Full opinion text
ORDER EAGAN, District Judge. Plaintiffs City of Tulsa and Tulsa Metropolitan Utility Authority (collectively, referred to as “Tulsa”) have filed suit against defendant City of Decatur, Arkansas (“Decatur”), a municipal corporation, and corporate defendants in the poultry industry (collectively referred to as “Poultry Defendants”) — Tyson Foods, Inc. (“Tyson”), Cobb-Vantress, Inc. (“Cobb-Vantress”), Peterson Farms, Inc. (“Peterson”), Simmons Foods, Inc. (“Simmons”), George’s, Inc. (“George’s”), and Cargill, Ine.(“Car-gill”). Tulsa alleges that the acts and omissions of defendants have polluted Lakes Eucha and Spavinaw from which Tulsa draws its water supply. Specifically, excess phosphorus from Poultry Defendants’ growers’ land application of poultry litter and Peterson’s and Decatur’s “point source” discharge of wastewater have resulted in “eutrophication” of the lakes, ie., high levels of algal production in the lakes, which affect water quality. Tulsa seeks cost recovery and contribution from Poultry Defendants under Sections 107(a) and 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9607(a) and 9613(f); and compensatory and punitive damages for intentional nuisance and trespass claims against Poultry Defendants based on Oklahoma statutory and common law and against Peterson and the City of Decatur (“Decatur”) under Arkansas common law; and unjust enrichment claims against Poultry Defendants under Oklahoma law and against Peterson and Decatur for the “point source” discharge pursuant to Arkansas law. I. FACTUAL SUMMARY The City of Tulsa is a municipal corporation and a political subdivision of the State of Oklahoma. The Tulsa Metropolitan Utility Authority (“TMUA”) is an Oklahoma public trust established under Okla. Stat. tit. 60, § 176 et seq. for the purpose of operating the water supply system for the express benefit of the City of Tulsa, as beneficiary of the Trust. The municipal water supply system at issue in this lawsuit includes Lake Spavi-naw, Lake Eucha, Lake Yahola, and the City of Tulsa Mohawk Water Treatment Plant (“Mohawk”). These bodies of water are referred to collectively as the “Water Supply.” Lakes Spavinaw and Eucha are reservoirs which were formed by plaintiffs by building dams on Spavinaw Creek, which receives water from the Eucha/Spa-vinaw watershed encompassing approximately 415 square miles (the “Watershed”). Tulsa constructed Lake Spavinaw in 1924. In 1938, the Oklahoma Water Resources Board (“OWRB”) issued to the City of Tulsa a Permit, Grant, License and Certificate to use and apply 205 cubic second feet of the waters of Spavinaw Creek for its present and future needs. As water demands grew, Lake Yahola was constructed in 1948. Finally, in response to increasing water needs and requirements of Tulsa and other northeastern Oklahoma residents, Tulsa constructed Lake Eucha in 1952. Today the water collected in Lake Eu-cha is discharged directly into Lake Spavi-naw where approximately 65-70 million gallons per day are piped directly to Lake Yahola. Water from Lake Yahola is processed at the TMUA-operated Mohawk Water Treatment Plant, from which potable water is furnished to consumers in Tulsa and in northeastern Oklahoma. Tulsa alleges the Water Supply has been adversely affected by an increase of nutrients — specifically, phosphorus, which has in turn resulted in excessive algae growth. Tulsa contends that the excessive algae growth has caused taste and odor problems with respect to the plaintiffs’ Water Supply, and that plaintiffs have incurred and will continue to incur substantial treatment costs and other damages in responding to the taste and odor problems. The process by which lake water quality is affected through the increase of nutrients is commonly known as “eutrophication.” Plaintiffs allege the practices of the Poultry Defendants and Decatur have resulted in the eutrophication of Lakes Eu-cha and Spavinaw. Specifically, plaintiffs allege that all Poultry Defendants have contributed phosphorus to Lakes Eucha and Spavinaw by virtue of the land application of poultry litter by contract growers located throughout the Watershed with whom the Poultry Defendants have contracted for the raising of poultry. Plaintiffs also allege that Peterson and Decatur have contributed phosphorus to Lakes Eu-cha and Spavinaw by discharging wastes from Peterson’s processing plant through a publicly owned treatment work operated by Decatur. Elemental phosphorus is a reactive solid which is highly combustible. Its fumes are extremely poisonous, and when it comes in contact with tissues elemental phosphorus will cause severe burns or intense inflammation. However, elemental phosphorus does not occur free in nature, but rather combines with other elements, most commonly oxygen, to form phosphate. Phosphate is found in all living cells, is safe and is vital to life processes. Poultry litter and waste generated by poultry processing operations contain phosphorus in the form of a phosphate compound. Plaintiffs operate several wastewater treatment facilities in and around Tulsa, including sewer lagoons at Lake Eucha. The Eucha Sewer Lagoons were constructed in approximately 1972 to handle human wastewater generated from the campgrounds and cabins around Lake Eucha as well as from an area trailer park. As originally constructed, the Eucha Sewer Lagoons consisted of a discharging sewer lagoon, whereby human wastewater was temporarily held in a lagoon to allow biological activity to occur prior to the waste-water being discharged by plaintiffs directly into Lake Eucha. On several occasions from 1983 until at least 1991, plaintiffs siphoned or decanted sewage from the Eu-cha Sewer Lagoons into Lake Eucha. As a result of an investigation into plaintiffs’ post-1983 discharges from the Eucha Sewer Lagoons into Lake Eucha, the Oklahoma State Department of Health (“OSDH”) determined that the plaintiffs had violated Oklahoma law by discharging wastewater into Lake Eucha without a NPDES Permit. Plaintiffs concede the wastewater discharged from the Eucha Sewer Lagoons from 1972 through 1987 contained phosphates, but argue the amount was de minimus. In addition, people continue to use Lake Eucha and Lake Spavinaw for recreational activities such as fishing, boating, and camping. Plaintiffs produce drinking water from the Water Supply that is in compliance with the Safe Drinking Water Act and does not present health risks to the residents of Tulsa. There is no current threat to plaintiffs’ ability to produce safe drinking water from the Water Supply, although plaintiffs contend that the alleged pollution by Poultry Defendants and Decatur, if left unabated, will lead to more severe problems with the Water Supply, including problems of direct consequence to human health. Poultry Defendants — Tyson, Cobb-Van-tress, Simmons, Peterson, Cargill and George’s — are in the business of processing and marketing poultry products to consumers. Generally, the Poultry Defendants contract with independent growers for the care and feeding of poultry (“poultry growers”) which the Poultry Defendants subsequently process and market to consumers. Some of those poultry growers own and operate poultry farms which are located within