Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT; ORDER DENYING COUNTER-CLAIMANT WHITTAKER CORP.’S MOTION FOR SUMMARY JUDGMENT MATZ, District Judge. This matter is before the Court on two motions for summary judgment. Plaintiffs move for summary judgment on their nuisance claims and their claims for recovery and declaratory relief under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. Defendant and Counterclaimant Whittaker Corporation (‘Whittaker”) moves for summary judgment on its counterclaims for- declaratory relief under CERCLA and for contribution under both CERCLA and the California Hazardous Substance Account Act (“HSAA”), Cal. Health & Safety Code § 25300 et seq. MOTION STANDARD Federal Rule of Civil Procedure 56(c) provides for summary judgment when “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.” A fact is material if it could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “When the party moving for summary judgment would bear the burden of proof at trial, it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontrovert-ed at trial. In such a case, the moving party has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case.” C.A.R. Transportation Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted). When the non-moving party bears the burden of proving the claim or defense, the moving party can meet its burden by pointing out the absence of evidence from the non-moving party. The moving party need not disprove the other party’s ease. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Thus, “[s]ummary judgment for a defendant is appropriate when the plaintiff ‘fails to make a showing sufficient to establish the existence of an element essential to [its] case, and on which [it] will bear the burden of proof at trial.’ ” Cleveland v. Policy Management Sys. Corp., 526 U.S. 795, 805-06, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999) (citing Celotex, 477 U.S. at 322, 106 S.Ct. 2548). When the moving party meets its burden, the “adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ.P. 56(e). Summary judgment will be entered against the non-moving party if that party does not present such specific facts. Id. Only admissible evidence may be considered in deciding a motion for summary judgment. Id.; Beyene v. Coleman Sec. Serv., Inc., 854 F.2d 1179, 1181 (9th Cir.1988). “[I]n ruling on a motion for summary judgment, the nonmoving party’s evidence ‘is to be believed, and all justifiable inferences are to be drawn in [that party’s] favor.’ ” Hunt v. Cromartie, 526 U.S. 541, 552, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (quoting Anderson, 477 U.S. at 255, 106 S.Ct. 2505). But the non-moving party must come forward with more than “the mere existence of a scintilla of evidence.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. Thus, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT I. Introduction This is a groundwater pollution case. Plaintiffs Newhall County Water District (“Newhall”), Santa Clarita Water Co. (“Santa Clarita”) and Valencia Water Co. (“Valencia”) contend that four of their water wells have been contaminated by perchlorate. The Newhall, Santa Clarita and Valencia water service areas and allegedly contaminated wells are found within the boundaries of Plaintiff Castaic Lake Water Agency (“Castaic” or “the Agency”). Plaintiffs believe the perchlorate at issue in this case originated at a nearby property, the Whittaker-Bermite site, and traveled in a spreading plume to contaminate the Newhall, Santa Clarita and Valencia wells. Defendants Whittaker and Santa Clarita L.L.C. (“SCLLC”) are the past and present owners of the the Whittaker-Ber-mite site, and Plaintiffs contend that Defendant Remediation Financial, Inc. (“RFI”) currently operates the site. The complaint alleges eleven causes of action for: recovery and declaratory relief under CERCLA, contribution under CERCLA, negligence and negligence per se, nuisance and public nuisance, trespass, recovery under the California Hazardous Substance Account Act (“HSAA”), Cal. Health & Safety Code § 25300 et seq., and declaratory relief pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 & 2202. Plaintiffs also allege that Whittaker is strictly liable for damages incurred as a result of its ultrahazardous manufacturing activities. Plaintiffs now move for summary judgment on their CERCLA and nuisance claims. II. The Parties Newhall is a public agency organized and existing under the laws of California. August 26, 2002 Statement of Genuine Issues (“August 26 SGI”) ¶ 55. See Cal. Water Code § 30000 et seq. (County Water District Law). Newhall provides water to customers living in the Santa Clarita Valley. Decl. of Kenneth J. Petersen ¶ 2. One of Newhall’s wells, NC-11, allegedly has been contaminated by perchlorate. Id. ¶ 3. Santa Clarita is a not-for-profit corporation that provides water to thousands of residential customers. August 26 SGI ¶ 60; Decl. of William J. Manetta ¶ 2. Two of Santa Clarita’s wells, Saugus-1 and Sau-gus-2, allegedly have been contaminated by perchlorate. Manetta Decl. ¶ 3. Valencia is a California corporation that also provides water to thousands of residential customers. August 26 SGI ¶ 64; Decl. of Robert J. DiPrimio ¶2. One of Valencia’s wells, VWC-157, allegedly has been contaminated by perchlorate. DiPri-mio Decl. ¶ 3. Castaic is a public agency created and governed by the Castaic Lake Water Agency Law, Cal. Water Code App. § 103-1 et seq. See August 26 SGI ¶ 52. See also Klajic v. Castaic Lake Water Agency, 90 Cal.App.4th 987, 991, 109 Cal.Rptr.2d 454 (2001). The Castaic Lake Water Agency Law provides that the Agency “may acquire water and water rights ... and provide, sell, and deliver that water at wholesale only, for municipal, industrial, domestic, and other purposes .... ” Cal. Water Code App. § 103-15. Defendant Whittaker is a Delaware corporation doing business within this judicial district. August 26 SGI ¶ 45. Whittaker owned the allegedly contaminated Whit-taker-Bermite site from 1967 to January 1999. Id. ¶ 46. SCLLC is a Delaware limited liability company. Id. ¶ 43. SCLLC purchased the Whittaker-Bermite site in 1999 and is its current owner. Id. ¶ 44. RFI is an Arizona corporation and the sole managing member of SCLLC. Id. ¶¶ 48^19. III. Analysis A. Plaintiffs’ CERCLA Claims Plaintiffs’ complaint alleges CERCLA claims for cost recovery, 42 U.S.C. § 9607(a), contribution, 42 U.S.C. § 9607(a) and § 9613(f), and declaratory relief, 42 U.S.C. § 9613(g). Plaintiffs seek to recover their already incurred costs of response and to allocate responsibility for future response costs. The prima facie elements of all three CERCLA claims are the same. City of Portland v. Boeing Co., 179 F.Supp.2d 1190, 1199 (D.Or.2001) (elements of CERCLA cost recovery and contribution claims the same). See also In re Dant & Russell, Inc., 951 F.2d 246, 249-50 (9th Cir.1991) (declaratory relief for future costs available once plaintiff has incurred at least some recoverable response costs). In order to recover their response costs, Plaintiffs must establish that: (1) perchlorate is a hazardous substance; (2) there has been a release of perchlorate at Defendants’ facility; (3) the release or threatened release caused the Plaintiffs to incur necessary response costs consistent with the National Contingency Plan (“NCP”); and (4) Defendants are within one of four classes of persons subject to CERCLA’s liability provisions. See Carson Harbor Village Ltd. v. Unocal Corp., 270 F.3d 863, 870-71 (9th Cir.2001) (listing same requirements but classifying them as only four different elements); Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir.1989) (en banc). 