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22 ELR 20079 | Environmental Law Reporter | copyright © 1992 | All rights reserved Nurad, Inc. v. Wm. E. Hooper & Sons Co.No. WN 90-661 (D. Md. August 15, 1991)The court rules on the liability of various defendants in a private Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) action to recover costs for releases at seven underground storage tanks (USTs) on plaintiff's property. The court first holds that the site is a "facility" under CERCLA because hazardous substances have come to be located on the property. The court also holds that there has been a release or threatened release at the site and that the release or threatened release caused the plaintiff to incur response costs. The court notes that § 107 does not require the plaintiff to show that the defendant's conduct caused the plaintiff to incur response costs, but only that the release or threatened release caused the incurrence of response costs. The court next addresses whether the defendants that previously owned the site are liable under CERCLA § 107(a)(2) as owners or operators. The court holds that a company that owned and operated the site from 1905 to 1963 qualifies as an owner/operator. This company ran a textile manufacturing operation and used USTs to store solvents and chemicals. The court holds that two former corporate officers of this company are not personally liable as owner/operators. The court adopts the test for corporate officer liability under CERCLA that looks to the individual's authority to control a facility's waste disposal activities. The court notes that its conclusion would be the same under this test or the "prevention test," which asks whether the individual could have prevented the hazardous waste discharge. Both individuals worked as salesmen for the company, but worked and lived outside the area where the plant was located. Although they were board members and became vice presidents in 1963 when they returned to work at the plant, neither participated in the finishing plant operations prior to 1969 or had the authority to exercise control over plant operations. Further, these defendants could not have prevented the abandonment of the USTs and the disposal of hazardous substances at the site. The court also holds that the president and principal stockholder of both the company that owned the parcel from 1963 to 1964 and the company that owned the site from 1964-1976 is liable as a CERCLA owner/operator. This defendant was actively involved in the day-to-day operations of companies he owned and controlled. He was aware of the USTs and the need to empty them and had the authority to properly dispose of the hazardous substances in the USTs. Even assuming that this defendant could not influence his tenants' waste disposal activities, absentee landlords can be held liable under CERCLA § 107(a)(2). The court holds that an individual that was both a legal and equitable owner of the site prior to its sale to the plaintiff in November 1976 is liable as a prior owner under CERCLA. The court next addresses whether other defendants associated with the site are liable under CERCLA § 107(a)(2) as owners or operators. The court holds that a moving and storage company that leased a building on the site from 1966 to 1979 and its president/sole shareholder are not liable under CERCLA as former operators. Although tenants may be liable under CERCLA, these defendants did not have sufficient control over, or participation in, the disposal of hazardous substances at the site. The defendants' mere access to the USTs, without more, is insufficient to establish operator liability. The court also holds that these defendants are not liable for negligence under Maryland common law. The court holds that a company that occupied a building on the site for nine months while it installed cabinets and other materials is not liable under CERCLA. The court holds that a company that occupied a portion of an off-site building from 1968 to 1978 to assemble and store doors and windows is also not liable under CERCLA. The court next holds that the company that owned the site from 1905 to 1963, which qualifies as an owner or operator under CERCLA § 107(a)(2), is liable under CERCLA because it deposited hazardous substances into the USTs during its ownership of the site. The company's subsequent sale of the USTs and the site does not reverse the company's disposal of hazardous substances. However, the court holds that this company is not liable as an operator for the period beginning in 1966 when it leased two buildings on the site and conducted finishing operations. The company did not actively dispose of hazardous substances at the site during its operation of the two buildings. The court holds that the two individual defendants that qualify as prior owners or operators are not liable under CERCLA because there is no evidence that either actively disposed of hazardous substances during their ownership or operation. The court next rules that equitable defenses cannot be asserted in a private cost recovery action under CERCLA. The defenses provided in CERCLA § 107(b) are exclusive. The court grants plaintiff's motion to bifurcate the issues of liability and damages. Bifurcation of the issues of liability and consistency with the national contingency plan (NCP) is appropriate where the record does not permit a determination of NCP consistency when the motion for summary judgment is filed or where the plaintiff seeks only a declaration of the defendant's liability for future costs incurred consistent with the NCP. Counsel for Plaintiff Counsel for Defendant Nickerson, J.: Plaintiff Nurad, Inc. ("Nurad") initiated this action pursuant to Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9607,1 to recover costs incurred and to be incurred responding to alleged releases and the threat of release from seven Underground Storage Tanks at property currently owned by Nurad. Named as defendants in this action are the prior owners of the property and others associated with the site. Plaintiff has filed two motions for partial summary judgment and a declaration that defendants are jointly and severally liable for Nurad's response costs consistent with the National Contingency Plan ("NCP"). Nurad's first motion is directed at defendants Wm. E. Hooper & Sons Co. (the "Hooper Co." or "Hooper"), James E. Hooper, Jr., Allstates Moving and Storage ("Allstates"), Kenneth B. Mumaw, Raymond B. McMillan, and Frank S. Nicholl, Jr.2 Nurad has also moved for partial summary judgment against defendants Lawrence L. Hooper, Universal Laboratory Installations, Inc. ("Universal") and Monumental Millwork, Inc. ("Monumental Millwork").3 Defendants oppose these motions.4 Several defendants, including the Hooper Co., James and Lawrence Hooper, Allstates, Mr. McMillan, Mr. Mumaw, Monumental Millwork and Universal have filed cross-motions for summary judgment against Nurad.5 Plaintiff has filed oppositions to these motions.6 The Court heard oral argument on all summary judgment motions on March 1, 1991. After hearing arguments and reviewing the pleadings and supporting papers, the Court will rule as set forth below.7 The following is a summary of the important background facts; other facts will be discussed in the context of the liability issues. This case arises out of the existence of seven Underground [22 ELR 20080] Storage Tanks ("USTs") located at the northwest corner of 2165 Druid Park Drive in Baltimore, Maryland (the "Nurad site" or the "Site") where Nurad currently owns and operates an antenna manufacturing facility. The Site also encompasses a connected group of buildings designated as Buildings 4, 4A, 4B, 4C, 24, and 24A.8 According to Nurad, the USTs were installed by the Hooper Co. which owned the Site and the surrounding properties (the "Hooperwood Mills" or the "Mill") from 1905 until November 30, 1963. Before its sale in 1963, the Hooper Co. ran a textile manufacturing operation at the Mill and conducted finishing operations at Building 4 which involved the flameproofing and waterproofing of canvas. Nurad alleges that during these operations, the Hooper Co. used certain chemicals and stored them in two of the USTs from as early as 1935 until 1962. Four additional USTs appear on a site map dated April 14, 19459 and another UST appears on a site map dated June 1, 1948.10 The dates of installation, however, are not shown on these maps. A map prepared by Hooper's insurance agent and dated December 3, 1962 depicts the location of each UST and its contents.11 In 1963, the Mill, including the Site, was sold to Property Investors, Inc. Defendant Frank S. Nicholl was the president and principal shareholder of Property Investors and its successor corporation Monumental Enterprises during the relevant times. In 1966, the Hooper Co. leased from Property Investors Buildings 24 and 24A on the Site to conduct a small finishing operation there. On August 9, 1976, Monumental Enterprises sold Hooperwood Mills, including the Site, to Kenneth B. Mumaw who subdivided it into three Parcels and sold the Site or Parcel "C" to Nurad, Parcel "B" to the Hooper Co. and Parcel "A" to Chesapeake T.V. See Nurad Exhibit U. Parcel "B" consists of Buildings 2, 2A and 28 and associated property, and is adjacent to the Nurad site. Before purchasing Parcel "C" or the Site, Nurad occupied as a tenant all or a part of the second floor of Buildings 4, 4B and 4C. In 1988, the Hooper Co. sold Parcel "B" to Kenneth Mumaw. In the Fall of 1988, Nurad learned that at least one of the USTs contained hazardous substances. On December 16 and 19, 1988, Nurad hired Geraghty and Miller ("G&M") and Chem Clear to perform historical research of the Site, identify and analyze the contents of the tanks, conduct tank closures, cleaning and sealing. Nurad alleges that it has incurred response costs of approximately $ 277,680.77 relating to these activities but claims that it has not developed a permanent remedy for the Site. Plaintiff presently seeks a declaration that defendants are jointly and severally liable for these costs and any future costs to be incurred by Nurad consistent with the NCP. At this time, Nurad does not ask for a determination of the amount of recoverable costs (i.e., the necessity of the response costs and their consistency with the NCP). I. Plaintiff's Motions for Partial Summary Judgment and Defendants' Motions for Summary Judgment Summary judgment is proper if the evidence before the court, consisting of the pleadings, depositions, answers to interrogatories, and admissions of record, establishes that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Rule 56 mandates the entry of summary judgment against a party who, after reasonable time for discovery and upon motion, "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "[A] complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial [and] [t]he moving party is 'entitled to judgment as a matter of law.'" Id. at 323. (citations omitted). If the evidence favoring the non-moving party is "merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). Unsupported speculation is insufficient to defeat a motion for summary judgment. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987) (citing Ash v. United Parcel Serv., Inc., 800 F.2d 409, 411-12 (4th Cir. 1986)). Moreover, the mere existence of some factual dispute is insufficient to defeat a motion for summary judgment; there must be a genuine issue of material fact. Anderson, 477 U.S. at 247-48. Thus, only disputes over those facts that might affect the outcome of the case under the governing law are considered to be "material." Id. Finally, in assessing such a motion, the Court must view the evidence and all justifiable inferences in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam). In order to grant partial summary judgment on the issue of defendan/ts' liability under Section 107, Nurad must prove the following four elements:12 (2) a "release" or a "threatened release" of any "hazardous substance" from the facility has occurred; (3) the release or threatened release has caused plaintiff to incur "response costs"; and (4) the defendant is a person who owned or operated the facility when a hazardous substance was disposed of. United States v. Conservation Chem. Co., 619 F. Supp. 162, 184 [16 ELR 20193] (W.D. Mo. 1985); Southland Corp. v. Ashland Oil, Inc., 696 F. Supp. 994, 999 [19 ELR 20733] (D. N.J. 1988). Absent the demonstrated presence of an affirmative defense listed in 42 U.S.C. § 9706(b)(1)-(3), and upon proof of the above elements, CERCLA imposes strict, joint and several liability upon the offending party. United States v. Northeastern Pharmaceutical & Chemical Co. ("NEPACCO"), 810 F.2d 726, 732 [17 ELR 20603] (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987); New York v. Shore Realty Corp., 759 F.2d 1032, 1042 [15 ELR 20358] (2d Cir. 1985). With these principles in mind, the Court will review the arguments presented by the parties. CERCLA defines "facility" as, among other things, "any site or area where a hazardous substance has been deposited, stored, disposed of, or placed or otherwise come to be located." 42 U.S.C. § 9601(9)(B). This definition has been broadly interpreted and includes almost every place where a hazardous substance could ultimately become located. See, e.g., Dedham Water Co. v. Cumberland Farms Dairy Inc., 889 F.2d 1146 [20 ELR 20334] (1st Cir. 1989); United States v. NEPACCO, 810 F.2d 726 [17 ELR 20603], United States v. Ward, 618 F. Supp. 884, 895 [16 ELR 20127] (E.D.N.C. 1985); New York v. General Electric Co., 592 F. Supp. 291, 296 [14 ELR 20719] (N.D.N.Y. 1984). "Hazardous substance" is defined in Section 101(14), CERCLA, 42 U.S.C. § 9601(14) and includes, inter alia, any substance specifically listed by the Environmental Protection Agency ("EPA") as a hazardous waste under Section 3001 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6921. In addition to the listed hazardous wastes, other substances are hazardous under CERCLA if they exhibit any of the hazardous characteristics identified by RCRA: EP toxicity, corrosivity, reactivity, and ignitability. See 42 U.S.C. § 9601(14)(C), 40 C.F.R. § 261.20 et seq. Nurad argues that the Site is a "facility" as defined by CERCLA because laboratory analyses of tank contents confirm that mineral spirits-based solvents (e.g., Xylol, Solvesso, Amsco) and methyl isobutyl ketone ("MIBK") are or were in several of the tanks on Nurad's property.13 Nurad also points out that both substances are [22 ELR 20081] present in the soils around the tanks and loading dock at the Site.14 Because MIBK and mineral spirits are hazardous wastes under RCRA,15 Nurad argues that they are also hazardous substances under Section 101(14) of CERCLA. 42 U.S.C. § 9601(14). None of the defendants dispute that hazardous substances have come to be located on Nurad's property. Given the past and current presence of these substances at the Site, the Court finds that the Nurad property, 2165 Druid Park Drive, is a "facility" within the meaning of CERCLA.16 2. Release or Threatened Release Nurad must also demonstrate there has been a release or a threatened release of hazardous substances from the Site. CERCLA defines "release" to include any of the following: any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant). . . . 42 U.S.C. § 9601(22). The term "environment" refers to "surface water, groundwater, drinking water supply, land surface or subsurface strata, or ambient air." 42 U.S.C. § 9601(8). This definition has also been broadly construed. A release occurs, for example, when asbestos fibers are blown from one site by the wind, United States v. Metate Asbestos Corp., 584 F. Supp. 1143, 1149 [14 ELR 20433] (D. Ariz. 1984), or when hazardous substances leach into soil and the groundwater, United States v. Wade, 577 F. Supp. 1326, 1334 [14 ELR 20096] (E.D. Pa. 1983). Moreover, the release or threatened release "of a or any hazardous substance" is sufficient to establish liability. See United States v. South Carolina Recycling and Disposal, Inc. ("SCRDI"), 653 F. Supp. 984 [14 ELR 20272] (D.S.C. 1984), aff'd in part and vacated in part sub nom, 858 f.2d 160 [19 ELR 20085] (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989); United States v. Wade, 577 F. Supp. at 1333 ("the release which results in the incurrence of response costs and liability need only be of "a" hazardous substance and not necessarily one contained in defendant's waste."). Leaking tanks also constitute "releases" under 42 U.S.C. § 9601(22), Emhart Industries, Inc. v. Duracell Intern. Inc., 665 F. Supp. 549 [17 ELR 21243] (M.D. Tenn. 1987), and corroding and deteriorating tanks amount to a threat of release. See New York v. Shore Realty Corp., 759 F.2d at 1045; see also United States v. Medley, 13 Chem. Waste Lit. Rep. 143, 146 [17 20297] (D.S.C. Nov. 4, 1986) ("The emitting or release of volatile organics into the ambient air and the storage of hazardous substances in deteriorating or leaking drums and unlined lagoons . . . clearly constituted a 'release' or 'substantial threat' of release."). In the present case, the Hooper Co. operated a finishing plant at the Site from the early 1930s until mid-1962. There is undisputed testimony that Hooper used two USTs to store mineral spirits-based solvents from 1935 to 1962.17 Although there is no evidence that the other five tanks were used during this time, a site map prepared in 1962 by the Hooperwood Mills' insurance company shows the contents of four of the seven USTs as mineral spirits-based solvents and two USTs as containing MIBK. Nurad Exhibit H. Moreover, in a November 1963 Bill of Sale, the Hooper Co. characterized the contents of six of the tanks as "solvents or processing materials." Nurad Opposition Exhibit G. Therefore, by 1988 the two buried USTs at the Site which were used by Hooper at the finishing plant were over 40 years old, and the other tanks were at least 20 years old. In light of these facts, the Court concludes that when Nurad discovered in 1988 that at least one of the USTs contained hazardous substances, there was a threat of release. The Court further finds that an actual release occurred at the Site. Nurad has presented undisputed evidence that mineral spirits were discovered in the excavated soils in the roll-off containers around the tanks and loading dock at the Site. Nurad Exhibit B. These mineral spirits in the excavated soil show an exact chromatographic match with the mineral spirits in the liquids found in Tank 4. Nurad Exhibit A at 18. Moreover, Tank 8 was confirmed to have corrosion holes in the bottom and was underlain by discolored soils that emanated solvent odors. Nurad Exhibit A at 10-11. Additionally, soils around the tanks near the loading dock also emitted odors of solvents and fuel oil strong enough to require respiratory protection for workers. Nurad Exhibit A at 13-14. Based on this uncontroverted evidence, the Court concludes that an actual release occurred. See U.S. v. Hardage, 761 F. Supp. 1501, 1510 [21 ELR 20706] (W.D. Okla. 1990) ("[p]resence of hazardous substances in the soil, surface water or ground water of a site demonstrates a release" under CERCLA). Contrary to the defendants' suggestion, whether the release was in a reportable quantity or whether Nurad notified the state or federal authorities when the alleged release occurred are not relevant to a determination of CERCLA liability. See id. at 1511 ("Liability under CERCLA does not depend upon any particular quantity of the hazardous substance. Even a de minimis contributor can be held liable."); United States v. Wade, 577 F. Supp. at 1339-41. The Court thus finds that Nurad has met its burden of showing that there has been a release or threatened release of hazardous substances from the Site. CERCLA also requires Nurad to demonstrate that the release or threatened release of hazardous substances caused it to incur response costs. 42 U.S.C. § 9607(a)(4). Nurad argues that its response actions were directly precipitated by its discovery that the USTs contained hazardous substances and its concern that those substances were entering the environment. Nurad alleges that it incurred costs from conducting a "removal" action, i.e., steps taken on an expedited basis to eliminate a continuing release of hazardous substances from these tanks. See 40 C.F.R. § 300.415. Nurad points out that it investigated the age, location and contents of the tanks, then removed several of them and their contents. The Hooper defendants contend that to satisfy this requirement Nurad must show that Hooper's conduct caused Nurad to incur response costs. Because no causal nexus exists between Hooper's actions and Nurad's response action, according to Hooper, Nurad cannot demonstrate this element of CERCLA liability. The Hooper defendants' argument misses the point. As the district court recently explained in United States v. Alcan Aluminum Corp., 755 F. Supp. 531, 544 [21 ELR 20767] (N.D.N.Y. 1991): [22 ELR 20082] all that Section 107(a) requires is that there be a release or threatened release of hazardous substance which causes the incurrence of response costs . . . [t]here is absolutely no requirement that plaintiff demonstrate a causal nexus between the defendant's conduct and the contamination at the property involved. What appears to be required, at most, is that the plaintiff demonstrate some relationship between a release and a response. See also Dedham Water Co. v. Cumberland Farms Diary Inc., 889 F.2d at 1154. In this regard, the Court notes that a release of hazardous substances occurred and a threat of release of hazardous substances existed in 1988. Nurad responded