the Watershed. George’s estimates its contract growers generated inside the Watershed approximately 1,900 tons of poultry litter in 1998, 1,600 tons in 1999, and 1,600 tons in 2002. In 2002, George’s estimated that its growers generated 1,600 tons of litter inside the Watershed. As of September 1, 2002, Peterson admits that its contract growers and company farms have produced approximately 40,715,200 birds and an estimated 39,859 tons of litter in the Watershed. During 2001, Cargill admits that its contract growers produced approximately 810,000 turkeys that generated litter in the Watershed. Each Poultry Defendant, or “integrator,” conducts an “integrated” poultry raising operation which is characterized by the following elements: (a) each integrator contracts with growers to raise poultry; (b) it delivers small birds to the growers and retains ownership of the birds at all times; (c) it pays the growers a contract rate to grow the poultry; (d) it provides feed and medication to the growers to care for the birds; and (e) it picks up the birds when they mature and processes them at the integrators’ processing plants. The vertically integrated poultry operation allows the integrator to control the genetics and the breeding stock that goes into the chickens that are processed; to have consistency in the final product; and to produce the highest quality finished product possible. The manure generated by the poultry is excreted onto bedding material purchased by the poultry growers (e.g., wood shavings or rice hulls used by poultry growers to line the floors of growing houses). This combination of poultry manure and bedding material is commonly known as “poultry litter.” Poultry litter is rich in phosphorus and nitrogen. It has been the practice of poultry growers in the Watershed and elsewhere to spread the poultry litter on the ground, or to sell it or give it away to neighbors as fertilizer. The poultry industry has been aware since the late 1980s that the land application of poultry litter by contract growers presented a risk of potential environmental impact from nutrient loading resulting from surface water runoff on pastures and fields. The concern was first focused on nitrogen loading and then in the mid to late 1990s, the industry became aware of the potential environmental impact from the phosphorus or phosphates contained in poultry litter. As early as February 1990, Tyson adopted Dry Poultry Litter Handling Best Management Practices (“BMPs”) for its contract growers to educate them about best management practices regarding the storing, land application, and transportation of poultry litter. In approximately 1999, Peterson held a meeting with its growers to discuss water quality issues in the watershed and litter application. Peterson advised growers that they needed to pay attention to Utter application and make sure they applied their litter according to BMBs. Over the past five years, Cargill claims it has systematically met with its growers in the watershed to provide education, guidance, BMPs, and overall guidance on waste management and disposal practices. Defendant Decatur is a municipal corporation and a political subdivision of the State of Arkansas. Decatur has approximately 1000-1600 residents. Decatur operates a wastewater treatment plant (“WWTP”) to treat wastewater generated by its residents and industry in Decatur. Defendant Peterson uses this wastewa-ter treatment plant to process poultry waste from its plant in Decatur. Peterson’s poultry processing plant in Decatur produces approximately 1.5 million gallons of wastewater per day (not including weekends) which it pre-treats and discharges directly to the Decatur WWTP for final treatment. The phosphorus concentrations in Peterson’s effluent range from 9-12 milligrams per liter (mg/L), with an average of 10 mg/L, since the time measurements have been made. The wastewater that Peterson delivers to the Decatur WWTP constitutes approximately ninety percent of the total volume received and treated by Decatur. Similarly, approximately eighty-five percent of the revenue Decatur receives from the treatment and sale of fresh water comes from Peterson. Decatur’s WWTP is a “point source.” A “point source” is defined under the Clean Water Act (“CWA”) as “any discernible, confined and discrete conveyance ... from which pollutants are or may be discharged.” 33 U.S.C. § 1362(14). Decatur’s wastewater discharge is permitted by the Arkansas Department of Environmental Quality (“ADEQ”), pursuant to its delegated National Pollution Discharge Elimination System (“NPDES”) authority from the United States Environmental Protection Agency (“EPA”). “NPDES” is a term of art from the CWA. Pursuant to the CWA, a point source that discharges pollutants may do so only through a permit issued by the EPA (or through the states as delegated and monitored by the EPA) pursuant to the NPDES section of the CWA. See 33 U.S.C. § 1311, § 1342. The NPDES permit for Decatur issued by the ADEQ, pursuant to its authority under the EPA, contains no numerical limits for phosphorus. Decatur is required only to monitor and report its discharge periodically. The average phosphorus concentrations in Decatur’s discharge to Columbia Hollow Creek, which flows into Spavinaw Creek, is 6-10 mg/L. Decatur discharges effluent from its WWTP to Columbia Hollow, which disappears underground and reemerges from the ground several miles before it reaches Spavinaw Creek in Arkansas. This is commonly known as a “losing stream.” Columbia Hollow flows into Spavinaw Creek and ultimately into Lake Eucha, which is fifteen miles from the point of discharge. II. SUMMARY JUDGMENT STANDARD Summary judgment pursuant to Fed. R.Civ.P. 56 is appropriate where “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.” Fed. R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Windon Third Oil & Gas v. FDIC, 805 F.2d 342, 345 (10th Cir.1986). In Celotex, the Supreme Court stated: the 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. 477 U.S. at 322, 106 S.Ct. 2548. A party opposing a properly supported motion for summary judgment must offer evidence, in admissible form, of specific facts sufficient to raise a “genuine issue of material fact.” Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505. The mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff. Id. at 252, 106 S.Ct. 2505. Thus, to defeat a summary judgment motion, the nonmov-ant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita v. Zenith, 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In essence, the inquiry for the Court 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.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. The Court may consider only admissible evidence when ruling on a summary judgment motion. See World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir.1985). In its review, the Court must construe the evidence and inferences therefrom in a light most favorable to the nonmoving party. Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1521 (10th Cir.1992). Before the Court are the following motions for summary judgment: Dkt. # 211 Poultry Defendants Motion for Summary Judgment or in the Alternative for Partial Summary Judgment and Integrated Original Brief in Support Dkt. #216 Separate Defendant Simmons Foods Inc.’s Motion for Summary Judgment Dkt. #219 [Peterson’s] Motion for Summary Judgment Dkt. #225 Plaintiffs’ Motion and Brief for Partial Summary Judgment Against Poultry Defendants on Issue of Liability for Growers’ Disposal of Poultry Manure Dkt. #226 Plaintiffs’ Motion and Brief for Partial Summary Judgment Against Poultry Defendants on Issue of Liability Under CERCLA Dkt. #229 Separate Defendant George’s Inc.’s Motion for Summary Judgment Dkt. #232 Separate Defendant Tyson Foods, Inc.’s Motion and Integrated Brief in Support of Summary Judgment Dkt. #238 Motion of Separate Defendant Cargill Inc’s and Brief in Support of Supplemental Motion for Partial Summary Judgment Dkt. #239 Separate Defendant Cobb-Vantress Inc.’s Motion and Integrated Brief in Support of Summary Judgment Dkt. #240 Defendant City of Decatur’s Motion for Summary Judgment and Brief in Support Dkt. #255 Poultry Defendants’ ... Motion and Brief to Strike Plaintiffs’ Motion and Brief for Partial Summary Judgment Against Poultry Defendants As the summary judgment motions include most of the same issues, the Court will address the motions according to issue, rather than motion. III. STANDING OF TMUA The Court first addresses whether TMUA has standing to bring this action. To have standing, plaintiffs must have “suffered an ‘injury in fact’ — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not ‘conjectural’ or ‘hypothetical,’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted). Poultry Defendants contend TMUA cannot show it has or will sustain an “injury in fact” and therefore lacks standing to bring this action. Specifically, Poultry Defendants assert the costs incurred in the investigation of and formulation of response actions to address the contamination of the Water Supply and in the treatment of the water to make it potable have been borne by the City of Tulsa, and not TMUA, as TMUA has no revenue, employees or expenses. Plaintiffs dispute that TMUA has no independent source of revenue and that it has not incurred expenses related to this action. Plaintiffs cite TMUA’s Lease Agreement and Operation and Maintenance Contract (“Lease”) by which the City leases to TMUA the water and sewer system assets and establishes an operating fund to collect revenues received by TMUA from the sale of treated water. Further, under the Lease, TMUA incurs indebtedness through operation and maintenance expenses for which it is contractually obligated to reimburse the City. Plaintiffs also contend TMUA contracted with the OWRB for evaluation and monitoring services in conjunction with the Spavinaw-Eucha Clean Lake Study which constitutes part of the costs sought in this lawsuit. Based on the above, the Court cannot find as a matter of law that TMUA lacks standing to bring this action. IV. CLAIMS UNDER CERCLA Plaintiffs seek partial summary judgment on the issue of liability of the Poultry Defendants as responsible parties under CERCLA. (Dkt. # 226). Poultry Defendants also move for partial summary judgment that (1) plaintiffs cannot state a cost recovery claim under § 107(a) of CERC-LA; (2) the alleged released phosphate is not a hazardous substance; (3) plaintiffs did not comply with the National Contingency Plan (“NCP”) prior to incurring costs; and (4) the alleged offending conduct falls within the “normal application of fertilizer” exclusion. (Dkt. # 211). A. Cost Recovery and Contribution Plaintiffs bring claims for cost recovery under § 107(a) and for contribution under § 113(f) of CERCLA, 42 U.S.C. §§ 9607(a) and 9613(f), respectively. To establish a prima facie case of liability under either section, plaintiffs must prove the following elements: (1)the defendants are in one of four categories of covered persons; (2) there has been a release or threatened release of a hazardous substance from a site which is a covered facility; (3) the release or threatened release caused the plaintiffs to incur costs; (4) plaintiffs’ costs are necessary response costs; and (5) plaintiffs’ response action or cleanup was consistent with the NCP. 42 U.S.C. § 9607(a); Morrison Ent. v. McShares, Inc., 302 F.3d 1127, 1135-36 (10th Cir.2002); Public Service Co. of Colorado v. Gates Rubber Co., 175 F.3d 1177, 1181 n. 5 (10th Cir.1999). “Covered persons” under § 107(a), otherwise known as “potentially responsible parties” or “PRPs,” include the following: (1) the owners and operators of a facility; (2) any person who at the time of the disposal of the hazardous substance owned or operated any facility at which such hazardous substances were disposed of; (3) any person who arranged for the treatment or disposal of a hazardous substance at the facility; and (4) persons who transported hazardous substances to the facility. See 42 U.S.C. § 9607(a). A cost recovery action under § 107(a) imposes strict liability on PRPs for “all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan [ (‘NCP’) ] [and] any other necessary costs of response incurred by any other person consistent with the [NCP].” 42 U.S.C. § 9607(a)(4). “It is also well settled that § 107 imposes joint and several liability on PRPs regardless of fault.” United States v. Colorado & Eastern Railroad Co., 50 F.3d 1530, 1535 (10th Cir.1995). Due to the impossibility of determining the amount of environmental harm caused by each party where wastes of varying and unknown degrees of toxicity and migratory potential have mixed, the courts have been reluctant to apportion costs between PRPs, and hence have adopted the rule that “damages should be apportioned only if the defendant can demonstrate that the harm is divisible.” Id. (quoting O’Neil v. Picillo, 883 F.2d 176, 178 (1st Cir.1989)). As the difficult burden of showing divisibility of harm is on the defendant PRP(s) in a cost recovery action, PRPs rarely escape joint and several liability. Id.; Morrison, 302 F.3d at 1133 (“[T]he burden rests on a defendant who has only contributed a fraction of the waste to show that the harm from his actions is divisible from the harm caused by the waste of other defendants.”). To avoid saddling an individual PRP with the entire liability for cost recovery, Congress amended CERCLA in 1986 to recognize a right of contribution which allows “[a]ny person [to] seek contribution from any other person who is liable or potentially liable under section 9607(a) [107(a) ] ... during or following any civil action under ... section 9607(a).” 