ORDER AND MEMORANDUM OF DECISION
Plaintiff, David Lefebvre, d/b/a The Starting Line, brings this action against Defendant, Central Maine Power Company, in connection with Defendant’s alleged disposal of hazardous substances on property currently owned by Plaintiff (the “Site”). Plaintiff asserts claims under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. (Count I), and the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. (Count II). Plaintiff also brings a claim for strict liability on account of Defendant’s ultrahazardous activity at the Site (Count III), and a claim for common law contribution (Count IV). Defendant has responded with a CERCLA cost recovery counterclaim against Plaintiff. The Court has before it Defendant’s Motion for Summary Judgment on all counts of Plaintiffs Complaint and its Counterclaim, and Plaintiffs Motion for Partial Summary Judgment on Counts I, II, and III of its Complaint, and Defendant’s Counterclaim. For the reasons set forth below, both Defendant’s motion and Plaintiffs motion are DENIED.
BACKGROUND
Plaintiff is the current owner and operator of property located on Preble Street in Wa-terville, Maine, which serves as the location for his business, “The Starting Line,” a motorcycle and snowmobile repair shop. From approximately 1919 to 1949, Defendant owned and operated a manufactured gas plant on the Site known as the Waterville Gas Works. During this time, Defendant generated and disposed of hazardous waste on the property and, in particular, coal gas waste. In 1949, Defendant sold the Water- *67 ville Gas Works to the Augusta & Waterville Gas Company which continued to operate the manufactured gas plant until at least 1951. In 1959, the Augusta & Waterville Gas Company sold the property to the Maine Gas & Appliance Company, which, in turn, sold the property to the Magnum Development Corporation. The Magnum Development Corporation sold the property to Plaintiff on February 1,1985.
At the time he purchased the property, Plaintiff was evidently unaware it was contaminated with hazardous waste. Plaintiff allegedly first learned of the contamination in 1988, when Scott Paper Company (“Scott”) began work to improve the culvert that carries Holland Brook under the Central Maine Railway adjacent to Plaintiffs property. In the process of excavating for this culvert, Scott encountered soil contaminated with coal tar waste, and without Plaintiffs permission, stockpiled this contaminated soil on Plaintiffs Site. When Scott removed this soil, a test pit revealed the presence of coal gas waste on Plaintiffs property. In March 1990, Scott and Plaintiff settled claims associated with Scott’s work and the hazardous material.
In 1988, Plaintiff hired Brown Engineering to document the risk of flooding at the Site, and to investigate other potentially responsible parties (“PRPs”). In 1995, Plaintiff hired Field Services, Inc. to define and estimate the cost of any necessary remedial options. Defendant has also allegedly incurred.costs in connection with investigating the contamination at the Site. To date, however, no remedial action has been taken at the Site.
SUMMARY JUDGMENT
Summary judgment is appropriate in the absence of a genuine issue of any material fact and when the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). An issue is genuine for summary judgment purposes, if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc.,
DISCUSSION
A. Count I — RCRA
In Count I, Plaintiff asserts a claim for injunctive relief pursuant to the citizen suit provision of RCRA, " 42 U.S.C. § 6972(a)(1)(B). Under this provision, a private plaintiff may bring a civil claim against “any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, of disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environ ment.” 42 U.S.C. § 6972(a)(1)(B) (emphasis added). Defendant contends!that it is entitled to summary judgment on this claim because Plaintiffs claim is barred by the statute of limitations and because Plaintiff has failed to establish that the Site may present “an imminent and substantial endangerment -to health or the environment.” Plaintiff moves for summary judgment on this claim on the basis that the Site currently presents an imminent and substantial endangerment. The Court is persuaded that neither party is entitled to summary judgment on this Count.
1. Statute of Limitations
RCRA itself does not contain a statute of limitations for citizen suits. Generally, where a federal statute provides no statute of limitations courts apply the “most closely analogous” state statute of limitations unless it would “frustrate or interfere with the implementation of federal policies,” in which case courts apply a relevant federal limitations period.
