.

Dated: March 29, 2026

Brooklyn, New York

SO ORDERED:

/s/MKB

MARGO K. BRODIE

United States District Judge