Full opinion text
MEMORANDUM OPINION JOHNSON, District Judge. Pending before the court are third party defendants, Nortru, Inc. (Nortru) and All-worth, Inc.’s (Allworth) motion for partial summary judgment (doc. 752) and plaintiffs’ cross-motion for partial summary judgment (doc. 763). Both Nortru and plaintiffs have filed briefs in support of and in opposition to their respective motions. The Customer defendants listed below (Customer defendants) have filed a brief in support of Nortru’s motion for partial summary judgment as has defendant Allen. Additionally, customer defendants Silgan Containers Manufacturing Corporation (“Silgan”), Carboline Company, Sanderson Plumbing Products, Inc., Master Lock Company, and Kimoto Tech, Inc., have joined in the brief filed by Listed Customer defendants in support of Nortru’s motion. Additionally, by order of August 24, 2000 (doc. 767) the court allowed the parties to file briefs regarding two issues raised by the Customer defendants in their arguments supporting Nortru’s motion, namely that “Southdown seeks reimbursement of the clean up costs from the Customer defendants, who in turn are entitled to indemnification from Allworth who is thus indemnified by Southdown” and that “plaintiff failed to conduct an environmental study of the property at the time of its purchase of the property ... [potentially barring] any claim by plaintiff that it did not contaminate the property for lack of evidence.” All parties have responded to the Order of August 24, 2000. For the reasons stated below, the court does find that Nortru’s motion for partial summary judgment is due to be GRANTED, and the Southdown plaintiffs’ motion for partial summary judgment is due to be DENIED. I. Factual Background The court finds the following to be the undisputed facts in this case: 1. From September 1990 until April 1995, the Southdown plaintiffs owned all of the issued and outstanding shares of common stock of Allworth. Southdown plaintiffs’ Seconded Amended Complaint, ¶¶ 56, 69. 2. Allworth operated and continues to operate a hazardous waste recycling facility located at the Site, whose address is 500 Medco Road, Birmingham, Alabama. Id. at ¶ 49. 3. In December, 1994, Law Engineering, Inc., an environmental consultant retained by the Southdown plaintiffs, provided the Southdown plaintiffs with the results of soil samples taken at Site. The results indicated the presence of several volatile and semi-volatile organic compounds in the soil at the Site, including acetone, 2-butanone, 1,1-dichloroethane, 1,1-dichloroethene, cis-l,2-dichloroethene, ethylbenzene, methylene chloride, 4-me-thyl-2-pentanone, tetrachloroethene, toluene, 1,1,1-trichloroethane, trichloroethene, xylenes, benzo[b]fluoranthane, bis [2-ethylhexy] phthalate, butyl benzyl phtha-late, chysene and pyrene, as well as certain metals. Law Engineering, Inc. provided these results to the Southdown plaintiffs no earlier than December 22, 1994. Id. at ¶ 64. 4. In early 1995, Nortru commenced negotiations with the Southdown plaintiffs concerning the purchase of the stock of Allworth. Id. at ¶ 65. 5. Nortru hired Environmental and Safety Designs, Inc. (“Ensafe”) to perform a limited Environmental Site Assessment (ESA) at the Site to determine soil and groundwater quality. Ensafe took soil samples at nine locations and drilled groundwater monitoring wells at three of these locations. Id. at ¶¶ 65-66. 6. In April 1995, Ensafe provided Nor-tru with a written report documenting the results of its ESA. Ensafe documented that the Site was contaminated with hazardous substances. The report noted, inter alia, the presence of fifteen volatile organic compounds in the subsurface soils at the Site, including acetone, methyl ethyl ketone, bromodichloromethane, 1,1-di-chloroethane, 1,1-dichloroethene, 1,2 — dichloroethene (total), ethyl benzene, methyl isobutyl ketone, methylene chloride, per-chloroethylene, toluene, 1,1,1-trichloroeth-ane, 1,1,2-trichlorothane, trichloroethene, and xylenes, as well as the semi-volatile organic compounds m.p.-methylphenol and bis 2-ethylexylphthalate, and certain metals. The report also found that eleven volatile organic compounds were present in the groundwater at the Site, including acetone, 1,2-dichloroethane, 1,1-dichlo-roethene, 1,2-dichloroethane (total), methylene chloride, perchloroethylene, toluene, 1,1,1-trichloroethane, trichloroethene, vinyl chloride, and xylenes. Of these eleven volatile organic compounds in the groundwater, nine were present in concentrations above U.S. EPA’s maximum contaminant levels for drinking water. Id. at ¶67. 7. On April 28, 1995, Nortru and the Southdown plaintiffs entered into a Stock Purchase Agreement, pursuant to which, among other things, the Southdown plaintiffs conveyed the shares of stock of All-worth to Nortru. Id. at ¶ 69. 8. On April 29, 1995, Nortru and the Southdown plaintiffs entered a Remediation Agreement as an express condition precedent to Nortru’s entry into the Stock Purchase Agreement. Stock Purchase Agreement, Art. 6.1(q). 9. Southdown, Inc. guaranteed the performance of the Southdown plaintiffs’ obligations pursuant to the Stock Purchase Agreement and Remediation Agreement. Id., Art. 6.1(p). 10. Article 2.1 of the Remediation Agreement provides: SETS shall, at its sole expense (which expense shall include, but is not limited to, all costs relating to preparation of the Plan or Plans, responding to and compliance with any Order, the cost of all contractors to perform the Work or the requirements of the Plan or Plans or any Order and any costs assessed by any of the Agencies for oversight of the Work), remediate (i) all known Contamination located on the Real Property or on contiguous property where the source of Contamination is on or originated from the Real Property, and (ii) all previously unknown Contamination discovered on the Real Property, or on contiguous property not owned by Rho-Chem or Allworth where the source of Contamination is on or originated from the Real Property, during the course of remediating known Contamination, each to the extent required by the Agencies. 11. Article 3.1 of the Remediation Agreement further provides: Indemnity by SETS. To the fullest extent permitted by law, SETS agrees to indemnify, defend and hold harmless Purchaser and its agents and employees, from and against any and all liabilities, costs, expenses (including attorneys’ fees), claims, demands, judgments, losses or damages on account of injury, disease or death to any person, including SETS’ and Purchasers’ employees, or damage to property, or any type of loss or damage whatsoever arising out of or in connection with the performance or breach of any obligation hereunder by SETS and its employees, contractors, suppliers, and agents, except to the extent that SETS [sic, should be Purchaser] contributed to the claim, loss, damage, injury or liability. 