1. Is Perchlorate a Hazardous Substance? “CERCLA defines ‘hazardous substance’ by reference to substances listed under various other federal statutes.” Cose v. Getty Oil Co., 4 F.3d 700, 704 (9th Cir.1993); 42 U.S.C. § 9601(14). Plaintiffs contend that perchlorate (C104) qualifies as a CERCLA hazardous substances because it is “hazardous waste[s]” under the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq., as amended by the Resource Conservation and Recovery Act (“RCRA”). See 42 U.S.C. § 9601(14)(C) (including Solid Waste Disposal Act hazardous wastes within CERCLA’s definition of “hazardous substance”). A “hazardous waste” is: a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may— (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. 42 U.S.C. § 6903(5). The Solid Waste Disposal Act’s implementing regulations categorize hazardous wastes as either “listed” hazardous wastes or “characteristic” hazardous wastes. 40 C.F.R. § 261.3(a). See also United States v. Hansen, 262 F.3d 1217, 1241 (11th Cir.2001). “Characteristic” hazardous wastes are those wastes that are ignitable, corrosive, reactive or toxic, as those terms are defined in 40 C.F.R. §§ 261.21-261.24. See 40 C.F.R. §§ 261.3(a)(2)® and 261.20(a). Plaintiffs claim, and Defendants do not dispute, that perchlorate meets the Solid Waste Disposal Act’s definition of “solid waste.” 42 U.S.C. § 6903(27) (solid waste is “discarded material, including solid, liquid, semisolid, or Contained gaseous material resulting from industrial, commercial, mining, and agricultural operations”); 40 C.F.R. § 261.2 (solid waste is any “discarded material” — for example material that has been “disposed of’ or “burned or incinerated”). The declaration of Bradley Peach, who formerly worked at the Whit-taker-Bermite site, supports Plaintiffs’ claim. Peach states that perchlorate was disposed of as waste at the Whittaker-Bermite site, including in burn pits. Decl. of Bradley D. Peach (attached as Exh. R to the July 9, 2002 Decl. of Byron P. Gee) ¶ 5. Plaintiffs also proffer evidence sufficient to establish that perchlorate is a hazardous solid waste because it is ignitable. A solid waste exhibits the ignitability characteristic if it is an “oxidizer” as defined in 49 C.F.R. 173.127. Section 173.127 defines “ozidizer” quite generally as any “material that may, generally by yielding oxygen, cause or enhance the combustion of other materials.” Plaintiffs’ expert E. John List explains that “perchlorate is a strong oxidizing agent” that stores “significant potential chemical energy.” Expert Rep. of E. John List (attached to Plaintiffs’ July 26, 2002 Notice of Errata) at 2 [hereinafter “List Rep.”]. For this reason, ammonium perchlorate and potassium perchlorate are used in the manufacture of fireworks, explosives and rocket propellants. Id. See also Expert Rep. of Franklin J. Agardy (lodged by Whittaker on July 29, 2002) at 3 (perchlorate used to manufacture explosives and solid propellants such as rocket fuels). In addition, the Court takes judicial notice of two Environmental Protection Agency (“EPA”) draft reports regarding perchlorate that were circulated in January 2002 and December 1998; both reports describe perchlorate as an “oxidizing anion.” EPA, Perchlorate Environmental Contamination: Toxicological Review and Risk Characterization (January 16, 2002) (attached as Exh. A to Plaintiffs’ July 9, 2002 Request for Judicial Notice) at 8; EPA, Perchlorate Environmental Contamination: Toxicological Review and Risk Characterization Based on Emerging Information (December 31, 1998) (attached as Exh. B to Plaintiffs’ July 9, 2002 Request for Judicial Notice) at 1-1. See also Oregon Ass’n of Homes for the Aging, Inc. v. Oregon, 5 F.3d 1239, 1243 n. 2 (9th Cir.1993) (court may take judicial notice of records and reports of administrative agencies); Reynolds v. Bucks, 833 F.Supp. 518, 520 n. 5 (E.D.Pa.1993) (taking judicial notice of EPA draft report finding that environmental tobacco smoke is a cause of lung cancer). Although these are draft reports circulated for peer review, the section relevant here — describing the chemical properties of perchlorate — was included in the 1998 draft, which has already been subject to public comment, and was not changed in the 2002 version of the report. 2. Did a Release of Perchlorate Occur at Defendants’ Facility ? In order to establish that the Whit-taker-Bermite site is a facility within the meaning of CERCLA, Plaintiffs must provide evidence that it is a “site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” 42 U.S.C. § 9601(9). In order to establish that a release of perchlorate occurred at the site, Plaintiffs must provide evidence that perchlorate was spilled, leaked, pumped, poured, emitted, emptied, discharged, injected or disposed into the environment, or that it escaped or leached into the environment. 42 U.S.C. § 9601(22) (defining “release”). The Whittaker-Bermite site is a 996-acre property located at 22116 West Sole-dad Canyon Road in the City of Santa Clarita. August 26 SGI ¶ 1. Munitions and explosives were manufactured at the site from at least 1934 to 1987. Id. ¶ 2. Plaintiffs offer evidence sufficient to establish both that the site is a “facility” as that term is defined in CERCLA and that perchlorate was released at the site. First, Bradley Peach declares that during his employment at the Whittaker-B ermite facility perchlorate was regularly delivered to the site, waste containing perchlorate was disposed of in burn pits, and perchlorate chemicals and perchlorate containing waste periodically spilled onto the ground at the site. Peach Decl. ¶¶ 3-7. Second, tests conducted at the site reveal the existence of perchlorate. See, e.g., Expert Rep. of David Keith Todd (attached as Exh. 2 to Plaintiffs’ July 25, 2002 Notice of Errata) at 26 (summarizing on-site soil tests for perchlorate) [hereinafter “Todd Rep.”]; List Rep. at App. 1; Acton Mickel-son Environmental, Inc., Draft Remedial Investigation Report (January 1997) (attached as Exh. A to the July 9, 2002 Gee Decl.) at 6-138 (reporting perchlorate found in site soil sample). See also U.S. Army Corps of Engineers Remedial Investigation Technical Mem. No. 1 Attachment B (monitoring well test results showing detection of perchlorate on the Whittaker-Bermite site) (proffered by both Plaintiffs, June 5, 2003 Gee Decl. Exh. A, and by Defendants, May 27, 2003 Decl. of Brian T. Kelleher, and relied on by both Plaintiffs’ experts, see, e.g., June 5, 2003 List Decl. ¶ 5, and by Defendants’ expert N. Thomas Sheahan, May 27, 2003 Sheahan Decl. ¶ 3). 