Full opinion text
EXPANDED OPINION SETTING FORTH REASONING AND CITATION OF AUTHORITY IN SUPPORT OF DECISION AND ENTRY (DOC. # 427) SUSTAINING IN PART AND OVERRULING IN PART MOTION FOR SUMMARY JUDGMENT (DOC. #333) FILED BY PLAINTIFF UNITED STATES OF AMERICA AND UNITED SCRAP LEAD RESPONDENT GROUP; UNITED SCRAP LEAD RESPONDENT GROUP GRANTED LEAVE TO FILE CONTRIBUTION CLAIMS, WITHIN 14 DAYS FROM DATE; FURTHER PROCEDURES ORDERED OF PLAINTIFF UNITED STATES OF AMERICA, WITHIN SEVEN DAYS FROM DATE; PLAINTIFF UNITED STATES OF AMERICA DIRECTED TO FILE STATUS REPORT WITHIN 20 DAYS FROM DATE RICE, Chief Judge. This litigation involves an effort by Plaintiff United States of America and the United Scrap Lead Respondent Group (“Respondent Group”) to recover response costs incurred in remediating environmental contamination at the United Scrap Lead Company Superfund Site (“USLC Site” or “Site”) in Troy, Ohio. Each Defendant in this action allegedly is liable for a portion of those response costs, as a result of its role in arranging for the disposal of hazardous waste. In a Decision and Entry filed on February 29, 2000 (Doc. #427), the Court sustained in part and overruled in part a Motion for Summary Judgment (Doc. # 333) filed by the Mov-ants. In so doing, the Court noted that it would file an Expanded Opinion, with reasoning and citation of authority, to support its ruling on that Motion. This Expanded Opinion supplies that reasoning and citation of authority. I. Summary Judgment Standard The Court first will set forth the parties’ relative burdens once a motion for summary judgment is made. Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s ease, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Of course, [the moving party] always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. 2548; see also Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir.1991) (The moving party has the “burden of showing that the pleadings, depositions, answers to interrogatories, admissions and affidavits in the record, construed favorably to the non-moving party, do not raise a genuine issue of material fact for trial[,]” quoting Gutierrez v. Lynch, 826 F.2d 1534, 1536 [6th Cir.1987]). The burden then shifts to the non-moving party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Thus, “[o]nce the moving party has met its initial burden, the nonmoving party must present evidence that creates a genuine issue of material fact making it necessary to resolve the difference at trial.” Talley v. Bravo Pitino Restaurant, Ltd., 61 F.3d 1241, 1245 (6th Cir.1995). Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment by demonstrating that the opposing party will not be able to produce sufficient evidence at trial to withstand a motion for judgment as a matter of law under Fed. R.Civ.P. 50. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989). Once the burden of production has shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Michigan Protection and Advocacy Service, Inc. v. Babin, 18 F.3d 337, 341 (6th Cir.1994) (“The plaintiff must present more than a scintilla of evidence in support of his position; the evidence must be such that a jury could reasonably find for the plaintiff’). Rather, Rule 56(e) “requires the non-moving party to go beyond the [unverified] pleadings” and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548. Summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). Summary judgment shall be denied “[i]f there are ... ‘genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’ ” Hancock v. Dodson, 958 F.2d 1367, 1374 (6th Cir.1992). Of course, in determining whether a genuine issue of material fact exists, a court must assume as true the evidence of the nonmoving party and draw all reasonable inferences in the favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505 (emphasis added). If the parties present conflicting evidence, a court may not decide which evidence to believe, by determining which parties’ affiants are more credible; rather, credibility determinations must be left to the fact-fínder. 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2726. In ruling on a motion for summary judgment (in other words, in determining whether there is a genuine issue of material fact), “[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party’s claim.” InterRoyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir.1989), cert. denied, 494 U.S. 1091, 110 S.Ct. 1839, 108 L.Ed.2d 967 (1990); see also L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561 (7th Cir.1993); Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n. 7 (5th Cir.) (“Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment _”), cert. denied, 506 U.S. 832, 113 S.Ct. 98, 121 L.Ed.2d 59 (1992). Thus, a court is entitled to rely, in determining whether a genuine issue of material fact exists on a particular issue, upon only those portions of the verified pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties. II. Analysis of Motion for Partial Summary Judgment (Doc. # 333) In their Motion for Partial Summary Judgment, the United States and the Respondent Group seek to establish the liability of certain Defendants under CERCLA. Specifically, the Movants have requested summary judgement on the issue of the Defendants’ liability for clean-up or “response” costs in this action. The Movants seek to establish that the Defendants are liable, as a matter of law, for expenses which have been incurred by the United States and the Respondent Group in connection with the release and threatened release of hazardous substances at the USLC Site, where spent lead-acid batteries were discarded for nearly forty years. The United States brings its action for response costs under § 107(a) of CERCLA, 42 U.S.C. § 9607(a), seeking to hold the Defendants jointly and severally liable. The Respondent Group seeks contribution from the Defendants for its costs, pursuant to § 113(f) of CERCLA, 42 U.S.C. § 9613(f). In Centerior Serv. Co. v. Acme Scrap Iron & Metal, 153 F.3d 344 (6th Cir.1998), the Sixth Circuit addressed the distinction between response-cost actions brought by the United States under § 107(a) and contribution actions brought under § 113(f) by responsible parties who, like the Respondent Group, contributed hazardous waste to a site. The Centerior court recognized that § 107(a) authorizes the Government to recover costs that it incurred while cleaning up a hazardous waste site. Id. at 347. Private parties also may bring cost-recovery actions directly under § 107(a), if they incurred clean-up costs but were not responsible for the site contamination. Id. at 350. Strict liability is imposed when § 107(a) cost-recovery actions are brought by either the United States or innocent private parties. Id. at 348. Liability in such cases is nearly always joint and several. Id. “After bringing a cost recovery action, plaintiffs must prove only that each defendant is a ‘hable’ party and not that defendants are responsible for a certain share of the plaintiffs response costs. Only if a defendant can affirmatively