Full opinion text
MEMORANDUM DECISION AND ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT UNDER CERCLA AND RCRA WANGER, District Judge. I. INTRODUCTION The California Department of Toxic Substances Control (“DTSC”) moves for summary judgment against The Estate of William Huffman, to the extent of its insurance, as allowed under California Probate Code § 550. Doc. 947, filed June 21, 2002. Counter-Defendant Great American Insurance Company opposes DTSC’s motion. Doc. 979. Intervenor Defendant Ohio Casualty opposes DTSC’s motion. Doc. 976. DTSC moves for summary judgment on CERCLA liability against Defendant and Third Party Plaintiff Bar-stow Truck Parts and Equipment Co., Inc. (“Barstow”). Doc. 951. DTSC moves for summary judgment on Liability under RCRA against Barstow. Doc. 949. Bar-stow opposes both motions. Docs. 971 and 972. Barstow moves for summary judgment against DTSC on the issue of immunity under the Recycler Exemption, CERCLA’s Section 127, Doc. 960. Oral arguments were heard October 18, 2002. II. BACKGROUND On January 13, 1997, DTSC filed this suit for cost recovery and declaratory relief under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §§ 9607 and 9613, and under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972, for response, removal, and remediation costs resulting from a release of hazardous substances at or around a Mojave, California, site known as the Mobile Smelting Property (the “Site”). Plaintiff also seeks declaratory relief regarding the defendants’ responsibility for future response costs incurred by DTSC and in-junctive relief to abate conditions at the Site which pose an imminent and substantial danger to public health and the environment. From approximately 1963 until 1995, with a short closure forced by the County of Kern between 1983-1986, Mobile Smelting received and burned diverse materials to recover usable metal for its clients, including: aluminum scrap, lead scrap, copper wire and copper parts, batteries, battery parts, rubber insulation, plastic or vinyl insulation, paper insulation, and fiberglass insulation. The site is contaminated with numerous and significant amounts of hazardous elements, including copper, lead and dioxins. Mobile Smelting, and the parties who brought materials to Mobile Smelting, are at the center of two clean-up cost recovery law suits, including Courtaulds Aerospace, Inc., v. William C. Huffman, et al., 826 F.Supp. 345 (E.D.Ca.1993) (nearby site, DTSC suit against Mobile Smelting for clean-up cost reimbursement, for the spread of hazardous waste contamination to the property). As of March 31, 2001, DTSC incurred costs in responding to the contamination of the Site totaling slightly more than $4 million, not including legal enforcement costs incurred by the Attorney General. See Doc. 934, Exh. A at ¶ 4. Forty-seven of the original defendants and third party defendants have settled with DTSC. The only defendants remaining are Barstow Truck Parts and Equipment Company, Inc., the Estate of Huffman, and one liability insurer for the Estate, Great American Insurance Company. Congress enacted Section 127, the Superfund Recycling Equity Act, to exempt certain bona fide recycling transactions and recyclers from CERCLA liability. Section 127 was signed into law as a rider to H.R. 3194, on November 29, 1999. On January 28, 2000 DTSC submitted a motion for Summary Judgment, arguing that the Section 127 recycling exemption does not apply to this pending action. Docs. 563 & 564. On May 25, 2000 the amendment was found retrospectively applicable and was to be “applied to all parties and all transactions in this pending action brought by the California DTSC,” if provisions of the statute were satisfied. Department of Toxic Substances Control v. Interstate Non-Ferrous Corporation, 99 F.Supp.2d 1123, 1154 (E.D.Ca.2000); Doc. 607. III. LEGAL STANDARD A. Notice of Motion, Procedural Requirements Federal Rules of Civil Procedure, Rule 7(b), requires: “an application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity its grounds therefore, and shall set forth the relief or order sought.” The requirement is sufficient if it “is stated in a written notice of the hearing of the motion.” Fed. R. Civ. Pro. 7(b). “The writing requirement is intended to insure that the adverse parties are informed and have a record of both the motion’s pendency and the grounds in which the movant seeks an order.” 5 Wright and Miller, FEDERAL PRACTICE AND PROCEDURE, CÍVÍ1 2nd, § 1191 at 38. “[A] motion for summary judgment is made ‘with particularity’ when it stated the theory on which the movant was proceeding, listed pleadings and papers upon which the movant relied and stated the motion was made pursuant to Rule 56 authorizing summary judgment.” 5 Wright and Miller, § 1192 at 40 citing U.S. v. Krasnov, 143 F.Supp. 184 (D.C.Pa.1956) affirmed per curiam, 34, 355 U.S. 5, 78 S.Ct. 34, 2 L.Ed.2d 21 (1957). “When the grounds for [a] motion [are] extensively discussed both in the parties briefs and at oral argument ... the failure to state [a rule] [does] not require an automatic denial.” 5 Wright and Miller, § 1192 at 42 citing Span-Deck, Inc. v. Fabcon, Inc., 570 F.Supp. 81 (D.Minn.1983). “The District Court has inherent power to overlook the absence of a statement of particular grounds if the movant submits affidavits and briefs and his adversary is fully informed of thereby and has not been prejudiced.” 5 Wright and Miller, § 1192 at 45. B. Summary Judgment Summary judgment is warranted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c); California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). The evidence must be viewed in light most favorable to the nonmoving party. Indiana Lumbermens Mut. Ins. Co. v. West Oregon Wood Products, Inc., 268 F.3d 639, 644 (9th Cir.2001), amended by 268 F.3d 639 (9th Cir.2001). The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir.2001). If the moving party fails to meet this burden, “the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir.2000). However, if the nonmoving party has the burden of proof at trial, the moving party must only show “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden of proof, the non-moving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evi-dentiary burden the law places on that party. Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux, 263 F.3d at 1076. [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. C. Stmmary Adjudication The purpose of Rule 56(d) is to salvage some results from the judicial effort involved in evaluating a summary judgment motion and to frame narrow triable issues if the court finds that the order would be helpful with the progress of litigation. National Union Fire Ins. Co. v. L.E. Myers Co., Inc., 937 F.Supp. 276, 285 (S.D.N.Y.1996). An order under Rule 56(d) narrows the issues and enables the parties to recognize more fully their rights, yet it permits the court to retain full power to completely adjudicate all aspects of the case when the proper time arrives. See 10A Charles A. Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice And Procedure, § 2737 at 455-56 (2d ed.1983). The procedure under Rule 56(d) is designed to be ancillary to a summary judgment motion. Unlike Rule 56(c), which allows for interlocutory judgment on a question of liability, Rule 56(d) does not authorize the entry of a judgment on part of a claim or the granting of partial relief. Id., § 2737, at 457. The obligation imposed on the court by Rule 56(d) to specify the uncontroverted material facts is technically compulsory. See Woods v. Mertes, 9 F.R.D. 318, 320 (D.Del.1949). However, if the court determines that identifying indisputable facts through partial summary judgment would not materially expedite the adjudicative process, it may decline to do so. See Wright & Miller, supra, § 2737, at 460. D. CERCLA Liability § 9607(a) “Any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incur-rence of response costs, of a hazardous substance, shall be liable for: (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and (D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.” 42 U.S.C. § 9607. To establish liability under CERC-LA, plaintiff must prove: 1) the site is a disposal or treatment “facility;” 2) there has been a release, or a threatened release of hazardous substances from the facility; 3) the plaintiff has incurred costs in response to the release or threatened release; and, 4) the defendant falls within one of the four classes of responsible persons. United States v. Chapman, 146 F.3d 1166, 1169 (9th Cir.1998), 3550 Stevens Creek Assoc. v. Barclays Bank of California, 915 F.2d 1355, 1358 (9th Cir.1990), cert. denied, 500 U.S. 917, 111 S.Ct. 2014, 114 L.Ed.2d 101 (1991). Four classes of persons are strictly liable for releases of hazardous substances: (1) current owners and operators of a facility where hazardous substances were disposed; (2) past owners or operators who owned or operated the facility at the time of the disposal; (3) transporters of the hazardous substances, and; (4) persons who arrange for disposal or treatment at any facility containing such substances. Courtaulds Aerospace, Inc., v. William C. Huffman, et al., 826 F.Supp. 345, 349 (E.D.Ca.1993). Section 9607(a)(3) creates strict liability for arrangers: an arranger is “any person who by contract, agreement, or otherwise arranges for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated by another party or entity and containing such hazardous substances .... ” CERCLA does not define the term “arranged.” Courtaulds Aerospace, Inc., v. William C. Huffman, et al., 826 F.Supp. 345, 349 (E.D.Ca.1993). CERCLA provides that “disposal” shall have the meaning provided in the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901 et seq. RCRA defines “disposal” as: The discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including groundwaters. Courtaulds Aerospace, 826 F.Supp. at 349 citing 42 U.S.C. § 6903(3). The Ninth Circuit has held that “disposal for purposes of section [9607(a)(3) ] refer[s] only to the affirmative act of discarding a substance as waste, and not to the productive use of the substance.” Courtaulds Aerospace, 826 F.Supp. at 349, citing 3550 Stevens Creek Assoc. v. Barclays Bank of California, 915 F.2d 1355, 1362 (9th Cir.1990), cert. denied, 500 U.S. 917, 111 S.Ct. 2014, 114 L.Ed.2d 101 (1991). “The term ‘treatment’, [sic] when used in connection with hazardous waste, means any method, technique, or process, including neutralization, designed to change the physical, chemical, or biological character or composition of any hazardous waste so as to neutralize such waste or so as to render such waste nonhazardous, safer for transport, amenable for recovery, amenable for storage, or reduced in volume. Such term includes any activity or processing designed to change the physical form or chemical composition of hazardous waste so as to render it nonhazardous.” 42 U.S.C. § 6903(34). Section 107(a) creates the right of contribution, the “contours and mechanics” of which are specified in section 113(f). See The Pinal Creek Group v. Newmont Mining Corp., 118 F.3d 1298, 1301-02 (9th Cir.1997) (section 107 creates the claims of contribution, i.e., liability, among PRPs (Potentially Responsible Party) and section 113 qualifies the nature of the claim, i.e., how to apportion liability among PRPs). In Pinal Creek, the Ninth Circuit held: “under CERCLA, a PRP does not have a claim for the recovery of the totality of its cleanup costs against other PRPs, and a PRP cannot assert a claim against other PRPs for joint and several liability.” Pinal Creek, 118 F.3d at 1306. Rather, “a PRP is limited to a contribution claim governed by the joint operation of §§ 107 and 113.” Id. E. CERCLA Section 127 Exemption On November 29, 1999, Congress amended CERCLA. U.S.C. § 9627 ("Section 127"). Section 127(a)(1) exempts recyclers of "recyclable materials." "Recyclable material" is defined as: [S]crap paper, scrap plastic, scrap glass, scrap textiles, scrap rubber (other than whole tires), scrap metal, or spent lead-acid batteries, as well as minor amounts of material incident to or adhering to the scrap material as a result of its normal and customary use prior to becoming scrap. “The burden is on the person who arranged for a transaction, by selling recyclable material or by otherwise arranging for the recycling of recyclable material, to demonstrate by a preponderance of the evidence that the statutory criteria are met.” DTSC v. Interstate Non-Ferrous Corp., 99 F.Supp.2d 1123, 1126 (E.D.Ca.2000) citing § 127(c)-(e). “The effect of Section 127 is to exempt from arranger liability and transporter liability under CERCLA §§ 107(a)(3) and (a)(4), recyclers who arrange for or transport recyclable material.” Interstate Non-Ferrous Corp., 99 F.Supp.2d at 1126. IV. UNDISPUTED FACTS A. Undisputed facts, listed by DTSC and accepted by Ohio Casualty. Great American Insurance Company “neither admits nor den[ies]” any of the facts at issue The following facts are adjudicated as not in material dispute: 1. The Mobile Smelting Site (“Site”) is located at Reed Road and United Street in Mojave, California. 2. The site was owned by William Huffman from about 1963 until Mr. Huffman’s death. 