to this release and threatened release. Under the statute, therefore, the required nexus has been established. In addition to the above elements common to any party potentially liable under Section 107 of CERCLA, Nurad must also establish that each party falls within at least one of the four classes of covered persons under CERCLA. Nurad seeks to impose liability upon all defendants under Section 107(a)(2) which provides that 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 is liable for response costs under CERCLA. The present action involves two types of defendants; 1) individuals who owned the Site; and 2) others associated with the Site. The Court will discuss each category separately below. a. Defendants in the Chain of Title As discussed previously, the Hooper Co. owned and operated the Site from at least 1905 to November 30, 1963. During this time, the company ran a textile manufacturing operation at the Mill, and from as early as 1926 to 1963 conducted finishing operations at Building 4 utilizing MIBK and mineral spirits. Although there is some dispute over which tanks were actually used during the finishing operations at Building 4,18 Hooper concedes that it used two USTs to the east of that Building, including Nurad Tank 8, to store mineral spirits-based solvents.19 Hooper also admits that it used a variety of chemicals and/or solvents including MIBK in its finishing operations.20 The company purchased MIBK and stored it in 55 gallon drums aboveground in connection with these operations. See Nurad Exhibit E at 37, 131. In 1962, the Hooper Co. shut down the finishing plant operations and ceased its use of the tanks. Hooper did not remove the tank contents. Rather, in November, 1963, Hooper sold the Mill, including the Site and the tanks, to Property Investors. At the time of the sale, there were seven USTs at the Site. Nurad Opposition Exhibits B, G. Subsequently, in 1966, the company leased two buildings on the Site (Buildings 24 and 24A) and conducted a small finishing operations there. It used the "Building 28 tank" in that operation. See Nurad Exhibit I at 81-85. Based on these undisputed facts, the Court concludes that the Hooper Co. is a prior owner and operator of the Site.21 2. Lawrence L. Hooper and James E. Hooper, Jr. Nurad also seeks to hold defendants Lawrence L. Hooper and James E. Hooper, Jr. liable as prior owners and operators under CERCLA. Nurad argues that these defendants had the capacity to make a timely discovery of the USTs and could have prevented the abandonment of the tanks and the disposal of hazardous substances at the Site during their ownership. Nurad points out that each defendant held stock in the company and that they were remaindermen in a family trust. As former officers and directors of the Hooper Co., according to Nurad, both defendants were in positions to influence company decisions, including the disposition of Hooperwood Mills, the USTs and their contents. Defendants James and Lawrence Hooper contest their liability under CERCLA. They argue that from 1947 to 1961 as salesmen for Hooper and upon their return in 1963 neither defendant participated in decisions regarding the use of the USTs, nor did either have a controlling stock interest in the company. These defendants also contend that neither had the general nor specific power to control the operations of the Hooper Co. before or after the sale of the Site in 1963. The undisputed facts regarding the individual Hooper defendants' association with the Site support the following findings: Both Lawrence L. Hooper and James E. Hooper, Jr. became associated with the Hooper Co. as teenagers, working summers at the Hooperwood Mills. From this exposure, they were aware that the company used solvents to coat fabrics. James, Jr. was aware that the solvent was stored in tanks and drums at the Mill, while Lawrence was aware that the company used chemicals, including MIBK, obtained in 55 gallon drums. See Nurad Opposition Exhibit M at 5-6, 8-9, 14-20, 115-119 (deposition of Lawrence Hooper); Nurad Opposition Exhibit I at 34-35 (deposition of James Hooper, Jr.). Lawrence Hooper, however, did not know that the company used USTs at the Site. From 1947 to 1961, the Hooper brothers worked for the company as salesmen outside of Maryland. Nurad Opposition Exhibits M, I. From 1961 to 1963, they left Hooper and began working for Mount Vernon Mills. Upon their return in late 1963, they both became vice presidents of the company. Prior to and during their employment at Mount Vernon Mills, the Hoopers remained on the Hooper Co.'s Board of Directors having been elected on March 29, 1960 and every year thereafter until 1963. Nurad Opposition Exhibits K, L. The Board had six members, three of whom were always James E. Hooper, Sr., James E. Hooper, Jr. and Lawrence L. Hooper. Id.; Nurad Opposition Exhibits M, I. The Hoopers were also contingent remaindermen beneficiaries of the Robert P. Hooper Trust, administered by their father, James E. Hooper, Sr., as sole trustee from 1958 until his death in 1977. See id. The Trust held a majority of the voting stock of the company. Apart from this interest, each defendant independently owned additional shares of non-voting preferred stock in the company prior to 1963. Id. From 1958 to April, 1969, James E. Hooper, Sr., their father, was the president of the Hooper Co. The Hooper defendants have submitted an affidavit which indicates that Mr. Hooper, Sr. ran the day-to-day operations of the company. On April 21, 1969, he resigned and became Chairman of the Board and continued as Chief Executive Officer until his death in 1977. In 1969, James, Jr. succeeded his father as president. CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(3), imposes strict liability upon prior owners or operators of a facility at the time of disposal. Under CERCLA "owner or operator" is defined as "any person owning or operating" an onshore facility, and the term "person" includes both individuals and corporations. It does not exclude corporate officers and employees. Id. at § 9601. Significantly, the definition of "owner or operator" excludes "a person, who, without participating in the management of a . . . facility, holds indicia of ownership primarily to protect his security interest in the facility." Id. at § 9601(20(A). Although CERCLA does not explicitly address whether a court may hold a corporate officer liable for response costs, nor does it set forth any standard, courts have generally held that corporate officers may be personally liable under CERCLA for response costs. See e.g. New York v. Shore Realty Corp., 759 F.2d 1032; Vermont v. Staco, Inc., 684 F. Supp. 822 [18 ELR 20859] (D. Vt. 1988); United States v. Northernaire Plating Co., 670 F. Supp. 742 [18 ELR 20712] (W.D. Mich. 1987), aff'd, 889 F.2d 1497 [20 ELR 20319] (6th Cir. 1989), cert. denied, 110 S. Ct. 1527 (1990); United States v. Carolawn Co., 14 Env't L. Rep. 20,699 (D.S.C. June 15, 1984); but see Joslyn Corp. v. T. L. James & Co., 696 F. Supp. 222 [19 ELR 20518] (W.D. La. 1988), aff'd, 893 F.2d 80 [20 ELR 20382] (5th Cir. 1990), cert. denied, 111 S. Ct. 1017 (1991). The standards of liability established by the decisions addressing this issue range from basing liability on personal participation in the waste disposal activities to emphasizing the authority to control the wrongful conduct (the "authority to control analysis") or the ability [22 ELR 20083] to prevent contamination (the "prevention test"). This Court agrees with the line of cases which looks to an individual's authority to control a facility's waste disposal activities in determining a corporate officer's liability under CERCLA. In United States v. NEPACCO, 810 F.2d 726 (8th Cir. 1986), cert. denied, 484 U.S. 848 (1987), the Eighth Circuit applied the "authority to control analysis". In that case, the court held the president and major shareholder of NEPACCO liable as a generator under RCRA despite a finding that he had no knowledge of the plan to dispose of hazardous waste, nor was he present at the plant during the period of waste disposal.22 The Court reasoned that although the president was not "personally involved in the actual decision to . . . dispose of hazardous substances," he in fact was "incharge of and directly responsible for all of NEPACCO's operations . . . and he had the ultimate authority to control the disposal of NEPACCO's hazardous substances." Id. at 744. In a Second Circuit case, the court adopted a similar standard. In New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985), the court held the principal officer and shareholder liable as an operator under CERCLA where a close corporation purchased contaminated property, but did not actually dispose of hazardous substances. As in NEPACCO, the Shore Realty court determined that the defendant was liable as an operator because he was "in charge of the operation of the facility. . . ." Id. at 1052. Moreover, several district courts have also focused on an officer's authority to control in determining liability under CERCLA. In United States v. Carolawn Co., 14 Env't L. Rep. 20,699 (D.S.C. June 15, 1984), the court held two corporate officers personally liable because they were responsible for the day-to-day operations of a hazardous waste disposal business. The court stated that a corporate officer may be liable under CERCLA if he "has control or authority over the activities of a facility from which hazardous substances are released or participates in the management of such a facility." Id. at 20,699. Likewise, in Vermont v. Staco, Inc., 684 F. Supp. 822 (D. Vt. 1988), the court imposed personal liability on the managing shareholders because they participated in the general management and control of the corporation. The defendants testified that they made "decisions that relate to the managing business and the marketing business and the selling businesses and all the overall operations of the company." Id. at 831-32. One district court has formulated a new standard for corporate officer liability. In Kelley v. Arco Industries Corp., 723 F. Supp. 1214, 1219 [20 ELR 20264] (W.D. Mich 1989) the court held that in a close corporation an individual is liable under CERCLA if he could have prevented or significantly abated the hazardous waste discharge forming the basis of the claim. According to the Kelly court, factors relevant to a determination of "operator" liability include: evidence of an individual's authority to control, among other things, waste handling practices — evidence such as whether the individual holds the position of officer or director, especially where there is a co-existing management position; distribution of power within the corporation, including position in the corporate hierarchy and percentage of shares owned. Weighed along with the power factor will be evidence of