United States v. Conservation Chemical Co.

ORDER

On May 17,1985, the Special Master filed a report issuing recommendations concerning the appropriate disposition of eighty-two pending motions to dismiss or motions for summary judgment. By subsequent Court order, the Court directed that objections to the Special Master’s report submitted pursuant to Fed.R.Civ.P. 53 shall be filed by July 1, 1985. As required, the Court has independently reviewed the record regarding the issues relating to the Master’s report, including the relevant motions and responses thereto, and the objections filed to the report. See United States v. Louisiana, — U.S. —, 105 S.Ct. *175 1074, 1080, 84 L.Ed.2d 73 (1985). Accordingly, the Court enters the following rulings in summary form, and, with respect to those recommendations approved by the Court, the Court hereby adopts the reasoning stated in the Master’s report in support of those recommendations. Recommendations of the Master not adopted by the Court will be so designated.

COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT

1. The plaintiff’s motion for partial summary judgment on liability issues under Sections 106(a) and 107(a) of CERCLA, 42 U.S.C. §§ 9606(a) and 9607(a), and Section 7003 of RCRA, 42 U.S.C. § 6973—

A. The plaintiffs motion will be granted with respect to the following issues:

(1) The plaintiffs claim for recovery of response costs under CERCLA § 107 from defendant C.C.C. and CCCI. Over the Master’s recommendation, the Court will, however, allow C.C.C. and CCCI to contest the amount of those response costs at trial by attempting to meet their burden under 42 U.S.C. § 9607(a) of establishing that those costs claimed are inconsistent with the National Contingency Plan;

(2) The plaintiff’s claim that an imminent and substantial endangerment to the public health or welfare or the environment exists at the C.C.C. site within the meaning of CERCLA § 106;

(3) The plaintiff’s request for injunctive relief against C.C.C. and CCCI to abate the endangerment under CERCLA § 106;

(4) The plaintiff’s claim that an imminent and substantial endangerment exists at the C.C.C. site within the meaning of RCRA § 7003;

(5) The plaintiff’s request for injunctive relief against C.C.C. to abate the endangerment under RCRA § 7003; and

(6) The scope of liability under RCRA § 7003 is joint and several unless the harm is found to be divisible.

B. The plaintiff’s motion for partial summary judgment is otherwise denied and the following issues, among others, are subject to continued litigation:

(1) The extent of the endangerment;

(2) Whether the plaintiff’s response costs are consistent with the National Contingency Plan;

(3) Whether the original generator defendants are liable with respect to the Government’s claims under CERCLA §§ 106 and 107, that is, whether the original generator defendants in fact shipped wastes to the C.C.C. site;

(4) With respect to the plaintiff’s claim under RCRA § 7003, whether the original generator defendants actually shipped waste to the C.C.C. site and whether these defendants contributed to the endangerment in terms of a causal connection;

(5) Whether the defendants are liable for response costs pursuant to this Court’s equitable discretion under RCRA § 7003;

(6) Whether the harm is indivisible; and

(7) The liability of Norman Hjersted.

2. The plaintiff’s motions for partial summary judgment against the defendants regarding defenses — The Court concludes the following as a matter of law:

(1) Although strict liability is applicable under CERCLA §§ 106 and 107, over the Master’s recommendation the Court concludes that CERCLA § 107(b) provides affirmative defenses to such liability;

(2) Equitable defenses are available under CERCLA;

(3) The plaintiff is not required to comply with the statutory prerequisites of CERCLA § 104 or CERCLA § 112(a) in order to obtain recovery under CERCLA §§ 106 and 107;

(4) The plaintiff’s claim under RCRA § 7003 is not barred because the plaintiff did not comply with the notice provisions of RCA § 3008, 42 U.S.C. § 6928;

*176 (5) The mere existence of an adequate remedy at law does not preclude in-junctive relief under CERCLA;

(6) The statute of limitations found in CERCLA § 112 is not applicable in this case, although the equitable doctrine of laches may be considered by the Court;

(7) The provisions of RCRA and CERC-LA are not facially unconstitutional; and

(8) The exception for mining wastes and fly ash found at CERCLA § 101(14)(C) applies only to subparagraph (C), and is not a general exception to the definition of “hazardous substances” under the remaining provisions of CERCLA § 101(14).