12. Article 11.2 of the Stock Purchase Agreement states as follows: Indemnification of the Purchaser. The Sellers shall defend, indemnify and hold the Companies [Allworth among others] and the Purchaser [Nortru] and their respective affiliates harmless from and against any and all damages suffered by the Companies or the Purchaser or any affiliate thereof as a result of, caused by, arising out of, or in any way relating to ... (v) without limitation as to time, the Environmental Claims of which sellers are aware listed on Schedule 11.2. Schedule 11.2 contains a section entitled “Allworth Soil and Groundwater Remediation,” which discloses the existence of soil and groundwater contamination at the Site. Article 11.1 of the Stock Purchase Agreement defines “Damages” as “any and all damages, losses, deficiencies, costs, expenses, obligations, fines, expenditures, claims and liabilities, including reasonable counsel fees and reasonable expenses of investigation.” 13. Article 13.6(c) of the Stock Purchase Agreement provides: “In the event of a dispute between the parties in connection with this Agreement, the party against which a judicial or arbitral award is made shall reimburse the prevailing party for all reasonable fees and expenses incurred and paid to said counsel for such service.” 14. Article XII NONCOMPETITION COVENANT of the Stock Purchase Agreement provides: “Sellers understand and acknowledge that a portion of the value of the Shares, ... is attributable to business relationships between the Companies and key customers of the Companies .... ” 15. On or about December 20, 1996, the Southdown plaintiffs filed a complaint in this court against defendant Allen, the individual who sold the Allworth stock to the Southdown plaintiffs. The complaint seeks to recover the costs of remediating the contamination at the Site. Southdown Plaintiffs’ Second Amended Complaint, ¶¶ 86, 87. 16. Defendant Allen filed a third party complaint on or about February 4, 1998 against Allworth and Nortru. Allen alleged that Allworth is required to indemnify Allen for any liability that Allen might sustain vis-á-vis the Southdown plaintiffs. Defendant Allen also alleged that Allworth and Nortru are liable for contribution pursuant to § 113(f) of CERCLA, 42 U.S.C. § 9613(f). Allen Third party Complaint, ¶¶ 9,16, 23. 17. On or about October 15, 1998, the Southdown plaintiffs amended their complaint to name 41 former and current All-worth customers as third party defendants. The Southdown plaintiffs alleged that the 4l customers are liable for contribution pursuant to § 113(f) of CERCLA. Southdown Plaintiffs’ Second Amended Complaint, ¶¶ 91, 93. 18. On or about December 9, 1998 defendant Allen filed a cross-claim against the same 41 former and current Allworth customers. Allen alleged that the 41 customers are liable for contribution pursuant to § 113(f) of CERCLA. Allen Cross-Claim ¶ 45. 19. On or about February 1, 2000, the 41 third party Customer defendants filed a third party complaint against an additional 139 former and current Allworth customers. The 41 third party Customer defendants alleged that the 139 additional customers are liable for contribution pursuant to § 113(f) of CERCLA, as well as for unjust enrichment. Third party Complaint of Customer Defendants, ¶¶ 36, 46. 20. The following correspondence’ between Nortru and the Southdown plaintiffs has been exchanged during the pendency of this action: Letter from Marlys Palum-bo to Patrick Bullard, dated March 13, 1998; Letter from Marlys Palumbo to Leslie White, dated June 8, 1998; Letter from Deborah Huston to Patrick Bullard and Leslie “White, dated April 21, 1999; and Letter from Jeffrey S. Bromme to Dennis M. Thies and Leslie White, dated May 26, 2000. The pending motions ensued. Attached as Exhibits 1 and 2 to the brief the South-down plaintiffs filed in support of their cross-motion for partial summary judgment are affidavits of plaintiffs’ counsel. Both of these affiants state, in essence, that they did not intend for the term “sole expense” to actually mean sole expense, but rather, this term was meant to refer only to the rights and obligations between the parties to the Remediation Agreement. The court notes that this issue is very much disputed, thus, the facts set forth in these two affidavits are not included in the court’s recitation of the undisputed facts of this case. II. Procedural History On December 20, 1996, plaintiffs South-down, Inc., and Southdown Environmental Treatment Systems, Inc. (hereinafter referred to as “Southdown” or the “South-down plaintiffs”) filed a complaint (doc. 1) against Leslie Allen, an individual, who was, at one time, the sole shareholder and director of Allworth, Inc., as well as the President and Secretary of that corporation. Complaint at 2. The Southdown plaintiffs allege that they “recently discovered” the hazardous waste site they acquired from Allworth, Inc. was contaminated and that defendant Allen concealed such contamination. Complaint at 1. The complaint states causes of action for CERCLA Section 107(a)(2) Cost Recovery (Count I); CERCLA Section 113(f) Contribution (Count II); CERCLA Section 113(g)(2) Declaratory Judgment (Count III); various forms of fraud (Counts IV - VI); negligence (Count VII); abnormally dangerous activity (Count VIII); and public nuisance (count IX). The Southdown plaintiffs filed a first amended complaint on April 9, 1997 (doc. 17). This complaint kept Counts I, II and III from the original complaint, and added the following: RCRA Section 7002(a) Citizen Suit against defendant Allen (Count IV); fraud claims against defendant Allen as in the original complaint (Counts V - VII) and negligence, abnormally dangerous activity and public nuisance as in the original complaint (Counts VIII - X). The court entered an Order dismissing the Southdown plaintiffs’ claims for negligence and abnormally dangerous activity on August 18,1997 (doc. 33). Defendant Allen filed an answer and counterclaim against the Southdown plaintiffs on August 28, 1997 (doc. 36). An amended counterclaim replacing and su-perceding the August 28, 1997 pleading was filed by defendant Allen on September 24, 1997 (doc. 43). This counterclaim alleges that the Southdown plaintiffs should be wholly liable based on the theory that they were the owners of the facility at the time of the contamination. Defendant Allen also filed a third party complaint on February 4, 1998, stating that he is entitled to indemnification by Allworth as All-worth’s agent (Count I) and that he is entitled to CERCLA § 113(f) contribution by Allworth (Count II) and Nortru (Count III). On October 14, 1998, the Southdown plaintiffs filed a second amended complaint (doc. 96), bringing in forty-one defendants (referred to by the Southdown plaintiffs as “generator/arrangers”) who allegedly arranged for disposal or treatment of waste at the Allworth facility. This complaint kept Counts I and II from the previous complaints, and added the following: CERCLA section 107(a)(3) cost recovery from generator/arranger defendants (Count III); CERCLA Section 113® contribution from generator/arranger defendants (Count IV); Declaratory Judgment as to all defendants (Count V); RCRA Section 7002(a) Citizen Suit against defendant Allen (Count IV); fraud claims against defendant Allen as in the original complaint (Counts VII - IX) and public nuisance against defendant Allen (Count X). On October 14, 1998, this case was reassigned to the undersigned judge (doc. 97). Defendant Allen filed an answer and counterclaim, cross-claims, and third party claims on December 10, 1998, in response to