responsibility undertaken for waste disposal practices, including evidence of responsibility undertaken and neglected, as well as affirmative attempts to prevent unlawful hazardous waste disposal. Id. Consequently, the focus in this court's analysis is whether the corporate individual could have prevented the hazardous waste discharge at issue. Id. Applying either the "authority to control analysis" or the "prevention test" to the facts of the present case leads the Court to the same conclusion. Based on the summary judgment record and the undisputed facts regarding the individual Hooper defendants' involvement at the Site, the Court concludes that at or prior to the sale of the Hooperwood Mills in 1963, neither individual Hooper defendant was an owner or operator of the Site. From the early 1950s to June 1961, although both of these defendants were employed as salesmen for the company, both worked and lived outside of the Baltimore area. Moreover, even though they were board members during this time and vice presidents upon their return in 1963, it is clear from the record that neither defendant participated in the finishing plant operations at the Mill prior to 1969. See Nurad Exhibit I at 10-14, 50-52; Hooper Appendix D to Motion for Summary Judgment (hereinafter "Hooper Appendix "), Lawrence Hooper Dep. at 33-48, 50-69; Hooper Appendix E. In addition, the record demonstrates that neither had the ability nor the capacity to exercise such control over the operations since their father, James Hooper, Sr., as president during the relevant times, retained all decision-making authority over the company including the daily operations at the finishing plant. Mr. Hooper, Sr. also provided all pertinent instructions concerning his decision to sell the property, and voted, as trustee, the majority of stock interest in the company. See Hooper Appendix A, Finney Aff. PP5, 6.23 Although CERCLA was meant to be interpreted broadly, Nurad has failed to support its assertion that James Hooper, Jr. and Lawrence Hooper controlled or had the ability to control the operations at the Site prior to its sale. Nor is there support for Nurad's contention that during this time the individual defendants could have prevented the abandonment of the USTs and the disposal of hazardous substances at the Site.24 The Court will therefore grant the individual Hooper defendants' motion for summary judgment on this issue and deny Nurad's motion for partial summary judgment as to these two defendants. The Hooper Co. sold the entire Mill parcel, including the Site at issue in this case, to Property Investors, Inc. ("Property Investors") on November 30, 1963. Property Investors owned the parcel until October 9, 1964, when it merged with Monumental Enterprises, Inc. ("Monumental"). Monumental then owned the parcel from October 9, 1964 until October 13, 1976. Defendant Frank S. Nicholl, Jr. was the president and principal stockholder of both Property Investors and Monumental. During its ownership, Property Investors rented property at the Mill to Hooper, Nurad and others. Nurad argues that partial summary judgment against Frank Nicholl is appropriate based on his status as a prior owner and operator of the Site from 1963 until 1976. Nurad contends that defendant Nicholl personally participated and controlled property management decisions relating to the Site and Mill on a routine basis during the time he owned it. Nurad further suggests that Mr. Nicholl actively managed the corporations and routinely met and corresponded with the tenants on matters relating to the Site and their leases. According to Nurad, since Mr. Nicholl personally handled insurance and other business issues relating to the Mill, he had the authority and opportunity to empty the tanks and to address the contamination then existing. Nurad points out that in June, 1966, the Factory Insurance Association, the insurer of the Hooperwood Mills, conducted an inspection of the property and specifically recommended closure of the USTs. Mr. Nicholl failed to do so, and the tanks remained open during his ownership. Nurad suggests that had defendant Nicholl performed the tank closures at that time the potential environmental damage from the USTs would have been substantially reduced. Although Mr. Nicholl does not dispute that he was president and the principal shareholder of both Property Investors and Monumental during the relevant times, he argues that based on the present facts he can not be held liable as a prior owner or operator. He points out that [22 ELR 20084] there is no evidence that either Property Investors or Monumental operated a hazardous waste disposal business. Nor is there any evidence, according to defendant Nicholl, that he was involved in managing hazardous substances at the Mill. Even though his tenants might have handled such wastes, Nicholl points to the lease agreements with the tenants and argues that he had no authority to influence their decisions over these matters. Applying either the "authority to control analysis" or the "prevention test" discussed above, the Court finds that based on this record Frank Nicholl was an owner or operator of the Site from 1963 until 1976. Mr. Nicholl's relationship to Property Investors and Monumental is similar to Mr. Hooper, Sr.'s relationship to Hooper Co.; both were officers actively involved in the day-to-day operations of the companies they owned and controlled. Here, like Mr. Hooper, Sr., Mr. Nicholl was aware of the USTs and their contents. Defendant Nicholl also recognized the need to empty them, and as the president and principal stockholder of Property Investors and Monumental who ran all aspects of those companies' operations, Mr. Nicholl certainly had the capacity and authority to properly dispose of the hazardous substances in them. See Nurad Exhibits N, O at 2-3, P, Q, R; Deposition Transcript of Kenneth B. Mumaw (Paper No. 112) (hereinafter referred to as "Mumaw Deposition"). The Court rejects Mr. Nicholl's suggestion that as a landlord he had no authority to control his tenants' activities. However, even assuming, arguendo, that he could not influence his tenants' decisions on these matters, it is clear that absentee landlords can be held liable under Section 107(a)(2) of CERCLA as prior owners at the time of disposal even though they have not participated in conduct resulting in the release of hazardous substances. In United States v. Monsanto Co., 858 F.2d 160, 166 [19 ELR 20085] (4th Cir. 1988), cert. denied, 490 U.S. 1106 (1989) the Fourth Circuit rejected an argument similar to the one made here by defendant Nicholl. In Monsanto, the site owners contended that they were innocent absentee landlords unaware or unconnected to the waste disposal activities that took place on their land. They argued that their lease with the tenants did not allow the tenants to store chemical waste on the premises, but they admitted that they became aware of waste storage and accepted lease payments. Nevertheless, the Fourth Circuit held In light of the strict liability imposed by section 107(a), we cannot agree with the site-owners contention that they are not within the class of owners Congress intended to hold liable. . . . The plain language of section 107(a)(2) extends liability to owners of waste facilities regardless of their degree of participation in the subsequent disposal of hazardous waste. Based on this case law and the uncontradicted facts presented on the summary judgment record, the Court concludes that Frank Nicholl was an owner or operator of the Site from November 30, 1963 to October 13, 1976.25 Monumental entered into a contract with Kenneth B. Mumaw to purchase the Hooperwood Mills on July 30, 1976. Nurad Exhibit S. Although the deed reflects a transfer date of October 13, 1976, Mr. Mumaw testified at his deposition that the documents were backdated and the actual property transfer took place in mid-November, 1976. See Mumaw Deposition at 114-16. In August, 1976, defendant Mumaw contracted to sell three of the subdivided parcels and decided to keep the land and buildings to the south of the Site for himself. In September, 1976, Mr. Mumaw entered into a lease agreement with the Hooper Co. and agreed to rent certain buildings Mr. Mumaw had contracted to buy. Nurad Exhibit V. Defendant Mumaw also collected rent payments from tenants from July to October, 1976. According to Nurad, Mr. Mumaw held an "equitable ownership" in the Site from the time he entered into the Contract for Sale, July, 1976, until he obtained full legal title to the property in mid-November, 1976. Nurad points out that in recognition of Mr. Mumaw's equitable interest, Mr. Nicholl obtained a fire insurance general endorsement for the Mill which named defendant Mumaw as an additional insured. See Exhibit C to Nurad's Memorandum in Opposition to Mumaw's Motion for Summary Judgment. Mumaw contends that two documents terminated his equitable ownership of the Site: 1) a Letter of Intent dated June 18, 1976 from Mr. Mumaw to Nurad to convey the Site and Mill to Nurad; and 2) the Contract of Sale with Nurad dated August 9, 1976. Relying on Kingsley v. Makay, 253 Md. 24, 251 A.2d 585 (1969), defendant Mumaw argues that he could not have acquired any equitable interest in the property in July since he had already agreed to sell it to Nurad in June. Under Maryland law the doctrine of equitable conversion provides that a purchaser who has a valid, enforceable and binding agreement to convey, and thus can compel conveyance in an action for specific performance, should be treated as the owner of the property. Watson v. Watson, 304 Md. 48, 61, 496 A.2d 794 (1985). The doctrine, however, does not apply to agreements to convey in which a condition precedent to enforceability has not been met since in this situation the purchaser does not have a right to specific performance. See H. Mcclintock, Handbook of the Principles of Equity § 106 at 287 (2d ed. 1948). Under the equitable conversion doctrine, the purchaser is treated as the equitable owner of the property. If at the time of contract, however, the vendor did not have the title which he contracted to convey, there is no conversion. Id. at 286-87. In the present case, defendant Mumaw's Letter of Intent to Nurad and the Contract of Sale with Nurad did not terminate his equitable ownership in the Site for several reasons. First, the Letter of Intent was expressly "contingent upon Mumaw's purchasing the Hooperwood Mills complex from Frank S. Nicholl Jr.'s [Property Investors]." Nurad Exhibit U. Because the Letter of Intent acknowledged that Mr. Mumaw's purchase was a condition precedent to the sale to Nurad, it did not preclude Mr. Mumaw's acquisition of an equitable interest in the property. Second, the August 9th Contract was not, on that date, specifically enforceable; there were conditions precedent to