3. Did the Release of Perchlorate at the Whittaker-Bermite Site Cause Plaintiffs to Incur Response Costs? To prove this element of their prima facie case, Plaintiffs must proffer evidence sufficient to establish that a release or threatened release from the Whittaker-Bermite site caused them to incur response costs. (a) Have Plaintiffs incurred response costs? CERCLA does not define the term “response cost.” However, “response” is defined to mean “remove, removal, remedy, and remedial action” and all “enforcement activities related thereto.” 42 U.S.C. § 9601(25). The terms “remove” and “removal” are in turn defined to include “cleanup or removal” and “actions as may be necessary to monitor, assess, and evaluate the release or threat of release,” as well as “disposal of removed material” and “such other actions as may be necessary to prevent, minimize, or mitigate damage to the public health or welfare or to the environment.” 42 U.S.C. § 9601(23). The terms “remedy” or “remedial action” mean “those actions consistent with permanent remedy taken instead of or in addition to removal actions.” 42 U.S.C. § 9601(24). Preventive monitoring and provision of alternative water supplies are listed in the statute as examples of removal and remedial actions. 42 U.S.C. § 9601(23), § 9601(24). In order to establish that they have incurred some response costs, Plaintiffs offer the declarations of David Kimbrough (Castaic’s Water Quality and Laboratory Supervisor), Kenneth J. Petersen (New-hall’s General Manager), William J. Manet-ta (Santa Clarita’s President), and Robert J. DiPrimio (Valencia’s President). Kimbrough declares that Castaic supplements local Santa Clarita groundwater resources with water imported through the State Water Project. Kimbrough Decl. ¶ 2. Castaic provides such water at wholesale prices to water retailers — including Newhall, Santa Clarita and Valencia— within the agency’s boundaries. Id. ¶2. See also Cal. Water Code App. § 103-15 (listing powers of agency); id. § 103-29.5 (providing for allocation of the agency’s water supplies among area purveyors); id. § 103-4.8 (defining “purveyor” to mean those retail water distributors with facilities connected to the agency’s water transmission system as of April 15,1986). Kim-brough declares that Castaic has already spent “$300,000 in engineering and consulting fees to study the perchlorate release and devise a clean-up plan for the perchlorate problem.” Kimbrough Decl. ¶ 4. Castaic is also the local agency sponsor of an Army Corps of Engineers study of contamination at the Whittaker-Bermite site, although it is unclear what expenditures (if any) this sponsorship entails. Decl. of Lynn M. Takaichi (Castaic’s Agency Engineer) (attached to Plaintiffs’ Aug. 12, 2002 Reply) ¶¶ 2-5. Petersen, Manetta and DiPrimio each declare that their respective companies— retail purveyors within Castaic’s boundaries — tested their wells for perchlorate contamination in 1997 at the request of California’s Department of Health Services. Petersen Decl. ¶ 3; Manetta Decl. ¶3; DiPrimio Decl. ¶3. After detecting perchlorate, Newhall, Santa Clarita and Valencia took their contaminated wells out of service. Petersen Decl. ¶5; Manetta Decl. ¶ 5; DiPrimio Decl. ¶ 5. Peterson, Manetta and DiPrimio each declare that their respective companies have since spent substantial sums on additional sampling, as well as consulting fees and alternative water supplies. Petersen Decl. ¶ 6 (Newhall has spent $200,000); Manetta Decl. ¶ 6 (Santa Clarita has spent $1,500,-000); DiPrimio Decl. ¶ 6 (Valencia has spent $50,000). Petersen, Manetta and DiPrimio each declare that these costs have been incurred as a “direct result of [the] perchlorate contamination.” Petersen Decl. ¶ 6; Manetta Decl. ¶ 8; DiPrimio ¶ 6. The costs Plaintiffs have incurred qualify as removal or remedial costs because CERCLA’s definitions of those terms include actions “necessary to monitor, assess, and evaluate a release or threat of release” and “provision of alternative water supplies.” 42 U.S.C. § 9601(23), (24). Plaintiffs have thus presented sufficient evidence to establish that they have incurred CERCLA response costs as a result of the perchlorate contamination detected in the Newhall, Santa Clarita and Valencia wells. (b) Were Plaintiffs’ response costs “caused” by Defendants’ releases? Much of Defendants’ opposition is directed to an argument that Plaintiffs have failed to satisfy CERCLA’s causation requirement. Analysis of this argument requires consideration of (i) causation principles applied in two-site water migration cases, (ii) the geography of the Whittaker-Bermite site and surrounding area, and (iii) the specific causation-related evidence submitted on this motion. i. Causation principles This is a “two-site” CERCLA case. Plaintiffs claim that contaminant at one location — the Whittaker-Bermite site — has migrated to reach a different location— Plaintiffs’ wells. The issue of causation in two-site cases is a difficult one, and the Court has reviewed numerous cases in an attempt to determine the appropriate causation standard to be applied here. The Court has found Westfarm Associates Limited Partnership v. Washington Suburban Sanitary Comm’n, 66 F.3d 669 (4th Cir.1995), United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir.1992), Artesian Water Co. v. New Castle County, 659 F.Supp. 1269 (D.Del.1987), aff'd on other grounds 851 F.2d 643 (3d Cir.1988), and United States v. Bliss, 667 F.Supp. 1298 (E.D.Mo.1987), to be the most instructive. In Westfarm, a case cited by Defendants themselves, Westfarm Associates Limited Partnership (“Westfarm”), a Maryland real estate developer, discovered that groundwater beneath its property was contaminated with perchloroethylene (“PCE”). 66 F.3d at 673. After conducting an investigation, Westfarm concluded that the PCE originated with the International Fabri-care Institute (“IFI”), a neighboring landowner and dry cleaner trade association, and had leaked onto Westfarm’s property through cracks in the sewer system leading from IFI. Id. Westfarm inspected the sewer system itself and detected several flaws. Id. at 674. Westfarm also found PCE in the sewer leading from IFI. Id. Westfarm sued IFI under CERCLA and also sued the Washington Suburban Sanitary Commission (‘WSSC”), the local sewer system operator. The district court granted summary judgment in Westfarm’s favor on its CERCLA claim, and WSSC appealed. WSSC argued that summary judgment should not have been granted because WSSC’s expert testimony created a genuine issue of material fact as to eau-sation. Id. at 681-82 The Fourth Circuit emphatically rejected this argument and explained that WSSC fundamentally misunderstood the CERCLA plaintiffs causation burden: Contrary to the rule followed in most areas of the law, the burden of proof as to causation in a CERCLA case lies with the defendant. The plaintiff must prove only that contaminants which were once in the custody of the defendant could have travelled onto the plaintiff’s land, and that subsequent contaminants (chemically similar to the contaminants once existing in defendant’s custody) on the plaintiff’s land caused the plaintiff to incur cleanup costs. The plaintiff need not produce any evidence that the contaminants did flow onto its land from the defendant’s land. Rather, once plaintiff has proven a prima facie case, the burden of proof falls on the defendant to disprove causation. Id. at 