See Eastman v. Brunswick
*68
Coal & Lamber Co.,
No. CIV. 95-255-P-C,
The Court finds Plaintiffs response persuasive. In
Meghrig,
the Supreme Court held that the citizen suit provision of RCRA does not provide a cause of action to recover the prior cost of cleaning up hazardous waste, when that waste does not pose an endangerment to health or the environment at the time the suit is brought.
While the
Meghrig
Court’s observation that RCRA contains no statute of limitations was dicta, several district courts have relied on the Court’s reasoning in concluding that there is no statute of limitations applicable to a RCRA cause of action.
See A-C Reorganization Trust v. E.I. DuPont de Nemours & Co.,
2. Imminent and Substantial Endangerment
In order to succeed on his RCRA claim, Plaintiff must establish that the hazardous waste on the Site “may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). “To prove that an imminent and substantial endangerment may exist, [Plaintiff] need not prove actual harm; [he] need only show a risk of threatened or potential harm.”
Murray v. Bath Iron Works Corp.,
Viewing the facts in the light most favorable to Plaintiff, the Court finds that a material issue of fact exists as to whether the Site poses an imminent and substantial endangerment. Plaintiff calls to the Court’s attention a recent field data summary on the Waterville Gas Works Site from the Maine Department of Environmental Protection (“DEP”) indicating the existence of potential *69 human and environmental hazards at the Site which warrant additional investigation. Plaintiff also emphasizes that no remediation has been done at thp Site which would mitigate its potential risk. The Court finds this evidence sufficient to preclude summary judgment in favor of Defendant.
Likewise, viewing the record in the light most favorable to Defendant, the Court is unable to conclude as a matter of law that the Site currently presents an imminent and substantial endangerment. Defendant focuses the Court’s attention on older DEP findings which, while acknowledging that continued investigation of the Site is necessary, note that the Site does not pose an imminent threat to the public health or safety. The Court is persuaded that there exist material issues of fact on the potential threat posed by this Site which should be determined at trial. The Court, therefore, denies both Plaintiffs and Defendant’s- Motion for Summary Judgment on Count I.
B. Count II and Defendant’s Counterclaim — CERCLA
In Count II, Plaintiff alleges that Defendant is liable for past and future response costs incurred in connection with the hazardous substances at the Site, pursuant to CERCLA § 107(a). Defendant responds that Plaintiff is himself liable for response costs under CERCLA § 107(a). The Court is satisfied that summary judgment on Count II or Defendant’s Counterclaim in favor of either party is inappropriate.
The Court first addresses the issue of whether Plaintiff and Defendant are entitled to bring cost recovery claims under CERCLA. CERCLA presents private parties with two distinct types of legal options: (1) a response cost recovery action under CERCLA § 107(a), 42 U.S.C. § 9607; and (2) a contribution action under CERCLA § 113®, 42 U.S.C. § 9613.
United Technologies Corp. v. Browning-Ferris Indus.,
Section 107(a) sets forth various categories of persons that may be held liable under CERCLA if there is a release-or threatened release of a hazardous substance from a facility which causes the incurrence of response costs.
2
These “covered persons” include current owners, former owners, generators, and transporters.
See Dedham Water Co. v. Cumberland Farms Dairy, Inc.,
Plaintiff argues that Defendant is limited to bringing a section 113 contribution action rather than a section 107 cost recovery action because Defendant is a “non-innocent party” under CERCLA. Defendant makes the *70 same argument against Plaintiff. The Court is persuaded that while it is appropriate for Plaintiff to proceed with his cost recovery claim at this stage of the proceedings, Defendant’s Counterclaim is more properly treated as a claim for contribution pursuant to section 113.
Plaintiff acknowledges that, as the current owner and operator of the Site, he is a covered party under 42 U.S.C. § 9607(a)(1), which extends CERCLA liability to “the owner and operator of a vessel or a facility.” Neither party disputes that there was a “release or threatened release” of hazardous substances at the Site.
Plaintiff, however, contends that he is not liable under CERCLA because he is entitled to the affirmative defense set forth in section 107(b)(3). Pursuant to section 107(b)(3), there is no liability under section 107 for a party otherwise liable who can establish that the release or threat of release and the resulting damages were caused solely by:
an act or omission of a third party other than ... one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant ... if the defendant establishes ... that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result from such acts or omissions.