3. Mr. Huffman died in 1995. 4. Huffman started burning airplane parts on the site in 1964. 5. Huffman burned aircraft aluminum for Barstow Truck Products and Equipment Company. 6. Huffman burned a variety of different kinds of materials, including the following: lead cable with insulation; telephone wires and communications wires that were lead-covered and had vinyl or plastic over them; copper from electric motors, covered with lacquer; No. 2 insulated copper wire; drilling collars with rubber rings; transformer coils that had lacquer coating rather than insulation and therefore did not have to burn long and did not produce much ash; copper with lead coating over a vinyl or plastic coating; jumpers from transformers that had braided and rubberized insulation; aluminum with rubber insulation that was burned in the copper furnace; ballast transformers that were small pieces of copper connectors; Reda cable that was 90% copper and that had some special type of insulation, possibly fiberglass, possibly rubber; thin communications wire with about 30% insulation by weight; House wire with different insulation: rubber, woven insulation, plastic, fiber; Edison No. 1 wire that was about 90% copper and 10% insulation; co-ax cable with fiber insulation on outside and rubber on inside; paper wrapped wire that is insulated with cardboard or paper. 7. Copper, lead, and dioxins are hazardous substances under CERCLA. 8. The Department of Toxic Substances Control is currently in the process of undertaking additional sampling to determine the extent of contamination. 9. Starting in the late 1960s until approximately 1983, Barstow brought scrap materials to the Mobile Smelting Site to have the materials processed on the site either by incineration or by smelting to remove the insulation and to recover the metal for Barstow. 10. Services provided by Mobile Smelting to Barstow included smelting or incinerating/burning various scrap metals that contained metals in order to remove the insulation and reclaim the metal for Bar-stow. 11. Barstow brought insulated copper wire scrap to the Mobile Smelting Site. 12. The insulated wire that Barstow brought to the Mobile Smelting Site contained copper and/or copper compounds. 13. Lead was present, in some cases, as an insulation or shield around the copper wire. 14. Some of the insulated copper wire that Barstow brought to the site was insulated with paper insulation. 15. Some of the insulated copper wire that Barstow brought to the site was insulated with fabric insulation. 16. Some of the insulated copper wire that Barstow brought to the site was insulated with rubber insulation. 17. Some of the insulated copper wire that Barstow brought to the site had polyvinyl chloride (PVC) insulation. 18. Invoice numbers 6666 and 7554 are true and correct copies of the invoices copied from the Mobile Smelting files. 19. Barstow brought at least two shipments of dross to the Mobile Smelting Site, one of which was identified as Solder Dross. 20. Dross and solder dross contain lead either as an intended ingredient or a contaminant. 21. The burning of the insulated copper wire and other insulated materials produced ash. 22. When the scrap materials were incinerated at the Mobile Smelting Site, some ash from the incineration was collected in the baghouse of the incinerator. 23. Baghouse Ash remains on the Mobile Smelting Site and contains copper, lead, and dioxin in levels as high as the following: lead 64,000 parts per million (“ppm”); copper 170,000 ppm; dioxin 323,-000 parts per billion, 24. Barstow never removed the Bag-house Ash from the Site. 25. When insulated copper wire was burned at the Mobile Smelting Site, it produced ash that dropped to the bottom of the cart on which the wire was burned. (Bottom Ash). The Bottom Ash is about 95% coarse, gray, ash with small bits and pieces of metal in it. 26. The Bottom Ash contained copper and/or copper compounds. 27. The Bottom Ash contained lead and/or lead compounds. 28. Bottom Ash remains on the Mobile Smelting Site and contains copper, lead and dioxin in levels as high as the following: lead 18,300 ppm; copper 313,000 ppm; dioxin 2.9 ppb. 29. Barstow did not remove the Bottom Ash that remained from the burning of insulated copper wire brought to the Site by Barstow. Barstow left the Bottom Ash on the Site. 30. Mobile Smelting stored the Bottom Ash in one or more piles on the ground of the Site. 31. On October 31st, 1990, the department issued an Imminent and/or Substantial Endangerment Determination regarding the Mobile Smelting Site. 32. The soil and ash piles on site are covered with polymer coating that is 1/4 to 1/2 inches thick. The polymer coating is only a temporary cap that will last about two years and must be renewed. If it is not renewed, it will break down and the contaminated sod and ash on the site will be exposed to wind and rain, and the contamination can be spread. 33. If the contamination is not remedi-ated, persons who come onto the Mobile Smelting Site, persons who are on neighboring properties, and persons in the vicinity of the Mobile Smelting Site may be exposed to the hazardous substances from the site. 34. On occasion, people have attempted to break into the Seatrain container. If someone ever broke through the lock and ripped open one of the bags, he or she would be exposed to extremely hazardous levels of dioxins. The Baghouse Ash and dioxins would be further exposed to the elements and spread through the environment. 35. There are approximately 100 residential structures within a two-mile radius of the Site, some of which are a mile downwind from the Site. People living in these areas are potentially exposed to dioxin, lead, and copper from the contaminated soil off-Site and from the on-Site soil and ash piles when the polymer coating is breached. 36. Animals off-Site are exposed to dioxin, lead, copper, and zinc from the contaminated soil off-Site and from the on-Site soil when the polymer coating is breached. 37. If the Site is not permanently remediated, there is substantial danger that people and animals will be exposed to hazardous levels of dioxins, lead, and copper, and that the contamination will be further spread through the environment, increasing the area of contamination. 38. The unburned insulation on the insulated copper wire that Barstow brought to the Mobile Smelting Site had no value to Barstow. 