the Sale which had not been performed and thus Nurad could not have obtained equitable title to the property then. For example, Nurad had not obtained financing and Mumaw had not obtained subdivision approval. See Nurad Exhibit U. And third, the August 9th Contract of Sale provided that Mr. Mumaw bear the risk of harm to the property until the actual settlement in November. See id. Mr. Mumaw's reliance on Kingsley is misplaced. The status of the contract purchaser's equitable interest between the time he agreed to sell and the actual sale was not at issue in Kingsley. Rather, in that case the Maryland Court of Appeals determined whether the sale of an equitable interest in property must be recorded to be valid. Contrary to defendant Mumaw's suggestions the Court did not hold that a buyer, prior to receipt of a deed, who contracted to resell the property had given up all equitable title to the property. Based on these facts, the Court finds that Kenneth Mumaw was both a legal and equitable owner of the Site prior to its sale to Nurad in November, 1976. As such, he is liable as a prior owner under Section 107(a)(2) of CERCLA.26 Cf. United States v. Carolawn, 14 Env't L. Rep. 20,699 (D.S.C. June 15, 1984) (short-term owners can be subject to CERCLA liability). b. Defendants Associated with the Site 1. Allstates Moving and Storage and Raymond B. McMillan From 1966 to 1979, Sudler Moving and Storage d/b/a Allstates Moving and Storage, Inc. ("Allstates") leased certain buildings and portions of these buildings near the USTs at the Site and conducted a freight transfer and storage operation there.27 Raymond B. McMillan was the president and sole shareholder of Allstates from 1960 throughout [22 ELR 20085] Allstates' tenancy. Mr. McMillan ran Allstates' office at this location. Nurad contends that Allstates and Mr. McMillan are liable under Section 107(a)(2) as former operators of the Nurad site. Arguing that Allstates had "control" over the facility, Nurad points to the fact that defendant Allstates had "access" to the area where the USTs were located, that it had parking facilities in the vicinity of the USTs, and that Allstates conducted freight loading and unloading operations in the vicinity of the USTs. Nurad also alleges that prior to leasing the buildings, Allstates had inquired of the owner of the property whether the tanks would be available for use for fueling Allstates' vehicles. Nurad cites United States v. SCRDI, 653 F. Supp. 984 (D.S.C. 1984) to support its arguments. Allstates, on the other hand, contends that it never "operated" the CERCLA site.28 Citing to its leases with Nurad,29 Allstates points out that it did not have legal authority or actual physical control over the area of the Site where the USTs are or were located. According to Allstates, it was a tenant in only a portion of one group of buildings on the Site, with the right to use a certain parking area that did not include the land on which the USTs are located. Allstates further argues that it had no legal authority over the USTs or their contents, and thus it never actually exercised control over them. Several courts have held tenants liable under CERCLA as owners or operators of a facility. See, e.g., United States v. SCRDI, 653 F. Supp. at 1003; International Clinical Laboratories, Inc. v. Stevens, 20 Env't L. Rep. 20,560, 20,561 (E.D.N.Y. 1990); Versatile Metals, Inc. v. Union Corp., 693 F. Supp. 1563, 1571 [19 ELR 20472] (E.D.Pa. 1988); United States v. Northernaire Plating Co., 670 F. Supp. 742 (W.D. Mich. 1987). However, in determining liability the courts emphasize the tenant's control over or participation in the disposal of hazardous substances at the facility. See BCW Associates, Ltd. v. Occidental Chem. Corp., 1988 U.S. Dist. LEXIS 11275 (E.D. Pa. 1988) (tenant was not operator because tenant's activities at facility were "limited in scope, well-confined, and unrelated to the disposal or release of hazardous substances"); International Clinical Laboratories, Inc. v. Stevens, 20 Env't L. Rep. at 20561 (tenant liable as operator because it generated and discharged hazardous wastes at site); Versatile Metals, Inc. v. Union Corp., 693 F. Supp. at 1571 (purchaser-lessee liable where it actively contributed to the contamination of facility). For example, in United States v. SCRDI, the case relied on by Nurad, the tenant and subtenant had leased all of the property where the facility was located and the subtenant was actively operating it. Finding both liable under CERCLA, the Court reasoned that the tenants "maintained control over and responsibility for the use of the property." 653 F. Supp. at 1003. It is clear from the decision that the degree of a tenant's control over a facility was critical to the court's determination. In fact, the court explained that "site control is an important consideration in determining who qualifies as an owner under § 107(a)." Id. In the present case, although Allstates had access to the USTs by virtue of Allstates' use of the common areas at the Site, the undisputed evidence clearly demonstrates that Allstates' tenancy was confined to a small group of buildings and its activities in and around those buildings were limited in scope and unrelated to the disposal or release of hazardous substances from the USTS. See Allstates' Exhibit D. Here, unlike the tenants in SCRDI, Allstates never owned, leased, used or managed the USTs or their contents; rather, the evidence demonstrates that the Mill owners had control over the common areas. See Mumaw Deposition at 60-66, 80-82. Also unlike the tenants in SCRDI, Allstates never actively participated in the disposal of hazardous substances at the Site. In the Court's view, Allstates' mere access to the USTs, without more, is insufficient to support a finding of "operator" status under CERCLA. See Edward Hines Lumber Co. v. Vulcan Materials Co., 685 F. Supp. 651 [18 ELR 21223] (N.D. Ill. 1988), aff'd, 861 F.2d 155 [19 ELR 20187] (7th Cir. 1988). Because the Court concludes that Allstates lacked the requisite degree of control over the USTs, and that it was not involved in the disposal or release of hazardous substances at the Site, the Court will grant Allstates' motion for summary judgment as to the CERCLA count and deny Nurad's motion for partial summary judgment as to Allstates' liability under CERCLA. The Court further finds that the grounds for granting Allstates' motion for summary judgment on the CERCLA count also support granting summary judgment in Allstates' favor on Nurad's negligence claim against Allstates. In Count 2, Nurad alleges that Allstates had a duty to warn Nurad of the existence, contents and condition of the USTs. Because the Court has concluded that Allstates lacked the legal authority and actual control over the USTs, their contents or the land on which they are located, Allstates had no legal duty, as a matter of law, to warn Nurad about them. See Heinrich v. Goodyear Tire & Rubber Co., 532 F. Supp. 1348, 1357 (D. Md. 1982) (common law duty to warn others of dangerous condition arises only where defendant owns the property on which the dangerous condition exists or "at least the right or a duty to control, if not actual control over, the activity causing the harm."). Accordingly, the Court will grant Allstates' motion for summary judgment as to Count 2. The Court will also grant Mr. McMillan's motion for summary judgment as to the CERCLA and common law counts and deny Nurad's motion for partial summary judgment as to his liability under CERCLA. Nurad has not alleged any facts, aside from the fact that Mr. McMillan was president and the sole shareholder of Allstates, to support its allegation that defendant McMillan is a responsible party under CERCLA Section 107(a). Because the Court has concluded that Allstates is not liable under either CERCLA or Maryland common law, Mr. McMillan is also not liable under CERCLA as a prior operator or under Maryland common law for negligence.30 2. Universal Laboratory Installations, Inc. Although Universal was not a tenant on the Site like Allstates, for approximately nine months during 1972 Universal occupied Buildings 28 and 28A (herein collectively referred to as "Building 28") which are located directly east of Nurad's property. Universal installs cabinets, shelving and other materials at installations where it is engaged by contract to perform such work. During nine months in 1972, Universal used the upstairs portion of Building 28 as an office and a portion of the first floor for tool and hardware storage. Universal had no other rights in the property, other than ingress and egress, the right to use the loading dock on the west side of Building 28, and the right to use the door located on the south side of Building 28 for entering and leaving the building.31 Even when the Court characterizes Building 28 as part of the Nurad "facility," applying the test discussed above to these facts leads the Court to the conclusion that Universal is not liable under CERCLA as an operator of the Site during its occupancy of Building 28. Although Universal never executed a written lease in connection with its use of Building 28, the record demonstrates that like Allstates', Universal's association with the Site was confined to a specific area; the first and second floors of Building 28. Metzger Affidavit. Also like Allstates, Universal never participated in the disposal of hazardous substances at the Site. Id. Nor did it use, store or transport any hazardous substances or any other chemicals in connection with its occupancy of Building 28. Id. Moreover, during this time, Universal had no knowledge of the existence of the USTs at the Site. Id. Based on these undisputed facts, the Court concludes that Universal did not have the control or the authority to control the operations or decisions involving the disposal of hazardous substances at the Site or the contents of the USTs. Thus, the Court will grant Universal's motion for summary judgment on the CERCLA and negligence counts and deny Nurad's motion for partial summary judgment as to CERCLA liability. 3. Monumental Millwork Inc. Monumental Millwork was not a tenant on Nurad's property and it never used or occupied any portion of the Site. From 1968 to 1978 it occupied a portion of Building 2 located at 2139 Druid Park Drive, southeast of the Site.32 Monumental Millwork used Building 2 to assemble doors and windows and to store them for subsequent distribution. Like Universal, Monumental Millwork neither had knowledge of the USTs nor did it use hazardous substances or the USTs in connection with its tenancy of Building 2. See Monumental Exhibit B; Mumaw Deposition at 211-213. Even assuming that Building 2 is part of the Nurad "facility," the Court concludes that Monumental Millwork is in the same position as Universal; during its occupancy of Building 2 it did not maintain control over or responsibility for the USTs or hazardous substances at the Site and it never participated in the disposal of hazardous substances there. Accordingly, the Court will grant Monumental Millwork's motion for summary judgment on the CERCLA and negligence counts and will deny Nurad's motion for partial summary judgment as to CERCLA liability. 