681 (emphasis added) (citations omitted). WSSC’s expert opined that “current evidence [did] not substantiate the WSSC as a source of PCE contamination to the underlying aquifer.” Id. at 681. Nevertheless, applying the burden-shifting scheme explained above, the Fourth Circuit held that WSSC failed to create a genuine issue. Because the WSSC’s expert testimony indicated only that Westfarm might not be able to prove causation — not that WSSC could disprove causation — it was insufficient to deny summary judgment. In other words, “[b]ecause the burden lay on WSSC to disprove that it was a source of PCE, the fact that the evidence on summary judgment produced a genuine dispute as to whether the evidence proved WSSC to be a source was not material, and could not serve as a basis to deny summary judgment to Westfarm.” Id. at 682. See also Alcan, 964 F.2d at 264-66 (plaintiffs in a “multi-generator” CERCLA case cannot be required to trace the cause of the response costs to each responsible party); Artesian Water, 669 F.Supp. at 1281-82 (defense expert’s opinion that “it [could not] be stated to any reasonable degree of probability” that toxic wastes came from defendant’s site, and defendant’s identification of another potential source, were insufficient to create a genuine issue because plaintiff did not bear the burden of “fingerprinting]” any particular PRP’s waste); Bliss, 667 F.Supp. at 1311 (“[Defendants, not the plaintiff, [bore] the burden of showing that the hazardous substances at the site came solely from a third party.”) Although Westfarm, Alcan, Artesian and Bliss involve a variety of factual scenarios, they all stand for a common causation principle: in a two-site CERCLA case, the plaintiff meets its burden on summary judgment if it (a) identifies contaminant at its site, (b) identifies the same (or perhaps a chemically similar) contaminant at the defendant’s site, and (c) provides evidence of a plausible migration pathway by which the contaminant could have traveled from the defendant’s facility to the plaintiffs site. If the plaintiff meets this burden, the defendant must then proffer evidence sufficient to create a genuine issue of fact as to its ability to disprove causation. The Court finds this analysis persuasive and applicable to the facts of this case. The Westfarm burden-shifting approach is in keeping with CERCLA’s broad remedial purpose, see generally Hanford Downwinders Coalition, Inc. v. Dowdle, 71 F.3d 1469, 1481 (9th Cir.1995), and is consistent with the “minimum causal nexus” most courts require under CERCLA. See, e.g., United States v. Monsanto, 858 F.2d 160, 170 n. 17 (4th Cir.1988). See also Artesian Water, 659 F.Supp. at 1282 (requiring plaintiffs to “fingerprint” individual defendant’s waste would allow PRPs “to avoid financial responsibility for the cleanup.”). ii. The setting The Whittaker-Bermite site is a 996-acre property located in the Santa Clarita Valley. August 26 SGI ¶ 1. The Santa Clara River runs west of the site, and water in the river flows north. See May 13, 2002 Expert Rep. of Grant L. Ohland [hereinafter “Ohland Rep.”] Fig. 1. Plaintiffs’ four wells lie directly west and northwest of the Whittaker-Bermite site, roughly along the Santa Clara River. Id. Of Plaintiffs’ four wells, NC-11 is the furthest south. It is located between the Santa Clara River and the southwest corner of the Whittaker-Bermite site; the well is closer to the river than it is to the site. Saugus-2 and then Saugus-1 are further north. Id. Saugus-2 is directly west of the northwest corner of the Whit-taker-Bermite site, and the well is (like NC-11) in between the site and the Santa Clara River. Id. Saugus-1 is north and west of the site’s northwest corner, and it is just on the west side of the river. Id. VWC-157 is north and west of the Saugus wells and of the Whittaker-Bermite site. VWC-157 is also west of the river — further west, in fact, than is Saugus-1. Id. iii. Plaintiffs have met their causation burden Applying the principles set out above, the Court finds that Plaintiffs have proffered evidence sufficient to meet their burden as to causation. Perchlorate has been detected in the Newhall, Santa Clarita and Valencia wells. See Ohland Rep. Table 1; Todd Rep. at 12. Perchlorate also has been detected at the Whittaker-Bermite site. See n. 8 supra and accompanying text. As to migration pathways, Plaintiffs’ and Defendants’ experts generally agree that perchlorate might travel to Plaintiffs’ wells via surface water, the Alluvial Aquifer or the Saugus Formation. Compare Ohland Rep. at 24-28 with Todd Rep. at 33-34. For purposes of this motion, the Court need only focus on surface water as a plausible migration pathway. Plaintiffs’ hydrogeology experts, Drs. List and Todd, opine that the perchlorate detected in surface water runoff from areas in the southwest corner of Whittaker-Bermite site travels through canyons located in the southwestern section of the site and enters the South Fork of the Santa Clara River upstream of the Plaintiffs’ four wells. List Rep. at 7; Todd Rep. at 33-34. Although Plaintiffs’ wells draw from the underlying Saugus formation, Dr. Todd opines (based on perchlorate detection in groundwater on the Whittaker-Bermite site) that perchlorate traveling in surface water infiltrates both the Alluvial Aquifer and underlying Saugus formation — making surface water a “viable migration pathway! ]” to Plaintiffs’ wells. Todd Rep. at 33. See also List Rep. at 7. Dr. List also opines, based on tests conducted near the site’s northern border, that such infiltration down from surface water “is likely to be significant wherever surface runoff has occurred.” List Rep. at 7. Finally, Dr. Todd explains that perchlorate, which is denser than water,' will sink by gravity downward through the water column. Todd Rep. at 32. This expert evidence is sufficient to establish that transport through surface water entering the Santa Clara River upstream of Plaintiffs’ wells, combined with subsequent infiltration through the Alluvial Aquifer and Saugus Formation near Plaintiffs’ wells, is a plausible migration pathway for perchlorate to travel from the Whittaker-Bermite site to the wells. In opposition, Defendants rely primarily on the expert testimony of Grant L. Oh-land. Ohland, however, agrees with many of Plaintiffs’ experts’ conclusions regarding surface water (and subsequent downward migration into underlying aquifers) as a potential migration pathway to Plaintiffs’ wells. For example, Ohland agrees that surface water is a potential pathway; he, too, cites data showing perchlorate in surface water run-off from the southwest portion of the Whittaker-Bermite site; he agrees that this surface water run-off travels to the South Fork of the Santa Clara River upstream of Plaintiffs’ wells; he agrees that surface water run-off has “the potential to transport perchlorate considerable distances in short periods of time”; and he agrees that surface water recharges the underground aquifers from which Plaintiffs’ wells draw. Ohland Rep. at 24, 41-42. To the extent Ohland disputes Plaintiffs’ contentions about this migration pathway, his conclusions are insufficient to create a genuine issue: 1. Ohland opines that perchlorate in the amounts recently detected in surface water run-off from the .Whittaker-Ber-mite site would not result in the “concentrations reported in the Plaintiffs’ wells.” Ohland Rep. at 41-42. See also May 27, 2003 Expert Rep. of N. Thomas Sheahan at 7 (opining that perchlorate migrating in groundwater from the northwest corner of the Whittaker-Ber-mite site could not have caused the concentration levels reported in Saugus-1 and Saugus-2). But Plaintiffs need not prove that all the perchlorate in their wells comes from the Whittaker-Bermite site in order for Defendants to be liable either jointly and severally or in contribution for their own equitable share. See Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 945 (9th Cir.2002) (defendant in cost recovery action under CERCLA § 107 may be held jointly and severally liable for entire cost of clean-up even though it only contributed a fraction of the contamination; defendant in CERCLA contribution action will be hable for its own equitable share). 