42 U.S.C. § 9613(f). Accordingly, under § 113(f), an individual PRP who has incurred the entire cost of cleanup of a site may seek contribution from other PRPs. Although § 113(f) does not create a new cause of action and “is an action under § 107,” liability among the PRPs under § 113(f) is necessarily several, rather than joint and several as in a cost recovery claim under § 107, and is allocated according to equitable factors. Sun Company, Inc. v. Browning-Ferris, Inc., 124 F.3d 1187, 1191 (10th Cir.1997) (“Under CERC-LA’s statutory scheme, therefore, a PRP’s contribution action seeks to recover costs referred to in § 107 ..., but is governed by the equitable apportionment principles established in § 113(f)”). The burden of proof is on the party seeking apportionment to show that it should be granted. Colorado & Eastern Railroad, 50 F.3d at 1536 (citing H.R.Rep. No. 99-253(111), at 19 (1986), reprinted in 1986 U.S.C.C.A.N. 2835, 3038, 3042). Poultry Defendants argue that plaintiffs are PRPs because they have operated sewer lagoons at Lake Eucha which discharged human wastewater into the lake from 1972 through 1983, and on several occasions from 1983 until 1991 contributed to the external loading of phosphorus in the lakes by siphoning or decanting sewage from the lagoons into the lake; therefore, as PRPs, plaintiffs cannot bring a cost recovery claim under § 107(a). Although plaintiffs emphasize that their contribution to external phosphorus loading of the lakes is de minimus, plaintiffs concede that they are PRPs, and thus under the Tenth Circuit’s recent decision in Morrison Ent. v. McShares, Inc., 302 F.3d 1127 (10th Cir.2002), cannot maintain a cost recovery action under § 107(a) of CERCLA. Id. at 1135 (“[BJecause [plaintiff] is a PRP, it may not proceed with two independent suits under both §§ 9607 and 9613(f), but instead may only proceed with an action for contribution under 9613(f).”). In Morrison, the Tenth Circuit rejected the landowner plaintiffs “innocent PRP” argument that it should be allowed to bring a cost recovery claim under § 107(a) as it had no responsibility for the contaminating spill at issue. Id. at 1134-35. In so finding, the Court declined to follow the Seventh Circuit, which held that a PRP, not entitled to a defense under § 9607(b), could nonetheless proceed under § 107(a) if the PRP is a landowner who is sufficiently innocent. Id. at 1134 (citing NutraSweet Co. v. X-L Eng’g Co., 227 F.3d 776, 784 (7th Cir.2000)). There may be a superficial attraction to allowing “innocent PRPs” to proceed under § 9607(a). Because these landowners had nothing to do with the release of hazardous waste, it seems reasonable that they should not be forced to bear any of the costs of cleanup whatsoever. Under § 9607(a), if the landowners succeed in showing that the defendants are liable, the entire cost of cleanup would be shifted automatically to the defendants, because they are strictly, jointly, and severally liable. Under 9613(f), on the other hand, even if the landowners succeed in showing that defendants are hable, the landowners face the additional step of dividing liability among the various parties (including, potentially, the plaintiffs) according to equitable factors. Thus, under § 9613(f), there is a theoretical risk that “innocent PRPs” might bear some of the costs of liability. Nonetheless, we see little risk of this result occurring. If the plaintiffs are truly “innocent PRPs,” then there should be little difficulty in making the additional required showing that the defendant PRPs should bear the entire cost under the equitable factors.... In addition, it might be unfair to allow “innocent PRPs” to proceed under § 9607 and transfer all of the potential liability to other PRPs because there may be “orphan shares” of liability for bankrupt or judgment-proof defendant PRPs that should be equitably divided among the plaintiffs and other defendant PRPs.... Of course, the defendant PRPs may attempt to reimpose that liability on the plaintiff PRPs (or other PRPs) through a new contribution action under § 9613(f), but that result would lead to a “chain reaction of multiple, and unnecessary lawsuits.” Id. at 1134-35 (citations omitted). Given the Tenth Circuit’s analysis in Morrison, if “innocent PRPs” cannot bring a cost recovery claim under § 107(a), plaintiffs, as admitted “de minimus” contributors of phosphorus to Lake Eucha, certainly cannot. However, plaintiffs can proceed for contribution under § 113(f)(1). Based on the above, the Court grants Poultry Defendants’ summary judgment on plaintiffs’ § 107(a) CERCLA claim. (Dkt. # 211). The following analysis of CERCLA issues, therefore, pertains only to plaintiffs’ contribution claim under § 113(f). B. Facility “Facility” is defined under CERCLA as (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, -pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel. 42 U.S.C. § 9601(9) (emphasis added). Plaintiffs rely on subsection (B). Although plaintiffs originally pleaded the “facility” was the Water Supply, plaintiffs propose the entire Watershed be designated as a “facility” because the hazardous substance at issue, phosphorus, is deposited or can be found virtually throughout the Watershed where poultry fitter has been land applied by the poultry growers and their neighbors to whom the fitter is sold or given away. Poultry Defendants object that “facility” cannot be so broadly defined, as the Watershed encompasses more than 415 square miles of land and plaintiffs cannot show the presence of phosphates or phosphorus throughout the entire Watershed. Further, although the poultry growers operate farms on various tracts of land within the Watershed, the farms do not comprise a majority of the land in the Watershed. Poultry Defendants urge that plaintiffs’ “re-designation” of the facility as the Watershed is simply an attempt to avoid a defect in their CERCLA claim — the lack of a causal nexus between the poultry growers’ land application of poultry fitter and the alleged contamination of the Water Supply. The definition of “facility” under § 9601(9)(B) is broad enough to include both the initial site where a hazardous substance is disposed of and additional sites to which the substances have migrated following the initial disposal. Nutrasweet, 933 F.Supp. at 1418. In Nutrasweet, plaintiff sued a neighboring manufacturer that had dumped hazardous substances on its own property which moved by way of surface and ground water onto plaintiffs property. The district court found that hazardous substances came to be located on both the plaintiffs and manufacturer’s property and therefore, both met the definition of “facility.” Id. at 1417-18 and n. 3; see also U.S. v. Township of Brighton, 153 F.3d 307, 313 (6th Cir.1998)(“The words of the statute suggest that the bounds of a facility should be defined at least in part by the bounds of the contamination.... However, an area that cannot be reasonably or naturally divided into multiple parts or functional units should be defined as a single ‘facility,’ even if it contains parts that are non-contaminated.”). Also, contrary to Poultry Defendants’ argument, CERCLA does not impose a causation element as a predicate to liability when a defendant falls into one of the classes of liable parties. Tosco Corp. v. Koch Ind., Inc., 216 F.3d 886, 891 (10th Cir.2000) (“To establish liability under § 9613(f), it is sufficient for the plaintiff to establish a connection between a particular defendant and the incurred response costs vis á vis the defendant’s identification as a responsible person as defined in § 9607(a).”). Neither is it required that the facility be co-extensive with the responsible person’s property. Louisiana-Pacific Corp. v. Beazer Materials & Services, Inc., 811 F.Supp. 1421, 1431 (E.D.Ca.1993) (“nothing in CERCLA supports the notion that facility must be defined by or be coextensive with an owner’s property lines.”); Nutrasweet, 933 F.Supp. at 