demonstrate that the harm is divisible, will damages from a cost-recovery action brought pursuant to § 107(a) be apportioned according to fault.” Id. In order to establish liability under § 107(a), a plaintiff must prove four elements: (1) that the site in question is a facility; (2) that a release or threatened release of a hazardous substance has occurred; (3) that the release or threatened release has caused the plaintiff to incur necessary response costs; and (4) that the defendant is a responsible party under the statute. Id. at 347-48. Private parties who are themselves responsible for contributing hazardous waste to a site cannot maintain a cost-recovery action directly under § 107(a). Rather, they must proceed under § 113(f) of CERCLA. That provision gives responsible parties a right to contribution from others who are also responsible for cleanup costs associated with the disposal of hazardous waste. “In actions seeking contribution, unlike those for joint and several cost recovery, the burden is placed on the plaintiff to establish the defendant’s equitable share of response costs.” Id. at 348. “Liability is not joint and several, but merely several.” Id.; see also Kalamazoo River Study Group v. Menasha Corp., 228 F.3d 648, 653 (6th Cir.2000) (“Unlike with § 107, however, liability under § 113 is not joint and several, but several only[.]”). Although contribution actions arise under § 113(a), the Centerior court reasoned that “ § 107 provides the basis and the elements of a claim for recovery of response costs and lists the parties who are liable, as well as the defenses to liability. Therefore, one must necessarily look to § 107 in contribution actions involving § 113(f).” Centerior, 153 F.3d at 344. With the foregoing standards in mind, the Court turns now to the Motion for Partial Summary Judgment (Doe. #333). As a means of analysis, the Court first will address a number of potentially dispositive arguments raised by various Defendants in opposition to the Motion. The Court has chosen to address these arguments at the outset, because they are equally applicable to the CERCLA claims against all of the Defendants and, if successful, they would obviate the need to review the Movants’ evidence against each Defendant separately- A. Universally Applicable Arguments in Opposition to Summary Judgment Several Defendants have filed a joint Memorandum (Doc. # 353), advancing various arguments which, if successful, would preclude the Court from entering summary judgment in favor of the United States or the Respondent Group. These Defendants, who have identified themselves collectively as “Certain Parties,” include Ace Iron and Metal Co., Inc., and its unincorporated division, Norman’s Auto Wrecking; Caldwell Iron & Metal; Decatur Salvage, Inc.; Mid-Ohio Battery, Inc.; and Xenia Iron & Metal, Inc. In opposition to the Motion for Partial Summary Judgment, Certain Parties advance five arguments. First, they contend that 1995 and 1996 deposition testimony from Charles Bailen, an operator of the USLC Site, cannot be used against them, because they were not joined in this litigation until 1998 and, therefore, did not have an opportunity to “develop his testimony.” Second, they argue that Bailen’s 1999 deposition testimony cannot be used against them, because he had been deposed twice before, and the party taking the 1999 deposition failed to obtain leave to do so. Third, they assert that various documents relied on by the Movants cannot be considered by the Court, because the documents are unauthenticated and they are inadmissible hearsay. Fourth, they argue that the Respondent Group has failed to demonstrate that any of its response costs are consistent with the National Oil and Hazardous Substances Contingency Plan (“National Contingency Plan”). Fifth, they contend that the Respondent Group cannot assert CERCLA claims for contribution, without actually filing such claims. For these five reasons, Certain Parties argue that the Movants are not entitled to summary judgment on the issue of their liability under CERCLA. Upon review, the Court rejects Certain Parties’ first four arguments, but it agrees that the Respondent Group has not properly asserted contribution claims against them. As a means of analysis, the Court will address each of the foregoing issues separately. First, the Movants properly have relied on Charles Bailen’s 1995 and 1996 deposition testimony in support of their Motion. Certain Parties argue that the use of his testimony is precluded by Fed.R.Civ.P. 804(b)(1), which provides a hearsay exception for “[testimony given in a deposition ... if the party against whom the testimony is now offered ... had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Certain Parties stress that they had no opportunity to cross examine Bail-en or to “develop” his 1995 and 1996 testimony, because they were not yet joined in this action. Certain Parties also argue that the Court may not consider Bailen’s deposition testimony, because he is not “unavailable” to testify at trial. Relevant case law reveals that the foregoing arguments lack merit. For purposes of summary judgment, “Rule 56 requires [a party] to present evidence of evidentiary quality .... ” Bailey v. Floyd. County Bd. of Educ., 106 F.3d 135, 145 (6th Cir.1997). “Examples of such evidence include admissible documents or attested testimony, such as that found in affidavits or depositions.” Id. “The proffered evidence need not be in admissible form, but its content must be admissible.” Id. “For instance, deposition testimony will assist a plaintiff in surviving a motion for summary judgment, even if the deposition itself is not admissible at trial, provided substituted oral testimony would be admissible and create a genuine issue of material fact.” Id. In the present case, the content of Bailen’s 1995 and 1996 depositions will be admissible at trial through his substituted, live testimony. The fact that his deposition testimony is not in an admissible form is immaterial, as is the fact that Bailen is not “unavailable” to testify. The Movants are not attempting to use Bailen’s deposition testimony in lieu of his personal appearance at trial. Rather, they are using his testimony in the context of summary judgment, a practice permitted by Rule 56 of the Federal Rules of Civil Procedure. The Court is equally unpersuaded by Certain Parties’ argument that the Mov-ants cannot use Bailen’s 1995 and 1996 deposition testimony against them, because they were not joined in this action until 1998. The Ninth Circuit rejected an identical argument in Hoover v. Switlik Parachute Co., 663 F.2d 964 (9th Cir.1981), and the Court finds its reasoning to be persuasive. In the context of summary judgment, the Hoover court approved the use of depositions against a party who had not been joined in the action when the depositions were taken. The Ninth Circuit reasoned that the depositions could not be used as depositions, because the defendant had lacked an opportunity to cross examine the deponents. Nevertheless, the court concluded that