MEMORANDUM DECISION and ORDER I. INTRODUCTION On October 26, 2018, plaintiffs Revitalizing Auto Communities Environmental Response Trust (“RACER”) and Racer Properties LLC (“Racer Properties” and together “plaintiffs”) filed a complaint, lodged against a veritable host of defendants. It alleged that several dozen businesses in Central New York had contributed to the pollution of Ley Creek, a tributary of Onondaga Lake. Plaintiffs seek recovery for their efforts to clean up the creek, as well as contribution from defendants, under §§107(a) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), for Counts I and II of the complaint, respectively. 42 U.S.C. §§9607(a), 9613(f). Additionally, plaintiffs have lodged claims sounding in: Count (III) response costs recovery under N.Y. NAV. LAW §181(5); Count (IV) contribution under N.Y. NAV. LAW §176(8); Count (V) common law negligence; Count (VI) common law public nuisance; Count (VII) restitution; Count (VIII) contribution or indemnification; and Count (IX) declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §2201(a). On November 13, 2019, the following defendants jointly moved to dismiss plaintiffs’ amended complaint — the operative pleading — in its entirety under Federal Rule of Civil Procedure (“Rule”) 12(b)(6): General Electric Company; Lockheed Martin Corp.; Lennox Industries Inc.; ONX1 LLC; 6181 Thompson Road LLC; Thompson Corners, LLC; Thompson Lawn, LLC; Thompson NW, LLC; Northeast Management Services, Inc.; Syracuse Deere Road Associates, LLC; National Grid USA; Niagara Mohawk Power Corporation; Teleselector Resources Group, Inc.; Hauler’s Facility LLC; Carrier Circle Business Complex LLC; North Midler Properties LLC; Syracuse LePage LLC; Amparit Industries, LLC; B&B Family Limited Partnership; Jagar Enterprises, Inc.; Magna Powertrain USA, Inc.; New Process Gear, Inc.; Libbey Glass Inc.; Onondaga Pottery Company, Inc.; Syracuse China Company; Metalico New York, Inc.; Metalico Syracuse Realty, Inc.; C&S Engineers, Inc.; Calocerinos and Spina; Carrier Corporation; Carlyle Air Conditioning Company Inc.; United Technologies Corporation; Bristol-Myers Squibb Company; Nokia of America Corporation; and Western Electric Company, Incorporated (together, “the moving defendants”). On December 3, 2019, some of the moving defendants who were added late to the action submitted supplemental briefing presenting additional arguments in favor of dismissing them from this case. Those defendants are: B&B Family Limited Partnership; Hauler’s Facility LLC; Lockheed Martin Corporation; Nokia of America Corporation; North Midler Properties LLC; Northeast Management Services, Inc.; and Northern Industrial Holdings, LLC (together “the late defendants”). That same day, defendant Honeywell International Inc. (“Honeywell”) also moved to dismiss the amended complaint as against it, though it largely joined the moving and late defendants’ arguments.1 Several more defendants are presently unrepresented and have not joined any motion, namely: Solvents and Petroleum Service, Inc., Aleris Partners LLC, Fulton Iron & Steel Co. Inc., Burko Corporation, Empire Pipeline Corporation, United States Hoffman Machinery Corporation, Old Carco Liquidation Trust, Old Carco LLC, United States Hoffman Machinery Corporation, and Old Electric, Inc. (together “the unrepresented defendants”), not to mention additional John Does. Additionally, by text order on March 16, 2020, plaintiffs were ordered to show cause why their claims were not mooted or unripe in light of changing circumstances after the amended complaint was filed. Those motions having been fully briefed, they will now be considered on the basis of the parties’ submissions without oral argument. II. BACKGROUND As any local can tell you, Onondaga Lake boasts a nearly legendary history of pollution. See, e.g., Onondaga Lake, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, https://www.dec.ny.gov/lands/72771.html#Pollution (last visited April 20, 2020) (describing ongoing pollution control efforts for Onondaga Lake beginning in the 1970s).2 As a result, the lake became a natural target for cleanup efforts as the federal government began to seriously invest in environmental conservation and remediation. See Dkt. 157 (“AC”), 2. By extension, the fact that the lake is featured as a Site on the National Priority List (“NPL”) should not come as much of a shock. Id. Of course, to make a project as expansive as cleaning Onondaga Lake manageable, it needed to be handled piecemeal, and thus the cleanup plan further divided the remediation site into twelve subsites. AC 2. One of those dozen subsites is the Syracuse Inland Fisher Guide Facility (“the plant”), which was owned by General Motors (“GM”). AC 1. Even that subsite, however, proved too large to contend with in its entirety, and so the property surrounding the plant has been further divided into two Operable Units (“OU”), creatively named OU-1 and OU-2. AC 2. OU-1 includes the plant and its immediate environs. AC 3. OU-2 covers a 9,000-foot swath of Ley Creek extending beyond the boundaries of the plant. AC 4. By 2009, GM had become saddled with several environmental liabilities, among them rehabilitating the plant. Dkt. 255-3, p. 6.3 GM’s finances were in dire straits at the time and on June 1, 2009, GM declared bankruptcy under Chapter 11 of the Bankruptcy Code. Id. at 5. Nevertheless, the United States, on behalf of the Environmental Protection Agency (“EPA”), several states including New York, and the Saint Regis Mohawk Tribe, continued to pursue GM in the hopes of forcing it to clean the various polluted sites for which it was responsible. Id. at 2, 7. On March 29, 2011, the United States Bankruptcy Court for the Southern District of New York entered a Trust Consent Decree (“the 2011 Agreement”) between GM, the EPA, the states pursing GM, and the Saint Regis Mohawk Tribe. AC 20. The purpose of that agreement was to create a trust to “conduct, manage and/or fund Environmental Actions with respect to” the properties owned by GM, “including the migration of Hazardous Substances emanating from” those properties. Dkt. 255-3, p. 15. The trust would also own and operate some of the properties, in the hope that they could be sold for productive or beneficial use. Id. at 15-16. The trust was ultimately named RACER. AC 22. The 2011 Agreement bound all parties involved, including their legal successors and assigns, as well as EPLET, LLC, RACER’s trustee. Dkt. 255-3, pp. 11, 15. Functionally, the 2011 Agreement set aside $22,573,341 for remediating the OU-1 portion of the property, and specifically the plant, with another $8,548,471 to remedy the OU-2 portion of the property. Dkt. 255-3, pp. 41-42. In the event that a budget dispute caused an expected budget for remediation to exceed the approved budget funding for a site, the 2011 Agreement allows RACER to petition the Bankruptcy Court to resolve that dispute. Id. at 32-33. If RACER files a petition, the Bankruptcy Court will assess whether the lead agency requesting the budget increase has proven by clear and convincing evidence that the increase is owed to “material information, a material event, or a material condition” that was not reasonably foreseeable at the time the lead agency first developed the remedial funding. Id. Should the lead agency fail to carry that burden, the requested increase would be denied. Id. To ensure that the 2011 Agreement resolved the cleanup efforts for the plant moving forward, the 2011 Agreement contained several covenants not to sue. Dkt. 255-3, pp. 59-63. According to the provisions of that agreement, the EPA and New York State promised “not to sue or assert any administrative or other civil claims or causes of action against [GM], any successor entity thereto, or [RACER],” including any CERCLA or State environmental claims against GM for the properties identified by the EPA as in need of rehabilitation. Id. at 60. However, all parties involved in the agreement retain “all rights with respect to any site” other than those properties identified in the 2011 Agreement, “other than claims or causes of action for migration of Hazardous Substances emanating from” a designated property. Id. at 64. Ultimately, by virtue of the 2011 Agreement, Racer Properties took possession and ownership of the plant, and thus the entirety of OU-1. AC 3. Racer Properties only owns some small portion of OU-2. AC 6. In addition, Racer Properties owns another subsite referred to as the “Ley Creek PCB Dredgings Subsite.” AC 8. RACER became responsible for rehabilitating these sites and has undertaken efforts to do so. See AC 8. One particular concern regarding cleaning OU-2 was polychlorinated biphenyls (“PCBs”). AC 14. The importation and manufacture of PCBs was banned in 1979. Id. Before it was banned, however, plaintiffs allege that defendants all used PCBs and discharged them into Ley Creek’s watershed. AC 16. Plaintiffs also allege that PCBs were used in many industrial products and pieces of equipment prior to being banned, and thus it is no surprise that such a broad swath of industries would have released them into the watershed. AC 19. In total, plaintiffs allege four sources of the PCBs in OU-2: (1) New York’s relocating a portion of Ley Creek in 1951 before the plant was fully operational; (2) subsequent dredging of sediments by the Onondaga County Department of Drainage and Sanitation; (3) the Town of Salina’s landfills, which accepted waste from Cooper Crouse-Hinds and defendant Syracuse China Company; and (4) direct releases by the various industrial defendants. AC 10. In March of 2015, the EPA and New York State’s Department of Environmental Conservation (“NYSDEC”) produced a Record of Decision (“the 2015 ROD”) electing the remedies they wanted RACER to undertake to begin to address OU-2. Dkt. 157-7. The 2015 ROD also described three prior measures undertaken by GM, beginning in 2002. Id. at 12. First, GM capped a landfill at the plant to prevent contaminants from leaching into the groundwater. Id. at 13. Second, GM removed 26,000 tons of soils containing PCBs from the Ley Creek waterbed. Id. Third, GM constructed a retention pond and water treatment system to prevent contamination from the plant emanating into Ley Creek. Id. On October 27, 2015, RACER entered into a consent order (“the 2015 Agreement”) with NYSDEC in which it agreed to remediate OU-2 consistent with the 2015 ROD. AC 25; see generally Dkt. 157-3. The 2015 Agreement nevertheless allowed RACER to seek contribution, indemnification, and recovery from other potentially responsible parties (“PRPs”). AC 26; Dkt. 157-3, p. 12. According to the amended complaint, NYSDEC was still unsatisfied with the efforts taken thus far and began to push RACER to remediate lands even further afield from OU-2. AC 27. All told, NYSDEC began pressuring RACER to address an additional 22 acres (“the expanded territory”), even though, according to plaintiffs, NYSDEC should have known that this area was at least likely to be contaminated when it first entered into the 2011 and 2015 Agreements. AC 28. Despite this contamination being foreseeable, only one acre of the expanded territory was part of the March 2015 ROD. AC 32. Plaintiffs allege that remediating the expanded territory would incur approximately $93.5 million in additional expense with an aggressive approach, or $60 million if they took a more sedate route. Id. To date, RACER has spent $12.4 million on cleaning and investigating OU-2 and the expanded territory, including $2.4 million sampling and investigating both areas together. Dkt. 311-1, 6.4 Plaintiffs allege that NYSDEC has so far been unwilling to pursue recovery from any other PRP. AC 36. However, on December 12, 2019, at NYSDEC’s urging, the EPA assumed lead agency status for the cleanup of OU-2. Dkt. 298-1, p. 2. The EPA acknowledged that it would be willing to consider pursuing other PRPs to recover the funding needed to remediate the expanded territory. Id. Nevertheless, the threat of bearing the cost of remediating the expanded territory alone “compelled” plaintiffs to file the present complaint against other PRPs. AC 36. Plaintiffs first filed their complaint on October 26, 2018. Dkt. 1. That complaint contained several John Doe defendants. Id. On April 30, 2019, plaintiffs filed the amended complaint, which introduced new named defendants B&B Family Limited Partnership, Hauler’s Facility LLC, Lockheed Martin Corporation, Nokia of America Corporation, North Midler Properties LLC, Northeast Management Services, Inc., Northern Industrial Holdings, LLC, and Honeywell International, Inc. Dkt. 157. On September 5, 2019, United States Magistrate Judge Andrew T. Baxter issued a scheduling order setting the timeline for any motions to dismiss. Dkt. 223. Defense motions on issues common to all defendants were due on November 13, 2019, any supplemental or additional briefs on common issues were to be filed on December 3, 2019, plaintiffs’ responses were due on January 22, 2020, and defendants’ replies were due on February 22, 2020. Id. On November 13, 2019, the moving defendants submitted their joint motion to dismiss plaintiffs’ complaint. Dkt. 255. On December 3, 2019, the late defendants submitted their supplemental brief arguing additional reasons why the amended complaint should be dismissed. Dkt. 294. Similarly, Honeywell moved to dismiss the complaint and joined the moving and late defendants’ motions on that same day.5 Dkt. 295. On March 16, 2020, after preliminary review of the submissions, this Court ordered plaintiffs to show cause why NYSDEC’s ceding lead agency status to the EPA, and the EPA’s willingness to pursue remedies from other PRPs, did not render the case moot or unripe such that summary judgment against plaintiffs would be appropriate. Dkt. 310. III. LEGAL STANDARD A. Motion to Dismiss. “To survive a Rule 12(b)(6) motion to dismiss, the ‘[f]actual allegations must be enough to raise a right to relief above the speculative level.’” Ginsburg v. City of Ithaca, 839 F. Supp. 2d 537, 540 (N.D.N.Y. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Instead, the complaint must contain sufficient factual matter that it presents a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In assessing the plausibility of the plaintiff’s complaint, “the complaint is to be construed liberally, and all reasonable inferences must be drawn in the plaintiff’s favor.” Ginsburg, 839 F. Supp. 2d at 540. The complaint may be supported by “any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint.” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (citing Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)). B. Summary Judgment. Under Rule 56(f), a court may “consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute,” so long as it first gives the parties “reasonable time to respond.” Fed. R. Civ. P. 56(f)(3). A dispute concerning a material fact is not genuine unless “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Roberts v. Univ. of Rochester, 573 F. App’x 29, 31 (2d Cir. 2014) (summary order) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). IV. DISCUSSION A. Propriety of RACER as a plaintiff. “The question of in whose name the action may be prosecuted is procedural, and thus governed by federal law.” Hong Kong Deposit & Guaranty Co. Ltd. v. Hibdon, 602 F. Supp. 1378, 1381, n.14 (S.D.N.Y. 1985) (cleaned up). Rule 17 deals with that precise issue but notes the law of the state where the district court is located controls unless the party is either an individual not acting in a representative capacity or a corporation. FED. R. CIV. P. 17(b). However, regardless of whether state law would allow an unincorporated association to sue, that association may still “sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws[.]” Id. at 17(b)(3)(A). If, after completing the requisite analysis under Rule 17, a claim lacks a properly named plaintiff, the remedy is to afford a reasonable amount of time to allow the real party in interest to ratify, join, or be substituted into the action. Id. at 17(a)(3).6 Under New York law, a trust has a different legal status depending on what type of trust it is. For example, an express trust is a simple legal vehicle by which the trust holds property administered by a trustee. See Natixis Real Est. Capital Tr. 2007-HE2 v. Natixis Real Est. Holdings, LLC, 50 N.Y.S.3d 13, 17 (App. Div. 1st Dep’t 2017) (describing purpose and function of standard trust); see also N.Y. EST. POWERS & TRUSTS LAW §7-2.1(a) (referring to standard trusts as express trusts). Express trusts thus lack the capacity to sue except to enforce the trust against the trustee, because New York’s statutory body governing trusts, N.Y. EST. POWERS & TRUSTS LAW §7-2.a(a), “vests the legal estate of an express trust in the trustees[.]” Ronald Henry Land Tr. v. Sasmor, 990 N.Y.S.2d 767, 768 (App. Div. 2d Dep’t 2014). There is, however, an exception to the rule that a trust’s legal estate resides with the trustee; namely, the business trust.7 A business trust is “any association operating a business under a written agreement or declaration of trust, the beneficial interest under which is divided into shares represented by certificates.” Cutler v. 65 Sec. Plan, 831 F. Supp. 1008, 1015 (E.D.N.Y. 1993) (citing N.Y. ASSOC. LAW §2.2). A critical feature of a business trust is that its interest is divided into shares represented by certificates. Cutler, 831 F. Supp. at 1015. Indeed, a business trust must be an “entity used to make profit (directly or indirectly),” rather than to effect a gift or transfer of property. In re Gurney’s Inn Corp. Liquidating Tr., 215 B.R. 659, 661 n.2 (E.D.N.Y. 1997) (citing Denmark Cheese Ass’n v. Hazard Advertising Co., 298 N.Y.S.2d 98, 100 (Sup. Ct. N.Y. Cty.), modified on other grounds, 305 N.Y.S.2d 1019 (1969)). Plaintiffs are correct that the Rules govern in this case, but they are wrong to view them as dispositive without turning to state law. Although Rule 17(a) allows a trustee to sue on behalf of an express trust without joining the trust itself as a party, that says nothing about whether that trust has the capacity to sue in the first place. That antecedent question can only be answered by Rule 17(b). In turn, that Rule rests on state law, and thus New York’s treatment of trusts and their capacity to sue becomes the critical inquiry.8 It is immediately apparent upon consideration of the two types of trust that RACER fits neatly into neither. It is not an instrument intended solely to transfer property, but neither does it make any form of profit. In re Gurney’s, 215 B.R. at 661 n.2. It certainly does not have any share certificates to the Court’s knowledge. Cutler, 831 F. Supp. at 1015. Moreover, plaintiffs’ reliance on RACER’s requirement to indemnify its protected parties does not help the analysis, because whether RACER is required to indemnify parties under the 2011 Agreement does not factor into whether New York would permit a trust to sue in its own name. Dkt. 255-3, pp. 12, 53. Ultimately, given the parties’ failure to even address the dispositive question of what type of trust RACER is, the best answer that they can receive is simply that RACER is not a business trust. By extension, and given the apparent absence of any other type of trust that New York gives legal form, RACER cannot remain as a plaintiff in this or any subsequent case. Since plaintiffs’ claims will not survive defendants’ present motions, EPLET, LLC must be joined and/or ratify any future action as RACER’s trustee for RACER to remain as a plaintiff. A. Plaintiffs’ §107 Claim (Count I). Section 107(a) of CERCLA states that “[n]otwithstanding any other provision or rule of law, and subject only to the defenses set forth in [§107](b),” a responsible party “shall be liable for…necessary costs of response incurred by any other person consistent with the national contingency plan.” 42 U.S.C. §9607(a). In other words, if one party cleans up a contaminated area and incurs expenses in doing so, that party can recover the costs of their cleanup from parties responsible for creating the mess in the first place. See id. Defendants have identified a number of potential problems with plaintiffs’ §107 claim, namely whether the claim: (1) is ripe; (2) has been mooted by the EPA’s change in course such that it will take control of cleaning the expanded territory and will seek recovery from other PRPs; (3) is barred by §107′s statute of limitations; and (4) seeks to recover funds for a cleanup plaintiffs were not entitled to undertake. Ripeness comes in two variants: constitutional and prudential. Constitutional ripeness limits the power of a court to hear a claim, whereas prudential ripeness is a doctrine of convenience that allows courts to dismiss a claim until a more appropriate time to review it arises. Simmonds v. INS, 326 F.3d 351, 357 (2d Cir. 2003). Constitutional ripeness enforces Article III’s live case and controversy requirement by prohibiting courts from resolving disputes without a “direct and immediate dilemma.” United States v. Johnson, 446 F.3d 272, 278 (2d Cir. 2006). “The mere possibility of future injury, unless it is the cause of some present detriment, does not constitute [the requisite] hardship” to render a dispute ripe. Id. (alterations in original) (citing Simmonds, 326 F.3d at 360). This requirement is intended to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Marchi v. Bd. of Coop. Educ. Servs., 173 F.3d 469, 478 (2d Cir. 1999). Ultimately, a claim is constitutionally unripe if it can only be resolved after certain contingent future events occur. Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985). By contrast, the ultimate inquiry in determining whether a case is prudentially ripe is “(1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration.” Nat’l Park Hosp. Ass’n v. Dep’t of the Interior, 538 U.S. 803, 808 (2003). Similar to the analysis for constitutional ripeness, “[t]he ‘fitness’ analysis is concerned with whether the issues sought to be adjudicated are contingent on future events or may never occur.” Nat’l Org. for Marriage, Inc. v. Walsh, 714 F.3d 682, 691 (2d Cir. 2013). But “[i]n assessing th[e] possibility of hardship, [the question is] whether the challenged action creates a direct and immediate dilemma for the parties.” Id. Courts assess both varieties of ripeness on a claim-by-claim, rather than case-by-case, basis. See, e.g., Kurtz v. Verizon N.Y., Inc., 758 F.3d 506, 511-15 (2d Cir. 2014) (analyzing several distinct claims to determine if they are ripe). From the constitutional perspective, plaintiffs have adequately shown that they have suffered an actual injury that is redressable under §107 such that there is no ripeness issue. Plaintiffs have plausibly alleged that they have already incurred expenses cleaning the expanded territory, and have supported that argument sufficiently in the summary judgment context with citations to documentary evidence. Dkt. 311-1, 6. By extension, there is no future event that is strictly necessary to make this case capable of moving forward. Thus, this Court has jurisdiction to hear plaintiffs’ §107 claim. Prudential ripeness asks a different question, however. As for the first prong, although there is no future contingent event that is strictly necessary to resolving plaintiffs’ §107 claim, it is hard to dispute that the EPA taking an active role in enforcing the cleanup of the OU-2 expanded territory would provide a great deal of clarity to that claim. As much as plaintiffs may protest that defendants misunderstand the point of their bringing the suit, it is easy to see why defendants are vexed. Much of the complaint reads as if plaintiffs are asserting defenses to NYSDEC compelling it, and it alone, to clean the OU-2 expanded territory. The complaint alleges that NYSDEC should have known that the expanded territory was contaminated. AC 28. It also alleges that the territory exceeds that which plaintiffs were bound to clean based on the several consent orders they entered into with NYSDEC. AC 27. Indeed, plaintiffs ultimately state that the purpose of their bringing this action at all is because NYSDEC told them that its intention was to pursue remediation costs for the OU-2 expanded territory exclusively from them. AC
36, 38. Especially now that the EPA has assumed control of the cleanup and has stated its intention to pursue other PRPs, it is not hard to see why defendants might struggle to understand the purpose of this litigation. Dkt. 298-1, p. 2. Should this claim be dismissed as prudentially unripe, it would allow all parties to wait until the EPA decides upon a proper course of action and begins to look for PRPs to direct to follow that course. Plaintiffs’ varied defenses against the EPA and NYSDEC — bartered for through the 2011 Agreement and its successors — could then be addressed. If one or more of those defenses prove successful, plaintiffs would achieve their ultimate objective of ensuring that they do not bear the full cost of remediating the expanded territory alone. In other words, the relationship between the parties and their obligations to each other would be clearer if the EPA were permitted to weigh its options and proceed accordingly. As a result, plaintiffs have made a relatively meager showing of fitness for judicial resolution. Walsh, 714 F.3d at 691. Plaintiffs’ showing of hardship is not much stronger. If the EPA were to continue pressuring plaintiffs to clean the expanded territory, plaintiffs could oppose that pressure through several mechanisms. First, assuming that the EPA were to establish that the expanded territory is contemplated by the several previous agreements between it and RACER, and thus that RACER is obligated to clean it up, the 2011 Agreement contains a clause specifically to deal with that type of unexpected expense. See Dkt. 255-3, pp. 32-33. Because the EPA failed to include the expanded territory in any proposed budget or remedy election, it would have to prove to the Bankruptcy Court for the Southern District of New York by clear and convincing evidence that the massive additional expense of the expanded cleanup was not reasonably foreseeable. Id. Second, assuming that the expanded territory was not contemplated by any prior agreement, but the EPA were to prove that pollution emanated from the plant to the expanded territory, plaintiffs could rely on the 2011 Agreement’s covenant not to sue to bar the claim outright. See Dkt. 255-3, pp. 60, 64 (including covenant by EPA and New York not to sue RACER to compel cleanup of any pollution “emanating from” the plant). Third and finally, if the expanded territory was not contemplated by any prior agreement and did not migrate from the plant, the EPA would have a tough row to hoe in proving that plaintiffs were responsible for its contamination. In other words, even plaintiffs would almost certainly benefit from dismissing this claim. Plaintiffs would be far better served defending themselves from the EPA’s compulsion rather than incurring the massive expenses involved in cleaning the expanded territory in addition to the costs of this suit. This is especially true now that the EPA has assumed lead agency status on this case and expressed an intent to hold other PRPs responsible, which plaintiffs have always stated was a primary goal of this claim. AC