1420. (“Nutrasweet does not have to prove that X-L’s release of hazardous waste onto the portion of its own facility adjacent to NutraSweet’s property actually and physically migrated and contaminated plaintiffs property; NutraSweet need only show that the release or threatened release of hazardous substances from the facility caused it to incur response costs.”); U.S. v. Hardage, 761 F.Supp. 1501 (W.D.Okla.1990). Although the definition of “facility” is expansive enough to include the Watershed within its scope, the factual record before the Court on plaintiffs’ motion for partial summary judgment is insufficient. The documents which plaintiffs cite in support of their statement of facts regarding the land application of poultry litter, i.e., the alleged “disposal” of phosphorus, within the Watershed are either unauthenticated documents or responses to interrogatories which at best admit only to the generation of, and not the land application of, poultry litter in the Watershed. Accordingly, the Court cannot make any finding regarding the boundaries of the “facility” at this juncture. C. Arranger Liability Plaintiffs contend Poultry Defendants are liable for the costs plaintiffs have incurred in the cleanup of the lakes as they acted as “arrangers” for their growers’ “disposal” of phosphorus in the poultry litter into the Watershed. An “arranger” is defined under CERCLA as “any person who by contract, agreement, or otherwise arranged for disposal or treatment ... of hazardous substances owned or possessed by such person by any other party or entity, at any facility ...” 42 U.S.C. § 9607(a)(3). Plaintiffs cite the undisputed facts that Poultry Defendants retain ownership of the birds, provide feed and medication and pick up and process the birds when they are ready. They contend Poultry Defendants regularly oversee the growing conditions and have established BMPs to direct their growers as to the application of poultry waste generated by the birds they own, and allow their growers to spread the waste and litter on their own land or to sell it to others in the watershed who apply it to the land. Poultry Defendants dispute that the poultry litter is owned by them or that they control the growers’ land application of litter. They cite their contracts with the growers as undisputed evidence that the manure and wastes generated by poultry while under the care of the growers is vested in the growers and therefore they lack authority to prohibit the growers from land application of litter. “Arrange for” is not defined under CERCLA, although “disposal” is. “Disposal” includes: the discharge, deposit, injection, dumping, spilling, leaking, or placing of any ... hazardous waste into or on any land or water so that such ... hazardous waste or any constituent thereof may enter the environment ... or [be] discharged into any waters, including ground waters. 42 U.S.C. §§ 6903(3) and 9601(29). As the Tenth Circuit has yet to interpret the phrase “arrange for,” the Court looks to the decisions of other circuits. Mathews v. Dow Chemical Co., 947 F.Supp. 1517, 1523 (D.Colo.1996). The most restrictive interpretation is offered by the Seventh Circuit in Amcast Ind. Corp. v. Detrex Corp., 2 F.3d 746 (7th Cir.1993). In Amcast, Elkhart, a copper fittings manufacturer, contended Detrex, the seller of trichloroethylene (“TCE”) used in Elkhart’s manufacturing process, was liable for the TCE contamination of groundwater at the Elkhart plant due to accidental spills which occurred during the unloading of TCE from trucks owned by Detrex and those of its common, carrier, Transport Services, into Elkhart’s storage tanks. Focusing exclusively on Detrex’s intent in hiring Transport Services to transport its TCE to Elkhart, the Seventh Circuit concluded Detrex was not liable for the spills which resulted from loadings from Transport Services’ trucks, as Detrex did not “arrange for” those accidental “disposals.” Although the statute defines disposal to include spilling, the critical words for present purposes are “arranged for.” The words imply intentional action. The only thing that Detrex arranged for Transport Services to do was to deliver TCE to Elkhart’s storage tanks. It did not arrange for spilling the stuff on the ground.... [W]hen the shipper is not trying to arrange for the disposal of hazardous wastes, but is arranging for the delivery of a useful product, he is not a responsible person within the meaning of the statute and if a mishap occurs en route his liability is governed by other legal doctrines.... We conclude that Detrex was liable under [CERCLA] for the spillage from its own trucks ... but not the spillage from the trucks of the common carrier that it hired. Id. at 751. The Seventh Circuit thus narrowly interpreted “arranged for” as requiring evidence of intent to arrange for the disposal of a hazardous substance. Id. The Eighth Circuit, however, looked beyond defendants’ characterization of their intent “to determine whether a transaction in fact involves an arrangement for the disposal of a hazardous substance.” U.S. v. Aceto Agricultural Chemicals Corp., 872 F.2d 1373, 1381 (8th Cir.1989). In Aceto, the United States and the State of Iowa alleged the defendant pesticide manufacturers who hired a formulating company to mix and package pesticides for them were hable for cleaning up the formulator’s site because defendants owned the pesticides and the generation of pesticide waste was inherent in the formulation process. Id. at 1379. Defendants moved to dismiss, arguing the complaint alleged only an intent to arrange for formulation of the pesticides, not an intent to arrange for disposal of pesticide wastes. Id. at 1380. In interpreting the statutory language, the Eighth Circuit noted the two essential purposes of CERCLA: (1) to provide for prompt and effective responses to the problem of hazardous wastes and (2) to insure responsible parties bear the costs and responsibility for remedying harmful conditions they caused. Id. To further the second purpose, the court determined that the allegations that defendant pesticide manufacturers owned the pesticides throughout the formulating process and the formulation was performed for the benefit of the defendants were sufficient to state a claim that the manufacturers “arranged for” the disposal of the wastes generated by that process. Id. at 1382 (“Any other decision, under the circumstances of this case, would allow defendants to simply ‘close their eyes’ to the method of disposal of their hazardous substances, a result contrary to the policies underlying CERCLA.”). See also U.S. v. Hercules, Inc., 247 F.3d 706, 720, 721 (8th Cir.2001) (adopting a “totality of the circumstances” test as to whether the facts of a given case fit -within CERCLA’s “overwhelmingly remedial scheme,” and finding when ownership is lacking, arranger liability “requires either control over, or ‘some level of participation in,’ activities related to the arrangement of hazardous waste disposal.”). In South Florida Water Management Dist. v. Montalvo, 84 F.3d 402, 407-08 (11th Cir.1996), the Eleventh Circuit affirmed its rejection of a per se rule to determine whether a party “arranged for” the disposal of a hazardous