2. Ohland also opines that several other nearby facilities “likely released perchlorate to the environment.” Ohland Rep. at 45. See also February 10, 2003 Supplemental Ohland Rep. at 8 (discharges from nearby wastewater treatment plant are a “potential source” of perchlorate in Plaintiffs’ wells). However, the relevance.of this opinion to Defendants’ ability to disprove causation is fatally undermined by Ohland’s ultimate conclusion — namely, that it is not possible, based on currently available data to “determine the source of perchlorate reported in Plaintiffs’ wells” or to determine which of the potential migration pathways from alternative sources conveyed perchlorate to Plaintiffs’ wells. Ohland Rep. at 39, 45. See Westfarm, 66 F.3d at 682 (expert testimony that “[cjurrent evidence [did] not substantiate [defendant] as a source of PCE contamination” insufficient to create a genuine issue of material fact). In sum, Ohland’s expert opinion comes down to this: (1) perchlorate might have migrated from the Whittaker-Bermite site to Plaintiffs’ wells via surface water and subsequent infiltration, but surface water migration alone likely could not cause all of the contamination in Plaintiffs’ wells and (2) other nearby facilities might have released perchlorate in the direction of Plaintiffs’ wells, but it is impossible to determine sources based on available data. Because neither of these opinions indicates that Defendants can disprove that the Whittaker-Bermite site was a cause of perchlorate contamination in Plaintiffs’ wells, Defendants have failed to create a genuine issue of material fact that would preclude summary judgment for the Plaintiffs. 4. Are Defendants within the Classes of Persons Liable under CERCLA? This question is easily answered as to two of the Defendants — SCLLC and Whit-taker: SCLLC is the current owner of the Whittaker-Bermite site. August 26 SGI ¶ 44. This is sufficient under CERCLA, which imposes liability on the current owner of a facility. 42 U.S.C. § 9607(1). Whittaker owned and operated the site from 1967 to January, 1999. August SGI ¶ 46. As a former owner, Whittaker is hable if it owned the site “at the time of disposal of any hazardous substance.” 42 U.S.C. § 9607(2). “CERCLA defines ‘disposal’ for purposes of § 9607(a) with reference to the definition of ‘disposal’ in RCRA, see 42 U.S.C. § 9601(29), which in turn defines ‘disposal’ as follows: The term ‘disposal’ means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863, 875 (9th Cir.2001) (quoting RCRA, 42 U.S.C. § 6903(3)). The Peach declaration establishes that Whittaker owned the site when a disposal of perchlorate occurred. As recounted above, Peach declares that during his employment at the Whittaker-Bermite facility perchlorate was regularly delivered to the site, waste containing perchlorate was disposed of in burn pits, and perchlorate chemicals and perchlorate containing waste periodically spilled onto the ground at the site. Peach Decl. ¶¶ 3-7. The liability of Defendant RFI presents more difficult questions. Plaintiffs contend that Defendant RFI is liable as the current operator of the Whittaker-Bermite site. RFI is the sole managing member of SCLLC, the present owner of the site, and Plaintiffs rely on the operator theory of liability elaborated in United States v. Bestfoods, 524 U.S. 51, 67-73, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998), to argue that RFI is liable. In opposition, RFI directs the Court’s attention to a motion for summary judgment it filed on this very issue and to the evidence filed in support of that motion. However, RFI later withdrew its summary judgment motion after the Court directed the parties to consider carefully each side’s respective Fed.R.Civ.P. 56(f) requests; Plaintiffs had opposed RFI’s motion at least in part based on Rule 56(f). For that reason, the Court believes it would be inappropriate to rule on the issue of RFI’s liability at this time. It would not be fair to grant judgment against RFI when the withdrawal of RFI’s motion (at the Court’s own suggestion) has deprived it of any defense. Thus, Plaintiffs’ motion is denied as to RFI without prejudice to Plaintiffs’ or RFI’s moving again for summary judgment on this issue at a later date. 5. Summary of Ruling and Request for Additional Discovery For the foregoing reasons, Plaintiffs are entitled to summary adjudication in their favor on the following issue: Are Defendants Whittaker and SCLLC liable to Plaintiffs for those response costs Plaintiffs have incurred that are later determined to have been necessary and consistent with the NCP? The answer is: yes. Defendants’ request for additional time to conduct discovery, Fed.R.Civ.P. 56(f), is DENIED. In his declaration, Matthew Clark Bures states that Defendants seek additional information regarding two monitoring wells, MW-1 and MW-2, and the Stadium Well. May 12, 2003 Decl. of Matthew Clark Bures Decl. ¶ 8. But the Court has not considered any of. Plaintiffs’ claims as to perchlorate contamination in the Stadium Well in ruling on these motions, and defense expert Ohland already has offered his opinion that the detection of perchlorate at MW-2 supports Defendants’ case. See February 10, 2003 Supplemental Expert Rep. of Grant L. Ohland at 7-8. Defendants have not explained how the additional data they seek is “essential” to resisting Plaintiffs’ motion. State of California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). Bures also declares that Defendants seek additional data regarding the Army Corps of Engineers study of contamination in the Santa Clara Valley. Bures Decl. ¶ 9. But Defendants obtained the Army Corps’ Technical Memorandum No. 1 after filing the Bures declaration, and the Court has considered Sheahan’s recently filed opinion regarding that Memorandum in ruling on this motion. B. Plaintiffs’ Public Nuisance Claim A nuisance affecting “an entire community or neighborhood, or any considerable number of persons” is a public nuisance. Cal. Civ.Code § 3480. Polluted groundwater is a public nuisance under California law, State of California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998), and in this case, numerous tests have demonstrated that perchlorate is present in the groundwater underneath the Whittaker-Bermite site. See, e.g., Figure 1 attached to May 27, 2003 Sheahan Rep. Thus, the only questions remaining as to Plaintiffs’ public nuisance claims are (1) whether Plaintiffs are parties authorized to sue for abatement of a public nuisance and (2) whether Plaintiffs’ claims are barred by the applicable statute of limitations. 1. Who May Bring a Public Nuisance Claim? Actions to abate a public nuisance may be maintained either by a public body authorized by law or by a private party who has been specially injured by the nuisance. Cal. Civ.Code § 3493, § 3494. When an authorized public agency sues to abate a public nuisance, no statute of limitations applies. Cal. Civ.Code § 3490. However, a private party’s suit for public nuisance is subject to the three-year statute of limitations in Cal.Code Civ. Proc 338(b). Mangini v. Aerojet-General Corp., 230 Cal.App.3d 1125, 1142-43, 281 Cal.Rptr. 827 (1991) [hereinafter “Mangini I ”]. (a) Authorized public bodies Plaintiffs contend that Newhall and Castaic are public bodies authorized by law to maintain claims for public nuisance. Newhall is a water district established under California’s County Water District Law, Cal. Water Code § 30000, and Castaic is a water agency created pursuant to its own enabling act, the Castaic Lake Water Agency Act, Cal. Water Code App. § 103-1 et seq. Newhall and Castaic both have the power to sue and be sued, and Newhall in particular has the power to institute “actions and proceedings to prevent interference with or diminution of the ... natural subterranean supply of waters which may [b]e used or be useful for any purpose of the district.” Cal. Water Code § 31082. In a very recent case, however, the California Court of Appeal held that only public bodies explicitly authorized to abate a public nuisance may do so. Lamont Storm Water District v. Pavich, 78 Cal.App.4th 1081, 93 Cal.Rptr.2d 288 (2000). The plaintiff in Lamont, a storm water district created pursuant to the Storm Water District Act of 1909, Cal. Water Code App. § 13-1 et seq., had the power to sue and be sued and to “do any and all other acts and things necessary or required for the protection of the lands in said district from damage from storm waters and from waters of any innavigable stream, watercourse, canyon or wash .... ” 78 Cal. App.4th at 1084, 93 CaLRptr .2d 288. But the appellate court found this seemingly expansive language not to be dispos-itive, explaining that “when the Legislature has intended to grant the power to abate a nuisance, it has done so specifically and in clear terms.” Id. For example, § 731 of the California Civil Procedure Code specifically gives county district attorneys and city attorneys the authority to abate a public nuisance. And § 2060 of the California Health and Safety Code gives Mosquito Abatement and Vector Control Districts the authority to abate public nuisances. Noting the absence of any similar provision in the Storm Water District Act, the Lamont court held that the plaintiff district could not maintain a public nuisance action. 78 Cal.App.4th at 1086, 93 Cal.Rptr.2d 288. Under California’s statutory scheme and precedent, Lamont is supportable. No court has reached an opposite conclusion or rejected it. This Court is bound by decisions of California’s intermediate appellate courts absent “convincing evidence” that the California Supreme Court would decide the issue differently. In re Watts, 298 F.3d 1077, 1082 (9th Cir.2002). Thus, guided by Lamont, the Court concludes that Newhall and Castaic are not public bodies specifically authorized to abate a public nuisance. (b) Specially injured parties Private plaintiffs like Santa Clarita and Valencia may have standing to bring a public nuisance action if they have been specially injured by the nuisance. Cal. Civ.Code § 3494. In this ease, both Santa Clarita and Valencia have proffered evidence that they sampled their wells near the Whittaker-Bermite site for perchlorate at the request of the California Department of Health Services. DiPrimio Decl. ¶ 2; Manetta Decl. ¶ 3. This type of monitoring qualifies as a special injury sufficient to establish these Plaintiffs’ standing to sue. See Mangini I, 230 Cal.App.3d at 1137-38, 281 Cal.Rptr.827. 2. Statute of Limitations A three-year statute of limitations applies to Santa Clarita’s and Valencia’s public nuisance claims. Mangini I, 230 Cal.App.3d at 1142, 281 Cal.Rptr. 827. The effect of the statute on Plaintiffs’ claims depends on whether the nuisance they allege is “permanent” or “continuing”: In general, a permanent nuisance is considered to be a permanent injury to property for which damages are assessed once and for all, while a continuing nuisance is considered to be a series of successive injuries for which the plaintiff must bring successive actions .... With respect to a permanent nuisance, the statute of limitations begins to run on the creation of the nuisance and bars all claims after its passage, while each repetition of a continuing nuisance is considered a separate wrong which commences a new period in which to bring an action for recovery based upon the new injury. Beck Development Co. v. Southern Pacific Transportation Co., 44 Cal.App.4th 1160, 1216-17, 62 Cal.Rptr.2d 518 (1996). The nuisance Plaintiffs complain of in this case is the perchlorate contamination on the Whittaker-Bermite site. Plaintiffs contend that perchlorate was released at the site as a result of the explosives manufacturing process. Plaintiffs themselves offer evidence that active operations at the site ceased in 1987. See Exh. A to July 9, 2002 Gee Decl. at 26 (“The Whittaker-Bermite facility is a former munitions and explosives manufacturing site that was in operation from 1934 until 1987.”)- See also August 26 SGI ¶ 2, ¶ 3. Plaintiffs thereafter learned of contamination in their wells, in the Spring of 1997 — admittedly more than three years before they filed this complaint. See July 29, 2002 SGI (filed in opposition to Defendants’ Motion for Summary Judgment on Plaintiffs’ Fourth, Sixth, Seventh and Eighth Claims for Relief) ¶ 7. Given these facts, Plaintiffs’ nuisance claims are barred if contamination at the Whittaker-Bermite site is viewed as a permanent nuisance. See Mangini I, 230 Cal.App.3d at 1145 n. 13, 281 Cal.Rptr. 827 (plaintiffs’ claims barred if for permanent nuisance where defendant used toxic substances — including ammonium perchlorate — on property from 1960 to 1970, plaintiffs had notice of contamination in 1984, and plaintiffs filed suit in 1988). Plaintiffs may still be entitled to summary judgment, however, if the Whittaker-Bermite contamination is viewed as a continuing nuisance. In Mangini v. Aerojet-General Corp., 12 Cal.4th 1087, 1097, 51 Cal.Rptr.2d 272, 912 P.2d 1220 (1996) [hereinafter Mangini II], the California Supreme Court, adopting the lower appellate court’s opinion, explained that the “crucial test of the permanency of a trespass or nuisance is whether the trespass or nuisance can be discontinued or abated.” Plaintiffs have proffered no evidence of abatability in support of their summary judgment motion. Because Plaintiffs briefed this issue in opposition to Defendants’ now-withdrawn statute of limitations motion, however, the Court also has reviewed the evidence Plaintiffs submitted on that motion. For example, Plaintiffs point to the deposition of Robert J. DiPri-mio as support for their continuing nuisance claim. DiPrimio did testify during deposition about a potential $36 million treatment program for water drawn from Plaintiffs’ wells, DiPrimio Dep. (attached as Exh. B to the Yamamoto Decl. filed in opposition to Defendants’ statute of limitations motion) at 150:12-151:9, but there is no evidence that this treatment facility would abate the actual nuisance — namely, the underground contamination emanating from the Whittaker-Bermite site. Mr. Manetta also testified that there is “technology to abate the problem in the groundwater off the site,” Manetta Dep. (attached as Exh. C to the Yamamoto Decl.) at 235:12-23, but the California Supreme Court has rejected the contention that “mere technological feasibility proves abat-ability.” Mangini II, 12 Cal.4th at 1099, 51 Cal.Rptr.2d 272, 912 P.2d 1220 (adopting opinion of California Court of Appeal). 3. Summary of Ruling Plaintiffs are not entitled to summary judgment on their public nuisance claims, and because the same statute of limitations analysis also applies to Plaintiffs’ private nuisance claims, see Beck, supra (private nuisance claim), Plaintiffs’ motion is denied as to those claims as well. WHITTAKER’S MOTION FOR SUMMARY JUDGMENT ON ITS COUNTERCLAIMS Each of the Defendants has counterclaimed against each of the Plaintiffs for a declaratory judgment under § 107(a) and for contribution under CERCLA §§ 107(a) and 113(f). Whittaker now moves for summary judgment on its counterclaim against the Plaintiffs/Counter-Defendants [hereinafter “Counter-Defendants”] for contribution. I. Elements of Whittaker’s Prima Fa-cie Case In order to succeed on its contribution claims, Whittaker must establish that (1) perchlorate is a hazardous substance; (2) there has been a release of perchlorate at Counter-Defendants’ facilities; (3) the release caused Whittaker to incur necessary response costs consistent with the NCP; and (4) Counter-Defendants are proper CERCLA defendants. See California v. Campbell, 319 F.3d 1161, 1165 (9th Cir.2003); Bedford Affiliates v. Sills, 156 F.3d 416, 427 (2d Cir.1998). Whittaker must support its motion with evidence that would entitle it to a directed verdict on these elements. C.A.R. Transportation Brokerage Co., Inc. v. Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations omitted). In the briefs filed on Whittaker’s motion, Counter-Defendants only dispute the second element listed above; they contend that their sites are not “facilities.” A. Are NC-11, Saugus~l, Saugus-2 and VWC-157 CERCLA Facilities'.? Whittaker contends that the wells owned by Counter-Defendants Newhall, Santa Clarita and Valencia are CERCLA facilities. The statute’s definition of the term “facility” explicitly includes wells, 42 U.S.C. § 9601(9), and this plain language analysis would appear to resolve the issue. Nonetheless, Counter-Defendants contend that their wells are covered by the limited exception to the definition of facility for “any consumer product in consumer use or any vessel.” Id. As support for this position, Counter-Defendants rely almost entirely on Vernon Village, Inc. v. Gottier, 755 F.Supp. 1142 (D.Conn.1990) (Cabranes, J.). The plaintiff in Vernon Village was a resident of a trailer park that bordered a polluted industrial site. 755 F.Supp. at 1145. The trailer park, the High Manor Mobile Home Park (“High Manor Park”), owned and operated a system of wells and pipes used to supply drinking water to High Manor Park residents. Id. Chromium from the neighboring industrial site, the Hillside Industrial Park (“Hillside”), traveled downgradient and contaminated High Manor’s wells. Id. The plaintiff brought suit against, and eventually reached a settlement with, Precision Plating Corp. (“Precision”) — the company located at Hillside that had actually been the source of the groundwater contamination. Id. at 1145-46. The plaintiff then brought suit against the company that owned High Manor Park (and the company’s president) for failing to monitor the Park’s water supply. Id. at 1146. The district court granted summary judgment in the defendants’ favor on plaintiffs CERCLA claim. ■ Although the court noted that the defendants’ wells appeared at first to fall squarely within CERCLA’s definition of facility, the court ultimately concluded that the drinking water provided to plaintiff from the wells was a “consumer product in consumer use,” and that the defendants could not be liable for contaminants contained in such a product. Id. at 1151. This Court is not bound by district court opinions in another circuit, and the Court finds the analysis in Vernon Village unpersuasive. First, the Vernon Village court focused exclusively on the water within the defendants’ wells, not on the wells themselves. See 42 U.S.C. § 9601(9) (“facility” defined to include wells). This distinction made some sense in the context of the Vernon Village plaintiffs case because her suit was based on contamination in water that was actually delivered to her home as a consumer product through the defendants’ well and pipe system. Id. at 1149. But the same distinction does not make sense here. This case is not brought by parties who actually receive Counter-Defendants’ water as a consumer product; unlike the contaminated water that sparked the Vernon Village suit, here the water is not a product currently made available to consumers for their use. The Vernon Village holding also presents a conceptual difficulty. As a practical matter, CERCLA cases involving wells claimed to be facilities will likely always, or almost always, actually be about the water drawn from those wells. The inclusion of “well” within CERCLA’s definition of “facility” would have little meaning if well water were always considered entirely separately. Indeed, several of the terms included in the definition of facility — for example, “pipe,” “pit,” “pond,” “lagoon,” “ditch” and “landfill” — would be stripped of significance if a similar hyperteehnical analysis were applied to them. In addition, Vernon Village rests on a weak precedential foundation. The court’s analysis drew quite heavily on a Fifth Circuit case, Dayton Indep. Sch. Dist. v. U.S. Mineral Prods. Co., 906 F.2d 1059 (5th Cir.1990). Dayton held that asbestos manufacturers and suppliers could not be liable for costs incurred in removing asbestos from school buddings on the theory that they had “arranged for [asbestos] disposal or treatment.” 906 F.2d at 1064 (quoting 42 U.S.C. § 9607(a)). The Fifth Circuit reasoned that the defendants’ acts — which amounted to the installation of asbestos in school buildings — could not be considered “disposal” of asbestos. Id. The court also went on to express doubt whether any CERCLA “facility” was involved in the case, explaining that CERCLA was not intended to target “legitimate manufacturers or sellers of useful products.” Id. at 1065. In the years since Vernon Village, the Fifth Circuit has reviewed its broad language in Dayton and has limited the holding of that case to its specific facts. See Uniroyal Chemical Co., Inc. v. Deltech Corp., 160 F.3d 238 (5th Cir.1998). In Uniroyal, the Fifth Circuit first rejected an argument, based on language in Day ton, that CERCLA applies only to inactive or abandoned hazardous waste sites. Id. at 248-49 (rejecting contrary holdings in several district court cases, including Vernon Village). As to CERCLA’s consumer product exception, Uniroyal next explained that Dayton depended almost entirely on the “dispos[al]” requirement in § 9607(a)(3) — a requirement not'found in the section of the statute, § 9607(a)(1), on which Whittaker’s claims are based. Id. at 251-52. And because Dayton’s commentary on the consumer product exception was dicta not supported by any specific citation to case law or legislative history, the Fifth Circuit has now limited Dayton’s holding to the very specific issue addressed in that case — the claimed right of recovery in asbestos removal cases. Id. at 252 n. 16. Given this limitation, Dayton cannot provide sound support for the holding in Vernon Village (or for Counter-Defendants’ position here). Finally, Vernon Village is unpersuasive because the Vernon Village court appears to have been influenced in its analysis of the definition of “facility” by the relative blamelessness of the defendants in that case. Indeed, the court explained its reasoning as follows: Despite the apparent plausibility of plaintiffs argument that defendants own and operate a “facility” — after all, they do own wells, pipes and equipment for supplying water to the residents of the park — CERCLA is simply not the appropriate legal instrument with which to challenge the conduct of the defendants in this case. Defendants were as much “victims” of the contamination of the soil and groundwater at the Hillside Industrial Park as was the plaintiff. They have in no way caused or contributed to the release of the hazardous substances into the drinking water supply. 755 F.Supp. at 1151 (footnote omitted). In this case, too, Counter-Defendants argue that they are essentially blameless. But that argument applies to Counter-Defendants’ “innocent landowner” defense. It is within the context of that statutorily-provided defense — not with respect to the otherwise clear definition of “facility”— that Counter-Defendants’ innocence argument finds its proper home. Counter-Defendants also cite City of Portland v. Boeing, 179 F.Supp.2d 1190, 1201 (D.Or.2001) as support for their position. The defendant-polluters in that case argued that the plaintiffs were themselves PRPs because they owned contaminated wells. The court rejected that argument because the defendants provided no evidence that the plaintiffs’ well contamination caused defendants to incur response costs — an element essential to CERCLA liability. Id. Thus, City of Portland turned on the response cost element of CERCLA’s prima facie case — an element this Court will consider below — not simply on the fact that the plaintiffs were passive well owners. Counter-Defendants argue more generally that they cannot be liable under CERCLA because their wells are not “abandoned and inactive hazardous waste disposal sites.” Mem. at 3. Counter-Defendants contend that achieving the cleanup of such sites was CERCLA’s only aim. But Counter-Defendants’ reliance on an isolated quotation from the legislative history is unpersuasive in light of the enacted statute’s broad definition of facility. Moreover, those appellate courts to have considered Counter-Defendants’ argument have rejected it. See Uniroyal, 160 F.3d at 248-49, Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 191 F.3d 409, 419 (4th Cir.1999). In sum, the Court concludes that NC-11, VWC-157, Saugus-1 and Saugus-2 fall within CERCLA’s definition of “facility.” B. Is the “Valley’s Groundwater” a Facility? CERCLA’s definition of “facility” includes any “site or area where a hazardous substance has ... come to be located.” 42 U.S.C. § 9601(9). In its motion papers, Whittaker argues vaguely — and without analysis or case citation — that the “Valley’s groundwater” is a “facility.” Although Counter-Defendants do not specifically take issue with this argument, the Court rejects it. Groundwater is neither a “site” nor an “area,” at least as those terms are commonly understood. See Webster’s Third New International Dictionary (defining “site” as “the original or fixed position of a thing,” “the local position of a building, town, monument or similar work ...,” etc.; defining “area” as “a level or relatively level piece of unoccupied or unused ground” or “a definitely bounded piece of ground set aside for a specific use or purpose”). Nor has Whittaker identified with any specificity the boundaries of this suggested “facility.” Although the definition of “facility” is broad, Whittaker’s unsupported assertion that the ‘Valley’s groundwater” can be understood as a facility stretches the definition beyond reason and defies common sense. C. Was there a Release or Threatened Release of a Hazardous Substance? CERCLA defines release as “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment.” 42 U.S.C. § 9601(22). In this case, Counter-Defendants themselves contend that perchlorate has spread from other locations to contaminate the water in their wells. Indeed, as discussed above, perchlorate has been detected at the Newhall, Santa Clarita and Valencia wells. Given these facts, the question before this Court is whether the passive migration of contaminant from another source into Counter-Defendants’ wells constitutes a release at the wells. The Court concludes that it does. As noted above, CERCLA’s definition of “release” includes the term “leaching.” Both the Second and Third Circuits have recognized that because the term “leaching” is “commonly used to describe passive migration,” ABB Industrial Systems, Inc. v. Prime Technology, Inc., 120 F.3d 351, 358 (2d Cir.1997), the inclusion of “leaching” within CERCLA’s definition of “release” indicates that passive migration constitutes a “release.” Id.; United States v. CDMG Realty Co., 96 F.3d 706 (3d Cir.1996). In CDMG Realty, the Third Circuit emphasized the term “leaching” in explaining the differences between CERC-LA’s definitions of “release” and “disposal”: Most importantly, the definition of “release” includes the term “leaching,” which is not mentioned in the definition of “disposal.” “Leaching” is “the process or an instance of separating the soluble components from some material by percolation.” [citation omitted]. Leaching of contaminants from rain and groundwater movement is a principal cause of contaminant movement in landfills, [citation omitted], and is the predominant cause of groundwater contamination from landfills, [citation omitted]. The word “leaching” is commonly used in the environmental context to describe this migration of contaminants. See, e.g., Steven Ferrey, The Toxic Time Bomb: Municipal Liability for the Cleanup of Hazardous Waste, 57 Geo. Wash. L.Rev. 197, 207 n. 34 (1988) (“Leachate is liquid or water soluble contaminated substances that migrate away from the point source of contamination in groundwater or surface water, often influenced by rain and normal water table activities. Such a phenomenon is described as ‘leaching’ of contaminants.”). Congress’s use of the ter