42 U.S.C. § 9607(b)(3).
Because a property chain of title can be considered a contractual relationship, Congress clarified the applicability of this defense by adding a definition of “contractual relationship” in the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), creating what has become known as the “innocent purchaser” defense. Pursuant to 42 U.S.C. § 9601(35), a “contractual relationship” includes transfers of ownership of land, unless the party asserting the defense can establish that he or she acquired the property “after the disposal or placement of the hazardous substance on, in, or at the facility,” and the landowner can establish that “[a]t the time the [landowner] acquired the facility the [landowner] did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility.” 42 U.S.C. § 9601(35)(A). A landowner may establish that it “did not know and had no reason to know” of the disposal if it undertook “at the time of acquisition, all appropriate inquiry into the previous ownership and uses of the property consistent with good commercial or customary practice in an effort to minimize liability.” 42 U.S.C. § 9601(35)(B).
See In re Hemingway Transport, Inc.,
The Court is satisfied that disputed issues of material fact prevent it from deciding as a matter of law whether Plaintiff is entitled to the “innocent purchaser” defense. For example, viewing the evidence in the light most favorable to Defendant, the Court finds that there is a genuine issue of fact as to whether Plaintiff himself added to the contamination at the Site. Defendant draws the Court’s attention to Plaintiffs use of solvents and other hazardous substances at the Site, and the fact that Plaintiff has never had a contractual arrangement to dispose of any potential hazardous substances generated by his activities.
Likewise, viewing the record in the light most favorable to Plaintiff, the Court is unable to determíne as a matter of law that Plaintiff is not entitled to the “innocent purchaser” defense. Plaintiff alleges that he never contaminated the Site, and that he did not know it was contaminated when he purchased it. In addition, Plaintiff has put forth evidence that he exercised “due care” in relation to the contaminated Site, by undertaking several environmental and engineering studies to analyze the extent of the contamination and remedial options. While Plaintiff has not presented any evidence that he investigated the Site for possible contamination pri- or to purchasing it, the Court is persuaded that Plaintiffs failure to investigate does not preclude him from asserting an “innocent *71 purchaser” defense as a matter of law. The “appropriate inquiry” determination, set forth in section 101(35), measures a potential “innocent purchaser’s” actions based on their “consistency with good commercial or customary practice,” taking into account “any specialized knowledge or experience on the part of the [landowner], the relationship of the purchase price to the value ,of the property if uncontaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination at the property, and the ability to detect such contamination by appropriate inspection.” 42 U.S.C. § 9601(35)(B). The determination of whether, under the particular circumstances of this ease, Plaintiff was truly an “innocent purchaser,” is a factual dispute the Court cannot resolve on the current state of the record. 3 As a result, Plaintiff is entitled to proceed with his cost recovery action.
As the prior owner and operator of the Site at a time when hazardous substances were disposed of there, Defendant also falls within one of the four categories of potentially responsible parties. See 42 U.S.C. § 9607(a). In contrast to Plaintiff, however, Defendant does not assert any affirmative defense to this liability. As a result, Defendant is a “non-innocent party” under CERC-LA, and is limited to bringing a contribution action pursuant to section 113.
The Court next addresses the argument made by both Plaintiff and Defendant that the response costs incurred by the opposing party are not necessary costs of response consistent with the national contingency plan (“NCP”). In order to prevail in a cost recovery action under section 107(a) of CERCLA, a party must establish that: (1) the defendant falls within a category or categories of potentially responsible parties; (2) there has been a release or threatened release of a hazardous substance from a facility; (3) the release or threatened release has caused the claimant to incur response costs; and (4) the claimant’s response costs were necessary and consistent with the national contingency plan. 42 U.S.C. §§ 9601(14), (22) — (25);
Saco Steel Co.,
Plaintiff argues that any response costs Defendant may have incurred as the result of the release of hazardous substances at the Site are litigation-related expenses, which are generally not recoverable as response costs.
See Dedham Water Co. v. Cumberland Farms Dairy, Inc.,
Similarly, Plaintiff alleges response costs associated with identifying other potentially responsible parties, assessing the extent of the contamination, and identifying remedial options. While Defendant contends that these costs are not consistent with the NCP and/or unrecoverable litigation-related expenses, the Court is satisfied that a genuine issue of material fact exists on this issue. The Court, accordingly, denies both parties’ motions for summary judgment on Count II of Plaintiffs Complaint and Defendant’s Counterclaim. 4
C. Count III — Ultrahazardous Activity
In Count III, Plaintiff alleges that the manufacturing of gas and the disposal of the associated wastes is an ultrahazardous activity giving rise to strict liability under Maine law. This Court has held that Maine “would likely recognize a cause of action for strict liability for the disposal and storage of hazardous waste.”
Murray,
The Court finds that neither Plaintiff nor Defendant are entitled to summary judgment on this claim. With respect to Defendant’s summary judgment motion, the Court is persuaded that Plaintiffs claim is not barred by the statute of limitations. Generally under Maine law, “[f|or any civil action, including a claim for strict liability, the statute of limitations is six years.”
Cyr v. Michaud,
The Court, however, is satisfied that disputed issues of material fact preclude summary judgment in favor of Plaintiff on *73 this Count. Such issues, including what, if any, injury Plaintiff has suffered as a result of Defendant’s activities, need to be resolved at trial. 6
D. Count IV — Contribution
In Count IV, Plaintiff asserts a claim against Defendant for common law contribution. At a hearing on the parties’ cross-motions for summary judgment and in Plaintiffs memoranda, however, Plaintiff requested that the Court consider this Count as a claim for contribution under CERCLA. If Plaintiff is found to be a “non-innocent party” at trial, therefore, the Court will treat this claim as one brought pursuant to CERC-LA § 113. 42 U.S.C. § 9613(f) (“In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.”). The Court denies Defendant’s Motion for Summary Judgment on Count IV.
CONCLUSION
Plaintiffs Motion for Partial Summary Judgment on Counts I, II, III, and Defendant’s Counterclaim is DENIED. Defendant’s Motion for Summary Judgment on all Counts of Plaintiffs Complaint and its Counterclaim is also DENIED.
SO ORDERED.
Notes
. The Court recognizes that a section 6972(a)(1)(B) action may remain subject to the equitable defense of laches. Since the parties have not presented this issue, however, the Court will not address it.
. 42 U.S.C. § 9607 stales in relevant part:
(a) Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section—
(1) the owner and operator of ... a facility,
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, ... of hazardous substances owned or possessed by such person, by any other party or entity, at any facility ... owned or operated by another party or entity and containing such hazardous substances, and
(4)any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, ... 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 othér person consistent with the national contingency plan.
. Plaintiff argues that he is entitled to assert the third party defense in section 107(b)(3) without resorting to the "innocent purchaser” exception set forth in section 101(35) because his ownership of the Site did not occur "in connection with" the acts of Defendant in releasing the hazardous substance.
See New York v. Lashins Arcade Co.,
. Although it may appear facially inconsistent for the Court to deny summary judgment on Plaintiff’s cost recovery action against Defendant, while simultaneously finding that Defendant is a "non-innocent party,” this result is compatible with the existing statutory framework. Defendant is a “non-innocent party" because it falls within one of the four categories of "liable" parties set forth in section 107(a), and does not assert any defense to this liability. Under section 107(a)(4)(B), a PRP is "liable” for all response costs which are consistent with the national contingency plan. In this case, there exists a genuine issue of material fact as to what, if any, response costs incurred by Plaintiff fall within this category.
. Defendant also argues that a strict liability claim for the disposal of hazardous waste is unavailable to the subsequent owner of contaminated property for alleged harm relating to that same property. The
Hanlin
court, however, expressly rejected this argument. See
Hanlin,
. By denying summary judgment in favor of Plaintiff on Count III, the Court is not suggesting that additional proof is necessary on the issue of Defendant’s liability. Rather, the Court finds that an issue of material fact exists with respect to the damages, if any, Plaintiff has incurred as a result of Defendant's activities.