the deposition transcripts were equivalent to Rule 56(c) affidavits, because they were made on personal knowledge, and they set forth facts which would be admissible in evidence. See also RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 403-04 (8th Cir.1995) (“While RSBI claims that this statement was not admissible because it did not participate in the taking of the statement, a sworn statement taken under oath is at least as reliable as an affidavit for the purposes of Rule 56(c).”); Curnow v. Ridgecrest Police, 952 F.2d 321, 323-24 (9th Cir.1991) (reasoning that a sworn and transcribed statement taken outside the presence of opposing counsel is at least as reliable as an affidavit and, therefore, constitutes proper Rule 56 evidence). In light of the foregoing authority, which the Court finds to be persuasive, it rejects Certain Parties’ argument. Bailen’s 1995 and 1996 deposition testimony was provided under oath, and it meets the requirements of a Rule 56 affidavit. Consequently, Certain Parties’ inability to examine Bailen at the time of his testimony does not preclude the Court from treating the deposition transcripts as affidavits and considering them in the summary judgment context. Second, the fact that no party obtained leave to depose Bailen in 1999 does not preclude the Movants from citing his testimony. In support of this argument, Certain Parties rely on Fed.R.Civ.P. 30(a)(2)(B), which provides that a person may not be deposed more than one time in any action, without leave of court. Upon review, the Court is unpersuaded by Certain Parties’ reliance on Rule 30 to preclude Bailen’s 1999 deposition testimony. The deposition at issue was noticed by Defendant Broadway Iron & Paper Company. Absent any articulated prejudice to Certain Parties, as a result of Broadway’s failure to obtain leave, the Court will not preclude the Movants from relying on Bailen’s 1999 testimony. Counsel for Certain Parties never objected to the deposition taking place and participated in the same. Cf. Kendrick v. Schnorbus, 655 F.2d 727, 729 (6th Cir.1981) (“[W]e do not believe Rule 30(a), when read in conjunction with Rule 32, creates a per se rule of suppression when a technical violation of Rule 30(a) occurs.... Absent any showing of real injury because of the failure to obtain leave, we do not believe the trial judge abused his discretion in failing to suppress.”). Third, the Court rejects Certain Parties’ argument that various exhibits identified in Bailen’s depositions constitute inadmissible hearsay, and that the Movants have failed to demonstrate the applicability of a hearsay exception. The Court also cannot agree that the documents at issue have not been authenticated. The challenged exhibits consist of a USLC “customer price list” (identified as Exh. ##95 and 96 to Bailen depo. of Sept. 26, 1996) and certain invoices (identified as Exh. ##3, 16, 31, 69 and 70 to Bailen depo. of Aug. 7-8, 1995; Exh. H, I to Bailen depo. of Jan. 22, 1999). In support of their Motion, Certain Parties argue that the Movants have failed to qualify the exhibits as business records, pursuant to Fed.R.Evid. 803(6). The Sixth Circuit has recognized that “for a business record to be admissible under Rule 803(6), Federal Rules of Evidence, the record must satisfy four requirements: (1) it must have been made in the ordinary course of a regularly conducted business activity; (2) it must have been kept in the regular course of that business; (3) the regular practice of that business must have been to have made the memorandum; and (4) the memorandum must have been made by a person with knowledge of the transaction or from information transmitted by a person with knowledge.” Redken Laboratories, Inc. v. Levin, 843 F.2d 226, 229 (6th Cir.1988). In their Memorandum, Certain Parties contend that the Movants have failed to lay a proper foundation to establish the USLC invoices and customer price list as business records. They note that USLC operator Charles Bailen has characterized the documents as “records kept in the ordinary course of business,” or as “true and accurate business records.” Certain Parties contend, however, that Bailen has never provided testimony sufficient to meet each of the four requirements identified by the Sixth Circuit in Redken. In a cursory response, the Movants insist that the records at issue do qualify as business records, because Bailen “has personal knowledge of every facet of the [USLC] business.” (Doc. #374 at 11). The Movants also cite an affidavit in which Bailen avers that, as an owner/operator, he is “familiar with all aspects of United Scrap Lead, including records kept in the ordinary course of business.” (Doc. # 333 at Exh. 1). Bailen also avers that the invoices and customer price list at issue “are true and accurate copies of documents kept by United Scrap Lead in the ordinary course of business.” (Id.). Even if the documents at issue are true and accurate copies of records kept in the ordinary course of USLC’s business, the Movants still have not properly qualified the documents as business records. The Movants cite nothing to establish that the documents were made in the ordinary course of a regularly conducted business activity, or that the regular practice of USLC was to make the records at issue. Furthermore, the fact that Bañen has personal knowledge of “every facet” of USLC’s business does not establish that the documents were made by a person with knowledge of the transaction or from information transmitted by a person with knowledge. Although the Movants likely could qualify most of the documents as business records, they have faüed to do so. Instead, they dismiss the business records issue as “irrelevant,” arguing that the documents are admissible under the “ancient document” provisions of the Federal Rules of Evidence, namely Fed.R.Evid. 803(16) and 901(b)(8). Rule 803(16) provides that statements contained in ancient documents are not excluded by the hearsay rule. It applies to any document twenty or more years old, provided that its authenticity is established. Rule 901(a) governs the authentication of such documents. It provides that authentication is established “by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901(b)(1) and (b)(8) identify two pertinent methods of authentication. The former rule provides for authentication with “[testimony that a matter is what it is claimed to be.” Alternatively, the latter rule provides for authentication with evidence that a document: “(A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.” In the present case, the Movants argue that the various exhibits at issue qualify as ancient documents, because they are more than 20 years old and “they have been sufficiently identified by Mr. Bañen on numerous occasions, most recently in his affidavit accompanying the [ejxhibits.” (Doc. #374 at 11). Upon review, the Court agrees. The documents relied on by the Movants are more than 20 years old. In addition, Bañen has provided affidavit and deposition testimony authenticating the invoices and the USLC “price