substance, noting that courts should instead “focus on all of the facts in a particular case.” Id. at 407 (citing Florida Power & Light Co. v. Allis Chalmers Corp., 893 F.2d 1313, 1317 (11th Cir.1990)). The court found that “[w]hile factors such as a party’s knowledge (or lack thereof) of the disposal, ownership of the hazardous substances, and intent are relevant to determining whether there has been an ‘arrangement’ for disposal, they are not necessarily determinative of liability in every case.” Id. at 407. In Montalvo, aerial spraying services (“sprayers”) hired to spray landowners’ crop and pasture land with pesticides were found jointly and severally liable for the cleanup of their airstrip and storage site and sought contribution from the landowners. The sprayers alleged the landowners owned the pesticides which were mixed and loaded onto the planes and should have known spills and rinsing out of the tanks were necessary incidents of the application process. Distinguishing the allegations in Aceto, the Montalvo court found that it would stretch the meaning of “arranged for” too far to hold the landowners liable. Whereas it was possible to infer the chemical manufacturers in Aceto knew about the creation of hazardous wastes given the service they were being provided, we cannot infer the Landowners had similar knowledge that spraying their crop and pasture lands with pesticides entailed the spilling of pesticides and draining of contaminated rinse water. Without this knowledge, the Landowners cannot be said to have acquiesced to the Sprayers’ disposal of the wastes. Id. at 408-09. Thus, the Eleventh Circuit found the landowners did not arrange for the disposal of the pesticides. The Court is persuaded that the appropriate analysis of arranger liability is the “case-by-case” approach set forth in Mon-talvo. See also Mathews v. Dow Chemical Co., 947 F.Supp. 1517, 1525 (D.Colo.1996) (adopting the Montalvo test as “most faithful to the statutory language and purposes of CERCLA”) and U.S. v. Friedland, 173 F.Supp.2d 1077 (D.Colo.2001) (same). Applying the factors therein, the Court cannot determine as a matter of law whether the Poultry Defendants have “arranged for” the disposal of poultry litter. There are fact questions regarding Poultry Defendants’ arrangement with their growers, which include ownership, authority to control, and participation in the alleged disposal of poultry waste through land application of poultry litter. Therefore, the Court denies plaintiffs motion for summary judgment on Poultry Defendants’ arranger liability. D. Hazardous Substance Poultry Defendants seek summary judgment that plaintiffs cannot state a CERCLA claim because they cannot show a release of a “hazardous substance.” While Poultry Defendants admit that phosphorus is a hazardous substance under CERCLA, they argue that the pertinent substance in poultry litter is phosphate, which is not a hazardous substance. Plaintiffs counter that the phosphorus is a constituent of phosphate and, therefore, phosphate contains a hazardous substance under CERCLA. A hazardous substance is defined under CERCLA as “any toxic pollutant” listed under 33 U.S.C. § 1317(a) and any hazardous substance under 33 U.S.C. § 1321(b)(2)(A) of the CWA, “any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C.A. § 6921],” and includes substances listed under the Clean Air Act, the Resource Conservation and Recovery Act (“RCRA”) and § 102 of CERCLA. 42 U.S.C. § 9601(14). A substance is considered hazardous under CERCLA if it falls under § 9601(14) or is listed in the table of CERCLA hazardous substances found at 40 C.F.R. § 302.4. B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1199-1200 (2d Cir.1992). Phosphorus is listed as a hazardous substance under both the CWA and CERCLA. See 40 C.F.R. Table 116.4A pursuant to 33 U.S.C. § 1321(b)(2)(A) of the CWA and 40 C.F.R. Table 302.4, pursuant to CERCLA § 102, 42 U.S.C. § 9602. There is no separate listing for phosphate. It is undisputed that elemental phosphorus is highly combustible, poisonous and so reactive it does not occur free in nature, and that phosphate is found in all living cells, is safe and vital to life processes. The parties further agree the EPA has designated separate Chemical Abstract Registry Numbers (“CASRN”) for phosphorus (7723140) and phosphate (1465442). Poultry Defendants do not dispute that phosphorus is listed as a hazardous substance under CERCLA and appears in Table 302.4. Rather, they argue there is no listing for “Phosphorus and Compounds” or “phosphates,” so the phosphate at issue here is not a hazardous substance, citing United States v. Alcan Aluminum Corp., 964 F.2d 252 (3rd Cir.1992). They also cite the fact that the EPA has assigned separate CASRNs for phosphorus (7723140) and for phosphates (14265442) as evidence the EPA did not intend to include phosphates when listing phosphorus. Finally, they reason elemental phosphorus is a “hazardous” substance while phosphate is a naturally-occurring compound ubiquitous in foods we eat and discard every day. In B.F. Goodrich Co. v. Murtha, 958 F.2d 1192 (2d Cir.1992), the Second Circuit affirmed the district court’s denial of summary judgment, holding that CERCLA does not exempt municipal waste nor does it exclude household solid waste from its definition of hazardous substance. Id. at 1197. The court explained that “[a] substance need only be designated as hazardous under any one of the four environmental statutes or under Table 302.4 to be a hazardous substance under CERCLA.” Id. at 1200 (emphasis in original). Also, “the concentration of hazardous substances in municipal solid waste — regardless of how low a percentage — is not relevant in deciding whether CERCLA liability is incurred.” Id. The CERCLA statute comprehensively defines hazardous substances, excluding specifically only oil and natural gas, so that [mjunicipal waste need not be listed by name — instead of its constituent components — to fall within the Act. For us to consider the whole separate from its hazardous constituent parts would be to engage in semantic sophistry. When a mixture or waste solution contains hazardous substances, that mixture is itself hazardous for purposes of determining CERCLA liability ... Liability under CERCLA depends only on the presence in any form of listed hazardous substances. Id. at 1201 (citations omitted); see also B.F. Goodrich v. Betkoski 99 F.3d 505, 515-16 (2d Cir.1996) (“It is enough that a mixture or waste solution contain a hazardous substance for that mixture to be deemed hazardous under CERCLA.”); Louisiana-Pacific Corp. v. ASARCO, Inc., 24 F.3d 1565, 1573 (9th Cir.1994)(holding that even if a product is not specifically listed as a hazardous substance, if its components include hazardous substances, the product is regulated by CERCLA); Eagle-Picher Indus. v. EPA 759 F.2d 922, 930-31 (D.C.Cir.1985) (finding that mining wastes and fly ash need not be specifically listed as they contain some hazardous substances). In United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir.1992), the Third Circuit rejected defendant’s argument that its disposed emulsion which contained only trace levels of generic compounds listed in Table 302.4 was not a hazardous substance under CERCLA as it posed “no real threat to the environment.” Id. at 261-64. Defendant argued the level of hazardous substances in its emulsion was less than that in dirt and the trial court’s refusal to read any quantitative requirement of the listed constituents into “hazardous substance” would make “virtually everything in the universe” a hazardous substance. Id. at 259-60. In affirming the trial court, the Third Circuit stated: Alcan’s argument, though superficially appealing, is flawed. First, as noted above, the Government responds to “releases” that threaten environmental safety. Thus, it is the release alone that must justify the response costs, not the particular waste generated by one given defendant. Here, there is no question but that a release occurred. Second, the fact that a single generator’s waste would not in itself justify a response is irrelevant in the multi-generator context, as this would permit a generator to escape liability where the amount of harm it engendered to the environment was minimal, though it was significant when added to other generator’s waste. Accordingly, we find that the district court’s construction of the statute furthers important environmental goals. Id. at 264. CERCLA is a remedial statute that courts construe liberally to effectuate its broad response and reimbursement goals. Murtha, 958 F.2d at 1198; Alcan, 964 F.2d at 258. Based on the above cases, the Court concludes the EPA intended to include phosphorus compounds, such as phosphates, in listing phosphorus in Table 302.4. Whether expressed as P04 or another chemical combination of phosphorus and oxygen, phosphates contain phosphorus. Since elemental phosphorus is highly combustible, poisonous and so reactive that it does not occur free in nature (an undisputed fact in this case), the EPA likely contemplated liability for phosphorus in real, not theoretical, releases. Further, as recognized by the Third Circuit, a compound does not have to be toxic or be released in any threshold quantity to be classified as a hazardous substance under CERCLA. Alcan, 964 F.2d at 261-64. Therefore, the Court finds that the phosphorus contained in poultry fitter in the form of phosphate is a hazardous substance under CERCLA. E. Consistency With the NCP Compliance with the NCP is an essential element of plaintiffs’ § 113(f) claims under CERCLA. Public Service Co. of Colorado v. Gates Rubber Co. (“PSCo ”), 175 F.3d 1177, 1181 (10th Cir.1999) (“Both [107(a) and 113(f)] claims require compliance with the NCP.”); Country Line Invs. Co. v. Tinney, 933 F.2d 1508, 1511 (10th Cir.1991) (summary judgment to defendants appropriate when “the undisputed evidence established that [plaintiffs] costs in investigating and closing [a hazardous site] were not incurred ‘consistent with the national contingency plan.’ ”); United States v. Hardage, 982 F.2d 1436, 1442 (10th Cir.1992). The NCP is the EPA’s guide for a “CERCLA-quafity cleanup” and is set forth in 40 C.F.R. § 300.700. County Line, 933 F.2d at 1514. The regulations provide: “A private party response action will be considered ‘consistent with the NCP’ if the action, when evaluated as a whole, is in substantial compliance with the applicable requirements.” 40 C.F.R. § 300.700(c)(3)(i) (emphasis added). NCP requirements are as follows: Under § 300.700 ... a response action will be “consistent with the NCP” if the private party substantially fulfils requirements for (1) worker health and safety; (2) documentation of cost recovery; (3) permit requirements; (4) identification of applicable or relevant and appropriate requirements (ARARs): (5) remedial site evaluation; (6) remedial investigation/feasibility study and selection of remedy (RI/FS), and (7) providing “an opportunity for public comment concerning the selection of the response action” which might include preparing a formal community relations plan, ensuring opportunities for public involvement, and disseminating information to the community. PSCo., 175 F.3d at 1182. The required level of consistency with the NCP depends on whether the response is characterized as a removal or remedial action. Id. Generally, a removal action costs less, takes less time, and is geared to address an immediate release or threat of release. In broad contrast, a remedial action seeks to effect a permanent remedy to the release of hazardous substances when there is no immediate threat to the public health. Remedial actions usually cost more and take longer. Elements of either response action may overlap and semantics often obscure the actual nature of the cleanup performed. Id. (citations omitted.). Poultry Defendants contend plaintiffs’ response action is remedial in nature and plaintiffs cannot show they have complied with requirements (5) through (7). In support, Poultry Defendants cite the testimony of plaintiffs’ expert, Ben Costello, that: (1) he could not identify a specific information repository of which the public was notified and by which it would have had access to the proposed plan and supporting analysis, or any other documentation with respect to the alleged response action, Exhibit 0, p. 227 (Dkt. # 211); (2) to his knowledge, plaintiffs never prepared a written proposed plan identifying their preferred remedial alternative or disseminated to the general public any such plan, Exhibit O, p. 231 (Dkt. # 211); (3) he had not seen plaintiffs’ field sampling plan or their quality assurance plan with respect to the response action, Exhibit O, pp. 232-33 (Dkt. #211); (4) his investigation of plaintiffs’ response actions suggests that, at the time plaintiffs were engaging in actions for which they now seek response costs, no one with responsibilities for the alleged “response actions” was endeavoring or seeking to intentionally comply with the detailed and mandatory prerequisites for recovery under CERCLA and the NCP, Exhibit 0, p. 234 (Dkt. #211). Poultry Defendants argue that as a result of these deficiencies, plaintiffs cannot show their response action was consistent with the NCP. Plaintiffs, on the other hand, assert then-response was a removal action and was in “substantial compliance” with the NCP. Because Tulsa and the TMUA are public bodies, their investigation of and response to the pollution of the Water Supply have mandated several opportunities for public access and comment. Specifically, the TMUA meetings pertaining to incurrence of costs to install GAC filters at the Mohawk Treatment Plant on March 8, 2000, to engage the OWRB to study the lake processes, causes of degradation, and available alternatives on August 27, 1997, and to engage Dr. Dan Storm to model phosphorus loading in the Watershed on May 13, 1998, required prior notice and were open to the public. Exhibit G (Dkt. # 273). Taste and odor issues and possible solutions were routinely and extensively discussed at TMUA operations committee meetings which required prior notice and were open to the public. Exhibit H (Dkt. # 273). Immediately after the Clean Lakes Report was issued by the Oklahoma Corporation Commission (“OCC”) in 1997, plaintiffs initiated a Watershed Management Team with three separate working groups to study watershed issues and develop a strategy