5. Owners or Operators At the Time of Disposal In addition to finding that a party is an owner or operator, under Section 107(a)(2) of CERCLA a plaintiff must also demonstrate that a "disposal" of hazardous substances occurred at the facility during the defendant's ownership or operation. 42 U.S.C. § 9607(a)(2). Because the Court has found that the Hooper Co., Mr. Nicholl and Mr. Mumaw are prior owners or operators, the Court will now address whether a "disposal" of hazardous substances occurred during each of these defendant's ownership or operation of the Site. CERCLA adopts by reference the RCRA definition of "disposal" which includes: the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid waste or hazardous waste into or on any land or water so that such solidwaste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters. 42 U.S.C. §§ 9601(29), 6903(3). The few reported decisions concerning the definition of "disposal" have held that depositing hazardous substances into subsurface receptacles constitutes "disposal" within the meaning of CERCLA. See Westwood Pharm., Inc. v. National Fuel Gas Distr. Corp., 737 F. Supp. 1272, 1278 (W.D.N.Y. 1990); Amland Properties Corp. v. Aluminum Co. of Am., 711 F. Supp. 784, 791 [19 ELR 21180] (D. N.J. 1989). Moreover, it is clear from the language of the statute that disposal occurs even when hazardous substances are placed in underground receptacles that are structurally sound, since in doing so they "may" enter the environment. Westwood, at 1278. Here, Nurad alleges a "disposal" of hazardous substances occurred during the Hooper Co.'s ownership of the Site because: 1) Hooper employees occasionally spilled MIBK at the Site; 2) the company placed MIBK and mineral spirits in USTs between 1926 and 1962; 3) Hooper ceased using the USTs in 1962; and 4) Hooper abandoned the USTs by selling them to Property Investors in 1963. The Hooper Co. contests that it disposed of any hazardous substances at the Site. Hooper disputes that its employees spilled MIBK at the property or that the USTs were leaking during its ownership. Hooper further suggests that it did not dispose of the USTs by selling them to Property Investors since in doing so Hooper was transferring a "useful substance for a useful purpose." To support this argument, Hooper points to both the Contract of Sale and the Bill of Sale between Hooper and Property Investors which specifically listed the USTs as items sold. Such a sale, according to Hooper, does not constitute an "abandonment" of the USTs as Nurad suggests. The Court finds that genuine issues of material fact exist as to whether any Hooper employee spilled MIBK onto the Site and whether MIBK was stored in any of the USTs during Hooper's ownership of the Site. Nurad has presented the testimony of Gary W. Pope, a supervisor at Hooper's finishing plant from 1935 to 1962, to support its claim that Hooper spilled MIBK at the Site. At his deposition, however, Mr. Pope testified that Hooper employees "may" have spilled MIBK onto the ground while transferring it from 55 gallon drums to 5 gallon buckets. Moreover, to contradict insurance records presented by Nurad to show that MIBK was stored in the USTs, Hooper relies on the testimony of Mr. Pope who stated that Hooper never stored MIBK in any UST during his tenure with the company. Based on this conflicting evidence, the Court can not conclude at this time that MIBK was spilled on the ground at the Site or was stored in the USTs by the Hooper Co. during its ownership. It is undisputed, however, that the Hooper Co. stored mineral spirits in two USTs on the Site from 1935 through mid-1962.33 In a 1963 Bill of Sale to Property Investors, the Hooper Co. acknowledged that these tanks contained solvents and processing materials. Moreover, Mr. Pope testified that Hooper stored mineral spirits in two USTs. Because the Court has determined that mineral spirits is a hazardous substance under CERCLA,34 the Court concludes that the Hooper Co. "disposed" of hazardous substances at the Site by storing mineral spirits in the USTs. See Westwood, 737 F. Supp. at 1278. The Court also rejects the Hooper Co.'s argument that the sale of the USTs and the Site "reverses" the company's previous disposal of hazardous substances at the Site. Hooper relies on Brockton Wholesale Beverage Co. v. Chevron U.S.A., Inc., 1990 U.S. Dist. LEXIS 9998 at 2 (D. Mass. 1990) and C. Greene Equip. Corp. v. Electron Corp., 697 F. Supp. 983 [19 ELR 20502] (N.D. Ill. 1988) to support its argument on this point. These cases, however, are inapposite for two reasons. First, they do not involve the sale of previously disposed of materials. Second, the courts in these cases were interpreting a different section of CERCLA; the courts were determining whether a defendant had "arranged for disposal or treatment . . . of hazardous substances" pursuant to Section 107(a)(3) of CERCLA which relates to "generators," a group of potentially responsible parties entirely different from those under Section 107(a)(2) who "own or operate a facility at the time of disposal" which is at issue in this case. In sum, on the basis of the summary judgment record, the Court concludes that Hooper deposited mineral spirits into the USTs during its ownership of the Site. Since the Court finds that Hooper's subsequent sale of the USTs and the Site does not "reverse" these previous actions, the Court finds that the Hooper Co. disposed of hazardous substances during its ownership of the Site. The Court will therefore deny the Hooper Co.'s motion for summary judgment as to the Hooper Co. and will grant Nurad's motion for partial summary judgment against Hooper Co. on the issue of CERCLA liability. Nurad also argues that Hooper "operated" the Site when it leased two buildings on the Site (Buildings 24 and 24A) and conducted finishing operations there for a few years beginning in 1966. Hooper used the Building 28 tank in that operation. Although it is undisputed that Hooper did not actively dispose of hazardous substances during its operation of this building, Nurad argues that the passive migration and reposing of hazardous substances at the Site during this time constitute "disposal" under CERCLA. Nurad relies on United States v. Waste Industries, Inc. 734 F.2d 159, 164 [14 ELR 20461] (4th Cir. 1984), to support its broad interpretation of "disposal." In that case, the Fourth Circuit held that "disposal," as so defined in RCRA, encompasses both hazardous waste in a state of repose at a site and the gradual leaking of wastes into the environment: The inclusion of "leaking" as one of the diverse definitional components of "disposal" demonstrates that Congress intended "disposal" to have a range of meanings, including conduct, a physical state, and an occurrence. Discharging, dumping and injection (conduct), hazardous waste reposing (a physical state) and movement of waste after it has been placed in a state of repose (an occurrence) are all encompassed in the broad definition of disposal. Id. at 164 (holding that Section 7003 of RCRA applies to inactive disposal sites); see also United States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 1399 [16 ELR 20763] (D. N.H. 1985), aff'd in part, vacated in part, 900 F.2d 429 [20 ELR 20856] (1st Cir. 1990) ("'disposal' includes within its [22 ELR 20087] purview leaking, which ordinarily occurs not through affirmative action but as a result of inaction or negligent past actions.") (quotations omitted). The Court disagrees with Nurad's assertion that the Fourth Circuit's definition of disposal in Waste Industries is controlling law in the present case. That case, which was not a CERCLA action, addressed a different factual and legal context than the one presented here. In Waste Industries, the court considered whether in 1979 the EPA had authority under RCRA to require remediation by former owners or operators of an inactive landfill. The Fourth Circuit ruled that RCRA § 7003 is "designed to deal with situations in which the regulatory schemes break down or have been circumvented . . . Congress expressly intended that this other language (RCRA § 7003] close loopholes in environmental protection." Id. at 164. Applying the law as it was before the enactment of CERCLA, it appears that the only way for the Waste Industries court to preserve the EPA's ability to demand cleanup by the actual former owners and operators was to define "disposal" in RCRA to cover completely passive repose or movement through the environment. The circumstances that motivated the Fourth Circuit to define "disposal" so broadly in RCRA § 7003 do not exist in this situation. Here, the current owner and all prior owners and operators are parties to this CERCLA action and as noted above some of them are liable for the response costs. Although CERCLA adopts by reference the definition of "disposal" found in RCRA, it also adds the term "release" to cover both active and passive conditions. The Waste Industries court construed the term "disposal in the RCRA context, where there was otherwise no responsibility for conditions corresponding to a CERCLA "release." In enacting CERCLA, Congress expressly limited CERCLA liability to former owners "at the time of disposal," a phrase which must refer to an action or have no meaning at all. These contextual differences have also been recognized by other courts which have required some affirmative action to constitute disposal under CERCLA. In Ecodyne Corp. v. Shah, 718 F. Supp. 1454, 1457 [20 ELR 20172] (N.D. Cal. 1989), for example, the district court dismissed an intermediate owner on summary judgment grounds. In construing the term "disposal," the court looked to the grammar and structure of RCRA § 1004(3), 42 U.S.C. § 6903(3): The meaning of a word is or may be known from the accompanying words — this is the principle of noscitur a sociis. In ascertaining what disposal means, the Court looks at its definitional components and finds that these three nouns (discharge, deposit and injection) and four gerunds (dumping, spilling, leaking, and placing), when read together all have in common the idea that someone do something with hazardous substances. Taking the clearest example, the Court notes that "placing", read in the context of the statute, means a person introducing — putting — formerly controlled or contained hazardous substances into the environment. For plaintiff solipsistically to read, for example, "leaking" as meaning the general migration of chemicals and, as such, a disposal under § 9607(a)(2), renders not only the definitional phrase of RCRA § 6903(3) "into or on any land or water" superfluous, but would also conflict with the general structure of § 9607(a)" Id. The Court concluded that the scope of liability under CERCLA § 107(a)(2) does not automatically reach intermediate former owners recognizing that: To define disposal as plaintiff wishes would effectively make all property owners from the time a site became polluted (up to and including the current owner) potentially liable under § 9607(a)(2) even if these owners did not introduce the chemicals onto the site. Other cases have also limited the scope of Section 107(a)(2) liability to prior owners or operators who actively dispose of or introduce hazardous substances into the environment. See In re Diamond Reo Trucks, Inc., 115 Bankr. 