OPINION OF THE COURT
The issue presented in this appeal is whether a state court judgment, which requires Horsehead Industries, Inc. (“Horsehead”) contractually to indemnify Paramount Communications, Inc. (“Paramount”) for all environmental costs arising from Horsehead’s purchase of certain Paramount operations, subsequently can be used by Paramount collaterally to es-top Horsehead’s federal CERCLA contribution claim. As a threshold matter, we conclude that, under New York law, the state court declaratory judgment requiring Horsehead to indemnify Paramount is sufficiently final to be given preclusive effect, despite the fact that damages have yet to be decided. Applying New York’s principles of collateral estoppel, we find that the scope of the indemnity provision is sufficiently broad to encompass the identical issues in the federal CERCLA contribution case, and that the parties had a full and fair opportunity to litigate the issue before the New York courts. We therefore affirm the decision of the United States District Court for the Middle District of Pennsylvania (“District Court”) granting preclusive effect to the judgment of the New York Supreme Court, Appellate Division.
I. Background
At the heart of this appeal is the interplay between two sources of liability for the cost to remedy environmental damage — a contractual indemnification provision and statutory liability under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), found at 42 U.S.C. §§ 9601-9627, 9651-9675, 6911a; and 26 U.S.C. §§ 4611-12, 4661-62. With respect to the
*135
former, parties to a contract can indemnify each other for the costs stemming from environmental liabilities, and those clauses will be interpreted under traditional contract law principles. Where sufficient consideration exists—either as a benefit to the promisor, or a detriment to the prom-isee—the indemnification clause is enforceable.
See Holt v. Feigenbaum,
Parties may also be statutorily liable to the federal Government for cleanup costs under CERCLA, a determination made in a suit filed by the Government against potentially responsible parties. The purpose of CERCLA is “to assure that the current and future costs associated with hazardous waste facilities, including post-closure costs, will be adequately financed and, to the greatest extent possible, borne by the owners and operators of such facilities.”
See
42 U.S.C. § 9607;
OHM Remediation Services v. Evans Cooperage Co., Inc.,
Under CERCLA, if a purchaser were found liable for cleanup costs, it could then seek cost recovery or contribution from the seller absent an indemnification agreement to the contrary. See Nicholas A. Robinson, Environmental Regulation of Real Property § 22.03[2] (1998). Where such an indemnity agreement was entered into, contractual and statutory liability for remediation co-exist. In this context, CERCLA recognizes the parties’ right contractually to indemnify each other, although § 107(e)(1) does not permit the transfer of statutory liability vis a vis the Government;
No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section, to any other person the liability under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section.
42 U.S.C. § 9607(e)(1). While the parties remain jointly and severally liable for cleanup responsibility, the statute permits,
inter alia,
the allocation of the costs for cleanup via indemnification agreements.
*136
See SmithKline Beecham Corp., v. Rohm and Haas Co., et al.,
In this appeal, the contractual liability and statutory liability for the remediation of environmental damage are allegedly in conflict because the New York state courts determined the contractual liability, including CERCLA contribution claims, to flow one way — to Horsehead — while the statutory liability is joint and several.
II. Factual and Procedural History With this background, we turn to the facts before us. 2
Since the late 19th century, the New Jersey Zinc Company (“NJZ”) conducted zinc ore smelting operations in the vicinity of Palmerton, Pennsylvania.
3
These smelting operations did not employ air emissions control equipment or devices to prevent the leaching of hazardous wastes into the soil, groundwater or watercourses. “As a result, the areas in which the smelting took place suffered drastic on-site and off-site contamination and degradation, including the formation of slag heaps permeated with heavy metals, known as ‘cinder banks’, which, at Palmerton alone, contained approximately 30 million tons of residue.”