list.” Although his testimony falls short of establishing the documents as business records, he has sufficiently authenticated them for purposes of the ancient document rule. Under Rule 901(b)(1), Baüen’s testimony need only establish that the documents are what the Movants claim. His deposition testimony meets this requirement. Bañen previously identified exhibits 95 and 96 as USLC “customer price lists.” (See, e.g., Bailen depo. of Sept. 26, 1996 at 11, 48-49). He explained that the lists contain price quotes for USLC customers. (Id. at 12). On multiple occasions, Bañen also authenticated the various invoices relied on by the Movants. Indeed, with respect to the authentication issue, Certain Parties do not seriously chañenge Bañen’s abüity to authenticate documents created by USLC. Instead, they argue that he cannot authenticate invoices which originated from companies other than USLC. The Court finds such documents to be authenticated, however, under Rule 901(b)(8). As noted above, under that rule, a document is authentic if it “(A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.” As the Court has recognized, the invoices at issue are more than 20 years old. Certain Parties do not even suggest that the condition of the invoices creates suspicion regarding their authenticity, and the Court finds no basis for any such suspicion. Finally, Bailen has testified that all records were removed from USLC’s offices after it closed. He took the records and stored them in boxes in a basement. (Bailen depo. of August 8, 1995, at 230-41). Consequently, all of the invoices at issue were found in a place where, if authentic, they likely would be located. As a result, the authenticity of the exhibits has been established under Rule 901(b)(8). In a final argument, Certain Parties contend that the Movants have failed to prove that the invoices authenticated in Charles Bailen’s depositions are actually the same invoices attached to the Motion for Partial Summary Judgment (Doc. #333). With respect to the exhibits identified in Bail-en’s January 22, 1999, deposition, the Court cannot agree. Those exhibits have been filed with the Court, along with the deposition itself, and they are identical to the exhibits attached to the Movants’ Motion. Unfortunately, the Court cannot reach the same conclusion with respect to the exhibits identified in Bailen’s 1995 or 1996 depositions. Although those depositions have been filed, the accompanying exhibits do not appear to have been filed with the depositions. Based on a review of Bailen’s 1995 and 1996 testimony, the exhibits discussed and authenticated therein do appear to correspond to the exhibits attached to the Motion for Partial Summary Judgment. In addition, many of those exhibits were identified during the depositions by their discovery “BAIL” numbers. Consequently, it may be possible to conduct a page-by-page review of Bailen’s multi-volume deposition transcript to match the BAIL numbers cited therein with each of the hundreds of pages of exhibits attached to the Motion for Partial Summary Judgment. Rather than conducting such a review, however, the Court directs the Movants to file an affidavit, within seven days, averring that the various exhibits attached to their Motion for Partial Summary Judgment are true and accurate copies of the exhibits identified by Bailen during his multiple depositions. Based on its expectation that the Movants will file such an affidavit, the Court will consider the invoices attached to the Motion for Partial Summary Judgment. If the Movants fail to file such an affidavit, or otherwise to authenticate the exhibits within seven days from date, the Court will vacate this Expanded Opinion and reconsider its ruling herein, without considering those invoices. Fourth, the Court rejects Certain Parties’ argument concerning the Respondent Group’s alleged failure to establish that its response costs are consistent with the standards set forth in the National Contingency Plan (“NCP”). In 1982, Congress amended CERCLA to require private parties seeking cost recovery to demonstrate that their clean-up costs are consistent with the NCP’s standards, procedures and methods for responding to the release of hazardous substances. Private parties must establish consistency with the NCP as an element of their pri-ma facie case. See, e.g., NutraSweet Co. v. X-L Engineering Co., 227 F.3d 776, 791 (7th Cir.2000). In their Memorandum, Certain Parties contend that the Respondent Group has failed to cite any evidence to establish this element of its contribution claims. Consequently, Certain Parties argue that the Respondent Group’s Motion for Partial Summary Judgment (Doc. #333) should be overruled. Upon review, the Court cannot agree that the Respondent Group has failed to meet its burden of demonstrating consistency with the NCP. When allocating the burden of proof regarding consistency with the NCP, CERCLA distinguishes between governmental and non-governmental entities. When the Government initiates an action to recover response costs, such costs are presumed to be consistent with the NCP, and the potentially responsible parties bear the burden of proving otherwise. United States v. Chapman, 146 F.3d 1166, 1170-71 (9th Cir.1998). On the other hand, when non-governmental entities seek to recover CERCLA costs, they must establish consistency with the NCP as an element of their prima facie case. Bedford Affiliates v. Sills, 156 F.3d 416, 427 (2nd Cir.1998). In opposition to Certain Parties’ argument, the Respondent Group relies on 40 C.F.R. § 300.700(e)(3)(ii), which, under certain circumstances, creates an irrebuttable presumption that private-party response costs are consistent with the NCP. Specifically, the regulation provides: (ii) Any response action carried out in compliance with the terms of an order issued by EPA pursuant to section 106 of CERCLA, or a consent decree entered into pursuant to section 122 of CERCLA, will be considered “consistent with the NCP.” See also Morrison Enterprises v. McShares, Inc., 13 F.Supp.2d 1095, 1113—14 (D.Kan.1998) (“Subsection (c)(3)(ii) provides that any response action carried out in compliance with the terms of an order issued by EPA pursuant to 42 U.S.C. § 9606 or a consent decree pursuant to 42 U.S.C. § 9622 will be considered ‘consistent with the NCP;’ this is sometimes called the irrebuttable presumption of compliance.”). Relying on the foregoing regulation, the Respondent Group insists that it “is entitled to an irrebuttable presumption that it’s [sic] response costs incurred pursuant to the RD/RA Consent Decree and other EPA orders are consistent with the NCP ....” (Doc. # 374 at 2 n. 2). The Court agrees, at least with respect to some of the costs incurred by the Respondent Group. As noted above, 40 C.F.R. § 300.700(c)(3)(ii) creates an irrebuttable presumption of consistency with the NCP when a private-party response action is “carried out in compliance with” the terms of an EPA order or consent decree. The record contains evidence establishing, at a minimum, that some of the