39. Mobile Smelting’s burning of the insulated copper wire that Barstow brought to the Mobile Smelting Site removed the insulation from the metal portion of the insulated copper wire. 40. Barstow brought the wire to the Site to have the wire incinerated in order to remove the insulation from the wire and to take back the copper after the insulation had been burned off. Rajacich Depo.1993, pp. 25-26, 28, 46, 50; RTA 9. 41. At all times Barstow always retained ownership of the wire brought to the Site, including during the time that the wire was being burned on the Site. RTA 19; Huffman Depo. Vol. 2, pp. 399-400. 42. Mobile Smelting “got rid of’ the insulation and received payment from Bar-stow for recovering the copper. 43. After breaking the batteries, Bar-stow took the terminal posts or tops and brought them to Mobile Smelting. May Depo, pp. 8, 15; Rajacich Depo.2001, pp. 21-23, 25, 48. 44. At the Mobile Smelting facility, the battery posts or tops from Barstow were melted to recover the lead in ingots. After the melting, Mobile Smelting returned the lead ingots to Barstow. Rajacich Depo. 2001 at pp. 28-29. 45. Invoices were created by Huffman in the normal course of his business at or near the time of the activity, and were given to the drivers when they came to pick up the materials. Payment by the scrap dealers was based on the invoices. Huffman Depo. Vol. 1, pp. 295-96, 305-06, 320-21, 405-06, 412, 678, 680-81, 689-90, 692, 694-96, 698-700, 703-706, 708, 720-721, 725, 727-728, 986, 1405-1407, 1437-1349. 46. The Department had its contractor make copies of the invoices that were obtained from Mobile Smelting. The originals were returned to Mr. Huffman, and the copies were placed in the Department files in Sacramento. Wallberg Decl.; Declaration of Barry Padilla (“Padilla Decl.”); Huffman Depo. Vol. 3, pp. 468-69. 47. In metallurgy, the term “dross” refers to the skimmings that are removed from the surface of a molten metal bath. Drosses are comprised, principally, of metal oxides and they vary in metal content according to the composition of the bath from which they are drawn. Dross is generally very friable and will crumble and break apart easily into small particles. The term “solder dross” is dross resulting from soldering operations. Solder dross must be melted in order to recover the solder. Declaration of Norman Riley (hereinafter “Riley Deck”) at ¶ 14. 48. Dross and solder dross contain lead either as an intended ingredient or a contaminant. Riley Decl. at ¶ 18. 49. Barstow paid Mobile Smelting to recover solder from the solder dross. Invoices 6666 and 7554 attached as Exh. A to Wallberg Decl. 50. The amount of ash generated and released from a particular burn and the amount of copper, lead, and dioxins in the ash will depend on the type and quantity of material being burned; the type and quantity of insulation on the material; and the operating conditions of the incineration system and air pollution control system on the particular day (including the temperature of the furnace, the operation of the baghouse, how much filter cake was in the baghouse, etc.) Hart Decl. at ¶¶ 6-10; Rsp. To Second Int. (Request No. 21). 51. At all times, Mobile Smelting permitted the scrap dealers, including Bar-stow, to remove the Bottom Ash generated from the incineration of insulated wire. RTA 25, Huffman Depo. Vol. 3, pp. 424-25; Vol. 4, pp. 672-73, 681-82, 736-37, 751-52, 762, 794, 795, 796-97; Vol. 5, pp. 977, 978, 987, 988-90; Vol. 7, pp. 1237, 1239; Vol. 8, pp. 1487-88. 52. Mr. Rajacich has no personal knowledge of any agreement that Barstow had with Mobile Smelting concerning the Bottom Ash. Rajacich Depo.2002, pp. 104-05,110-11. 53. People have on several occasions broken through the fence and entered the Site. Kovac Decl. at ¶ 22. B. Undisputed facts, listed by Barstow and accepted by DTSC 1. Barstow was a family-run business that regularly bought and sold scrap metal. 2. Barstow bought and sold processable and reusable scrap metal parts and pieces such as: ... (b) scrap aluminum from items such as battery boxes and aircraft parts; (c) miscellaneous irony scrap and gear cases; and (d) insulated copper wire and steel-wrapped wire/cable. “Irony scrap” refers to non-ferrous metal that contains ferrous scrap, or iron that makes it unclean or unpure. Metallic airplane parts and metallic household parts also fall under this category. 3. Barstow did not send any whole batteries to the Mobile Smelting Site; only the batteries’ metal connector parts that had a market value were sent. 4. Barstow’s recyclable material, brought to the Mobile Smelting site for processing, met a commercial specification grade pursuant to relevant industry standards, with the EXCEPTION of: dross, Bottom Ash, and battery parts (which DTSC claims is irrelevant). 5. The commonly accepted industry specifications, set forth by organizations such as the Institute of Scrap Recycling Industries, Inc. (“ISRI”) as to Barstow’s recyclable material, are: “Druid” for insulated copper wire scrap, “Berry” and “Birch” for Nos. 1 and 2 copper wire, “Racks” for secondary soft lead, “Radio” for secondary hard lead, “Throb” for sweated aluminum, “Taint Tabor” for scrap aluminum, “Tense” for miscellaneous iron scrap and gear cases, “Redda” for wire and cable, as well as dross specifications, which are based on the predominant metal. Insulated wire and cable is a universally accepted commercially viable recyclable material in the scrap metal trade, with the EXCEPTION of: dross, Bottom Ash, and battery parts (which DTSC claims is irrelevant). 6. The metal trade has been in existence for thousands of years and continues to the present day. A history of trade in scrap metal has been memorialized in the Wall Street Journal, the American Metal Market (AMM), Scrap magazine and other industry publications, including ISRI that have tracked the price of scrap for decades. However, DTSC contends this is irrelevant as to dross, Bottom Ash and battery parts. 7. Various source materials concerning the metals market such as the American Metal Market’s Guide to Metal Trading-are available to the public. Metal prices are also established by the London Metal Exchange Ltd. (“LME”), the New York and Chicago commodities exchanges and various other exchanges around the world. In addition, there are various secondary industry publications that provide information on material uses, and how the material competes with virgin materials such as metal as feedstock. However, DTSC contends this is irrelevant as to dross, Bottom Ash and battery parts. 