3. Motions for partial summary judgment regarding third-party plaintiffs right to contribution and third-party defendants’ joint and several liability—

The Court concludes the following as a matter of law:

(1) Under CERCLA, if the harm caused by the defendants is determined to be indivisible under the theory of joint several liability, a right of contribution exists against third-party defendants for costs of injunctive relief and response costs imposed on or incurred by the defendants; and

(2) The third-party defendants’ liability for contribution under CERCLA is several, but not joint and several, as liability for contribution does not extend beyond a tortfeasor’s equitable share of the liability.

4. Motions concerning the right of third-party plaintiffs to seek injunctive relief against third-party defendant generators—

The Court declares as a matter of law, consistent with the Special Master’s Report and Recommendation, that the right to seek injunctive relief under both RCRA and CERCLA is vested solely in the Government, therefore the Court has no jurisdiction to impose equitable remedies on third-party plaintiffs and counterclaim defendants.

5. The motions based on the theory of de minimis non curat lex—

Consistent with this Court’s prior ruling and with the Special Master’s Report and Recommendation, the Court declares that the application of the de minimis theory would be inconsistent with Congressional intent underlying RCRA and CERCLA, and therefore cannot be used as an absolute defense in this case.

6. Remaining issues presented in the pending motions: Consistent with the Master’s Report, the Court declares as follows:

(1) A generator is not absolved of liability under CERCLA simply because it did not select the disposal site, because ownership of waste was transferred to a transporter, because, by selecting a site, the transporter would also be liable under § 107(a)(4), or because the waste was initially transported to another site before being transferred to the ultimate site;

(2) The motion for summary judgment by Schwinn Bicycle Company regarding the § 107(b)(3) defense must be denied as material facts are in dispute, but the defense may be raised with evidentiary support at the Phase I hearing.

(3) The conclusions and recommendations contained in the following sections of the Special Master’s Report are adopted in their entirety:

(a) VIII. Miscellaneous generator liability issues—

(b) IX. Liability for hazardous substances sold to C.C.C. for treatment of other waste—

(c) X. In personam jurisdiction—

(d) XIII. Liability of KCP & L as past owner of C.C.C. site and as owner of facility.

7. Third-party generator defendant Wellman Dynamics Corporation’s motion for summary judgment on the issue of continued corporate liability — a ruling on this motion is deferred pending further *177 consideration of Wellman Dynamics’ objections to the Special Master’s Report.

Accordingly, subject only to the expressed exceptions contained above, it is hereby

ORDERED that the Special Master’s Report filed May 17, 1985 is adopted. It is further

ORDERED that, subject to the exceptions contained above, the pending motions to dismiss and motions for summary judgment are ruled in accordance with the Master’s Report.

SPECIAL MASTER’S REPORT

ROBERT H. FREILICH, Special Master.

TABLE OF CONTENTS

INTRODUCTION ...............................................178

I. UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT OF LIABILITY PURSUANT TO SECTION 106(a) AND 107(a) OF CERCLA AND SECTION 7003 OF RCRA ...................................................181