559, 565 (Bkrtcy W.D. Mich. 1990) (concluding "the mere ownership of the site during the period of time in which migration or leaching may have taken place, without any active disposal activities, does not bring [the defendant] within the liability provision of § 9607(a)(2)"); Emhart Industries, Inc. v. Duracell International, Inc., 665 F. Supp. 549; cf. 3550 Stevens Creek Association v. Barclays Bank of California, 915 F.2d 1355 [21 ELR 20011] (9th Cir. 1990) (construing "disposal" for purposes of Section 107(a)(2) as requiring some affirmative act of discarding a substance as a waste), cert. denied, 111 S. Ct. 2014 (1991). This Court is persuaded by these authorities and also reads Section 9607(a)(2) as only providing an action against prior owners or operators of a site who actively dispose of hazardous substances at the site during their ownership or operation. Congress intended that courts impose CERCLA liability on those responsible for the contamination. This Court's reading of Section 107(a)(2) is consonant with that purpose. Because Nurad has not alleged, and the record does not show, that any active disposal took place during Hooper's "operation" of Building 24, the Court holds that the Hooper Co. is not liable under CERCLA for its operations at Building 24. Accordingly, the Court will deny Nurad's motion for partial summary judgment on this issue. b. Frank Nicholl and Kenneth Mumaw Although the Court has found defendants Nicholl and Mumaw are prior owners or operators of the Site, Nurad has not produced any evidence that either actively disposed of hazardous substances during their ownership or operation. Nurad relies solely on its assertion that hazardous substances were "reposing in the USTS during their ownership or operation to support its "disposal" argument. As discussed above, in this Court's view, reposing hazardous substances in USTs do not constitute "disposal" under Section 107(a)(2) of CERCLA. Thus, the Court will deny Nurad's motion for partial summary judgment against defendants Nicholl and Mumaw on the CERCLA liability issue and will grant Mr. Mumaw's motion for partial summary on the CERCLA issue.35 The final argument made by the Hooper Co. is that Nurad's CERCLA action is barred by the equitable defenses of laches, unclean hands and estoppel. Hooper relies on this Court's decision in United States v. Dickerson, 640 F. Supp. 448 [16 ELR 20970] (D. Md. 1986) (Judge Young) to support its argument that these doctrines provide defenses to Section 9607(a) liability. In that case, the Court adopted the analysis and holding of United States v. Mottolo, 605 F. Supp. 898 [15 ELR 20444] (D. N.H. 1985), which, in turn, explicitly embraced the equitable defenses of laches, unclean hands and estoppel in CERCLA private cost recovery actions. Dickerson, 640 F. Supp. at 451 (citing United States v. Mottolo, 605 F. Supp. at 901-09). The court in Dickerson, however, declined to apply the equitable defenses to its present situation because the United States brought suit in its sovereign capacity. Id. To the extent that the Dickerson Court recognized equitable defenses to CERCLA liability, the Fourth Circuit's decision in United States v. Monsanto Co., 858 F.2d 160, 170 (4th Cir. 1988) effectively overrules that part of the decision. In Monsanto, the Fourth Circuit explicitly stated that there are no defenses to CERCLA liability other than the specifically enumerated defenses in the statute.36 The Court explained that while "equitable factors are relevant in subsequent actions for contribution," "[t]hey are not pertinent to the question of joint and several liability, which focuses principally on the divisibilty among responsible parties of the harm to the environment." United States v. Monsanto, 858 F.2d at 171 n.22 (rejecting site-owners' contention that limited degree of participation rendered finding of joint and several liability inequitable). The majority of cases addressing this issue have also concluded that the only defenses to CERCLA liability are the statutory defenses enumerated in Section 107(b). See, e.g., Kelley v. Thomas Solvent Co., 714 F. Supp. 1439, 1445 n.3 (W.D. Mich. 1989) (citing numerous cases); see also United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1507 (6th Cir. 1989), cert. denied, 110 S. Ct. 1527 (1990). In addition, many of the courts considering this question have gone further and have specifically held that equitable defenses are not relevant to a determination of CERCLA liability under Section 107(a). See, e.g., United States v. Monsanto, 858 F.2d at 171 n.22; Smith Land & Improv. Corp. v. Celotex Corp., 851 F.2d 86, 90 [18 ELR 21026] (3d Cir. 1988), cert. [22 ELR 20088] denied, 488 U.S. 1029 (1989) ("doctrines such as caveat emptor and 'clean hands' . . . do not comport with congressional objectives."); United States v. Western Processing Co., 734 F. Supp. 930, 939 [20 ELR 20990] (W.D. Wash. 1990) (rejecting unclean hands defense); Allied Corp. v. Acme Solvents Reclaiming Inc., 691 F. Supp. 1100, 1110 [19 ELR 21254] (N.D. Ill. 1988) (same); General Electric Co. v. Litton Business Systems Inc., 715 F. Supp. 949, 956 [19 ELR 21433] (W.D. Mo. 1989) (same), aff'd, 920 F.2d 1415 [21 ELR 20453] (8th Cir. 1990), cert. denied, 111 S. Ct. 1390 (1991); Chemical Waste Management Inc. v. Armstrong World Industries, Inc., 669 F. Supp. 1285, 1291 n.7 [18 ELR 20191] (E.D. Pa. 1987) (same).37 This Court is persuaded by these authorities and concludes that the limited defenses of Section 107(b) are exclusive and that equitable defenses such as those asserted here by Hooper — unclean hands, laches and estoppel — cannot be asserted in a private cost recovery action under CERCLA. Nurad has moved, pursuant to Fed. R. Civ. P. 42(b), to bifurcate the issues of liability and damages in this action. Nurad argues that bifurcation is appropriate in CERCLA private cost recovery suits because the statute authorizes plaintiffs who have incurred some response costs to seek a judgment of liability against other responsible parties for those costs and a declaration of liability as to future costs. See 42 U.S.C. § 9613(g)(2). Nurad also argues that because it has not incurred costs associated with a "remediation"38 of the site, the necessity and consistency of those response costs with the NCP are appropriately addressed during the damages stage of the proceedings. Nurad further contends that delaying this determination will lead to a more economical and expeditious resolution of the case because proof of necessity and consistency requires the presentation of evidence and witnesses different from that required for a liability determination. Nurad points out that if any defendant is exculpated on the issue of liability that defendant can avoid the time and expense associated with trial on the separate issue of damages. Defendants39, on the other hand, oppose bifurcation. Relying on Amland Properties Corp. v. Aluminum Co. of America, 711 F. Supp. 784, 794 (D. N.J. 1989), they argue that under CERCLA a determination of consistency with the NCP is an essential element of plaintiff's case on liability. Defendants further dispute Nurad's allegation that future "remediation" costs have yet to be incurred. The better reasoned decisions addressing this issue have held that bifurcation of liability and consistency with the NCP is appropriate where the factual record does not permit a determination of consistency with the NCP at the time the motion for summary judgment is filed or where the plaintiff seeks only a declaration of the defendant's liability for future costs incurred consistent with the NCP. See e.g., County Line Inv. Co. v. Tinney, 933 F.2d 1508, 1513 [21 ELR 21299] (10th Cir. 1991) (citing cases); see also Emhart Industries, Inc. v. Duracell International Inc., 665 F. Supp. at 574; Jones v. Inmont Corp., 584 F. Supp. 1425, 1430 [14 ELR 20485] (S.D. Ohio 1984) (citing Philadelphia v. Stepan Chem. Co., 544 F. Supp. 1135, 1144 n.16 [12 ELR 20915] (E.D. Pa. 1982)). In the present case, the record on consistency with the NCP is incomplete since Nurad alleges that future response costs associated with "remediation" of the site have yet to be incurred. Thus, the Court will grant Nurad's motion to bifurcate. For the reasons stated above the Court will 1) grant Nurad's motion for partial summary judgment against the Hooper Co. and deny the Hooper defendants' motion for summary judgment as to the Hooper Co.; 2) grant the Hooper defendants' motion for summary judgment as to the individual Hooper defendants on the CERCLA issue and deny Nurad's motion for partial summary judgment as to James and Lawrence Hooper; 3) deny Nurad's motion for partial summary judgment as to Mr. Nicholl; 4) grant Kenneth Mumaw's motion for partial summary judgment on the CERCLA count and deny Nurad's motion for partial summary judgment as to Mr. Mumaw; 5) grant Allstates' and Raymond McMillan's motion for summary judgment as to the CERCLA and negligence counts and deny Nurad's motion for partial summary judgment as to Allstates and Mr. McMillan; 6) grant Universal's motion for summary judgment and deny Nurad's motion for partial summary judgment as to Universal; 7) grant Monumental Millwork's motion for summary judgment and deny Nurad's motion for partial summary judgment as to Monumental Millwork; 8) grant Zemco's motion for summary judgment; 9) grant Nurad's motion to bifurcate; and 10) deny as moot James Hooper's motion to dismiss. A separate Order will be entered. In accordance with the foregoing Memorandum and for the reasons state therein, IT IS this 15th day of August, 1991, by the United States District Court for the District of Maryland, 1. That Plaintiff's Motion To Bifurcate the Issues of Liability and Damages (Paper No. 94) is GRANTED; 2. That Plaintiff's Motions for Partial Summary Judgment on the CERCLA issue (Paper Nos. 96, 145) are DENIED as to a. Defendants James E. Hooper, Jr. and Lawrence Hooper c. Defendant Frank S. Nicholl, Jr. d. Defendant Universal Laboratory Installations, Inc. e. Defendant Monumental Millwork, Inc. f. Defendant Allstates Moving and Storage g. Defendant Raymond B. McMillan; 3. That Plaintiff's Motion for Partial Summary Judgment (Paper No. 96) is GRANTED as to Defendant Wm. E. Hooper & Co.; 4. That Defendant Wm. E. Hooper & Co.'s Motion for Summary Judgment (Paper No. 97) is DENIED as to Wm. E. Hooper & Co. and GRANTED as to James E. Hooper, Jr. and Lawrence L. Hooper, 5. That Defendant Kenneth B. Mumaw's Motion for Partial Summary Judgment (Paper No. 93) is GRANTED; 6. That Defendant Allstates Moving and Storage and Raymond B. McMillan's Motion for Summary Judgment (Paper No. 102) is GRANTED; 7. That Defendant Universal Laboratories, Inc.'s Motion for Summary Judgment (Paper No. 137) is GRANTED; 8. That Defendant Monumental Millwork Inc.'s Motion for Summary Judgment (Paper No. 138) is GRANTED; 9. That Defendant Zemco Corporation's Motion for Summary Judgment (Paper No. 113) is GRANTED; 10. That Defendant Lawrence L. Hooper's Motion to Dismiss (Paper No. 133) is DENIED as MOOT; and 11. That the Clerk of Court shall mail copies of the foregoing Memorandum and this Order to all counsel of record in this case. 1. This section provides, in pertinent part: [A]ny person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, . . . from which there is a release or a threatened release which causes the incurrence of response costs, of a hazardous substance, shall be liable for — (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; 2. Paper Nos. 96, 158. 3. Paper No. 145. 4. See Paper Nos. 110, 111, 114, 146, 148, 150, 151, 159. 5. Paper Nos. 93, 97, 102, 118, 123, 137, 139, 154. 6. See Paper Nos. 108, 109, 127, 142, 147, 157. 7. There are three other pending motions: 1) Zemco Corporation's ("Zemco") Motion for Summary Judgment (Paper No. 113); 2) Nurad's Motion for Bifurcation (Paper No. 94); and 3) James E. Hooper Jr.'s Motion to Dismiss (Paper No. 133). All of these motions are ripe and will be ruled on at this time. 8. For a map of the Site, see Exhibit H to Appendix of Exhibits to Nurad's Memorandum in Support of Motion for Partial Summary Judgment and Declaration of Liability (hereinafter "Nurad Exhibit "). 9. See Nurad Exhibit F. 10. See Nurad Exhibit G. 11. See Nurad Exhibit H. 12. Several defendants contend that Nurad must also prove that its response costs are consistent with the NCP to establish liability. That argument will be addressed infra at 49 during the Court's discussion of Nurad's motion to bifurcate. 13. During their investigation of the Site, Chem Clear and G&M identified the location and contents of the seven USTs. Nurad Tank 1 was located to the west of Buildings 4, contained fuel oil and was removed on December 21, 1988. Nurad Tanks 3, 4, and 7 were addressed together because of their close proximity. Tank 3 contained 40 gallons of substance containing 90% MIBK and the contents were removed on January 18, 1989. Tank 4 contained approximately one inch of sludge overlain with water. Tank 7 L3 described to have contained 1200 gallons of water and 1% MIBK and the contents were removed on January 31, 1989. These tanks were then cleaned and sealed in place. The undisputed results of the analyses of the tanks' contents are summarized below:
14. See Nurad Exhibit A at 13-14, 18 and Nurad Exhibit B. 15. Nurad asserts that mineral spirits is a hazardous waste because it has a flash point of less than 60 degrees C (140 degrees F) and is ignitable. See Nurad Exhibit C; 40 C.F.R. § 261.21. 16. In arguing that they are not operators, the tenant defendants (Allstates, Universal and Monumental Millwork) suggest that the Court should define the "facility" as only those areas of the Nurad parcel which actually contain hazardous substances. The Court need not address this argument, however, since the Court concludes that these defendants are not operators of the "facility" even when defined to include the entire Nurad parcel. See infra at 30-37. 17. See Appendix of Exhibits to Nurad's Opposition to the Hooper defendants' Motion for Summary Judgment (hereinafter "Nurad Opposition Exhibit ") Exhibit A at 8-14, 67-70 (deposition transcript of Gary W. Pope, Sr.) and Exhibit Y at 23-26 (deposition transcript of Kenneth B. Mumaw). The parties, however, disagree as to which two tanks were used to store chemicals and/or solvents. Nurad claims that Tanks 6 and 8 were used by Hooper to store solvents and chemicals during the finishing plant operations while Hooper claims that Tank 8 and a tank on a property adjacent to the Site were used. The Court does not find that this disagreement presents a material issue of fact since both parties agree that Tank 8 was used by Hooper during this time and the record supports this finding. Id.; Nurad Exhibit H. 18. See supra n.17. 19. See Hooper's Memorandum in Opposition to Nurad's Motion for Summary Judgment and for Bifurcation at 4; Hooper's Memorandum of Law in Support of Motion for Summary Judgment at 8. 20. See id. 21. The Court will discuss infra at 38-45 Hooper's argument that no "disposal" occurred during its ownership of the Site and that its transfer of the Site to Property Investors defeats Nurad's argument that it is a prior owner or operator. 22. The Court observed that its "analysis of the scope of personal liability under the RCRA is similar to our analysis of the scope of individual liability under CERCLA." Id. at 745. 23. As identified in the uncontradicted Affidavit of Jervis S. Finney presented by the individual Hooper defendants, "in 1958 and at least until . . . 1966, the President and Chief Executive Officer of the Company was James E. Hooper [Sr.]. [Legal counsel to the Hooper Co.] received our instructions and all corporate approvals from James E. Hooper [Sr]. He was a man of strong will and temperament suited to running the entire affairs of the corporation, which he did. All major corporate decisions were made by Mr. Hooper. [He] also controlled and voted, as trustee, the majority of shares of stock of the corporation which had been placed in trust upon the death of his father, Robert Hooper." Hooper Appendix A, Finney Aff. at P5. 24. The Court also rejects Nurad's argument that Lawrence and James, Jr. were owners and operators of the Site after the company's sale of the Mill in 1963. After the sale, the Hooper Co. leased Buildings 24 and 24A on the Site and conducted finishing operations there in 1966. Although Nurad correctly points out that during this time both defendants were vice presidents and directors of the company, Mr. Hooper, Sr. was still president in 1966 and was still sole trustee of the trust containing the voting stock. Based on this record, therefore, the Court concludes that during this time neither Hooper defendant had a position of power or the capacity to affect the decisions of the Hooper Co. 25. The Court will address Mr. Nicholl's argument that there was no "disposal" and no evidence of the presence of hazardous substances in any tanks during his ownership infra at 45-46. 26. Nurad also argues that Defendant Mumaw was an operator of the Site from the mid-1960s to 1976. Because the Court's finds that this defendant is a prior owner, the Court need not address Nurad's operator argument. Mr. Mumaw's argument that there was neither a "disposal" nor a release of hazardous substances during his ownership will be discussed infra at 45-46. 27. Allstates leased the following buildings:
28. Allstates also argues that Nurad's characterization of the entire Nurad property, 2165 Druid Park Drive, as a CERCLA "facility is erroneous and that no "disposal" took place during Allstates' tenancy. Because the Court concludes that Allstates was not an "operator" of the Site even when defined to include the entire Nurad parcel, the Court need not address the "facility" argument. As to Allstates' "disposal" argument, see infra at n.35. 29. See Allstates' Exhibit D. 30. Raymond McMillan filed a third party complaint against Zemco claiming that Zemco was also a tenant at the Site. Zemco has filed a motion for summary judgment arguing that it never leased property at the Site. In responding to this motion, Allstates and Mr. McMillan acknowledged that if their motion for summary judgment was granted then "Allstates would have no objection to dismissal of Zemco." Paper No. 124 at 5. Accordingly, the Court will grant Zemco's motion for summary judgment. 31. See Universal's Memorandum of Law In Support of Motion for Summary Judgment, Exhibit C (Affidavit of Charles F. Metzger, Sr.) (hereinafter "Metzger Affidavit") 32. See Monumental Millwork's Memorandum of Law in Support of Motion for Summary Judgment Exhibits A, C (hereinafter "Monumental Exhibit"). 33. See supra at 11, 15. 34. See supra at 9. 35. In reaching this conclusion, the Court also notes that even if the Court had adopted Nurad's position regarding the operator status of the tenant defendants (Allstates, Universal and Monumental Millwork), these defendants would still not be liable under CERCLA.Nurad has not presented any evidence that these defendants actively disposed of hazardous substances during their tenancy. Thus, like Mr. Mumaw and Mr. Nicholl, there was no "disposal" during their "operation" of the Site. 36. Section 107(b) of CERCLA, 42 U.S.C. § 9607(b) sets forth the following defenses to Section 107 liability: where the release or threatened release of a hazardous substance was caused by: 1) an act of God; 2) an act of war; 3) an act or omission of a third party; or 4) any combination thereof. The exclusivity of section 107(b) defenses is explicitly discussed in Section 107(a) which provides for liability "[n]otwithstanding any other provision or rule of law, and subject only to the defenses set forth" in Section 9607(b). 37. These decisions are also consistent with congressional intent. "The listed defenses are the only defenses which are available to avoid liability under Section 107(a). There should be no other defenses, including equitable defenses, that defeat liability under sections 106 and 107 of the act." 131 Cong. Rec. H11074 (daily ed. Dec. 5, 1985) (comments of Representative Eckhart, primary sponsor of 1986 amendments) (emphasis added) quoted by United States v. Western Processing Co., 734 F. Supp. at 939. 38. Costs incurred in responding to releases of hazardous substances are divided by CERCLA into two categories: removal actions and remedial actions. 42 U.S.C. § 9601(25). Removal actions include those acts taken in responseto an immediate threat to the public welfare or to the environment. Id. § 9601(23). Remedial actions, on the other hand, are considered long-term permanent remedies. Id. § 9601(24). 39. Universal and the Hooper defendants have filed oppositions to Nurad's motion to bifurcate. (Paper Nos. 101, 104). 22 ELR 20079 | Environmental Law Reporter | copyright © 1992 | All rights reserved |