8. Markets existed for all the recyclable materials handled by Barstow and sent to the Mobile Smelting Site, including processed and unprocessed scrap material such as battery terminal tops, posts, and ends, scrap aluminum, irony scrap and gear cases and insulated copper wire and steel wire. However, DTSC contends this is irrelevant as to dross, Bottom Ash and battery parts. DTSC also disputes recycling claims “to the extent that it assumes that all materials brought to Mobile Smelting by Barstow were recyclable materials as defined by Section 127.” 9. Barstow regularly sold the recyclable material to purchasers that either further processed the material or incorporated it into their own production processes. It was Barstow’s common practice for the handled recyclable materials to be made available for appropriate reuse in order to add value to the scrap metal so that it could be sold on the metal market and reused. However, DTSC contends this is irrelevant as to dross, Bottom Ash and battery parts. DTSC also disputes the claim “to the extent that it assumes that all materials brought to Mobile Smelting by Barstow were recyclable materials as defined by Section 127.” 10. Battery parts were processed into ingots and then sold. Scrap aluminum was processed into large ingots and sold as feedstock. Iron was sent to foundries and melted in its use as feedstock. However, DTSC disputes any insulated copper was used as feedstock, as “the insulation had to be removed before the copper could be used as a feedstock.” DTSC contend the statement is irrelevant as to dross, Bottom Ash and battery parts. 11. Barstow’s [reclaimed] materials were ultimately purchased by entities such as refineries, smelters, ingot makers, brass and wire rod mills, and foundries that used a substantial portion of the recovered metal as a feedstock for the manufacturer of a new saleable product, except as to Bar-stow’s Bottom Ash. For example, Barstow, after processing materials at the Mobile smelting site, sold aluminum ingot to Monarch Aluminum; processed lead went to Western Lead; lead secondary ingot went to Morris P. Kirk and Ethel Corporation; No. 1 copper wire went to Phelps Dodge; and No. 2 copper wire to various refineries. DTSC contends the statement is irrelevant as to dross and battery parts. 12. It is commonly known in the industry that recycled scrap, copper and lead replace virgin ore. There are various industry publications that provide information on material uses, and how the material competes with virgin materials. However, DTSC contends this is irrelevant as to dross, Bottom Ash and battery parts. DTSC also disputes the claims “to the extent that it assumes that all materials brought to Mobile Smelting by Bar-stow were recyclable materials as defined by Section 127.” 13. ISRI estimates that the percentage of United States’ raw material needs supplied by recycled non-ferrous metals are 43% copper, 32% aluminum and 55% lead. However, DTSC contends this is irrelevant as to dross, Bottom Ash and battery parts. 14. Barstow did not melt the scrap metal prior to bringing it to the Mobile smelting site or anytime thereafter. However, DTSC contends this is irrelevant as to dross, Bottom Ash and battery parts. 15. Barstow intended that the material taken to the Mobile Smelting site be recycled; EXCEPT as to the Bottom Ash and the insulation which DTSC claims Barstow left or intended to leave at the Mobile Smelting Site. 16. Barstow was in a position to reasonably believe Mobile Smelting was in compliance with relevant statutes, regulations and/or orders at all relevant times given the governmental oversight of the site and the fact that it remained open until 1983. C. Undisputed facts, listed by DTSC and accepted by Barstow 1. The Mobile Smelting Site (“Site”) is located at Reed Road and United Street in Mojave, California. 2. The Site was owned by William Huffman from about 1963 until Mr. Huffman’s death. 3. Mr. Huffman died in 1995. 4. Huffman started burning airplane parts on the Site in 1964. 5. Huffman burned aircraft aluminum for Barstow Truck Products and Equipment Company. 6. Copper, lead, and dioxins are hazardous substances under CERCLA. 7. The insulated wire that Barstow brought to the Mobile Smelting Site contained copper and/or copper compounds. 8. Barstow took terminal posts or tops from batteries and brought them to Mobile Smelting. 9. The terminal tops or posts [of scrap batteries] had copper and lead in them. 10. At the Mobile Smelting Facility, the battery posts or tops from Barstow were melted to recover the lead in ingots. After the melting, Mobile Smelting returned the lead ingots to Barstow. 11. Barstow did not send the lead plates to Mobile Smelting. The lead plates went to a lead smelter. 12. In metallurgy, the term “dross” refers to the skimmings that are removed from the surface of a molten metal bath. Drosses are comprised, principally, of metal oxides and they vary in metal content according to the composition of the bath from which they are drawn. 13. Dross and solder dross contain lead either as an intended ingredient or a contaminant. 14. The burning of the insulated copper wire and other insulated materials produced ash. 15. Barstow did not remove all of its Baghouse Ash from the Mobile Smelting Site. 16. The Bottom Ash contained copper and/or copper compounds. 17. The Bottom Ash contained lead and/or lead compounds. 18. The amount of ash generated and released from a particular burn and the amount of copper, lead, and dioxins in the ash will depend on the type and quantity of material being burned; the type and quantity of insulation on the material; and the operating conditions of the incineration system and air pollution control system on the day (including the temperature of the furnace, the operation of the baghouse, how much filter cake was in the baghouse, etc.). 19. At all times, Mobile Smelting permitted the scrap dealers, including Bar-stow, to remove the Bottom Ash generated from the incineration of insulated wire. 20. Mr. Rajacich has no personal knowledge of any agreement that Barstow had with Mobile Smelting concerning the Bottom Ash. 21. On October 31st, 1990, the department issued an Imminent and/or Substantial Endangerment Determination regarding the Mobile Smelting Site. 22. The soil and ash piles on site are covered with polymer coating that is 1/4 to 1/2 inches thick. The polymer coating is only a temporary cap that will last about two years and must be renewed. If it is not renewed, it will break down and the contaminated sod and ash on the site will be exposed to wind and rain, and the contamination can be spread. V. DISCUSSION A. Summary Judgment Motion Against Estate of Huffman Plaintiff California Department of Toxic Substances Control (DTSC) requests summary judgment against the Estate of William Huffman regarding the issue of liability, to the extent of