Paramount Communications, Inc. v. Horsehead Industries, Inc.,
In the late 1970s, Gulf and Western Industries, Inc. (G & W), Paramount’s predecessor in interest, purchased NJZ. Shortly thereafter, Congress passed CERCLA. As a result, “the cinder banks became a regulatory concern because heavy metals were leaching into the soil and into nearby waterways.” Id. The financial consequences of remediation were steep. For example, estimates for the encapsulation of the Palmerton cinder banks in cement to prevent further discharge exceeded $50,000,000. Although G & W permanently closed the zinc smelting operations in December of 1980, it still performed other manufacturing processes at Palmerton. Because CERCLA imposes joint and several liability on past as well as current owners or operators, “simply selling [NJZ’s] assets would not reheve [G & W] of these liabilities. Consequently, G & W’s preferable course of action was to sell a still viable operation.” Id. at 722. 4
Because of the difficulty in arranging financing for the transfer of such a huge envh'onmental liability, former officials of G & W’s Natural Resources Division formed Horsehead in 1981 to purchase cer *137 tain assets at the Palmerton site. 5 The Asset Purchase Agreement (“APA”) between G & W and Horsehead was entered on September 15, 1981. Given the potential environmental cleanup costs at Palm-erton, G & W included an indemnity provision, found at Paragraph I.F (2) of the APA, under the heading “Assumption of Liabilities.” 6 The indemnity provision specifically requires Horsehead to
pay, perform and discharge only the following obligations of Seller: ... [a]ll commitments, obligations and requirements imposed upon Seller by virtue of any environmental, safety and health, reclamation or other law, rule, regulation, action or proceeding by any governmental agency and any order emanating therefrom and all liabilities, damages, costs, obligations and requirements imposed upon Seller by virtue of any action or proceeding brought by any person, firm or corporation under any environmental, safety and health or reclamation law (statutory or common), rule or regulation relating to the maintenance or operation of the Purchased Assets or to the conduct of the Seller’s Business 7 at any time prior to or after the Transfer Date including, but not limited to, those matters disclosed in Schedule VIII.
Schedule VIII, entitled “Defaults, Litigation, Claims, Environmental Matters, Etc.,” contained a detailed listing of existing or potential legal obligations or liabilities for which some official action, investigation or study had already begun at the time of the APA, including those related to the discontinued operations of the metal circuits
8
purchased by Horsehead.
See Paramount,
The APA further provided that, except as identified in the indemnification provision, Horsehead would assume no other liability or obligation of the seller arising 'from the Seller’s Business. See id. In addition, Subparagraphs [a]-[f] of Paragraph I.F(2) in the APA (directly following the indemnification provision) listed those contingent liabilities that Horsehead expressly did not assume 9 and those particu *138 lar legal or enforcement actions under which (1) Paramount would reimburse Horsehead, (2) the parties would share the costs, or (3) Horsehead would assume the performance and all related costs.
That the parties had contemplated CERCLA liability is evidenced by the reference in Schedule VIII to a memorandum attached thereto discussing CERCLA reporting requirements, which stated in part:
“The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., commonly known as the ‘Superfund’ legislation, requires reporting of all unpermitted releases into the environment of hazardous substances from facilities (42 U.S.C. § 9603[a]), and requires present and past owners to report existing and abandoned hazardous waste disposal facilities that do not have approval or interim, status under [the Resource Conservation and Recovery Act] (42 U.S.C. § 9603[c]). ‘Superfund’ also establishes funding for cleanup of existing hazardous waste facilities, imposes liability for hazardous waste spills, and sets financial responsibility requirements for operators of hazardous waste treatment, storage and disposal facilities (42 U.S.C. §§ 9607, 9611)”.
“If a hazardous waste site is subject to ‘Superfund’, the obligation to report hazardous waste sites survives the transfer of the site. Both present and past property owners who disposed of hazardous waste must report the existence of the site. 42 U.S.C. § 9603(c). The former owner may be liable for cleanup and disposal costs under 42 U.S.C. § 9607(a). The former owner may not use an indemnification agreement to shift liability to any other person, but may obtain insurance against his own liability.”
