42 U.S.C. § 9607(a); see also Murtha, 958 F.2d at 1198; State of New York v. Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir. 1985). Responsible parties are liable for response costs incurred by any otherre- sponsible party, the United States Gov- ernment, a State, or an Indian tribe. 42 U.S.C. § 9607(a). 6 The term "facility" is defined in part as "any site or area where a hazardous substance has been de- posited, stored, disposed of, or placed, or otherwise cometo be lo- cated."

Case 1:06-cv-01438-RJL Document 13 Filed 11/17/2006 Page 32 of 42 26 from a section 107(a) claim where costs must first be expended before the right to sue accrues. See 42 U.S.C. §§ 9607(a), 9613(f)(1). An owner who discovers contamination on its property can – immediately if necessary – expend response costs with the assurance that it can recover those costs from any responsible party under section 107(a)(1)-(4), within the statute of limitations period set forth under section 113(g)(2) (applicable to "[a]n initial action for recovery of the costs referred to in section 107" (emphasis added)).

As with CERCLA, liability under HSAA is strict. Cal. Health & Safety Code § 25363(c) (“The standard of liability for costs recoverable pursuant to this chapter is strict liability.”); see also Cal. Health & Safety Code §25323.5(b) (HSAA also adopts the same four defenses to liability prescribed under §9607(b) of CERCLA as its own defenses that responsible parties may assert). The City’s liability under the HSAA is predicated on the same basis as its liability under CERCLA; because the City is liable under CERCLA, the City is also liable under HSAA. VI. CONCLUSION For all of the foregoing reasons, the Court should grant FRA’s motion for partial summary judgment in its favor on its CERCLA (first) cause of action and its HSAA (third) cause of action, and partial summary judgment in favor of FRA on each material fact in support of the motion that is not genuinely in dispute and then treat such facts as established in this case pursuant to Rule 56(g).

ORDER In accordance with the Memorandum Decision set forth above, NOW THEREFORE IT IS HEREBY ORDERED, that Nu-West’s motion for partial summary judgment (docket no. 35) is GRANTED. IT IS FURTHER ORDERED, that the defendant United States is deemed an owner, operator, and arranger for purposes of 42 U.S.C. § 9607(a) with regard to the CERCLA clean up costs sought in this case associated with the South Maybe Canyon Mine, the North Maybe Mine, the Champ Mine and Champ Mine Extension, and the Mountain Fuel Mine. Memorandum Decision & Order - 15 Case 4:09-cv-00431-BLW Document 84 Filed 03/04/11 Page 15 of 16 DATED: March 4, 2011 Honorable B. Lynn Winmill Chief U. S. District Judge Memorandum Decision & Order - 16 Case 4:09-cv-00431-BLW Document 84 Filed 03/04/11 Page 16 of 16

See 42 U.S. C. § 9607(a); see, e.g., State v. General Elec. Co., No. 1:14-cv-00747, 2017 WL 1239638 (N.D.N.Y. Mar. 31, 2017); State v. Moulds Holding Corp., 196 F. Supp. 2d 210 (N.D.N.Y. 2002); State v. Almy Bros., 866 F. Supp. 668 (N.D.N.Y. 1994); State v. N. Storonske Cooperage Co., 174 B.R. 366 (N.D.N.Y. 1994).13 In a cost-recovery action under CERCLA, FMC would be able to assert defenses, including the defense that DEC's chosen remedial action was arbitrary and capricious, and thus inconsistent with the National Contingency Plan. See 42 U.S.C. § 9607(b); see, e.g., Washington State Dep't of Transp. v. Washington Natural Gas Co., 59 F.3d 793, 802-05 (9th Cir. 1995) (state agency's response to pollution was arbitrary and capricious, and thus inconsistent with National Contingency Plan); Matter of Bell Petroleum Servs., Inc. (EPA v. Sequa Corp.), 3 F.3d 889, 907-08 (4th Cir. 1993) (where EPA's choice of environmental response 13 Such efforts are required under SFL § 97 -b(6) if the polluters do not enter into a "cooperative agreement[]" to pay DEC's expenses. 47 was arbitrary and capncwus, it was inconsistent with the National Contingency Plan).

Under the “former owner and/or operator” theory of CERCLA liability advanced by Plaintiff, there must be evidence that the defendant owned or operated the facility at which hazardous substances were disposed of, “at the time of disposal.” 42 U.S.C. § 9607(a)(2). After TFMC was dissolved in 1926, it ceased to exist and thus, could not have owned or operated anything.

Under CERCLA, Plaintiffs’ remedy is limited to recovery of their response costs. 42 U.S.C. § 9607(a). In contrast, the state law claims allow for the potential recovery of a wide range of other damages, including consequential, incidental, and general damages.

But what matters for purposes of CERCLA liability is the time of “disposal,” not the time of “release.” See 42 U.S.C. § 9607(a)(2) (liability attaches to “any person who at the time of disposal of any hazardous substance owned or operated any facility at which hazardous substances were disposed of” (emphasis added)). 11 To the extent the Court dismisses any of the Nation’s claims, the Nation requests leave to amend.

CERCLA’s Contiguous Property Owner Defense Does Not Apply. There are eight elements for this defense, each of which must be, but has not been, established by Diamond X. 42 U.S.C. § 9607(q)(1)(A) and (B); Wilson Road Dev. Corp. v. Fronabarger Concreters, Inc., 971 F. Supp. 2d 896, 913 (E.D. Mo. 2013). It cannot establish the first element—“not cause, contribute or consent to the release” —because its irrigation practices (even if “only . . . for a short period of time” as Diamond X concedes (ECF No. 260 at 22)) are the means by which contaminated Bryant Creek water entered the Property and caused elevated arsenic levels in soil.

3, Fig. 1. Former owners and operators at the time of disposal of hazardous substances are liable parties under 42 U.S.C. § 9607(a)(2). Both a passive title owner of real property – who was unaware of or acquiesced in another’s discharge of harmful pollutants on his real property (owner liability), and an active operator of a facility – who held only a possessory interest in the real property but is in fact responsible for the activities leading to a discharge or release (operator liability), are liable under CERCLA.