applicable insurance coverage. Plaintiff specifically requests summary adjudication on whether: l)(a) Huffman owned and operated the Mobile Smelting Site located at Reed Road and United Street in Mojave, California at the time that hazardous substances were disposed at the Site; l)(b) the Estate is the current owner of the Mobile Smelting Site; 2) there has been a release and/or threatened release of the hazardous substances at the Site; 3) the Department has incurred costs in responding to the release or threatened release of hazardous substances at the Site; 4) the Estate is jointly and severally liable under CERCLA, 42 U.S.C. sections 9601 et seq., to the extent of any insurance coverage, for the costs incurred by the department in responding to the release or threatened release of hazardous substances at the Site; 5) the Estate is jointly and severally liable, to the extent of any insurance coverage, for all future costs incurred by the Department in responding to the release or threatened release of hazardous substances at the Site. Plaintiff DTSC notes that it is not addressing the liability of insurers for the estate or the duty of insurers to indemnify the estate, both of which will be addressed in a later motion. Doc. 947 at 2-3. 1) Process sufficiency, California Probate Code Plaintiff brought suit against the Estate, to the extent of applicable insurance coverage, by serving decedent's insurers pursuant to California Probate Code § 550. California Probate Code § 550 allows a party to bring an action to establish decedent's liability, "for which the decedent was protected by insurance against decedent's estate" without having to join decedent's "personal representative or successor in interest." Cal. Prob.Code § 550 (West 1991). "If a plaintiff seeks damages in excess of the insurance policy limits, the plaintiff must file a claim and establish the liability other than under this chapter." Cal. Prob.Code § 550. Under section 552, the estate of decedent is named as defendant, however, only the insurer is served notice of the proceedings. The suit technically proceeds against the estate to determine liability, but any such liability is imposed only upon the insurance companies and only up to the amount of any applicable insurance. The proceedings shall be in the name of the estate, “but. otherwise shall be conducted in the same manner as if the action was against the personal representative.” Cal. Prob. Code § 552. Unless the lawsuit joins the estate’s personal representative, “a judgment in the action under this chapter ... does not adjudicate rights by or against the estate,” Cal. Prob.Code § 553, i.e. the estate will not be liable for damages unless the personal representative is joined and served. The insurer may “deny or otherwise contest its liability in an action under this chapter or by an independent action.” Cal. Prob.Code § 553. “A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate.” Cal. Prob.Code § 554. Damages sought under this chapter must be within the limits and coverage of the insurance. Rights to any excess damages shall be waived, unless the personal representative of the estate is joined as directed under § 554(b)(l)-(2). Cal. Prob.Code § 554. “Court approval is not required before the plaintiff may commence an action against the estate for the insured, amount.” 12 Witkin § 592, citing Law Revision Commission Comment to Probate Code 9390. Section 550-555 applies “in any case where there is a claim for damages for which the decedent was insured.” Law Revision Commission Comment, 1990 Enactment, West’s Annotated California Codes Part 13, Chapter 1 at 293. The sections apply “uniformly to actions pending at the death of the decedent and actions commenced after the decedent’s death.” Id. ' Great American Insurance Company (Great American) opposes DTSC’s motion. Great American contends: DTSC’s actions are improper; the Estate has never appeared in this action, and; no personal representative has been asked to defend the Estate’s interest in any way. Great American interprets §§ 553-554 to mean: “if the estate’s interests are at stake, a personal representative must be joined.” Because DTSC “asks the court to enter judgment against the estate,” Great American argues a personal representative should have been joined. Doc. 979 at 4. Great American also argues DTSC’s motion is faulty because it “goes beyond the parameters of the Probate Code and requests that this court order judgment against the estate.” Doc. 979 at 4. Great American does not address the merits of the summary judgment motion. Section 553, which states that “judgment in the action ... does not adjudicate rights by or against the estate,” refers to the fact that any judgment against “the estate” under § 550 is enforceable only from insurance coverage and not against property of the Estate, as required under § 554. Great American misunderstands the purpose and effect of California Probate Code § 550-555. This section of the Code permits a plaintiff to seek recovery from an estate’s insurance companies without having to sue the personal representative directly. DTSC complied with the Probate Code’s requirements. DTSC named the Estate, served the insurance companies, and proceeded against the Estate in name only. “Further proceedings shall be in the name of the estate, but otherwise shall be conducted in the same manner as if the action were against the personal representative.” Probate Code § 552. While Great American may challenge its liability as an insurer, under section 553 or in an independent action, its objection to this motion based on the lack of service upon a personal representative for Huffman’s estate is misplaced as provided by Cal. Prob. C. § 552. Great American filed no other opposition to the summary judgment motion against estate of Huffman. 2) Notice Sufficiency, Federal Rules of Civil Procedure Ohio Casualty urges this court to strike DTSC's Motion for Summary Judgment in its entirety, for vagueness. Ohio Casualty contends the notice is "simply too vague to adequately apprise either defendant Huffman, his insurers, or the court of what relief DTSC seeks." Doe. 976 at 3. The notice states DTSC will "move the Court to grant partial summary judgment under [CERCLA] against defendant the Estate of William Huffman to the extent of its insurance coverage." Doe. 946 at 1-2. “The writing requirement [of FRCP Rule 7] is intended to insure that the adverse parties are informed and have a record of both the motion’s pendency and the grounds in which the movant seeks an order.” 