the second amended complaint (doc. 108). Defendant Allen counterclaims that based on relative conduct,- the Southdown plaintiffs should bear the full expense of any response costs incurred. Defendant Allen’s third party complaint brings in third party defendants Nortru, Inc. and Allworth, Inc. Allen states claims for indemnification as Allworth’s agent (Count I); CERCLA § 113(f) and contribution by Allworth and Nortru (Counts II — III). Allen also cross-claims against the same forty-one defendants (“Listed Customer defendants”) sued by the Southdown plaintiffs in its second amended complaint for contribution under § 113(f) of CERCLA. The Listed Customer defendants filed counterclaims against the Southdown plaintiffs and cross-claims against defendant Allen (doc. 394) on February 1, 2000. The Listed Customer defendants sue the Southdown plaintiffs and defendant Allen for breach of contract (Count I); indemnification (Count II); a third party beneficiary claim (Count III); and fraud (Counts IVV). Listed Customer defendant Steelcase, Inc., then filed a separate third party complaint (doc. 395) against Research Solvents and Chemicals, Inc., for contribution under CERCLA § 113(f) (Count I); declaratory judgment (Count II); breach of contract (Count III); indemnification (Count IV) and unjust enrichment (Count V). Third party defendant Research Solvents and Chemicals, Inc., filed a cross-claim for indemnification against Listed Customer defendant Steelcase, Inc. (doc. 601) on May 3, 2000. Listed Customer defendant International Flavors and Fragrances, Inc. has also filed a separate third party complaint against Potomac Environmental, Inc., (doc. 396) for contribution under CERCLA (Count I); negligence (Count II); equitable fraud (Count III); breach of implied warranty (Count IV); unjust enrichment (Count V); breach of contract (Count VI); and indemnification (Count VII). Listed Customer defendant Elf Atochem filed a notice of claim for indemnification (doc. 397) against the Southdown plaintiffs on February 1, 2000. That same date, the Listed Customer defendants also filed a third party complaint against eleven third party defendants (doc. 398) for contribution under § 113 of CERCLA (Count I); declaratory judgment under § 113 of CERCLA (Count II); and unjust enrichment (Count III). Attached to this third party complaint as Appendix 3 are twelve paragraphs listing specific Listed Customer defendants who are not proceeding against one or more of the third party defendants named in Appendix 2. Included as an attachment to this third party complaint is a second third party complaint by Listed Customer defendants against 128 other parties, listed in Appendix 2 to the second third party complaint (also doc. 398). Attached to this third party complaint as Appendix 3 are fourteen paragraphs listing specific Listed Customer defendants who are not proceeding against one or more of third party defendants named in Appendix 2 to the second third party complaint. Also filed on February 1, 2000 was an amendment to the third party complaint adding Sirco Systems, LLC as a third party defendant (doc. 399). On March 27, 2000, third party defendants Albermarle Corp., Diversified Companies, LLC, and Wabash National were dismissed without prejudice on motion of the third party plaintiffs/Listed Customer defendants (doc. 479). Similarly, third party defendants BF Goodrich and Hanna Chemical coatings were dismissed without prejudice on motion of the third party plaintiffs/Listed Customer defendants on April 11, 2000 (docs. 496 and 536). The third party defendants Hall of Mississippi; World Color Press; Quebecor Printing; Quebecor, Inc., d/b/a/ Ward; and Quebecor, Inc., d/b/a Maxwell were dismissed by the Listed Customer defendants without prejudice (docs. 523 and 542) on April 12, 2000. Third party defendant Egyptian Lacquer Manufacturing filed a cross-claim against the Southdown plaintiffs and defendant Allen (doc. 503), adopting the Listed Customer defendants’ Counterclaims/Cross-claims Against Owner/Operators For Indemnification And State Law Claims, filed February 1, 2000 (doc. 394). Third party defendants Plastech Engineered Products, Inc. (doc. 507); Brunswick Corporation (doc. 509); Tennessee Technical Coatings Corporation (doc. 512); Film Technologies International, Inc. (doc. 517); SCI Systems, Inc (doc. 561); Peek Pavement Marketing, Inc. (doc. 566); Lockheed Martin Corp. (doc. 568); Coronado Paint Company (doc. 569); International Comfort Products Corp. (doc. 570); ITT Industries (doc. 574); Marine Group LLC (doc. 575); Master Lock Co. (doc. 577); Sun Chemical Corp. (doc. 581); Mack Trucks, Inc. (doc. 586); Carboline Company fka Admiral Paint Co. (doc. 588); Kimoto Tech, Inc. (doc. 590); Alabama Power Company, Sony Magnetics Products, Inc. of America, Delta Airlines, Inc., Peerless Coatings, Inc. and SVI Corp. (doc. 592); Imperial Adhesives. Inc. (doc. 593); BASF Corporation (doc. 595); International Paint, Inc. (doc. 597); H.B. Williamson Co. (doc. 599); Research Solvents and Chemical Company, Inc. (doc. 600); General Electric Company (doc. 606); C.K. Witco, Inc. (doc. 607); Avecia, Inc. (doc. 608); Vermont American Corp. (doc. 609); Hess Oil Virgin Islands Corp. (doc. 610); JVC America, Inc. (doc. 614); The Kent Corp. (doc. 615); Thyssen Dover Elevator Co. (doc. 616); Sirco Systems, LLC (doc. 617); Copeland Corp. (doc. 619); Lucent Technologies, Inc. (doc. 629); Lawter International, Inc. (doc. 630); Rheem Manufacturing Co. (doc. 632); Freightliner Corp. (doc. 635); Decatur Aluminum Corp, (doc. 638); Phifer Wire Products, Inc. (doc. 639); Hager Hinge Company (doc. 644); Crownline Boats, Inc (doc. 645); Essilor of America, Inc. (doc. 650); MBCI d/b/a Metal Coaters of Georgia, Inc. (doc. 658); York Stamping d/b/a Wallace Metal Products (doc. 659); Kaiser Aluminum Corp. (doc. 665); similarly joined in the counterclaims and cross-claims of the Listed Customer defendants’ Counterclaims/Cross-claims Against Owner/Operators For Indemnification And State Law Claims. Third party defendant Automotive Moulding Company (improperly named as Guardian Automotive Technical Center) filed cross-claims against the Southdown plaintiffs and defendants Allen, Nortru and Allworth (doc. 578) stating similar claims to the Listed Customer defendants. Third party defendant Utility Trailer Manufacturing Co. filed counterclaims and cross-claims against the Southdown plaintiffs, defendants Allen, Nortru and All-worth, and the added party Philip Services Corp. (doc. 603) on May 3, 2000, in addition to joining in the Listed Customer defendants’ counterclaims and cross-claims. Further, Utility Trailer Manufacturing Corp. stated claims for fraudulent misrepresentation (Count 6); third party beneficiary claims regarding promises between defendant Allen and the Southdown plaintiffs and between the Southdown plaintiffs and counter-defendant Philip (Count 7); and negligence (Count 8). Third party defendant Rehau Inc. filed cross-claims for indemnification (doc. 633) against defendants Allworth and Nortru, d/b/a Philips Environmental with causes of action for breach of contract (Count I); Indemnification (Count II); and a third-party beneficiary claim (Count III). Third party defendant Vulcan Industries, Inc. both joined in the Customer defendants’ counterclaims and cross-claims as well as stating individual claims against Philip Environmental for Breach of Contract (Count I); Indemnification (Count II); and a third party beneficiary claim pursuant to the stock purchase and remediation agreements between the Southdown plaintiffs and the defendants Nortru and Allworth (doc. 641). Third party defendant Spartan Electronics Florida, Inc. filed counterclaims against the Southdown plaintiffs and defendant Allen and cross-claims against third party defendant Hazardous Waste Consultants, Inc. (“HWCI”) (doc. 657). This pleading includes claims for breach of contract against defendant Allen and HWCI (Count I); indemnification against Allen and HWCI (Count II); a third party beneficiary claim against the Southdown plaintiffs (Count III); and fraud against Allen and HWCI (Counts IV-V). Third party defendant UAB filed a claim for indemnification and to dismiss (doc. 589) on May 2, 2000. The motion to dismiss was granted (doc. 732). On May 3, 2000 the third party plaintiffs (Listed Customer defendants) filed a notice that their claims for unjust enrichment against the third party defendants listed in Appendix A to that notice were voluntarily dismissed, in exchange for those parties joining their joint defense group (doc. 620 and Appendix A thereto). This notice also stayed the CERCLA § 113 contribution claims against these third party defendants. The Customer defendants have filed motions for extensions of time in which to file indemnification and state law claims against Nortru and Allworth, due to the stay in effect while the current summary judgment motions are pending. See e.g. Stipulated Motion for Extension of Time, filed June 26, 2000. On October 25, 2000, third party defendant Frisco Manufacturing Company, Inc. was dismissed without prejudice, having filed a bankruptcy petition (doc. 787). III. Summary Judgment Standard Under Federal Rule of Civil Procedure 56(c), summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). As the Supreme Court has explained the summary judgment standard: [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who 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. In such a situation, there can be no genuine issue as to any material fact, since the complete failure of proof concerning an essential element of the non-moving party’s case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. The party moving for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrates the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. The burden then shifts to the non-moving party to “go beyond the pleadings and by ... affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file’ designate ‘specific facts showing that there is a genuine issue for trial.’ ” Celotex, 477 U.S. at 324, 106 S.Ct. 2548, Fed.R.Civ. Pro 56(e). In meeting this burden the non-moving party “must do more than simply show that there is a metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a “genuine issue for trial.” Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348, see also Anderson v. Liberty Lobby, 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The non-movant must “demonstrate that there is indeed a material issue of fact precluding summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). On motions for summary judgment, the court shall construe the evidence and factual inferences arising therefrom in the light most favorable to the non-moving party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The substantive law will identify which facts are material and which are irrelevant. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. All “reasonable doubts” about the facts and all justifiable inferences are resolved in favor of the non-movant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.1993). However, all “doubts” need not be so resolved. Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 609 (11th Cir.1987). “The moving party is entitled to judgment as a matter of law if the non-moving party cannot sufficiently show an essential element of the case to which the non-moving party has the burden of proof.” Cornelius v. Town of Highland Lake, 880 F.2d 348, 351 (11th Cir.1989), cert. denied, 494 U.S. 1066, 110 S.Ct. 1784, 108 L.Ed.2d 785 (1990). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. Id. at 249, 106 S.Ct. 2505. The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Holcombe v. Alabama Dry Dock & Shipbuilding Corp., 1998 WL 758012 (S.D.Ala.); citing Anderson, 477 U.S. at 251-252, 106 S.Ct. 2505. Summary judgment is appropriate where the moving party shows an absence of evidence to support an essential element of the non-moving party’s case. Weiss v. School Board of Hillsborough County, 141 F.3d 990, 994 (11th Cir.1998). IV. Legal Analysis The issue before the court on the pending cross-motions for summary judgment is the definition of the term “sole expense” as used in the Remediation Agreement entered into by the Southdown plaintiffs and defendant Nortru, which includes Southdown’s alleged obligation to indemnify Nortru from damages arising from environmental conditions at the site. The parties agree that this issue is governed by the substantive law of Texas. Stock Purchase Agreement at ¶ 13.4. The dispute centers on the meaning of “sole” as that term appears in the parties’ agreements. The Southdown plaintiffs argue this was only meant to apply as to liability for clean-up of the site between themselves and Nortru and Allworth, whereas Nortru and Allworth argue that “sole” means “to the exclusion of all others.” See memorandum of Nortru at 12 (July 14, 2000). Texas Law of Contracts While an ambiguous contract term may create a question of fact for a jury, the determination of whether the terms of a contract are ambiguous is a question of law for the court to decide, looking at the contract in light of the circumstances existing at the time the contract was entered. U.S. Quest, Ltd. v. Kimmons, 228 F.3d 399 (5th Cir.2000), citing Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex.1987). “A contract is not ambiguous merely because the parties disagree upon the correct interpretation or upon whether it is reasonably open to just one interpretation.” U.S. Quest, Ltd., at 403-404, citing Childers v. Pumping Systems, Inc., 968 F.2d 565, 569 (5th Cir.1992). “The ambiguity must become evident when the contract is read in context of the surrounding circumstances, not after parol evidence of intent is admitted to create an ambiguity.” Gulf Metals Industries, Inc. v. Chicago Insurance Co., 993 S.W.2d 800, 808 (Tex.App.1999); citing National Union Fire Ins. Co. v. CBI Indus., 907 S.W.2d 517, 521 (Tex.1995). A provision or term in a contract will only be held ambiguous when an application of the general rules of contract construction renders the writing capable of at least two reasonable yet different meanings. Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144, 147 (Tex.App.1986). When a dispute arises from the terms of a contract and the contract is not ambiguous, the court can determine the parties’ rights and obligations under the agreement as a matter of law, ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997), and where there is no ambiguity, it is the court’s duty to give the words used their plain meaning. Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984). Only after a contract is found to be ambiguous may parol evidence be admitted to ascertain the true intentions of the parties expressed in the contract. See Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 283 (Tex.1996). A contract is ambiguous if, after applying the established rules of construction, it remains reasonably susceptible to more than one meaning. See Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983). Parol evidence cannot be admitted for the purpose of creating an ambiguity. See Nat’l. Union Fire Ins. v. CBI Indus., 907 S.W.2d 517, 520 (Tex.1995). See also Coastal Oil & Gas Corp. v. Roberts, 28 S.W.3d 759, 2000 WL 1234379 ((Tex.App.) Aug. 31, 2000). The court finds that Southdown’s current claim that nothing in the agreements prohibits their claims against Nortru’s customers is belied by their own statements in their pleadings. For example, in their second amended complaint, Southdown states: As a necessary condition of Nortru, Inc.’s obligation to purchase the All-worth, Inc. stock, however, SETS assumed all liability relating to soil and groundwater contamination at the site, agreed to indemnify Nortru, Inc. for any damages suffered as a result of such contamination, and entered into a Remediation Agreement pursuant to which SETS must, at its sole expense, remediate the contamination to the extent required by EPA or ADEM, and Southdown guaranteed the performance of the obligations assumed by SETS (emphasis added). Second Amended Complaint at ¶ 69, filed October, 14,1998 (doc. 96). The court finds that the affidavits submitted by the Southdown plaintiffs as an attachment to their brief in support of plaintiffs’ cross-motion for summary judgment (Aug. 15, 2000) were submitted for the purpose of creating an ambiguity. The court makes this finding on the basis of the Southdown plaintiffs’ prior representations to this court that the Agreement is not ambiguous, most recently those raised during oral argument before this court. On that occasion, counsel for the Southdown plaintiffs stated that: But they say that the Court should look beyond the expressed (sic) terms of the stock purchase agreement or the remediation agreement and go into the surrounding circumstances because lurking somewhere is some motive between Southdown and/or Nortru to protect the customer defendants. (A), they didn’t plead that; and (B), the expressed (sic) terms of the agreements prohibit the Court from going beyond the contract. Hearing transcript of April 12, 2000 at 13. Counsel for Southdown later states: “As I mentioned earlier, we submit that it’s inappropriate to go beyond the terms of the contract.” Id. at 16. In their brief submitted on their cross-motion for summary judgment (Aug. 15, 2000), the Southdown plaintiffs then argue that this court should look to the surrounding circumstances of the agreements to divine the meaning of “sole expense.” The Southdown plaintiffs state that Nortru has failed to show “sole” actually means “sole” and not “solely others who signed the agreements.” Southdown argues that sole expense meant only as between them and Nortru and Allworth, the signatories to the contracts in question. Brief in support of plaintiffs’ cross-motion (Aug. 15, 2000) at 2. Thus, Southdown concludes, this term must be ambiguous and cannot be resolved on summary judgment. Id. at 6-7. This court can find no basis to consider the parol evidence submitted by the plaintiffs in the form of affidavits of the attorneys who assisted in drafting the agreements in question. See brief in support of plaintiffs’ cross-motion (Aug. 15, 2000) and exhibits thereto. The affidavits in question are “the kind of self-serving testimony that the extrinsic-ambiguity doctrine does not permit — the uncorroborated testimony of one of the parties about what he understood the contract to mean. That testimony does not become less self-serving by addition of a reason for the understanding.” PMC, Inc., 151 F.3d at 615. The plaintiffs have adamantly represented to this court that it may not go beyond the terms of the contract to glean what the parties may have intended by the term “sole expense.” Applying Texas law, this court finds that these words are not ambiguous. As such, no parol evidence is needed and none shall be considered. These affidavits also do not contribute to the circumstances existing at the time the contract was entered. Those circumstances include that the site was contaminated; that Southdown was aware of its liability for clean-up under CERCLA; and that Southdown wished to sell the site. As such, the Southdown plaintiffs could have included language in the Agreements to explicitly preserve their rights to contribution under CERCLA as they were contracting to remediate the site at their sole expense, but did not. The South-down plaintiffs have produced no evidence that “sole” meant anything other than its ordinary usage beyond conclusory allegations that they did not define the term “sole” to mean “by themselves.” Even the plaintiffs’ pleadings do not assist the plaintiffs. As stated above, in their pleadings they insist that the court cannot look beyond the language of the contract. Given the surrounding circumstances, this court can find no ambiguity in the term “sole.” Rather, the court finds that in including the term by which the South-down plaintiffs accepted sole responsibility for cleaning up the site, the site became marketable, which it would not have been otherwise. Southdown argues it has not been paid enough money for the site to have agreed to shoulder all clean-up costs. Plaintiffs’ response (doc. 775) at 19. The defendants argue that the plaintiffs have been paid more than a sufficient amount to bear such costs, and allowing a further recovery from other parties for the costs would result in the Southdown plaintiffs recovering twice. See e.g., Listed Customer defendants’ brief (Aug. 15, 2000) at 2-3. The court does not find the price paid for the site to be persuasive of either argument, as trying to ascertain the value of the site without any contamination or the eventual total cost for complete remediation is beyond the scope of the pending motions. See e.g., PMC, Inc., 151 F.3d at 615 (stating that the court considering the price paid as evidence of including CERCLA liabilities would lead the court “on a wild goose chase”). The Southdown plaintiffs argue that their interpretation must be correct, otherwise unintended third party beneficiaries (Allen, the Listed Customer defendants and the other third party plaintiffs and defendants) would benefit. The Southdown plaintiffs argue that such a benefit would prevent the clause which states “nothing in this agreement, express or implied ... is intended to confer upon any person other than the parties hereto ... any rights, benefits or obligations hereunder ...” from having any meaning, thus their interpretation must be correct. See Stock Purchase Agreement at ¶ 13.9; Remediation Agreement at ¶ 4.12, brief in support of plaintiffs’ cross-motion (Aug. 15, 2000) at 11. However, under Texas law, no prohibition exists against an entity