II. THE UNITED STATES’ MOTIONS REGARDING DEFENSES .................................................202

III. THIRD-PARTY PLAINTIFFS’ RIGHT TO CONTRIBUTION UNDER CERCLA ..................................222

IV. THE ABILITY OF THE THIRD-PARTY PLAINTIFFS TO

OBTAIN INJUNCTIVE RELIEF AGAINST THE THIRD-PARTY DEFENDANT GENERATORS ....................230

V. ARGUMENTS BASED UPON THE PRINCIPLE OF DE

MINIMIS NON CURAT LEX .............................232

VI. SELECTION OF THE DISPOSAL SITE BY A GENERATOR IS NOT A PREREQUISITE TO LIABILITY ..........233

VII. THE THIRD-PARTY DEFENSE UNDER CERCLA SECTION 107(b)(3) ...........................................234

VIII. MISCELLANEOUS GENERATOR LIABILITY ISSUES ... 235

IX. LIABILTY FOR HAZARDOUS SUBSTANCES SOLD TO

CCC FOR TREATMENT OF OTHER WASTE .............237

X. IN PERSONAM JURISDICTION ..........................241

XI. MOTION OF FORD MOTOR COMPANY ..................250

XII. MOTION OF THE WELLMAN DYNAMICS CORPORATION ....................................................251

XIII. LIABILITY OF KCP&L AS PAST OWNER OF CCC CITE

AND AS AN OWNER OF A FACILITY ..................253

APPENDIX A — SUMMARY OF DISPOSITION OF MOTIONS

APPENDIX B — SPECIAL MASTER’S RECOMMENDATION CONCERNING THIRD-PARTY GENERATORS’ “DE MINIMIS” MOTIONS

*178 INTRODUCTION

Pending before the Court are eighty-two (82) motions to dismiss or motions for summary judgment concerning Phase One issues, other than insurance-related issues. Attached as Appendix A to this report is an alphabetical listing of parties who have filed motions, the Master’s recommendation on the disposition of such motions and the location or locations within the report where such motions are addressed.

As the Court is aware, on April 15, 1985, the Special Master filed his Recommendation Regarding Summary Judgment Motions or Motions to Dismiss (for Non-Insurance Issues), which recommendation suggested deadlines for filing motions, or for renewing consideration of motions which had been filed previously in the litigation, in order that disposition of those motions would be part of the Master’s Report to the Court. That recommendation was approved by Order of the Court on April 24, 1985, with the exception that the objection to the recommendation filed by the Kansas City Power & Light Company was sustained and the Kansas City Power & Light Company’s motion for summary judgment which was not submitted within the deadlines established in the Recommendation was deemed timely filed by the Court. No other parties filed objections to the recommendation and no party other than Kansas City Power & Light Company has received permission of the Court to have its motion considered if it did not comply with the deadlines established in the Recommendation. Therefore, of the eighty motions that are pending, five are not being considered in this report due to the fact that their filing or renewal did not comply with the deadlines established in that recommendation. 1

In addition, a considerable number of the motions that were filed were not considered by the Special Master for the reason that the motions did not comply with the requirements of Federal Rules of Civil Procedure, Rule 56, relating to summary judgment motions [or motions to dismiss for failure to state a claim upon which relief can be granted filed pursuant to Fed. R.Civ.P. Rule 12(b)(6) which present matters outside the pleadings and are treated as motions for summary judgment]. 2 A general discussion of the requirements of Rule 56 and the case law concerning summary judgment motions follows.

It should also be noted that application of the rules for summary judgment precludes approval of most of the motions that have been filed. Of the motions that should be denied on that basis, most present a straightforward question of fact or mixed fact and law (e.g., did XYZ Corporation ship its hazardous substances to the CCC site, or were XYZ Corporation’s substances hazardous?). Time and space prevent a discussion of the facts of all the motions. Therefore, motions which cannot be granted because there are material facts in dispute are, for the most part, dealt with in a footnote unless an important or novel question of law is also raised. However, the fact that a particular party’s motion is dealt with in a footnote does not mean that that motion was not given full and careful consideration. On the contrary, every motion which was considered (i.e., all except *179 those which were untimely or not properly presented) was reviewed very carefully. Moreover, the fact that a motion is dealt with in a footnote is not a reflection of its relative merit. The evidence against many of the third-party defendants appears to fall into the “scintilla” category and, while sufficient to avoid summary judgment, will hardly be sufficient to establish liability at trial unless additional evidence is forthcoming.

The standard to be applied by the trial court in ruling upon a motion for summary judgment pursuant to Fed.R.Civ.P., Rule 56(e) has been clearly stated by the United States Supreme Court:

Summary judgment should be entered only when the pleadings, depositions, affidavits, and admissions filed in the case “show that * * * there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(e), Fed.Rules Civ.Proc. This rule authorizes summary judgment “only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, * * * [and where] no genuine issue remains for trial * * * [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.” Sartor v. Arkansas Nat. Gas. Corp., 321 U.S. 620, 627, 88 L.Ed. 967, 972, 64 S.Ct. 724 [728] (1944).

Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962).

To obtain summary judgment, the mov-ant must demonstrate the absence of any genuine issue of material fact, Snyder v. United States, 717 F.2d 1193, 1195 (8th Cir.1983), and that he is entitled to judgment as a matter of law. In determining whether or not the movant has met the heavy burden of proving the absence of any material fact, it is the duty of the trial court to scrutinize the evidence, Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), in the light most favorable to the non-moving party, Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir.1980), according the non-movant the benefit of every reasonable factual inference, Adickes v. S.H. Kress, supra; Bullerv. Buechler, 706 F.2d 844 (8th Cir.1983), and resolving all doubts as to the facts or the existence of any material fact against the moving party. Adickes v. S.H. Kress & Co., supra; United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). Summary judgment should be denied if there is even the slightest doubt as to a factual dispute or any genuine issue of material fact. Clausen & Sons, Inc. v. Theo. Hamm Brewing Co., 395 F.2d 388, 389 (8th Cir.1968).

The burden is on the party seeking judgment to establish the right to a judgment with such clarity as to leave no room for any doubt or controversy, Westborough Mall, Inc. v. City of Cape Girardeau, Mo., 693 F.2d 733, 737 (8th Cir.1982), cert. denied sub nom. Drury v. Westborough Mall, Inc., 461 U.S. 945, 103 S.Ct. 2122, 77 L.Ed.2d 1303 (1983); Jewson v. Mayo Clinic, 691 F.2d 405, 408 (8th Cir. 1982); Snell v. United States, 680 F.2d 545, 547 (8th Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 344, 74 L.Ed.2d 384 (1982), and to prove that the nonmoving party is not entitled to recover under any discernable circumstances. McGee v. Hester, 724 F.2d 89, 91 (8th Cir.1983); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1363-64 (8th Cir.1983). If the evidence presented to support or oppose the motion is subject to conflicting interpretations, or reasonable men might differ as to its significance, summary judgment is improper, Snyder v. United States, 717 F.2d 1193, 1195 (8th Cir.1983), and should likewise be denied where the affidavits or other sworn statements require an evaluative judgment between two rationally possible conclusions, Minnis v. UAW, 531 F.2d 850, 854 (8th Cir.1975); Chenette v. Trustees of Iowa College, Grinnell, la., 431 F.2d 49, 53 (8th Cir.1970), even if the court is convinced that the evidence makes it unlikely that a party can prevail at trial. Hughes v. *180 American Jawa, Ltd., 529 F.2d 21, 25 (8th Cir.1976).

The Eighth Circuit has repeatedly held that summary judgment is a drastic remedy. See, e.g., Snell v. United States, 680 F.2d 545, 547 (8th Cir.), cert. denied, 459 U.S. 989, 103 S.Ct. 344, 74 L.Ed.2d 384 (1982) (“This circuit has repeatedly emphasized the drastic nature of the summary judgment remedy”). It has also been labeled “extreme” and “treacherous” by the Eighth Circuit. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). The Court’s latest pronouncement in this regard, Buford v. Tremayne, 747 F.2d 445 (8th Cir.1984), simply refers to the remedy as “drastic.” (747 F.2d at 447).

A number of motions which have been filed rely upon statements of counsel (both sworn and unsworn) to establish uncontroverted facts. However, Rule 56(e), Fed.R.Civ.P., requires that in determining the propriety of a motion for summary judgment facts be established or controverted by sworn statement of a competent witness. Arguments of or statements by counsel should not be considered to establish a fact. Rule 56(e) Fed.R.Civ.P. provides:

(3) Form of Affidavits; Further Testimony; Defense Required.

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The Court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but in his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (Emphasis added).

The Rule itself seems to clearly require sworn statements to support or oppose a motion for summary judgment. In Ad-ickes v. S.H. Kress & Co., supra, both plaintiff and defendant relied upon un-sworn statements to oppose and support a motion for summary judgment. The trial court granted summary judgment in favor of defendant, the Second Circuit affirmed and the Supreme Court granted certiorari and reversed. On the issue of the propriety of summary judgment, the Court noted that unsworn statements do not comply with the requirements of Rule 56(e), Fed.R. Civ.P. (398 U.S. at 158, n. 16, 17 & 19, 90 S.Ct. at 1608, n. 16, 17 & 19) and therefore should not be considered.