5 Wright and Miller, Federal Practice and Procedure, Civil 2nd, § 1191 at 38. “The District Court has inherent power to overlook the absence of a statement of particular grounds if the movant submits affidavits and briefs and his adversary is fully informed of thereby and has not been prejudiced.” 5 Wright and Miller, § 1192 at 45. DTSC’s notice of motion was filed and served on the same day as its Memorandum of Points and Authorities and its accompanying Declarations and Exhibits supporting the Motion. The Motion, taken with the supporting briefs and affidavits filed at the same time, fully inform the insurance companies regarding the motion’s specific issues and arguments involved. DTSC seeks a determination of CERCLA liability against the Estate of Huffman and a money judgment against Ohio Casualty to the full extent of the limits of any applicable insurance coverage that Huffman had in place. Ohio Casualty’s argument is viewed as a Motion to Strike, or for More Definite Statement for lack of specificity and is DENIED. 3) DTSC’s Motions For Summary Adjudication Issues 1-5 1(a). Huffman owned and operated the Mobile Smelting Site located at Reed Road and United Street in Mojave, California at the time that hazardous substances were disposed at the Site It is undisputed that Mr. Huffman owned and operated the Mobile Smelting Site located at Reed Road and United Street in Mojave, California, for 33 years between 1962 and 1995. See Doc. 957, Declaration of Thomas W. Kovac, Exh. B, Grant Deed; Ohio Casualty’s Response to Statement of Undisputed Facts, Doc. 977 at 1; Doc. 958, Declaration of Susan Fier-ing, Exh. A, Death Certificate. Great American Insurance Company provides no evidence to contest this fact: “Great American Insurance Company will neither admit nor deny this fact.” Great American Insurance Company Reply to DTSC’s Statement of Undisputed Facts, Doc. 980 at 2. Summary judgment is warranted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c); California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). “If on motion under [Rule 56] judgment is not rendered upon the whole case ... and a trial is necessary, the court ... shall if practicable ascertain what material facts exist without controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy ... Upon the trial of the action the facts so specified shall be deemed established.” Fed. R.Civ.P. 56(d). Deposition testimony has established that William Huffman was the sole proprietor who owned and operated Mobile Smelting at the Site. The death certificate, Exhibit A, establishes that he died in 1995. The motion for summary adjudication that Mr. Huffman owned and operated the Mobile Smelting Site between 1963 and 1995 is GRANTED. 1(b). The Estate is the current owner of the Mobile Smelting Site DTSCA claims the Estate of William Huffman owns the Site: “Huffman’s Estate has not been probated and no administrator has been appointed. The Estate is therefore the current owner of the property from which there has been a release of hazardous substances, and is liable under CERCLA section 107(a)(1).” Doc. 947. No evidence has been submitted by DTSCA to prove who currently owns the property. At the October 18, 2002 hearing Ohio Insurance Company, Great American Insurance Company, Barstow, and DTSC stipulated that the Estate of William Huffman continues to own the Mobile Smelting Site. Based on the stipulation of these parties, the Motion for Summary Adjudication that the Huffman Estate currently owns the Mobile Smelting Site is GRANTED. 2) There has been a release and/or threatened release of the hazardous substances at the Site DTSC contends the Mobile Smelting Site is contaminated with high levels of copper, lead, and dioxins and the contamination has migrated beyond the property boundaries and contaminated neighboring properties. The contamination is significantly above allowable levels permitted by the state or federal government for residential or industrial properties. Doc. 947 at 6. The Mobile Smelting Site contains piles of Bottom Ash and containers of Bag-house Ash, "both of which contain hazardous levels of copper, lead, and dioxins." Id. These contaminates are hazardous substances under CERCLA. A release under CERCLA is: “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing [of hazardous substances] into the environment.” 42 U.S.C. § 9601(22); U.S. v. Chapman, 146 F.3d 1166, 1169 (9th Cir.1998). DTSC notes that “environment” is broadly defined under CERCLA to include “surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air.” 42 U.S.C. § 9601(8). Citing the Remedial Investigation Summary Report of November 1st 2001 prepared by Cheney, Walton and McCall by Thomas Kovac’s expert declaration, DTSC argues it is undisputed hazardous substances have been released at the Mobile Smelting Site. Doc. 947 at 10; Doc. 957; Doc. 989, Exh. A, Remedial Investigation Summary Report. Ohio Casualty contends DTSC has failed to establish the existence of contamination by any competent evidence. Ohio Casualty complains that because DTSC is taking additional samples, the site is not adequately characterized at the present time. Ohio Casualty complains that the Remedial Investigation Summary Report was not included with Mr. Kovac’s declaration. Ohio Casualty contends Mr. Kovac based his opinion on “unspecified” analytical results taken by Tetra Tech, Metcalf & Eddy, and others, but does not identify or attach that data to his declaration. Ohio Casualty argues Mr. Kovac presents the data as his own and does not testify that he himself conducted the relevant studies, therefore “[Mr.] Kovae’s testimony presenting other persons’ data is simply hearsay and is inadmissible,” and DTSC has not proved the existence of contamination. Ohio Casualty offers no proof of its own disputing the Site’s contamination level or that calls into question that the Site is in fact contaminated. Ohio Casualty’s focus on the supposed deficiencies in Mr. Ko-vac’s testimony is misdirected. Federal Rule of Evidence 702 states that a qualified expert may testify, offering opinion or otherwise, “if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Federal Rule of Evidence 703 states that an expert may reply upon facts or data perceived or known to the expert, at or before the hearing, (including hearsay) if “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” “The facts need not be admissible in evidence in order for the opinion or inference to be admitted.” F.R.E. 703. Mr. Kovac relies upon studies performed by qualified environmental consulting firms as well as the State of California. As a Hazardous Substances Engineer in charge of the Site project since 