Respondent Group’s response costs were incurred in compliance with the terms of a Consent Decree. That evidence is in the form of an affidavit from Thad Slaughter, a regulatory specialist and scientist at EN-TACT, Inc., a Texas corporation engaged in environmental remediation contracting. (Doc. # 333 at Exh. 8). Slaughter avers, in relevant part: 4. The Respondent Group has contracted with ENTACT as its designated contractor to conduct the Remedial Action at the United Scrap Lead Superfund Site in Troy, Ohio[,] pursuant to the terms of the Consent Decree entered into with the United States and approved by the United States District Court for the Southern District of Ohio. Pursuant to the contract for Remedial Activities, the Respondent Group has paid ENTACT for its services. (Id. at ¶ 4). The existing Consent Decree does require the Respondent Group to hire a contractor to perform Remedial Action at the USLC Site. (See Doc. #246, Consent Decree at 13, et seq.). Consequently, the Court concludes that the expenses incurred by the Respondent Group for Slaughter’s services are consistent with the NCP, as a matter of law. The record reflects that the Respondent Group incurred the expenses while performing a response action in compliance with the terms of the Consent Decree. Pursuant to 40 C.F.R. § 300.700(c)(3)(h), such expenses are per se consistent with the NCP. As a result, the Court rejects Certain Parties’ argument that the Respondent Group has not established that it incurred any response costs consistent with the NCP. Fifth, the Court agrees with Certain Parties’ argument that no viable contribution claims exist, because no such claims have been filed by the Respondent Group. In support of their argument, Certain Parties properly note that the Respondent Group has never actually filed a claim for contribution, pursuant to Section 113(f) of CERCLA, against anyone in this action. Instead, the Court established the following procedure in its Second Amended Case Management Order: The Plaintiffs Complaint is deemed to be asserted against each new defendant unless the Court is advised otherwise .... The defendants who are members of the Settling Group are deemed to have asserted cross-claims for contribution against all other defendants. All new defendants are deemed to have asserted crossclaims or counterclaims for contribution against all other parties, except for defendants who are members of the Settling Group who will receive contribution protection under the Consent Decree. All such counterclaims and crossclaims are deemed denied. (Doc. # 178 at 2). It is clear that those who are themselves liable for response costs must bring an action for contribution under § 113(f) of CERCLA. Centerior, 153 F.3d at 348. Although the Court previously “deemed” contribution claims to have been filed, Certain Parties insist that such a procedure is contrary to the Federal Rules of Civil Procedure. In support, they cite Ninth Avenue Remedial Group v. Allis-Chalmers Corp., No. 2:94-CV-331-RL (N.D.Ind. Sept.25, 1996) (Lozano, J.), an unreported decision from the United States District Court for the Northern District of Indiana. Although the Movants do not address the substance of Certain Parties’ legal argument, they insist that “the great weight of authority” supports the practice of “deeming” contribution claims to have been filed. (Doc. #374 at 16-17). Indeed, the Movants do cite several cases in which district courts have “deemed” such claims to have been filed. (Id.). This Court also has located a number of cases involving complex, multi-party litigation, in which federal courts have “deemed” cross-claims and counter-claims to have been filed. See, e.g., United States v. Keystone Sanitation Co., Inc., 903 F.Supp. 803, 806 n. 1 (M.D.Pa.1995) (“In its initial case management order, the court deemed all original Defendants to have asserted contribution and indemnification crossclaims against one another.”); In re San Juan Dupont Plaza Hotel Fire Litigation, 802 F.Supp. 624, 633 n. 17 (D.Puerto Rico 1992) (noting the existence of a case management order under which cross-claims were automatically “deemed” filed); New Jersey Dept. of Environmental Protection v. Gloucester Environmental Management Serv., Inc., 719 F.Supp. 325, 330 (D.N.J.1989) (deeming cross-claims and counterclaims to have been filed and served without the necessity of formal pleading); Barton Solvents, Inc. v. Southwest Petro-Chem, Inc., 834 F.Supp. 342, 345 (D.Kan.1993) (recognizing the existence of an order under which “all third-party defendants, in general, were deemed to have filed cross-claims against each other”); United States v. Conservation Chemical Co., 653 F.Supp. 152, 228 (W.D.Mo.1986) (noting the existence of “deemed filed” cross-claims); In re Orthopedic Bone Screw Products Liability Litigation, 1998 WL 118060 (E.D.Pa. Jan.12, 1998) (unpublished) (“For purposes of indemnification and contribution claims, all cross-claims among defendants, third-party defendants, fourth-party defendants, and any other classes of defendants ... such claims are deemed filed, answered, and denied.”). Contrary to the Movants’ argument, however, the foregoing cases are not persuasive authority for the proposition that cross-claims and counter-claims may be “deemed” to have been filed. In none of those cases did the district court analyze this issue or explain the source of its authority for “deeming” cross-claims and counter-claims to have been filed. After reviewing the unreported decision cited by Certain Parties, the Court agrees that such a practice is inconsistent with the Federal Rules of Civil Procedure. In Ninth Avenue Remedial Group, the district court overruled a motion to deem cross-claims and counter-claims under § 107 and § 113 of CERCLA to have been filed and denied. In so doing, Judge Rudy Lozano reasoned: The Motion[ ] at hand draw[s] on Federal Rule of Civil Procedure 5, which states in pertinent part as follows: In any action in which there are unusually large numbers of defendants, the court, upon motion or of its own initiative, may order that service of the pleadings of the defendants and replies thereto need not be made as between the defendants and that any cross-claim, counterclaim, or matter constituting an avoidance or affirmative defense contained therein shall be deemed to be denied or avoided by all other parties and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs. Fed.R.Civ.P. 5(c). Rule 5(c) has not generated much interpretation in case law. However, one well-regarded authority has summed up the purpose and scope of the Rule: Rule 5(c) seeks to lessen the burden of service imposed upon individual defendants in a case in which there is an unusually large number of them, a good example being litigation involving water rights or a toxic tort action against all of the members of an entire industry. The Court, upon motion or its own initiative, may exempt defendants from service inter se of their own pleadings or replies thereto. Any cross-claims, counterclaims, and matters constituting avoidance or affirmative defense, interposed by individual defendants are presumed to be denied by all parties and the filing and service on plaintiff of such a pleading constitutes due notice of its contents to all the parties. However, the court’s order authorizing the Rule 5(c) procedure must be filed and served on all the parties before it is effective. One consequence of Rule 5(c) is that when it is employed a plaintiff need not respond to any counterclaims set forth in the answers and none of the defendants are obligated to answer any crossclaims interposed by their coparties. Note that in this regard Rule 5(c) alters the normal pleading practice set forth in Rule 7(a). It should be emphasized that [R]ule 5(c) does not apply to service on numerous plaintiffs or to papers other than pleadings; all other papers must be served on the attorney for each party. Moreover the fifing requirement of Rule 5(d) is not affected by Rule 5(c). In fact, fifing in this context serves the function of providing notice to all defendants. 4B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1151, at pp. 437-438 (2d ed.1987) (footnotes omitted). Essentially, then, Rule 5(c) “is just a way of dispensing with” requiring service of “many copies” of pleadings in cases involving an “unusually large number [ ]” of defendants. Id. p. 438 (quoting Proceedings, Cleveland Institute on the Federal Rules, 1938, p. 209). Although appreciative of the parties’ efforts to streamline this case, the Court has reservations regarding Plaintiffs’ Motion. First, Plaintiffs appear to be reading more into Rule 5(c)- — which focuses on service of pleadings — than it provides. Plaintiffs Motion is captioned as one to deem cross-claims and counterclaims “FILED AND DENIED”; similarly, Plaintiffs’ proposed order would deem that all Defendants have “asserted cross-claims and counterclaims.” As such, it appears that Plaintiffs want to dispense with asserting cross-claims and counterclaims at all, rather than just dispensing with service of those claims upon certain parties. The language of Rule 5(c) and its interpretation in Wright & Miller do not clearly indicate that the Rule provides authority for what Plaintiffs seem to request.... Ninth Avenue Remedial Group, No. 2:94— CV-331-RL, at 2-4. Upon review, the Court finds the foregoing reasoning to be persuasive. As the Ninth Avenue court recognized, nothing in Rule 5(c) authorizes a district court to dispense with the filing of cross-claims or counter-claims in complex, multi-party litigation. Rather, the Rule obviates the need for service of such claims in cases involving numerous defendants. Furthermore, a noted authority on the Federal Rules of Civil Procedure has concluded that “[wjhere the court has waived service of the pleadings on each of the parties because of the appearance of numerous defendants, the filing requirements for these papers still apply.” Moore’s Federal Practice (3rd ed.1999), § 5.31[3][c] (Emphasis added). The Court simply finds no authority, and the Movants cite no authority, for the proposition that counter-claims or cross-claims for contribution properly may be “deemed” filed, notwithstanding the procedure set forth in the Second Amended Case Management Order. As a result, the Court is compelled to agree that no viable counter-claims or cross-claims for contribution presently exist. Consequently, the Court, sua sponte, will grant the Respondent Group leave to file claims for contribution under Section 113(f) of CERCLA. Such claims shall be filed within fourteen days from date. Having resolved the five arguments raised by Certain Parties, the Court turns now to an issue raised by Defendant Burns Iron & Metal Company (“Burns”). In its Memorandum (Doc. # 357), Burns contends that a genuine issue of material fact exists as to the Government’s entitlement to summary judgment on the issue of the Defendants’ joint and several liability under § 107(a) of CERCLA. Like the arguments advanced by Certain Parties above, Bums’ argument has widespread applicability to all of the Defendants. In its Memorandum, Burns insists that summary judgment on the issue of liability is premature, because the harm caused by the release of hazardous substances at the USLC Site is arguably divisible. Burns insists that this issue must be resolved through an evidentiary hearing, before the Court resolves the Motion for Partial Summary Judgment. After reviewing the parties’ respective arguments, the Court agrees with Bums that a genuine issue of material fact exists as to the Defendants’ joint and several liability to the Government under § 107(a). The Court cannot agree, however, that the existence of such a factual dispute precludes it from determining whether the United States has established any liability (regardless of whether such liability is strict and joint and several, or merely strict), as a matter of law. In other words, in the context of summary judgment, the Court cannot determine the type of liability the Defendants may face under CERCLA. Nevertheless, the Court still may determine whether the United States has established any liability, regardless of whether that liability is joint and several or divisible. In support of its argument, Burns properly notes that the United States seeks to impose joint and several liability on the Defendants under § 107(a) of CERCLA. (Doc. # 357 at 9). As noted above, when the Government brings an action under § 107(a), liability is nearly always joint and several. Centerior, 153 F.3d at 348. “Given the nature of hazardous waste disposal, rarely if ever will a [potentially responsible party] be able to demonstrate divisibility of harm, and therefore joint and several liability is the norm.” Id. In United States v. Tovmship of Brighton, 153 F.3d 307 (6th Cir.1998), the Sixth Circuit addressed the circumstances under which a defendant can establish divisibility of the harm, thereby avoiding joint and several liability. In so doing, the Brighton court looked to the Restatement (Second) of Torts, § 433A (1995), which provides that “[djamages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm.” Id. at 318. In the present case, Burns insists that there is a “reasonable basis” for determining the contribution of each Defendant to the single harm existing at the USLC Site. Specifically, Burns asserts that there is a reasonable basis for determining the volume of hazardous waste contributed by each Defendant. In Brighton, the Sixth Circuit recognized that apportionment might be appropriate under § 107(a) when a reasonable basis exists for establishing the volume or amount of waste contributed by each defendant. Id. at 318-19. When discussing the “reasonable basis” issue, the Brighton court cited a hypothetical example of several factories polluting one stream, with damages apportioned based on the volume of pollution released by each factory. Id. at- 318. The Brighton court also stated that relevant “divisibility” factors include a party’s ability to distinguish its contribution of hazardous waste from the contributions of others, and its ability to identify the amount of such waste. Id. at 318-19; see also id. at 320 (“Divisibility seeks to apportion liability based on relative contribution to harm, if such is reasonably ascertainable.”). Finally, the Sixth Circuit recognized that divisibility is a legal defense to joint and several liability. Id. at 319 (explaining that “a defendant can avoid joint and several liability if it can prove divisibility in the district court”). In the present case, Burns contends that a “reasonable basis” does exist for determining each Defendant’s contribution of junk batteries to the USLC Site. In support, Burns notes that the Respondent Group has developed a written volumetric ranking of more than 300 USLC customers, including Burns and the other Defendants. Burns alleges that this volumetric ranking has been used to support the Mov-ants’ settlement demands. According to Burns, the existence of this ranking list, at a minimum, creates a genuine issue of material fact on the divisibility question. Cf. United States v. Alcan Aluminum Corp., 990 F.2d 711, 722 (2nd Cir.1993) (noting that to avoid summary judgment on the issue of divisibility, a party “need only show that there are genuine issues of material fact regarding a reasonable basis for apportionment of liability”). In response, the Movants properly note that divisibility is an affirmative defense to joint and several liability under § 107(a). United States v. Mottolo, 26 F.3d 261, 263 (1st Cir.1994); United States v. Monsanto Co., 858 F.2d 160, 168 (4th Cir.1988). However, the Court rejects the Movants’ argument that Burns cannot establish a genuine issue of material fact on this affirmative defense by relying on the volumetric ranking spreadsheet. The Movants cite Monsanto for the proposition that divisibility and apportionment are inappropriate, even if each Defendant contributed an identifiable volume of waste to the USLC Site. The Movants’ reliance on Monsanto is misplaced. In that case, the Fourth Circuit rejected the proposition that divisibility could be based on the volume of waste contributed by each defendant, but only because the defendants in that case had contributed different types of hazardous substances: [I]n light of the commingling of hazardous substances, the district court could not have reasonably apportioned liability without some evidence disclosing the individual and interactive qualities of the substances deposited there. Common sense counsels that a million gallons of certain substances could be mixed together without significant consequences, whereas a few pints of others improperly mixed could result in disastrous consequences. Under other circumstances proportionate volumes of hazardous substances may well be probative of contributory harm. Id. at 172 (Emphasis added); see also In the Matter of Bell Petroleum Services, Inc., 3 F.3d 889, 895 n. 7 (5th Cir.1993) (“Many of the eases in which joint and several liability has been imposed involve hazardous waste sites at which numerous substances have been commingled.... Under such circumstances, it is hardly surprising that defendants have had difficulty in meeting their burden of proving that apportionment is feasible.”). In the present case, the Defendants all contributed the same type of hazardous substance, namely junk batteries containing lead. Consequently, Monsanto does not undermine Burns’ divisibility argument. The Movants next cite Chesapeake and Potomac Tel. Co. of Virginia v. Peck Iron & Metal Co., 814 F.Supp. 1269 (E.D.Va.1992), a case involving the sale of junk batteries, for the proposition that liability is not reasonably divisible in the present case. Upon review, the Court finds Chesapeake to be distinguishable. Notably, the Chesapeake court recognized that “volumetric contributions can, in appropriate circumstances, provide a reasonable basis for apportioning liability ....” Id. at 1279. Based on the record before it, however, the court concluded that “there simply will never be enough evidence ... from which a reasonable volumetric study could be constructed.” Id. In the present case, however, a volumetric study has been constructed. Whether that study is a “reasonable” one cannot be resolved in the context of summary judgment. The study, which has been attached to various documents filed with the Court, purports to set forth the volume of hazardous waste contributed by the Defendants. It identifies the total volume of each Defendant’s contributions within one ten-thousandth of one percent. For example, the study identifies Burns as having contributed .4281 percent of the combined volume of waste at the USLC Site. (See, e.g., Doc. #250). Given the precision of these computations, the volumetric ranking spreadsheet supports a fair inference that each Defendant’s contribution to the Site is reasonably ascertainable, particularly in light of the Movants’ failure to identify the origin or accuracy of the calculations set forth therein. As a result, based on the evidence before it, the Court finds a genuine issue of material fact on the issue of divisibility. Despite this conclusion, the Court rejects Burns’ ultimate argument that the Motion for Partial Summary Judgment (Doc. # 333) must be overruled in its entirety. The existence of a question of fact regarding divisibility plainly precludes the Court from finding the Defendants jointly and severally liable to the United States for response costs. Brighton, 153 F.3d at 319 (noting that “a defendant can avoid joint and several liability if it can prove divisibility in the district court”); see also Akzo Coatings, Inc. v. Aigner Corp., 909 F.Supp. 589, 591 (N.D.Ind.1993) (recognizing that “divisibility of harm may be used to preclude summary judgment as to joint and several liability” under CERCLA). A dispute about the nature of the Defendants’ liability (i.e., divisible or non-divisible), however, does not preclude the Court from determining whether any liability has been established. On its face, § 107(a) of CERCLA, under which the United States is proceeding herein, does not expressly impose joint and several liability. Rather, it merely creates liability for response costs if four prerequisites are established. As a result, the Court discerns no reason why it cannot determine, as a threshold matter, whether the Defendants are liable under CERCLA at all. After determining the existence of § 107(a) liability, the Court then can conduct an evi-dentiary hearing, if necessary, to resolve the nature of that liability (i.e., joint and several or divisible). As noted above, courts have construed the statute as creating a presumption of joint and several liability, with the burden on a defendant to establish divisibility, United States v. Burlington Northern Railroad Co., 200 F.3d 679, 696 (10th Cir.1999). The divisibility issue, however, need not be resolved prior to the Court determining whether the Defendants are liable at all under CERCLA. Consequently, the Court rejects Burns’ argument that a question of fact on the divisibility issue defeats the Motion for Partial Summary Judgment in its entirety. Having concluded that the United States may proceed on its Motion on the issue of liability (without regard to whether liability is joint and several or subject to division) the Court turns now to a review of the evidence against each Defendant. As an initial matter, the Court notes that the Government has not asserted any CERC-LA claims against Defendants Etna Battery Co., Inc., and Tuttle Brothers, both of which are named in the Motion for Partial Summary Judgment. Although the Government is not asserting any claims against Etna or Tuttle, the Respondent Group seeks summary judgment on its purported “contribution claims” against those Defendants. (Doc. # 333 at 2 n.l). Given that no such claims currently exist, however, the Court overrules the Motion for Partial Summary Judgment (Doc. # 333), as moot, insofar as the Respondent Group seeks to obtain contribution from Etna Battery, Tuttle Brothers and any other Defendants. The Court also notes that eighteen Defendants recently entered into a Consent Decree with the United States and the Respondent Group, including six of the parties against whom the present Motion for Partial Summary Judgment is directed. Those six Defendants are: (1) Cohen Brothers Metal Corp., Inc., aka Cohen Brothers Metals Co.; (2) Gabon Auto Wrecking, Inc.; (3) Glazer Scrap Co., Inc.; (4) Joyce Iron & Metal Co., Inc.; (5) Montgomery Iron & Paper Co., dba Montgomery Paper Co.; and (6) Piqua Battery, Inc. (Doc. # 454). Given that the Consent Decree has been approved by the Court, it resolves all CERCLA claims against these Defendants. As a result, the Movants’ Motion for Partial Summary Judgment is overruled, as moot, insofar as it relates to the foregoing six entities. In the remainder of its analysis, the Court will address the potential CERCLA liability of the other nineteen Defendants against whom the Motion for Partial Summary Judgment (Doc. # 333) is directed. In order to prevail on its claims for response costs, which arise under § 107(a) of CERCLA, 42 U.S.C. § 9607(a), the Government must prove four essential elements: (1) that the USLC Site is a “facility,” as that term is defined by statute; (2) the existence of a “release” or “threatened release” of a “hazardous substance” from the facibty; (3) that the release or threatened release caused the United States to incur response costs; and (4) that the Defendants fit within one of four statutory-classes making them subject to liability. Kalamazoo, 228 F.3d 648, 653; Centerior, 153 F.3d at 347-48. In support of its Motion, the Government contends that the first three elements are undisputed. (Doc. # 333 at 11-16). Indeed, a number of the Defendants have admitted that the USLC Site is a “facility,” that a release or threatened release of a hazardous substance has occurred, and that the Government has incurred response costs. (Id. at Exh. 3A-3L). Insofar as other Defendants do dispute the first three elements, however, the Court finds no genuine issue of material fact for trial. Under CERCLA, a “facility” is defined 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, im-poundment, 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). In light of CERCLA’s expansive definition of the term “facility,” the Court has no difficulty concluding, as a matter of law, that the USLC Site fits within its scope. The records reveals that Charles Bailen and others operated the Site as a “battery breaking” operation. The process involved “cracking” the batteries and extracting scrap lead from the worthless acid and contaminated casings, which were discarded on the property. Bailen has testified that battery breaking involved cutting off battery tops, draining the acid into a pit and grinding the lead-contaminated casings for disposal at the Site. (Bailen depo., August 7, 1995, at 58-75). Lead is a “hazardous substance” under CERCLA. See 40 C.F.R. § 302.4; Gould, Inc. v. A & M Battery & Tire Serv., 232 F.3d 162, 167 (3rd Cir.2000); Axel Johnson, Inc. v. Carroll Carolina Oil Co., Inc., 191 F.3d 409, 411 (4th Cir.1999). As a matter of law, the USLC Site qualifies as a “facility,” because 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). The Government also has established, as a matter of law, the existence of a “release” or “threatened release” of a hazardous substance from the facility. Although some of the Defendants dispute this issue, the record reveals no genuine issue of material fact for trial. Indeed, uncontroverted evidence reveals the existence of both a “release” and a “threatened release” of a hazardous substance from the USLC Site. CERCLA defines the term “release” to mean “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant)[.]” 42 U.S.C. § 9601(22). As noted above, Bailen and others discharged, dumped or disposed lead-contaminated battery casings at the USLC Site. As a matter of law, such conduct constitutes the “release” of a hazardous substance at the facility. In addition, the uncontroverted evidence establishes the existence of a “release” or “threatened release” from the facility, as required by 42 U.S.C. § 9607(a). John J. O’Grady, an environmental scientist employed by the U.S. EPA, has provided the Court with a declaration in which he explains that the Government has replaced contaminated off-Site soil with clean soil. (Doe. #333 at Exh. 11, ¶ 22). In addition, a June, 1997, Superfund Record of Decision (“ROD”) Amendment published by the U.S. EPA addresses the release and threatened release of lead from the USLC Site. In relevant part, that Amendment recognizes that “[ajctual or threatened releases of hazardous substances from the site, if not addressed by implementing the response action selected in this ROD Amendment, may present an imminent and substantial endangerment to public health, welfare, or the environment.” (Id. at Exh. 9 pg. i). Furthermore, the ROD Amendment explains risk of a release as follows: The principal contaminant of concern is lead in soil and lead in battery casing chips.... The contaminated soils on-site represent a continuing source of lead contamination for off-site soils, and possibly the waters and sediments of McKaig Ditch. Soil is the primary medium impacted by lead. ... Lead is considered the primary contaminant of concern at the Site, and occurs mainly as metallic lead or lead compounds associated with lead-contaminated battery casing chips and lead-contaminated soils. Other metals (arsenic and antimony) found in the former process area at the Site have been found to be co-located with the lead. ... Direct and indirect contact to environmental media contaminated by a release from the Site has the potential to result in lead exposure from the inadvertent ingestion and inhalation of soil and dust. Receptors include humans, animals, and plants. ... [T]he potential exists for an increased risk of exposure of the nearby population via the migration of contaminated media by flooding. Removal of the source material (i.e., battery casing chips and lead-contaminated soils) from the Site would reduce the possibility that the