In Jones v. Menard, 559 F.2d 1282 (5th Cir.1977), a crewman who had sustained back injuries brought suit against the ship’s owner and operator, who in turn filed third-party complaints against the ship’s builder and designer seeking indemnity and contribution. The trial court entered summary judgment. In reversing the trial court, the appeals court found that the affidavit and report proffered by mov-ants should not have been considered on the issue of whether the pipe was flawed because: (1) the report annexed to the affidavit was prepared by someone other than the affiant; (2) the author of the report was not qualified as an expert and, therefore, his report provided no proof of evidence that movant could have adduced at trial; and (3) the report satisfied none of the evidentiary requirements of Rule 56(e) in that it was not a sworn affidavit, an interrogatory, a deposition, or an admission, and thus should not have been considered. 559 F.2d at 1285, n. 5.

In Gordon v. Watson, 622 F.2d 120 (5th Cir.1980), a pretrial detainee sued the prosecutor and jailer alleging punitive confinement and denial of telephone privileges. The jailer and prosecutor moved for summary judgment asserting via affidavit that *181 they had legitimate non-punitive reasons for transfer from one detention facility to another; however, the jailer’s affidavit failed to show a legitimate, non-punitive reason for confining the prisoner in a one-man cell except to the extent that it incorporated an earlier verified response to the motion for summary judgment. The Court found that the trial court impermissibly relied on the incorporated matters in granting summary judgment because such did not affirmatively show that the affiant was competent to testify to the matters or that the facts were based on his personal knowledge. The Court noted that the counter-pleadings filed by the prisoner in response to defendants’ affidavits were not notarized; and, as an unsworn statement it may not be considered in determining the propriety of summary judgment. 622 F.2d at 123. See also, Property Management & Investments, Inc. v. Lewis, 752 F.2d 599, 604 (11th Cir.1985) (on motion for summary judgment court may only consider materials that would be admissible or usable at trial); Meserole v. M/V Fina Belgique, 736 F.2d 147, 149 (5th Cir.1984) (unsworn letter is not admissible on summary judgment motion); Jacobson v. Maryland Cas. Co., 336 F.2d 72, 75 (8th Cir.1964) (assertions in motion are meaningless unless supported as provided for in Rule 56(e)).

Any question regarding the propriety of using assertions of counsel made at oral argument or in legal memoranda to establish the existence of any material fact has been laid to rest. Statements of counsel may not be used to establish facts. See, Transurface Carriers, Inc. v. Ford Motor Co., 738 F.2d 42, 46 (1st Cir.1984) (collecting authority); Watts v. United States, 703 F.2d 346, 353 (9th Cir.1983) (“Legal memorandum and argument are not evidence and cannot, by themselves, create a factual dispute sufficient to defeat summary judgment where no dispute otherwise exists.”); British Airways Board v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). See also, Local 314, Nat. P.O. Mail Handlers v. National P.O. Mail Handlers, 572 F.Supp. 133, 140 (E.D.Mo.1983); Moats v. United States, 564 F.Supp. 1330, 1343-4 (W.D.Mo.1983).

I. UNITED STATES’ MOTION FOR PARTIAL SUMMARY JUDGMENT OF LIABILITY PURSUANT TO SECTIONS 106(a) AND 107(a) OF CERC-LA AND SECTION 7003 OF RCRA

A. Background

The first application to be considered is the United States’ Motion for Partial Summary Judgment of Liability Pursuant to Sections 106(a) and 107(a) of CERCLA and Section 7003 of RCRA. Relief is requested against the original seven defendants, i.e., Conservation Chemical Company (“CCC”), Norman Hjersted, Conservation Chemical Company of Illinois (“CCCI”), Armco, Inc. (“Armco”), AT & T Technologies, Inc. (“AT & T”), FMC Corporation (“FMC”) and International Business Machines Corporation (“IBM”). In its motion, the plaintiff has included a “Statement of Undisputed Facts,” some of which have in fact been disputed by the defendants. 3 Particular *182 ized or disputed assertions of fact will be addressed in the substantive discussion of the issues. The following facts which provide background information are basically undisputed. These facts are taken from discovery responses or from the “Remedial Investigation Report” prepared earlier in the litigation by Armco, AT & T, FMC and IBM (sometimes referred to herein as the “original generator defendants”).