1995, Mr. Kovac is qualified to interpret the scientific data presented to him, as data “relied upon by experts in the field,” and form an admissible opinion based upon that data. The fact that DTSC and environmental consulting firms are taking additional laboratory samples, as is their duty under law, in no way diminishes the fact that the Site was subjected to an Imminent and Substantial Danger designation in 1990 by the California Health and Welfare Agency’s Department of Health Services Toxic Substances Control Program: “there is an imminent and substantial endangerment to the public health and welfare and the environment, became of a release or threatened release of hazardous substances from the site.” Doc. 957, Exhibit C at 5, Imminent and Substantial Endangerment Determination, Docket No. ISE90/91-002 (emphasis added). Ohio Casualty’s argument that DTSC has not proved a release occurred at the Site is contradicted by its own admissions to undisputed facts listed by DTSC (i.e. “Baghouse Ash remains on the Mobile Smelting Site and contains copper, lead, and dioxin in levels as high as the following: lead 64,000 parts per million (‘ppm’); copper 170,000 ppm; dioxin 323,000 parts per billion; Bottom Ash remains on the Mobile Smelting Site and contains copper, lead and dioxin in levels as high as the following: lead 18,300 ppm; copper 313,-000 ppm; dioxin 2.9 ppb; Mobile Smelting stored the Bottom Ash in one or more piles on the ground of the Site”). Great American Insurance Company’s brief does not address the release issue, nor does Barstow’s brief. There can be no dispute, based upon the available evidence in multiple scientific reports as well as expert testimony, Ohio’s admissions and Great American Insurance Company and Barstow’s lack of response, that hazardous materials have been released at the Site. Summary Adjudication as to whether there has been a release of hazardous substances at the Site, as defined by CERC-LA, is GRANTED. 3) The Department has incurred costs in response to the release or threatened release of hazardous substances at the Site DTSC contends it has outstanding response costs of “slightly more than $4 million through March 21, 2001” attributable to containment of the Site, not including legal enforcement. Doc. 955, ¶ 4 at 2, Declaration of Eric Wallberg. Mr. Wall-berg is the case manager for the Expedited Remedial Action Program Unit, Site Mitigation Program, DTSC, for the Mobile Smelting Site. As case manager, Mr. Wall-berg coordinates, manages and oversees “activities related to the recovery of response costs incurred by the Department in addressing hazardous substance contamination sites.” Id. at ¶ 2-3 at 2. Great American Insurance Company does not refute DTSC’s cost argument. Ohio Casualty contends: DTSC asks for a blank check, DTSC has not proved the amount of costs it has incurred; DTSC has not provided sufficient evidence that incurred costs have not already been [compensated] by earlier settlements; the request for judgment of liability against the estate, “to the extent of insurance coverage,” overreaches the liability phase of this litigation, and; no future costs have been proved. Ohio Casualty further argues DTSC’s “faulty remediation” has “contributed to the spread of contamination,” which makes DTSC a “transporter and responsible party.” If a transporter or responsible party, DTSC should be “limited to contribution ... and not cost recovery.” Doc. 976 at 1. a. Overreaching Argument Ohio Casualty contends the scheduling conference orders establish a liability phase and a separate cost recovery phase and DTSC’s request regarding the Huffman Estate’s liability is inappropriate. DTSC asks that a determination be made regarding whether or not it has incurred costs, as part of the CERCLA liability determination. Ohio Casualty contends “DTSC has effectively incorporated the cost or damages phase into the liability phase and seeks to go home with an order from the court that DTSC gets every last dollar of coverage, regardless of how much DTSC has actually spent on response costs.” Doc. 976 at 5. DTSC responds it is only seeking a determination regarding liability. Recoverable costs will be determined in a later phase of the litigation or in a separate action. At that time Ohio Casualty will have a full and fair opportunity to contest the amount of the Department’s costs. Ohio Casualty misinterprets DTSC’s motion. DTSC is not asking .for a blank check, nor is it requesting a quantified cost determination. One of the four elements which must be proved to determine CERCLA liability is whether or not the plaintiff has incurred response costs. Without such a determination, CERCLA liability cannot be addressed. DTSC intentionally left out specific cost factors and proof, which it notes will be addressed at the cost phase of this litigation. b. Cost Evidence Ohio Casualty contends DTSC has not sufficiently shown it incurred costs in response to clean up at the Site. Doe. 976 at 5. Ohio Casualty argues Mr. Wallberg's declaration is insufficient because the following is not included: a resume; a breakdown of costs; a verification that costs were reasonable and necessary; a verification that costs were incurred in connection with the site at issue and not one of the adjacent sites; a projection of future costs. Ohio Casualty takes issue with Mr. Wall-berg's qualifications to testify to the cost issue: "Mr. Wallberg's declaration identifies him as a Hazardous Substances Scientist, whatever that is ... Apparently, Mr. Wallberg is not an environmental engineer, which is usually the professional qualification for certifying that response costs are reasonable and necessary.” Doc. 976 at 6. Also at issue is the lack of evidence as to what documents Mr. Wall-berg consulted to form his opinion and what type of costs he discusses: “has he read [the files], analyzed them, and summarized them himself? ... are ‘outstanding’ costs paid costs, incurred-but-not-paid costs, costs not already defrayed by settlements with other responsible parties, or something else?” Id. Ohio Casualty’s concern regarding what “outstanding” means has merit. DTSC has recovered more than $7 million in settlements from other defendants who have been dismissed. When the cost phase of this litigation ensues, DTSC must account for what costs remain uncompensated after the settlement funds have been credited. At the October 18, 2002 hearing DTSC stated that it was now only seeking a declaratory judgment for future cost liability as past cost reimbursement had been accomplished through previous settlements with former third-party defendants. