MEMORANDUM OPINION & ORDER
Plaintiff Southfund Partners III [“Southfund”] brought this action against Defendant Sears, Roebuck and Company [“Sears”] to recover costs associated with the cleanup of property formerly owned by Sears under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq. [“CERCLA”] and the Georgia Hazardous Site Response Act, O.C.G.A. § 12-8-90 et seq. [“HSRA”]. Before the Court are Defendant’s Motion for Summary Judgment [13-1] and Defendant’s Motion to Withdraw or Amend Admissions [20-1], As an initial matter, the Court grants Defendant’s Motion to Withdraw or Amend Admissions. After reviewing the entire record and considering all arguments of the parties, this Court enters the following Order.
A. Discovering the Contamination.
Sears purchased a two-story brick building at the corner of Ponce De Leon Avenue and Glen Iris Drive in Atlanta, Georgia from a large local laundry and dry cleaning company in 1966. (Ricketts Dep. at Ex. 1.) The building served as the main plant for the laundry company, but Sears converted the building into a carpentry shop and used it as such until Sears sold the property to Southfund in November of 1988. (Ricketts Dep. at Ex. No. 1; Rick-etts Aff. at ¶ 3.) By December of 1988, Southfund discovered and arranged for the removal of three underground storage tanks- — two 500 gallon solvent tanks on the north side of the building and one approximately 20,000 gallon fuel tank on the south side. 1 (Holton Dep. at Ex. No. 7, Hellinger Aff. at ¶¶ 4-6 & Ex. B.) In 1991 — over two years after Southfund removed the tanks — the United States Postal Service considered purchasing the property from Southfund, but declined after conducting an investigation that revealed substantial contamination in two plumes located on the property. (Smithgall Dep. at Ex. No. 2, Smithgall Aff. at ¶ 6.)
Gregory Holton, Southfund’s. expert who also oversaw most of the cleanup effort, opined that the discharge of dry-cleaning solvents from the solvent tanks caused the contamination found in Plume A; Holton traced the contamination in Plume B to the fuel tank. (Smithgall Aff. at ¶ 6; Holton Dep. at 86-89, 91, Ex. No. 14.) Using a mathematical model, Holton concluded the contamination found in Plume A resulted from dry cleaning fluids and solvents bеing introduced into the soil between the years 1978 and 1984, during the time Sears owned the property. (Holton Dep. at 15, 82-35.) As Holton described it, the solvent materials escaped from the two solvent tanks as rainwater filled the tanks and displaced them, causing the materials to contaminate the soil and move into the groundwater. (Holton Dep. at 45.) This conclusion is supported by testimony of Joe Hellinger, the person Southfund paid to remove the solvent tanks. He testified that, at the time of their removal, the solvent tanks had no cap or cover on them and were filled with rainwater that had “evidently over the years forced out whatever material had been kept in the tanks into the surrounding area.” (Hellinger Aff. at ¶ 5.)
In the summer of 1994, the Georgia Department of Natural Resources [“DNR”] examined the site, concluded a reportable quantity of hazardous substances had been released, and placed the property on its Hazardous Site Inventory [“HSI”]. (Smithgall Dep. at Ex. Nо. 42.) Numerous factors are considered to determine whether a release constitutes a reportable quantity, including the extent to which the contaminated portion of the property is accessible. In a July 14, 1994 letter to DNR, Southfund’s legal counsel pointed out that the contaminated portion of the property was enclosed in a fence — a mitigating factor not reflected in DNR’s initial analysis — and explained this fact should lower DNR’s assessment of the release from a reportable to a non-reportable quantity. (Smithgall Dep. at Ex. No. 42.) Southfund also stated in the letter that “additional factors” aside from the limited access could “cause the site’s ... score to be lowered even further.” (Smithgall Dep. at Ex. No. 42.) DNR responded on August 5, 1994, agreeing that “a release exceeding a reportable quantity has not occurred at this site[,]” and removing the property from the HSI. (Smithgall Dep. at Ex. No. 42.)
B. Southfund’s Initiation of Cleanup Efforts.
One year after DNR removed the property from its HSI, Sоuthfund employed
C. Sears’s Knowledge of the Solvent Tanks and Fuel Tanks During its Ownership of the Property.
Mr. James Ricketts, Sears’s superintendеnt over the building in question during the entire time Sears owned it, testified that neither he nor anyone else associated with Sears knew of “any contamination on any part of the property occurring during or before the period of Sears’ ownership.” (Ricketts Aff. at ¶ 4.) In addition, no one at Sears knew during Sears’s ownership of the property the underground solvent tanks and fuel tank 2 were even located on the property. (Ricketts Aff. at ¶ 4.) But a May 3, 1950 plat Sears possessed indicates the existence of three solvent tanks — two 500 gallon tanks and one 1000 gallon tank — and two fuel tanks — one a 3900 gallon tank and the other a 18,000 gallon tank — in the same location where South-fund found and removed the two 500 gallon solvent tanks and the approximately 20,000 gallon fuel tank.
D. The “As Is” Provision in the Sales Contract.
John Smithgall, an experienced real estate investor, purchased the property on behalf of Southfund for investment purposes. Smithgall knew from the outset of negotiations with Sears that the subject building was referred to as the “laundry building,” but explained in his deposition that he simply believed at the time that clothes had only been laundered on site; he did not realize that a dry-cleaning business, complete with all the harsh chemicals associated therewith, had operated out of the building. (Smithgall Dep. at 37-38.) Southfund agreed to purchase the property “as is,” the sales contract stating as follows:
The Property and the improvements thereon, including, but not limited to, the T.V. Building and the Laundry building shall be conveyed by Seller to Purchaser in “as is” condition and Seller makes no warranties or representations regarding the condition of the Property or said buildings or improvements except as set out in this Paragraph.
(Smithgall Dep., Ex. No. 1.) The contract gave Southfund the right to conduct soil and subsurface testing during the 105 day period before closing. (Smithgall Dep. at 36-38, 42-43.) Southfund did not, however, conduct any such tests. Smithgall explained he understood the term “soil and subsurface testing” to encompass only tests that аnalyze the property’s soil composition to determine whether the property can support the construction of a building; because Southfund did not intend to construct any buildings on the site, these tests were unnecessary. (Smithgall Dep. at 43-45.)
A. Whether Southfund’s Claims Are Barred by the “As Is” Provision of the Sales Contract?
As a threshold matter, the Court considers Sears’s argument that Southfund released Sears from any CERCLA and HSRA liability by purchasing the property from Sears “as is.” But the Court must first decide whether Georgia law should be applied to determine this issue with regard to Southfund’s CERCLA claims. Federal law governs the issue of whether an agreement releases a defendant from liability under a federal statute.
Fisher Dev. Co. v. Boise Cascade Corp.,
Five courts of appeals have applied these factors to determine whether state or federal common law should govern the construction of contractual releases of CERCLA liability, and all five concluded state contract and release law should apply.
Beazer East, Inc. v. The Mead Corp.,
Because “as is” provisions in Georgia only relieve the seller from liability on breach of warranty claims, Southfund has not waived its right to recover from Sеars under CERCLA or HSRA. Georgia courts construe “as is” provisions as agreements between parties that “ ‘the buyer takes the article in its then present state or condition without any implied warranty as to soundness of condition or suitability for the use or purposes intended.’ ”
Hutchinson Homes, Inc. v. Guerdon Industries, Inc.,
“As is” provisions do not, however, release a seller from liability on non-warranty claims.
See Joseph Charles Parrish, Inc. v. Hill,
Every district court that has considered the effect of an “as is” provision in a real estate sales contract on a buyer’s CERC-LA claim under federal or state common law has reached this same conclusion.
See, e.g. Wiegmann & Rose Intern. Corp. v. NL Industries,
The cases cited by Sears in support of their argument that “as is” clauses constitute a release of CERCLA liability are totally distinguishable; far from simply stating the property is sold “as is,” the sales contracts considered by these courts explain rather clearly that the buyer agrees to release the seller from any and all liability.
See Mardan Corp. v. C.G.C. Music, Ltd.,
B. The Merits of Southfund’s CERCLA Claims.
Congress enacted CERCLA “to place the ultimate responsibility for cleaning up hazardous waste on ‘those respоnsible for problems caused by the disposal of chemical poison.’”
U.S. v. Fleet Factors Corp.,
To prevail on a CERCLA claim, a plaintiff must show that: (1) the defendant is a “covered person” under § 107(a) of CERCLA; (2) a release or threatened release of a hazardous substance has occurred; (3) the release or threatened re
1. Is Southfund a Covered Person?
Section 107(a)(l)-(4) defines four classes of parties that fall within the definition of “covered persons” and may be held liable under CERCLA. , Southfund concedes Sears does not fit within the classes described in subsections (1), (3), and (4), but argues Sears qualifies under subsection (2) as a “person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” 42 U.S.C. § 9607(a)(2) (1995). Holton opined the solvents leaked or spilled from the tanks during Sears’s ownership of the property, and both sides agree the solvents are hazardous materials; the question therеfore becomes whether those leaks constitute a “disposal.”
The Court finds the term “disposal” includes the leaking and spilling of hazardous materials from an uncapped tank caused by rainwater displacing the hazardous materials. CERCLA defines “disposal” as “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 solid waste or hazardous waste or any constituent thereof may enter the environment or be admitted into the air or discharged into any waters, including ground waters.” 42 U.S.C. § 9601(29) (1995) (incorporating by reference definition of “disposal” provided in section 1004 of the Solid Waste Disposal Act, 42 U.S.C. § 6903) (emphasis added). Spilling and leaking are expressly included within this definition.
Sears argues no “disposal” occurred during the time it owned the property even if hazardous materials leaked or spilled from the tanks because Sears never knew about the tanks or the leaks and never actively participated in any activity that caused the leaks to occur. Based upon these assertions, Sears characterizes the contamination which took place during its ownership of the property as passive migration. This characterization, however, understates what transpired during Sears’s ownership of the property. The evidence, when viewed in a light most favorable to Southfund, reveals Sears knew or should have known the solvent tanks were located on the property and acted unreasonably by ignoring the tanks during the twenty-two years they filled with rainwater and released solvents.
Ricketts testified that neither he nor anyone else at Sears knew about the existence of the solvent tanks. But two facts in the record could lead reasonable jurors to conclude Sears knew or should have known. First, a May 3, 1950 plat in Sears’s possession indicates the existence of the solvent tanks on the northern side of the building. (Ricketts Dеp. at Ex. No. 4.) Second, the evidence suggests the tanks were not concealed; to the contrary, the tops of the tanks protruded from the ground, (Hellinger Aff. at ¶ 5.), thus enabling Southfund to find the tanks and arrange for their removal within one month of purchasing the property from Sears. Given these undisputed facts, reasonable jurors could certainly find Sears knew or should have known of the tanks’ existence during the twenty-two year period it owned the property and acted unrea
Sears argues for an interpretation of the term “disposal” that excludes spills or leaks of hazardous materials in instances when the landowner did not commit affirmative acts to cause the spill or leak. Such a narrow interpretation of the term “disposal” would permit a landowner to contaminate the environment by ignoring open drums of hazardous materials on his property while rainwater displaced the materials and caused them to spill onto the ground. Permitting a landowner to avoid liability in this context simply because it did not actively participate in the contamination would “frustrate the statutory policy of encouraging ‘voluntary private action to remedy environmental hazards.’”
Nurad, Inc. v. William E. Hooper & Sons Co.,
Contrary to Sears’s assertion, the vast majority of courts to address the issue have concluded a landowner is a “covered person” if it owned property when hazardous materials leaked or spilled out of containers and into the envirоnment regardless of whether it committed affirmative acts to cause the leak or spill.
5
See Nurad,
2. The Necessity of the Response Costs.
CERCLA allows private litigants to recover from prior landowners only “necessary costs ■ of response .... ” § 9607(a)(4)(B). “To show that any response costs were necessary under the CERCLA, the plaintiff must show: ‘(1) that the costs were incurred in response to a threat to human health or the environment that existed prior to initiation of the response action and (2) that the costs were necessary to address that threat.’ ”
Foster v. U.S.,
Southfund’s remedial efforts cleansed the soil and groundwater of the solvent contaminants. Sears contends Southfund conducted these remedial efforts not to reduce threats to human health or the environment, but, instead, to make the property more attractive to potential buyers. Sears points out that DNR removed the property from the HSI after weighing the risks associated with the contamination and concluding no reрortable quantity of hazardous materials had been released. Southfund responded with the following argument.
Sears is well aware that the removal from the HSI by the Georgia Department of Natural Resources was made only because the Property at that point was totally unaccessible, because it was completely surrounded by a fence and was covered in asphalt. As described in Dr. Holton’s affidavit, at any time that the property was to be used for any other purpose where accessibility to human contact would result, the Georgia DNR would very quickly have placed the Property back on the HSI and would have required remedial action.
(Pl.’s Br. at 28.)
No reasonable juror could find, based on the present record, the response
Second, no reasonable juror could find the contaminated soil posed a threat to the environment or the public health. South-fund has not even attempted to explain how the contaminated soil would pose a threat to the environment, and there no evidence to show the contaminated soil posed a danger to the public health. Instead, the undisputed facts are that the contaminated soil was covered with asphalt and enclosed in a fence, which led South-fund to argue, and DNR to agree, that the area was not hazardous and did not require remedial efforts. Without any evidence DNR required the remedial efforts undertaken to ameliorate the effects of contamination, no reasonable juror could find the response costs to be necessary.
See Carson Harbor Village, Ltd. v. Unocal Corp.,
The record suggests Southfund may have removed the asphalt and fencing that prevented access to the contaminated soil in order to prepare the industrial site for residential use. Even assuming a threat to the public health and the environment would exist after removal of these barriers, the resulting response costs would certainly not be considered “necessary” under CERCLA. The Seventh Circuit addressed this very situation in G.J. Leasing and explained that landowners cannot remove contamination to upgrade the use of the property and then recover its response costs under CERCLA, stating in part as follows:
Suppose a building that was being used to warehouse heavy industrial equipment were found to have very low levels of contamination by some hazardous substance and only a small expenditure would be necessary to remove enough of the substance to make the building safe for its current use. Thinking this is a perfect opportunity to upgrade that use, the owners decide to incur enormous costs to eliminate the contamination utterly, charge those costs to whoever was responsible for the current very low level of contamination, and then convert thebuilding to a hospital, day care center, or dairy products plant. The limitation `necessary' response costs would deter them from carrying out this sсheme.
3. Consistency with the National Contingency Plan.
The National Contingency Plan ["NCP"] is a body of regulations governing the cleanup of hazardous waste sites under CERCLA. Redwing Carriers,
Remedial actions are subject to a complex series of regulations. The Gates Rubber court succinctly summarized the applicable regulatory requirements as follows:
The NCP for private remedial actions has four primary requirements, each of which is detailed through extensive regulation: (1) identification of applicable or relevant and appropriate requirements ("ARARs") as mandated by 40 C.F.R. § 300.400(g); (2) remedial site evaluation, which may consist of two steps, including a remedial preliminary assessment (“PA”) and a remedial site inspection (“SI”), as required by 40 C.F.R. § 300.430; and (4) remedial design (“RD”)/remedial action (“RA”), operation, and maintenance of selected remedy, as required by 40 C.F.R. § 300.435. In addition, the statute provides a whole separate section of regulations under the “public comment” aegis. Section 300.700(c)(6) outlines a panoply of public comment requirements for each stage of the remedial process, according to 40 C.F.R. §§ 300.415, 300.430, and 300.435. Finally, ... for a private party to obtain contribution for a response action, it must also demonstrate that the action resulted in a “CERCLA-quality cleanup.” Several of the “CERCLA-quality” standards are similar to those already mandated by the NCP provisions, although they speak more to the end-product than the process used to arrive there.... To reach such a standard, the remedial action must:
(1) be “protective of human health and the environment,” utilize “permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable,” and be “cost-effective”;
(2) attain applicable and relevant and appropriate requirements (ARARs); and
(3) provide for meaningful public participation.
National Oil and Hazardous Substances Pollution Contingency Plan, 55 Fed.Rеg. 8666, 8793 (1990) (quoting 40 C.F.R. § 300.430(f)(l)(ii)(A), (D), and (E)) (citing also 40 C.F.R. § 300.430 passim); see also County Line Inv. Co. v. Tinney,933 F.2d 1508 , 1516 (10th Cir.1991) (citing same).
Sears ignores the vast majority of these requirements, arguing only that: (1) the response action was not cost-effective, and (2) Southfund failed to provide a period of public comment. Southfund does not argue its response action was cost-effective; instead, it cites to Holton’s affidavit in its response brief and claims generally the entire response action was of CERCLA quality. As to the lack of public comment, Southfund readily admits it did not give the public at large any opportunity to comment on the response action, but insists the public participation requirement was nonetheless satisfied because DNR was extensively involved in the response action.
a. Cost-Effectiveness. To be consistent with the NCP, all remedial actions undertaken must be cost-effective. 40 C.F.R. § 300.430(f)(l)(ii)(D). To determine whether Southfund’s remedial action was cost-effective, one must first determine the response action’s overall effectiveness by considering the following threе criteria: (1) long-term effectiveness and permanence; (2) reduction of toxicity, mobility, or volume through treatment; and (3) short-term effectiveness. § 300.430(f)(l)(ii)(D). The overall effectiveness is then compared to the costs, and the response action is deemed cost-effective “if its costs are proportional to its overall effectiveness.” § 300.430(f)(l)(ii)(D).
Without any discussion of these factors or citation to any authority, Sears argues that the response action undertaken by Southfund was not cost-effective. South-fund’s response is equally unavailing. Neither party mentions the factors listed above or attempts to explain their position regarding cost-effectiveness in any manner. Left with only conclusory statements by both parties that the project was or was not cost-effective, the Court cannot attempt in good faith to issue a ruling on the matter.
b. Public Participation.
Pursuant to § 300.700(c)(6) of the NCP, “[p]rivate parties undertaking response actions should provide an opportunity for public comment concerning the selection of the response action ....” The EPA imposes this requirement on landowners who vol
The only evidence Southfund has submitted that describes the extent of DNR’s participation in the response action is the following statement from its expert, Gregory Holton, who participated in the response action:
Prior to initiation of treatment, an Underground Injection Control (UIC) Operating Permit Application was submitted to [DNR] on July 6, 1995. On August 29, 1995 following their review of the application, the Georgia DNR issued a draft UIC Permit 048, and followed the draft shortly thereafter on September 1, 1995 with a final UIC permit. Associated with the submittal of the application were engineering specifications for the proposed system as well as site related data and information related to the ground water conditions. Given the speedy approval, it is apparent that sufficient information concerning the ground water conditions had been gathered at the site. Further, the remediation measures selected also met with their approval, since no modifications to the engineering plans were necessary. As stated earlier, the site soil and ground water were then aggressively remediated.
(Holton Aff. at 5.) Aside from issuing Southfund a permit to proceed with the response action after reviewing the application, DNR did not participate in the response action whatsoever; there is no evidence to suggest DNR even visited the site during or after the response action. No reasonable juror could review this evidence and conclude DNR was “actively involved in all aspects of the investigation, planning, and remediation ....”
American Color & Chemical v. Tenneco Polymers,
This conclusion is supported by the very cases Southfund cites; DNR’s participation in Southfund’s remedial efforts pales in comparison to the level of state environmental agency participation that those courts found sufficient to satisfy the public participation requirement.
See Bedford Affiliates,
c.
Remedial Site Evaluation.
Although neither Sears nor Southfund addresses the issue, the record suggests Southfund also failed to perform a remedial site evaluation pursuant to 40 C.F.R. § 300.430, which “defeats a claim of compliance with the NCP.”
Channel Master Satellite Sys., Inc. v. JFD Elects. Corp.,
“Section 300.700(c)(5)(viii) directs private parties to compile a remedial investigation/feasibility study (“RI/FS”) before conducting a cleanup. The RI/FS process requires an analysis of the initial threat of the contamination to health, welfare, and the environment. Id. § 300.430(d)(1). The investigation must also take into account the fifteen factors ranging from hydrogeological concerns to contaminate mobility in deciding the type of remedial action to be taken. Id. § 300.430(d)(2)(I)-(vii).
The feasibility part of the RI/FS process involves a detailed anаlysis of possible remedial alternatives. Id. § 300.430(e). The alternatives must undergo a detailed evaluation against a set of criteria. Id. 300.430(e)(9)(iii)(A)-(I). After evaluation, the RI/FS eliminates, with explanation, those alternatives that are not the most ‘cost-effective’ or that are not ‘protective of human health’ and the environment.”
Union Pacific R.R. Co. v. Reilly Indus., Inc.,
The record in this case does not contain any remedial investigation or feasibility study report, and no discussion of the factors listed above can be found. Instead, the reports produced by Southfund simply describe the extent of contamination and set forth the chosen remedial plan without any discussion of alternatives. Southfund virtually concedes it failed to follow these procedures by proffering the following statement from its expert, Gregory Hoi- „ ton:
Unfortunately, the scientific literature and the legal record are replete with examples of sites which for many years have employed,- and, in some cases, are still employing the CERCLA RI/FS process to determine how best to clean up a site. Clean up at these sites has yet to begin. Given the RI/FS record, I think it is safe to say that if the RI/FS approach were taken for the Glen Iris Drive site, this site would still be under study instead of being now cleaned up.
(Holton Aff. at 4-5.) Regardless of whether Holton’s view of RI/FS studies as bureaucratic hurdles to prompt action is correct, these studies are prerequisites to recovery under CERCLA. The Court thus finds Southfund failed to satisfy the site evaluation requirements of the NCP.
For all of the aforementioned reasons, Southfund’s CERCLA claims are dismissed.
C. Recovery Under HSRA.
Pursuant to HSRA, “[d]uring or following the undertaking of any corrective action, any person may seek contribution
Southfund may seek contribution from any “person who has contributed or who is contributing to a release ... ”, § 12-8-96(e), which is defined, in relevant part, as “[a]ny person who at the time of disposal of any hazardous waste ... owned or operated any facility as which such hazardous waste ... was disposed of.” O.C.G.A. § 12-8-92(9) (1996). Section 12-8-92 provides no definition of disposal; instead, HSRA offers the following definition of release in subsection (11) that clearly encompasses the term disposal: “ ‘Release’ means any intentional or unintentional act or omission resulting in the spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment, including without limitation the abandonment or discarding of barrels, containers, and other closed receptacles, or any hazardous waste .... ” § 12-8-92(11) (emphasis added). Because leaking and spilling constitute unintentional act of disposing and releasing hazardous materials into the environment, Sears qualifies as a “person who has contributed or who is contributing to a release” because it owned the property at the time hazardous materials leaked or spilled into the environment. As with CERCLA, no requirement of affirmative action to cause the release can be found within the aforementioned provisions.
HSRA does, however, absolve a person from liability if the person can show that “[a]n act or omission of a third party” caused the release to occur, but this defense does not apply if the third party’s act or omission “occurs in connection with a contractual relationship, existing directly or indirectly, with the person .... ” O.C.G.A. § 12-8-96.1(c)(3) (1996). Assuming the dry-cleaning company’s acts or omissions were the sole cause of the solvent release, it seems, at first blush, that Sears could not be held liable under HSRA because it had no contractual relationship with the dry cleaning company. But, for purposes of § 12-8-96.1(c)(3), “a contractual relationship may be conclusively established by ... land contracts, deeds, or other instruments transferring title or possession, unless the real property on which the disposal ... has occurred ... was acquired by the person after the disposal or release ....” § 12-8-96.1(d)(l). Because, according to Holton, Sears acquired the property before the release of solvents, the deed from the dry-cleaning company to Sears establishes a contractual relationship by which Sears may be held liable for any acts or omissions of the dry-cleaning company that caused the leaks.
But, as explained in Section II.B.l. of this Opinion, causation may not be so attenuated in this case; indeed, reasonable jurors could conclude that Sears knew or should have known the solvent tanks were located on the property and acted unreasonably by ignoring the tanks for twenty-two years while they corroded and released the solvents. Based on a finding Sears knew or should have known about the solvent tanks, reasonable jurors could find Sears acted unreasonably by failing to cap the tanks or remove them before rainwater displacеd the solvents and caused the solvent leakage.
1. Costs Associated with Plume B.
Southfund cannot recover response costs incurred to cleanse the soil
III. Conclusion
For the aforementioned reasons, Defendant’s Motion for Summary Judgment [13— 1] is GRANTED IN PART AND DENIED IN PART and Defendant’s Motion to Withdraw or Amend Admissions [20-1] is GRANTED. The Court dismisses Plaintiffs CERCLA claims. Plaintiffs state law claim for contribution under HSRA remains for adjudication, but Plaintiff may only recover response costs incurred to remеdy the dry cleaning solvent contamination found in Plume A. SO ORDERED, this 30th day of July, 1999.
Notes
. An eyewitness to the removal described the solvent tanks as being "of the type utilized in dry cleaning establishments to store dry cleaning fluids.” (Hellinger Aff. at ¶ 9.) They were cone-shaped and positioned so that their tops protruded from the ground. (Hellinger Aff. at ¶ 5.)
. Ricketts does recall Sears installing a 5000 gallon underground gasoline tank and a gasoline pump on the parcel for Sears executives to fill their company cars. But Sears removed the pump and tank in either 1981 or 1982. (Ricketts Dep. at 25-30.) Southfund believes that Sears simply used the preexisting fuel tank, and points out that Ricketts described the Sears fuel tank as being located in the same area where the fuel tanks indicated on the 1950 plat were located. (Ricketts Dep. at Exs. No. 1, 4; Ricketts Dep. at 56-57.)
. A person may recover all necessary cleanup costs from those responsible for the contamination under section 107(a) so long as the pеrson seeking recovery shares no blame for the contamination. 42 U.S.C. § 9607(a)(4);
Redwing Carriers,
. Sears argues the
Redwing
court rejected an interpretation of the term "disposal” that would hold liable landowners who did not commit affirmative acts to cause the disposal. In
Redwing,
the court held that a prior landowner was not liable because there was no evidence it had done or failed to do anything that resulted in a movement of contaminated soil.
Redwing,
. A related issue has been the subject of a fair amount of debate: whether a "disposal” occurs if, during a defendant’s ownership of land, hazardous materials that contaminаted the ground before the landowner’s purchase of the property migrate into uncontaminated areas or "leach” due to rainfall and other natural phenomena?
Compare ABB Indus. Sys., Inc. v. Prime Tech., Inc.,
. Many district courts have denied relief under CERCLA when faced with similar circumstances where the plaintiff undertook remedial action to improve the marketability of the property rather than to reduce or eliminate threats to the environment or public health. See, e.g. Fоster v. U.S.,
. Before evaluating Southfund's response actions under the NCP, the Court must first determine the applicable requirements, which depends on whether Southfund's rеsponse action is construed as "removal" or "remedial." "The distinction is important because the requirements for NCP compliance are different, depending on how the response action is characterized." Morrison Enterprises v. McShares, Inc.,