From 1960 until the present, defendant CCC has owned and operated an industrial chemicals waste disposal facility located at 8900 Front Street, Kansas City, Missouri (the “site”, the “CCC site” or the “KC site”). The approximately six (6) acre site is located on the Missouri River floodplain, between the East Bottoms Levee and the Missouri River, just upstream of the confluence of the Missouri and Blue Rivers.

CCC purchased the KC site in 1959. By early 1963, CCC had constructed a shop and office building, installed various storage tanks and reaction vessels, and constructed six basins at the site. Basins 1 through 5 were constructed by excavating soils. Basin 6 was constructed by excavating soil and constructing walls.

CCC stored, treated and disposed of various chemical wastes in Basins 1 through 6. In addition, CCC operated one or more incinerators at the site for the destruction of chemical wastes from the early 1960s until approximately 1971. CCC also buried various chemical wastes on the site.

Over 50 million gallons of waste materials were transported to the site during its period of operations. The type of wastes which CCC treated, stored or disposed of at the KC site included:

(1) liquid acidic metal finishing wastes, such as spent steel pickling solutions containing sulfuric acid or hydrochloric acid, spent electroplating solutions, and bright dipping solutions;

(2) liquid alkaline metal finishing wastes, including wastes containing cyanide;

(3) solid cyanide wastes;

(4) laboratory wastes;

(5) non-pourable organic chemicals;

(6) sludge containing arsenic sulfide and elemental phosphorous;

(7) filter cake containing arsenic sulfide; and

(8) solid cyanides.

As a consequence of CCC’s activities, each of the waste disposal basins at the KC site contains at least the following hazardous substances: methylene chloride; tetrachloroethylene; trichloroethylene; toluene; 1,1,1-trichloroethane; phenol; 2,3,7,8-tetra-chlorodibenzo-P-dioxin; arsenic; beryllium; cadmium; chromium; copper; lead; mercury; nickel; selenium; zinc; and cyanides. 4

The surface soil at the CCC site contains at least the following hazardous substances: methylene chloride; tetrachloroe-thylene; tricholoroethylene; bis (2-ethyl-hexyl) phthalate; PCB-1254; arsenic; beryllium; cadmium; chromium; copper; lead; nickel; selenium; zinc; and cyanides.

*183 The groundwater beneath the CCC site contains at least the following hazardous substances: benzene; chloroform; ethyl-benzene; methylene chloride; tetrachloroe-thylene; toluene; 1,1,1-trichloroethane; trichloroethylene; vinyl chloride; phenol; arsenic; cadmium; chromium; copper; nickel; selenium; zinc; and cyanides.

The subsurface soil at the CCC site contains at least the following hazardous substances: methylene chloride; tetraehloroe-thylene; toluene; trichloroethylene; phenol; bis (2-ethylhexyl) phthalate; arsenic; beryllium; cadmium; chromium; copper; lead; nickel; selenium; zinc; and cyanides.

At least some of these hazardous substances are being released into the environment, which the generator defendants define as areas likely to be directly encountered by humans or other living organisms. 5 The “Remedial Investigation Report” states that hazardous substances are being and may be released from the CCC site in several ways:

Waste materials from the site have the potential for migration via groundwater, surface water or air. Migration to groundwater can occur through leaching or by direct infiltration. These materials can also enter the atmosphere through volatilization or particulate transport while migration to surface water can occur by way of overland flow and flood inundation. Wastes which enter the aquifer beneath the site can be transported by groundwater flow to discharge points along the Blue River and Missouri River. The surface water flow can, in turn, transport these materials to receptors along the Missouri River.

By defendants’ own estimates, more than 22,000 pounds of hazardous substances are being discharged into the Missouri River and Blue River each year. Such discharges include the following hazardous substances: benzene; carbon tetrachloride; chloroform; 1,1-dichloroethane; 1,2-dichlo-roethane; 1,1-dichloroethylene; ethylben-zene; methylene chloride; tetrachloroethy-lene; toluene; 1,2-trans-dichloroethylene; 1,1,1-trichloroethane; 1,1,2-tricholoroe-thane; tricholoroethylene; trichlorofluoro-methane; vinyl chloride; 2,4-dichlorophe-nol; 2,4-dimethylphenol; phenol; 2,4,6-tri-chlorophenol; arsenic; cadmium; chromium; copper; nickel; selenium; thallium; zinc; and cyanides. These substances could continue to be discharged for many years.

Of the substances listed in the preceding paragraphs, at least the following are known or suspected carcinogens for which the recommended exposure level is zero: benzene; carbon tetrachloride; chloroform; 1,2-diehloroethane; 1,1-dichloroethylene; tetrachloroethylene; 1,1,2-trichloroethane; trichloroethylene; polychlorinated biphe-nyls (PCBs); vinyl chloride; trichlorophe-nol; arsenic; and beryllium. There is potential for exposure of humans to these substances. The site is surrounded by Kansas City, Missouri and its suburbs. A farmer cultivates soybeans on the land immediately adjacent to the site on the southeast side. Mobay Chemical Corporation (“Mobay”) operates a manufacturing facility which is located one-quarter mile south of the site. A Kansas City Power & Light Company (“KCP & L”) plant is located approximately one-quarter mile west-northwest of the site. Residential and other industrial areas are as close as 1.3 miles from the site.

Mobay operates several wells on its property that may draw groundwater from beneath the CCC site. The Missouri Water Company draws water for public water supplies from several wells located on the same side of the river as the site about five miles downstream of the site. Those wells *184 are recharged, at least in part, by water from the river. The City of Lexington, located 40 miles downstream from the CCC site, draws water directly from the Missouri River for public use. In addition, other living organisms, including frogs, toads, turtles, lizards, snakes, birds, mammals and fish, are likely to inhabit the area of the CCC site.

B. Liability Under CERCLA Section 107

1. The Elements of Liability Under 107(a) of CERCLA

Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), identifies both those persons who are liable for response costs incurred by the United States under Section 104 of CERCLA, 42 U.S.C. § 9604, and those persons who may be ordered under Section 106 of CERCLA, 42 U.S.C. § 9606, to abate any imminent and substantial endangerment to health, welfare or the environment that an actual or threatened release of a hazardous substance may present. See, United States v. Conservation Chemical Company, 589 F.Supp. 59, 62 (W.D.Mo. 1984). Thus, the elements of Section 107(a) will be considered first.

Certain of the requisite elements of a prima facie case under Section 107(a) relate to the site in general, while others relate to the individual defendants. With respect to the CCC site, the United States must establish the following:

(1) the CCC site is a “facility”;

(2) a “release” or a “threatened release” of a or any “hazardous substance” from the CCC site has occurred; and

(3) the release or threatened release has caused the United States to incur “response costs.”

See, New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985). Proof of “imminent and substantial endangerment” (discussed in the next section) is not required in a Section 107 action. See, United States v. Hardage, 13 Env’tl L.Rep. 20188 (W.D.Okla. Sept. 29, 1982). To complete the prima facie case against each defendant, the United States must prove that the defendant is one of the following persons:

(1) a person 6 who owns or operates the facility [§ 107(a)(1) ];

(2) a person who owned or operated the facility when a hazardous substance was disposed of at the facility [§ 107(a)(2)];

(3) a person who arranged for disposal or treatment of a hazardous substance which such person owned or possessed, at a facility containing such hazardous substance [§ 107(a)(3)]; or

(4) a person who accepted a hazardous substance for transport to a disposal or treatment facility or to a site which such person selected [§ 107(a)(4)],

If undisputed facts establish each of these elements with respect to a defendant, then the United States would be entitled to a partial summary judgment that such defendant is a responsible party under Section 107(a) of CERCLA.

2. Application of the Elements of Liability in This Case

a. The CCC Site is a “Facility”

“Facility” is defined in CERCLA as fo