Paramount,
On September 8,1983, the United States Environmental Protection Agency (the “EPA”), after an investigation begun in 1979, listed Palmerton on the CERCLA National Priority List. Since then, Horse-head claims to have incurred significant costs from studies and remediation of the environmental conditions at Palmerton. In September, 1985, Horsehead entered into an Administrative Order by Consent (the “Consent Order”) with the EP A wherein Horsehead agreed to fund a Remedial Investigation and Feasibility Study of the Palmerton site. In September, 1987, the EPA issued a Record of Decision (“ROD”) for the Blue Mountain Operable Unit, 10 which, according to the EPA, was denuded of vegetation as a result of years of smelting operations. Horsehead agreed to design and fund the re-vegetation of a portion of the Mountain. In June, 1988, after EPA issued a ROD for the Cinder Bank Operable Unit, 11 Horsehead agreed *139 to perform five additional studies to identify alternate response actions. On February 11,1992, in a second amendment to the Consent Order, Horsehead agreed to undertake additional response actions related to the removal of lead from homes in Palmerton. Id. at 11-12.
Litigation of statutory liability under CERCLA began with regard to the Palm-erton site in 1992, when the United States filed an action against Horsehead Resource Development Company, Inc. 12 and Horsehead alleging violation of certain environmental laws. United States v. Horsehead Resource Dev. Co., et al., 92-CV-0008. 13 On October 8, 1993, Horsehead filed a motion for leave to file a third-party complaint against Paramount to recover its remediation costs. Horsehead’s motion to file its third-party complaint was subsequently denied.
In light of the Government’s CERCLA action, and pursuant to a choice of law clause in the AP A, Paramount filed a contract action for damages and for declaratory judgment in the Supreme Court of New York, Trial Division, on October 14, 1993, seeking an interpretation of the contractual indemnification provision as it applied to environmental claims. The New York trial court ruled on April 24, 1996 that the contractual indemnification provision obligated Horsehead to indemnify Paramount for certain environmental costs, but did not transfer CERCLA liability costs.
Both parties appealed the New York trial court decision, and on July 10, 1997 the New York Supreme Court, Appellate Division, agreed with the Trial Division’s ruling that as a matter of law Horsehead is required to indemnify Paramount pursuant to the indemnification provision for certain environmental costs. But unlike the Trial Division, the Appellate Division held that the indemnification provision included those remediation costs that Horsehead is currently seeking under CERCLA. The Appellate Division refused re-argument and refused to grant Horsehead leave to appeal. Horsehead then filed a motion for leave to appeal directly in the New York Court of Appeals. The motion was dismissed on the ground that the order of the Appellate Division did not finally determine the action.
Paramount Communications, Inc. v. Horsehead Industries Inc.,
Notwithstanding the New York state court action, Horsehead filed a complaint in the United States District Court for the Middle District of Pennsylvania on March 1, 1994 against Paramount for contribution under § 113© of CERCLA, which provides that “[a]ny person may seek contribution from any other person who is liable or potentially liable-In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.” 42 U.S.C. § 9618©. The amended complaint included four counts. Counts I and II sought recovery from Paramount pursuant to S 107(a)(4) of CERCLA, 42 U.S.C. § 9607(a)(4). Count III sought contribution from Paramount under S 113© of CERCLA, 42 U.S.C. § 9613®. Count IV *140 sought cost recovery and also alleged public nuisance under the Pennsylvania Hazardous Sites Cleanup Act (“HSCA”), 35 Pa.C.S.A. §§ 6020.101-1305. Paramount moved for summary judgment on June 4, 1999, asking that the District Court, as an affirmative defense to Horsehead’s claims, give full faith and credit to the decision of the New York Supreme Court, Appellate Division. The District Court did so, and entered summary judgment in Paramount’s favor on October 21, 1999. This appeal followed.
Jurisdiction was proper in the District Court under 42 U.S.C. § 9613(b), which vests exclusive jurisdiction of CERCLA claims in the federal courts, and under 28 U.S.C. §§ 1331 and 1367. Appellate jurisdiction is proper in this Court pursuant to 28 U.S.C. § 1291.
III. Legal Analysis
As noted at the outset of this opinion, we must decide whether the District Court properly invoked New York’s collateral es-toppel law to give preclusive effect to the state court judgment rendering Horsehead contractually liable for the costs stemming from environmental damage at the Palm-erton site, including CERCLA claims. If so, Horsehead may not proceed on its CERCLA contribution claim against Paramount in the District Court.
We review the District Court’s entry of summary judgment
de novo. See Armbruster v. Unisys Corp.,
A. Collateral Estoppel Under New York Law
The doctrine of collateral estoppel provides that “once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relit-igation of the issue in a suit on a different cause of action involving a party to the first case.”
Allen v. McCurry,
The parties agree that New York law governs this issue. “In adjudicating a case under state law, we are not free to impose our own view of what state law should be; rather, we are to apply existing state law as interpreted by the state’s highest court in an effort to predict how that court would decide the precise legal issues before us.”
Koppers Co., Inc. v.
*141
Aetna Cas. and Sur. Co.,
The District Court cited to
Hickerson v. City of New York,
(1) Finality
New York law incorporates the threshold concept of “finality” of judgments into its collateral estoppel standard.
14
The previous proceeding must result “in a final and valid judgment in which the party opposing estoppel had a full and fair opportunity to litigate.”
See In re Juan C.,
The District Court cited
Lummus Co. v. Commonwealth Oil Refining Co.,
Whether a judgment, not “final” in the sense of 28 U.S.C. § 1291, ought nevertheless be considered “final” in the sense of precluding further litigation of the same issue, turns upon such factors as the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review. “Finality” in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.
The District Court noted that while the New York approach outlined in
Lummus
departs from the traditional view of finality, it continues to garner support.
See Metromedia Co. v. Fugazy,
Applying the factors that Judge Friendly considered relevant, e.g., the nature of the decision, the adequacy of the hearing, and the opportunity for review, the District Court found that the New York indemnification order was sufficiently final. We agree. Horsehead fully litigated the indemnification agreement before both the New York trial court and the intermediate appellate court. Thus, the hearing and opportunity for review afford *143 ed Horsehead were adequate. The decision rendered by the New York Supreme Court, Appellate Division, is binding on the Trial Division. Although not final for purposes of an appeal to the New York Court of Appeals given that damages remain to be litigated, the nature of the New York Appellate Division decision as to liability is in no way tentative. Therefore, we conclude that, for purposes of collateral estop-pel, the decision is final.
(2) Identical Issues
Under New York law, the burden rests on Paramount to demonstrate that the issues litigated in the sparate proceedings were identical.
See Ryan,
Courts that have considered the issue recognize that “the questions of CERCLA liability and the interpretation of any indemnification agreement among the parties liable for the clean-up are inextricably related.”
GNB Battery Technologies, Inc. v. Gould, Inc.,
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Thus, in a CERCLA contribution action where the parties entered into an indemnification agreement, the proper inquiry is whether the indemnification provision “is either specific enough to include CERCLA liability or general enough to include any and all environmental liability which would, naturally, include subsequent CERCLA claims.”
Beazer East, Inc.,
The Court in
Olin
summarized the relevant principles of New York contract law developed by the New York Court of Appeals in
Slatt v. Slatt,
The District Court’s discussion of this issue is unfortunately conclusory:
[Rjegardless ... whether the New York action can or cannot be characterized as one seeking CERCLA damages, the thrust of the New York proceeding was exclusively an action on a contract to determine if Paramount was entitled to indemnity from [Horsehead] under the contract provision dealing with environmental damage claims in Palmerton, Pennsylvania and elsewhere for which Paramount may be liable. Accordingly, there are no factual issues over environmental damages which would preclude summary judgment on the indemnity question.
Dist. Ct. Op. at 7. The District Court granted summary judgment in favor of Paramount, concluding that “[w]e can find no reason for proceeding with this second case between the parties when in the first case in New York there is a claim which was litigated and may very well moot this action.” Id. at 10. The District Court, in reading the Paramount decision of the Appellate Division of the New York Supreme Court, was satisfied that the indemnification provision encompassed all of the environmental claims, including the CERCLA contribution claims before it, such that the identical issue was present to preclude litigating the CERCLA contribution claim in the District Court.
The indemnification provision in this case is considerably broad, holding Horse-head responsible for the costs associated with all environmental liabilities stemming from “Seller’s Business” and the *145 “Purchased Assets” at the Palmerton site. Specifically, Horsehead must indemnify Paramount for “all liabilities, damages, costs, obligations and requirements ... under any environmental, safety and health or reclamation law.” The indemnification provision applies to “the maintenance or operation of the Purchased Assets or to the conduct of the Seller’s Business at any time prior to or after the Transfer Date.”
This provision shows a clear and unmistakable intent to include all environmental claims, including claims for contribution under CERCLA. The circumstances surrounding the transfer of assets, most notably that Horsehead was formed by officials of Paramount’s predecessor for the purpose of transferring the environmental liability associated with the Palm-erton site, id. at 719, confirm that intent. We agree with the New York Supreme Court, Appellate Division, which made a thorough inquiry as to the scope of the indemnification provision, that “[t]he language of the broad indemnification clause itself clearly and unambiguously requires Indemnification for all liabilities arising from environmental laws and regulations, without any exclusion of CERCLA liabilities.” Id. at 722
However, the indemnification provision was accompanied by contractual limitations on Horsehead’s liability. Horsehead argues that these limitations, notably the exceptions enumerated under Subpara-graphs I.F(2)[a]-[f] of the APA and Schedule VIII appended to it, defeat the identi-cality between contractual liability and CERCLA liability. Contractually, Horse-head would not be responsible for certain contingent liabilities it expressly declined. See supra, note 9. Yet under CERCLA’s statutory liability, Horsehead posits that it may be responsible for those same contingent liabilities. Horsehead contends that the District Court’s decision in this case sidesteps CERCLA’s contribution mechanism and requires Horsehead to reimburse Paramount for all CERCLA claims, even those expressly excepted in the APA and those associated with the assets not purchased by Horsehead. In other words, Horsehead argues that the universe of CERCLA liabilities may exceed those liabilities for which Horsehead must reimburse Paramount under the indemnification agreement, and thus the requisite identicality of issues is missing.
Where an indemnification agreement exists, the threshold inquiry in a CERCLA contribution case is the same as the inquiry the New York Supreme Court, Appellate Division, undertook: whether the scope of the indemnification provision is broad enough to encompass liability for CERCLA response costs. With respect to Horsehead’s arguments, we first note that Horsehead is confusing the determination of CERCLA liability with the function of an indemnification agreement, which covers the allocation of cleanup costs among its parties. Similar to an insurance policy, the indemnification agreement transfers the responsibility for who pays the response costs regardless of liability. Moreover, CERCLA recognizes the parties’ right to indemnify each other by agreement for response costs, as they have done.
See SmithKline Beecham Corp.,
We have also reviewed the limitations on Horsehead’s liability in Subparagraphs I.F(2)[a]-[f] of the APA and Schedule VIII attached thereto, and find nothing that changes the intent of the parties or renders the indemnification provision ambiguous such that it would not include CERC-
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LA response costs. In
GNB Battery Technologies,
a case with relevant similarities, the Seventh Circuit held that the plain language of the assumption agreement unambiguously transferred all of seller’s liabilities, including CERCLA liabilities, despite the fact that specific exemptions from liability were enumerated.
In this case, Horsehead argues that the CERCLA liabilities and the exceptions listed in Schedule VIII overlap. Under Subparagraphs I.F(2)[a], [b], [c], and [e] of the APA, Horsehead assumes the full performance and costs associated with specific litigation or consent orders except where Paramount agrees to reimburse Horse-head for some portion of those costs. In Subparagraph I.F(2)[d], Horsehead expressly declines any contingent liability associated with certain fugitive emissions at the Palmerton site. In Subparagraph I.F(2)[f], Horsehead declines liability from an industrial accident not related to the Palmerton site. These. limitations on liability will likely be considered in the damages phase of the New York litigation. However, they do not alter our holding here that the plain language of the APA demonstrates the intent that Horsehead indemnify Paramount for all environmental claims, including claims for contribution under CERCLA.
Moreover, that these exceptions to Hor-sehead’s liability do not specifically mention CERCLA liability supports the view that the parties intended that CERCLA liability be included within the broad scope of environmental claims for which indemnification exists. As the New York appellate court noted, “the parties’ failure to include CERCLA liability, by name, does not render the agreement ambiguous where the broad language of the agreement clearly encompasses all environmental liabilities of which CERCLA is one. More significant is the fact that CERCLA liability is not listed in [Subparagraphs] I.F(2)[a]-[f], which delineates certain limitations on the liabilities that were otherwise assumed by Horsehead....”
Paramount,
Further support for this view comes from the other side of the same coin. That the parties to the AP A knew well of CERCLA, and thus could have dealt with it by name in the APA, is made clear by the memorandum attached to Schedule VIII specifically mentioning CERCLA. While the Trial Division of the New York Supreme Court found the language in the memorandum mentioning CERCLA, and declaring that “[t]he former owner may not use an indemnification agreement to shift liability to any other person, but may obtain insurance against his own liability,” to create an ambiguity as to the parties’ intent to include CERCLA costs within the broad indemnity provision, the Appellate Division disagreed. “[The memorandum] merely makes a correct statement of the applicable law, as set forth in the statute.... Thus, this sentencefquoted in this paragraph, above] does not conflict with, or override, the clearly delineated obligations set forth in the indemnification clause, to which Horsehead agreed.” Id. at 722-723.
In sum, we are satisfied that the broad indemnification provision here includes CERCLA contribution claims. Therefore, for collateral estoppel purposes the issue *147 litigated in the New York state courts is identical to the issue that was before the District Court. For the District Court to have concluded otherwise would thwart Paramount’s right to indemnification for CERCLA costs established in the first action in the New York state courts.
(3) Full and Fair Opportunity to Litigate
Under New York law, the doctrine of collateral estoppel applies to preclude relitigation of an issue where it is found that the litigant against whom preclusion is sought in the current proceeding had a full and fair opportunity to litigate the issue in the prior proceeding.
See Gilberg v. Barbieri, 53
N.Y.2d 285, 291,
As already noted, Horsehead has fully litigated the interpretation of the indemnity clause in the New York trial and appellate courts. Even though this judgment may later be overturned during the proper course of appellate review of damages, New York law does not prohibit the application of collateral estoppel. While we acknowledge that the courts of New York have refused to give preclusive effect to an interlocutory order,
see, e.g., Morley v. Quinones,
* * * * * *
Accordingly, we conclude that all three requisite elements of New York collateral estoppel law exist — finality, identical issues, and a full and fair opportunity to litigate — and we affirm the decision of the District Court on this issue.
B. Rule 60(b)(5)
Horsehead also argues that the District Court erred by proactively invoking Rule 60(b)(5) of the Federal Rules of Civil Procedure to shield its decision-making, suggesting that if its decision were wrong, it could easily be reopened. Rule 60(b)(5) provides:
On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application.
Fed.R.Civ.P. 60(b)(5).
We agree with Horsehead that this Rule should not be relied on by district courts when facing difficult decisions. However, the District Court in this case did no such thing. Analyzing the case before it under New York law, the District Court found adequate grounds to give preclusive effect to the New York appellate court’s judgment. Its reference to Rule 60(b)(5) was to note that the Rule specifically contemplates relief where a judgment given pre-clusive effect was subsequently reversed, the very situation complained of by Horse-head. The District Court did not misuse Rule 60(b)(5), and we are not persuaded by Horsehead’s argument on this point.
*148 IV. Conclusion
For the reasons stated, we affirm the District Court’s entry of summary judgment in favor of Paramount based on the preclusive effect of the New York Supreme Court, Appellate Division, decision in
Paramount Communications, Inc. v. Horsehead Industries, Inc.,
Notes
. Section 107 of CERCLA creates four categories of potentially responsible defendants:
1. The current owner and operator of a vessel or facility;
2. Any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of;
3. Any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances;
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.
Frank B. Cross, Federal Environmental Regulation of Real Estate, P 2.03 (1993) (citations omitted); 42 U.S.C. § 9607(a)(l)-(4).
. A thorough history is presented in the New York Supreme Court, Appellate Division case titled
Paramount Communications, Inc. v. Horsehead Industries, Inc.,
. NJZ also subsequently operated zinc smelting operations in the vicinity of DePue, Illinois. The appeal before us is limited to the Palmerton site.
.The Court in Paramount noted that
while some regulatory compliance costs were immediate and ongoing, CERCLA permitted the bulk of expenditures at either of the sites, including Palmerton, to be postponed until NJZ closed down operations at the site completely, at which point full scale, sitewide remediation and satisfaction of statutory closure obligations would be required.
Paramount,
. The agreement of sale transferred “all of seller’s right, title and interest in and to all real property located in the County of Carbon, Pennsylvania [where the Palmerton facility is located], the County of Sussex, New Jersey and the County of Bureau, Illinois [where the DePue site is located]....” Id. at 720. Again, this appeal is concerned with the transfer of assets at the Palmerton facility.
. In addition, G & W and Horsehead agreed that Horsehead would pay annual environmental compliance and maintenance costs of approximately $200,000. G & W also purchased insurance for any additional environmental cleanup costs.
See Paramount,
. "Seller’s Business’’ is described in the APA as
the business of mining, manufacturing and selling zinc oxide, zinc powder, zinc dust, zamak and other alloys, secondary materials, special anodes, rolled zinc, copper-based and other metal powders, special oxides, zinstabe, cadmium, ammonia and carbon dioxide and ... the operation of Palmer Water Company and Chestnut Ridge Railway Company and, through NJZ Alloys, partnership, ... the manufacture and sale of indium metal....
. The APA transferred, among other things, the assets comprising the metal circuits, which included the property, plant and equipment used in the production of primary zinc metal at the Palmerton facility.
. Under Subparagraph I.F(2)[d], Horsehead expressly did not assume certain contingent liabilities in Schedule VIII. One such contingent liability is found in Schedule VIII A2(a), which states:
Because applicable law gives administrative agencies discretion to bring enforcement actions against closed facilities, and because the U.S. Environmental Protection *138 Agency (“EPA”) was, at the time of closing the primary zinc metal circuit at Palmerton, threatening to bring such an action against Seller to recover civil penalties for past alleged violations of applicable air-pollution control laws (primarily in respect of sulfur-oxide and particulate emissions), Seller recognizes this state of fact as representing a contingent liability....
. Operable Unit 1 is an area of Blue Mountain located south of Horsehead’s East Plant at Palmerton.
. The Cinder Bank Operable Unit (Operable Unit 2) consists of more than 30,000,000 tons of smelter residue deposited along the base of Blue Mountain. The cinder bank is approximately 2 miles long, 500 to 1,000 feet wide, and 100 to 200 feet high. The remaining Operable Units have been designated by the EPA as Operable Unit 3, consisting of the surface soils in the Palmerton area, and Operable Unit 4, consisting of the groundwater in the same area.
. Horsehead Resource Development Company, Inc. ("HRDC") is a wholly-owned subsidiary of Horsehead Industries, Inc.
. Ultimately, the EPA’s suit was settled by consent decree with Horsehead and HRDC. Subsequently, on April 17, 1998, the United States filed a CERCLA liability and cost recovery action in the Middle District of Pennsylvania against Horsehead, HRDC, Paramount and nearly 200 other parties. See United States v. Horsehead Industries, Inc., et al., No. 3:CV-98-0654.
. Of course, a prerequisite to finding finality is that the judgment relied upon for collateral estoppel purposes be valid. Restatement (Second) of Judgments § 1 (1982). Neither party disputes the validity of the judgment of the New York Supreme Court, Appellate Division.