ben-efitting from a contract which it cannot enforce. MCI v. Texas Utilities, 995 S.W.2d 647, 650-51 (Tex.1999). Thus, a party’s intent not to confer a benefit upon a third party does not prohibit the same from occurring. Southdown also argues that if the parties intended to restrict Southdown’s right to “contest and defend” relevant claims, they would have said so in the agreements. Brief in support of plaintiffs’ cross-motion (Aug. 15, 2000) at 13. Nortru’s assertion is that it never agreed to let Southdown destroy the business it purchased by suing all of its customers. The court finds this argument supported by the Noncompetition Covenant in the Stock Purchase Agreement, which states in relevant part “Sellers understand and acknowledge that a portion of the value of the Shares ... is attributable to business relationships between the Companies and key customers of the Companies and the willingness of Sellers to refrain from pursuing its relationships with those customers.... ” Stock Purchase Agreement, Art. XII. South-down’s argument that the Agreements do not prevent it from suing Nortru’s eustom-ers is simply incompatible with the language of the Agreement seeking to protect the ongoing business relationship with these customers. The benefit to third parties stemming from this condition of purchase (that Southdown remediate the site) is incidental to the guarantee any reasonable business entity would seek in a similar situation, that being to clean up the site in a manner that does not run off the customers or destroy the ongoing business. Because of the enormous benefit to Nortru which results from Southdown’s promise to clean the site at its “sole expense,” the court finds unconvincing Southdown’s argument that such interpretation mainly benefits third-parties. The main beneficiary of such a guarantee is Nortru — the benefit to the customer defendants is incidental to the benefit to Nortru. Further supporting the court’s conclusion that what the parties intended at the time of entering the Agreements was that Southdown would remediate the site at its sole expense is the parenthetical language defining “expense,” as well as the remaining portion of the Remediation Agreement addressing known contaminants, which states: SETS shall, at its sole expense (which expense shall include, but is not limited to, all costs relating to preparation of the Plan or Plans, responding to and compliance with any Order, the cost of all contractors to perform the Work or the requirements of the Plan or Plan or any Order and any costs assessed by any of the Agencies for oversight of the Work), remediate (i) all known Contamination located on the Real Property or on contiguous property where the source of Contamination is on or originated from the Real Property, and (ii) all previously unknown Contamination discovered on the Real Property, or on contiguous property not owned by Rho-chem or Allworth where the source of Contamination is on or originated from the Real Property ... Remediation Agreement at ¶2.1. This court cannot imagine broader, more expansive language to state that the Southdown plaintiffs agreed to assume all costs for cleaning up the contamination on and off the property. A simple indemnification agreement whereby Southdown agreed to indemnify Nortru for any potential cleanup costs as an owner/operator would have accomplished what Southdown now says this language meant to say. The language used in a contract should be given its plain grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated. Coastal Oil & Gas Corp. v. Roberts, 28 S.W.3d 759 (Tex.App.2000) at 4, citing Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex.1985). The court notes the numerous contracts to dispose of waste provided to the customers of the site require the Southdown plaintiffs and All-worth to indemnify those customers for liability arising from contamination of the Allworth site. Given these contracts, which existed before the Agreements with Nortru were entered, this court is further convinced that the reasonable interpretation of the language in the agreements is that “sole” means “sole.” Black’s Law Dictionary defines “sole” as “single; individual; separate; the opposite of joint.... Comprising only one person; the opposite of aggregate.... Without another or others.” Black’s Law Dictionary 1391-1392 (6th ed.1990). The court has reviewed other sources as well, including Webster’s New Riverside University Dictionary and Words and Phrases. This court is unable to locate a definition for the term “sole” where it is not limited to meaning “only one” without any type of limitation. Southdown has not provided the court with any evidence that would give the term “sole” the meaning Southdown wants it to have. Further, in their second amended complaint, South-down represented to this court that “SETS assumed all liability relating to soil and groundwater contamination at the site ... and entered into a Remediation Agreement pursuant to which SETS must, at its sole expense, remediate the contamination. ...” Second amended complaint at ¶ 69 (doc. 96). Southdown cannot both “assume all liability” as stated in their second amended complaint and have “sole” given the definition they desire. The court is not able to find any basis for the proposition that “sole expense” is subject to more than one reasonable interpretation, thus creating an ambiguity. See Gulf Metals Industries v. Chicago Insurance Co., 993 S.W.2d 800, 804 (Tex.App. 1999). The court can see no barrier to a holding that “sole” does indeed mean “sole” in its everyday, ordinary meaning, although such construction may, incidentally, benefit a third party. Because this court finds that the term “sole” as used in the agreements is not ambiguous, the court can determine the parties’- rights and obligations under the agreement as a matter of law. This court holds, as a matter of law, that the term “sole expense” was intended to convey its ordinary meaning in the Agreements and therefore, the Southdown plaintiffs contracted to be solely liable for remediating the site. However, the inquiry does not end there, for the plaintiffs also argue that they have a right to contribution under CERCLA which they have not waived. “Sole” and CERCLA Southdown argues that sole cannot mean sole because they never intended to waive their contribution rights from other owner/operators and generators under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601-9615. In its memorandum, Nortru argues that rights to contribution under CERCLA are waivable by contract. Memorandum of Nortru (Sept. 21, 2000) at 2, citing 42 U.S.C. § 9607(e). Southdown relies on the lack of explicit waiver language in the Agreements to support this argument. The court finds from reviewing the same that in numerous places within the Remediation Agreement, the Southdown plaintiffs could have stated they were not waiving their CERCLA remedies. The Remediation Agreement states, in relevant part: SETS shall, at its sole expense (which expense shall include, but is not limited to, all costs relating to preparation of the Plan or Plans, responding to and compliance with any Order, the cost of all contractors to perform the Work ...) remediate (i) all known Contamination located on the Real Property or on contiguous property ... and (ii) all previously unknown Contamination discovered on the Real Property, or on contiguous property.... Remediation Agreement at ¶ 2.1. Further: SETS shall have the right to control all Work to be performed under this Agreement and to negotiate with the relevant government authorities concerning the conduct of such Work. Purchaser, Rho-Chem, and Allworth shall receive a reasonable opportunity to review, consult with SETS, and comment to SETS of SETS’ choice contractors ... and conduct of all Work to be performed by SETS and its contractors pursuant to this Agreement ..., prior to any final decisions by SETS on such matters. Remediation Agreement at ¶ 2.2. Purchaser ... shall be given reasonable notice of and will be given an opportunity to attend any such meetings with the Agencies and otherwise shall have the right to communicate or meet with the Agencies regarding regulatory matters. Remediation Agreement at ¶ 2.3. The court finds these paragraphs become nonsensical if part of Southdown’s plan for covering the costs of remediation includes suing the current customers of the purchaser. This is especially true in light of the following portion of the Agreement: 2.8 Failure to Perform: If SETS fails to perform or fails diligently to commence and pursue the Work in accordance with the Plans ... Purchaser may, after giving twenty (20) days written notice to SETS specifying the default ... and following any failure to cure such default, perform or cause to be performed such work, but SETS shall be solely responsible for and shall pay to Purchaser the amount of all reasonable costs associated with such work on a current basis. Remediation Agreement at ¶2.8. This paragraph only becomes logical if South-down is to pay for all of the costs of remediating the site. Otherwise, once again, Nortru would be presenting South-down a bill knowing Southdown will sue Nortru’s customers to pay for it. This court does not believe this was the intent of the parties at the time this agreement was entered. Adding yet further support to the court’s opinion that Southdown being solely liable for the costs of the remediation was the true intent of the parties is paragraph 4.11 of the Remediation Agreement which states: This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and there are no warranties, representations or other agreements among the parties in connection with the subject matter hereof except as set forth specifically herein or contemplated hereby. No supplement, modification or waiver of this Agreement shall be binding unless executed in writing by each party to be bound thereby.... Nowhere in the above paragraph does the language “except for Southdown’s rights under CERCLA to sue generators of waste contributing to the contamination” appear. Similarly, in the Stock Purchase Agreement, under “Representations and Warranties of the Seller,” Southdown certifies “to the best knowledge of Sellers, there is no condition or set of facts or circumstances that is reasonably likely to give rise to an environmental lien or to Environmental Claims against the Companies.” Stock Purchase Agreement at ¶ 3.22. “Environmental Claims” is then defined to include “any and all claims by a third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from a release of Hazardous Substances ...” Stock Purchase Agreement at ¶ 3.22(e). This court cannot image Southdown certifying that there is no set of facts reasonably likely to give rise to environmental claims while intending to sue the customers of the site for contribution and cost recovery and at the same time contracting to indemnify and hold Nortru harmless from such claims. The only way the foregoing paragraphs can be read so as not to be meaningless is to take the term “sole expense” at its face value and assume Southdown meant it would pay for the remediation of the site on its own. Southdown argues they have indemnified Nortru and Allworth from “losses resulting from their performance or breach of the Remediation Agreement” and since they have undertaken remediation studies as a first step toward cleaning the contamination, Southdown is not in breach of the agreements. See brief in support of plaintiffs’ cross-motion at 4. Of course, if Southdown had not sued Allen, it would not have to reimburse Nor-tru for Allen’s claims for contribution. Given the relationship of the parties to this litigation, this court finds when the indemnification clause is considered in conjunction with the “sole expense” clause, the only logical construction is the one that appears on the face of the documents- — that the Southdown plaintiffs agreed to clean up the site at their sole expense. Any other interpretation results in Southdown indemnifying Nortru for the very damages Southdown is causing by pursuing this litigation. Any recovery Southdown could receive from Allen would arguably have to be paid, at least in part, to Nortru because if Southdown has a right of contribution from Allen, then Allen should just as likely have one from Nortru, as the present owner of Allworth, which would cause Southdown to have to indemnify Nortru for the amount of Allen’s recovery against Nortru, caused by Southdown itself. This further creates the interesting situation where Southdown, pursuant to the agreement, must step in and defend Nortru against Allen’s third party suit, which would not exist but for Southdown’s suit against Allen. See Stock Purchase Agreement at ¶¶ 11.3, 11.4. Hence, Southdown is, in essence, both the plaintiff and the third party defendant. This does not even begin to take into consideration the other indemnification agreements Allworth under its various owners has provided to the Customer defendants as a cost of doing business. When these are considered, Southdown could potentially have a duty to indemnify every party to this action, with the possible exception of Allen. See Attachment B to Customer defendants’ counter and cross claims (doc. 394). While the Customer defendants argue that these indemnification agreements encompass the current litigation, the court does not reach that issue. See Customer defendants’ reply (Sept. 25, 2000) at 4. By entering into the Remediation Agreement and Stock Purchase Agreement with Nortru, the Southdown plaintiffs explicitly waived any rights they may have had to contribution under CERCLA. Applying the previous law and analysis, the court finds this interpretation of the Agreements to be supported by the “sole expense” language, especially given that no serious argument can be made that Nortru would have purchased Allworth with knowledge of the contamination, without an agreement by Southdown to clean it up and to indemnify the purchaser. Further supporting this interpretation of the agreements is a consideration of Nortru’s probable reaction if it had known then what it knows now: that Southdown claims “sole expense” means the right to seek contribution from its successor’s past and present clientele which will have the possible result of driving its successor out of business. This court finds no credence in the suggestion that Nortru would have purchased the ongoing business had it known this is what Southdown would later claim to have intended. The court finds its analysis supported by case law. For example, in White Consolidated Industries, Inc. v. Westinghouse Electric Corp., 179 F.3d 403 (6th Cir.1999), the court stated that “parties may contract to shift CERCLA liabilities by means of an assumption or indemnification agreement.” Id. at 409, citing Olin Corp. v. Yeargin, Inc., 146 F.3d 398, 407 (6th Cir.1998). The court continued by stating that “a provision in an assumption agreement, ‘which contains broad language sufficient to indicate that the parties intended to include all liabilities, will include environmental liabilities as well even without specific reference to an environmental statute such as CERCLA.’” White Consolidated, 179 F.3d at 409, citing Olin Corp., 146 F.3d at 407. See also Joslyn Manufacturing Co. v. Koppers Company, Inc., 40 F.3d 750, 754-55 (5th Cir.1994) (“We hold that the indemnification agreements were intended to cover all forms of liability, including liability under CERCLA ... even though environmental liability under these statutes was not specifically contemplated at the time of contracting”). Thus, this court finds that whatever right Southdown may have had under CERCLA to sue every entity that ever came near the site was absorbed by their own promise to remediate the site at their “sole expense.” As such, this court finds that the Southdown plaintiffs do not retain the right to pursue under CERCLA that which they contracted away. This court has considered Southdown’s interpretation of the indemnity agreement contained in the Stock Purchase Agreement at ¶ 11.4. While this court does not have pending in front of it Southdown’s argument that this agreement does not require Southdown to indemnify Nortru for their interference with business claims, the Stock Purchase Agreement states that if Nortru and/or Allworth are sued, South-down may contest and defend claims where Nortru and/or Allworth demand indemnification under the Agreement. This includes, under the plain- language of the Agreement, damages in any way relating to (1) any breach of the Agreement or (2) the site. See Agreement at ¶¶ 11.1, 11.2. See also ¶ 3.1. As succinctly put by the Customer defendants, “it is Southdown’s initiation of this very litigation that has resulted and will result in the third party claims against Allworth — claims against which Southdown is obligated to defend and indemnify.” Customer defendants’ reply to plaintiffs’ response (Sept. 25, 2000) at 2. Nortru alerted the Southdown plaintiffs to its belief that Southdown’s pursuit of this litigation was in breach of the Stock Purchase Agreement in June, 1998, where Nortru stated that: Southdown expressly agreed to remediate the facility at its sole expense and indemnify Nortru from any damages arising from the contamination of the facility as a condition of the purchase of the Allworth stock by Nortru. Claims against the facility’s customers will be viewed as an effort by Southdown to circumvent its obligations under the Stock Purchase Agreement ... There can be little doubt that such claim will damage Allworth’s relationship with these customers and be harmful to its ongoing business. Such potential claims are the direct result of the instant litigation instituted by Southdown and Nortru will likewise view any such claims as Southdown’s responsibility. Letter from Marlys Palumbo to Leslie White dated June 8, 1998, submitted as Exhibit C to brief in support of plaintiffs’ cross-motion (Aug. 15, 2000). The court further notes that this letter was written before any customer defendants were sued by Southdown in October, 1998. The court does not delve into the myriad of indemnification agreements at this time as the court, based on the above findings of fact and conclusions of law, intends to dismiss the cross-claims for contribution against the third party defendants. The court does find that Nortru’s claim against Southdown for tortious interference with its ongoing business relationships and its claim for indemnification on this issue, survive this order. CERCLA The Southdown plaintiffs bring CERC-LA claims against Allen and the Listed Customer defendants under both § 107(a) for cost recovery and § 113(f), for contribution. Defendant Allen argues South-down’s undertaking is not within the term-“response costs” under CERCLA because it stems from a contract obligation. To establish CERCLA liability, the plaintiffs must demonstrate that: (1) the site in question is a “facility”; (2) a release or threatened release of a hazardous substance has occurred; (3) the release or threatened release has caused the plaintiffs to incur response costs consistent with the “national contingency plan”; and (4) the defendant is a “covered person” under § 107(a) of CERCLA. Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496-97 (11th Cir.1996). The first two elements and the last of this inquiry are not in dispute and will be assumed established by the court. The parties do argue over what caused the plaintiffs to undertake the response costs. While Southdown argues that RCRA and CERCLA caused it to incur liability, the defendants, in all their current forms, argue that the Agreements signed by Southdown as a condition for Nortru to purchase the site caused the current liability and thus Southdown’s undertaking of the remediation is solely voluntary, removing this ease completely from CERCLA. Evidence submitted by the Southdown plaintiffs themselves, as well as South-down’s pleadings, support this argument. In their second amended complaint, the plaintiffs state that “On June 9, 1995, pursuant to SETS’ Remediation Agreement with Nortru, Inc., Southdown prepared a RCRA Facility Investigation Work Plan (emphasis added).” Second amended complaint at ¶ 75. In the Exponent reports submitted by the plaintiffs as Exhibits A and B to their response (doc. 775), Exponent states: Southdown argues that it is innocent within the meaning because it did not contribute to the contamination. However, Southdown was in the business of owning and operating the site in question. Its representation to this court that it does not fall within the definition of “any person who at the time of disposal of any hazardous substance owned or operated the facility” is certainly questionable. In April 1995, Southdown conveyed the facility to Nortru, Inc., but retained responsibility for remediating any contamination that occurred at the site before that time. Southdown’s suit against Allen seeks recovery of costs incurred and to be incurred by Southdown in remedi-ating contamination that occurred at the site before September 1990. Exhibit A to Southdown’s Response (doc. 775) at 1. The court finds that the “release or threatened release” is not what caused the incurrence of “response costs” by the plaintiff, rather, the Remediation Agreement as part of the sale of Allworth to Nortru caused the “response costs.” See Carson Harbor Village Ltd. v. Unocal Corp., 227 F.3d 1196, 1203 (9th Cir.2000) (“To the extent that these actions were taken for purposes other than responding to an actual and real public health threat, there is no CERCLA liability”). Thus, the plaintiff cannot establish a prima facie case to maintain this litigation as a private-party lawsuit under CERCLA. S