for addressing them, which involved thirty private and public entities, state and federal government agencies, and academic institutions, including representatives from Tyson, Peterson, Simmons, the Poultry Federation and contract poultry growers. Exhibit I (Dkt. # 273). These working groups met regularly from 1997 through Spring 2001 to discuss all aspects of the watershed issues. Exhibit J (Dkt. # 273). Even if this extensive public involvement were somehow deficient, the direct and pervasive involvement of state regulatory bodies, evidenced by the OCC Clean Lakes Report (Exhibit K) and the OWRB Report of the Eu-cha/Spavinaw Lake System (Exhibit L) serves as a substantial equivalent. Finally, plaintiffs contend that the OCC Clean Lakes Report and the OWRB Report, as well as a private company study of alternatives in the Analysis of Taste and Odor Occurrences, dated April 1999 (Exhibit M), set forth the substantially equivalent procedures undertaken by plaintiffs for remedial site inspection, feasibility study and selection of remedy. As the nature of plaintiffs’ response action and its degree of compliance with the NCP is in dispute, the Court will reserve ruling on both issues until the completion of the evidence in the bifurcated trial before the Court on plaintiffs’ CERCLA claim. F. The “Normal Application of Fertilizer” Exclusion A “release” is defined in CERCLA as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment ... but excludes ... (D) the normal application of fertilizer.” 42 U.S.C. § 9601(22). Poultry Defendants seek summary judgment that the land application of poultry litter is a “normal application of fertilizer.” Plaintiffs concede that animal waste may be used as fertilizer under proper circumstances, but argue that the land application of poultry litter by Poultry Defendants’ growers exceeds the “normal” application of fertilizer. To effect CERCLA’s goals of environmental protection and remediation, the definition of “release” has been broadly construed by courts. See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1152 (1st Cir.1989). Consequently, exceptions from liability under CERCLA are narrowly construed. See Idaho v. Hanna Mining Co., 882 F.2d 392, 396 (9th Cir.1989). The exclusion of fertilizer from the CERCLA definition of “release” is for the “normal application of fertilizer.” CERCLA itself does not define what a “normal” application of fertilizer is and the Court is unaware of any decision interpreting the exclusion. When a term is not defined in a statute, the Court “must construe the term in accordance with its ordinary meaning.” United States v. Telluride Co., 146 F.3d 1241, 1245 (10th Cir.1998). Plaintiffs cite the definition of “normal” as “conforming with, adhering to, or constituting a norm, standard, pattern, level or type.” American Heritage College Dictionary (3rd ed.1993). This definition is of little assistance to the Court as it is the “norm” which is in dispute. Poultry Defendants contend that the norm is the practice of their growers, while plaintiffs suggest that the norm is poultry litter application which does not exceed a certain level of phosphorus in the soil. What is clear to the Court is that any interpretation of “normal application of fertilizer” cannot be made out of context. That context is not provided through argument but through evidence. As neither Poultry Defendants nor plaintiffs have offered any evidence in support of their motions for summary judgment on this issue, the Court denies the motions. (Dkt. ## 211 and 226). V. COMMON LAW CLAIMS A. Nuisance and Trespass Tulsa proceeds under theories of nuisance and trespass against defendants. The primary difference between the two tort theories is in the interest protected; the same conduct can result in actionable invasion of both interests. Trespass protects the possessor’s interest in exclusive possession of property as it involves “an actual physical invasion of the property of another.” Fairlawn Cemetery Assoc. v. First Presbyterian Church, 496 P.2d 1185, 1187 (Okla.1972); Williamson v. Fowler Toyota, Inc., 956 P.2d 858, 862 (Okla.1998) (“Trespass involves an actual physical invasion of the real estate of another without the permission of the person lawfully entitled to possession.”). Nuisance protects the possessor’s interest in the use and enjoyment of the property. In general, “[a] nuisance, public or private, arises where a person uses his own property in such a manner as to cause injury to the property of another.” Fairlawn Cemetery Assoc. v. First Presbyterian Church, 496 P.2d 1185, 1187 (Okla.1972); Roberts v. C.F. Adams & Son, 199 Okla. 369, 184 P.2d 634, 637 (1947) (“Basically, the law with reference to private nuisances is a definition of the dividing line between the right of any owner to use his property as he so desires and the recognition of that right in another.”); Southeast Arkansas Landfill, Inc. v. State of Arkansas, 313 Ark. 669, 673, 858 S.W.2d 665, 667 (1993) (“Nuisance is defined as conduct by one landowner which unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property which disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property.”); Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579, 587 (1999) (same); Miller v. Jasinski, 17 Ark.App. 131, 705 S.W.2d 442, 443 (1986) (same). A nuisance can be public, private or both. Gus Blass Dry Goods Co. v. Reinman & Wolfort, 102 Ark. 287, 143 S.W. 1087, 1089 (1912) (“Any unwarrantable, unreasonable, or unlawful use by a person of his own property, real or personal, whereby it works a special injury to another in the use and enjoyment of his property will constitute a private nuisance. The same wrongful act and wrongful use of one’s property may at once constitute both a public and private nuisance.”); City of Ft. Smith v. Western Hide & Fur Co., 153 Ark. 99, 239 S.W. 724, 725 (1922) (“If injury results only to a few, on account of the peculiar circumstances, the nuisance is private, and the remedy is confined to those who suffer from the effects of the nuisance. If, on the other hand, the injury or annoyance is sufficient in extent to become common to all persons who may come within its influence, it is of a public nature.”). “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal.” Union Texas Petroleum Corp. v. Jackson, 909 P.2d 131, 141 (Okla.App.1995); Okla. Stat. tit. 50, § 2. See also Okla. Stat. tit. 27A, § 2-6-105(A) (“It shall be unlawful for any person to cause pollution of any waters of the state or to place or cause to be placed any wastes in a location where they are likely to cause pollution of any air, land or waters of the state. Any such action is hereby declared to be a public nuisance.”). Any other “unlawful interference” with another’s use and enjoyment of property is a private nuisance. Okla. Stat. tit. 50, §§ 1 and 3; Briscoe v. Harper Oil Co., 702 P.2d 33, 36 (Okla.1985); N.C. Corff Partnership, Ltd. v. OXY USA, Inc., 929 P.2d 288, 294 (Okla.Ct.App.1996). Tulsa alleges the Poultry Defendants’ growers’ land application practices and Peterson/Decatur’s wastewater effluent have discharged excess phosphorus to the Watershed, thereby resulting in a physical invasion of the lakes (trespass) and interfer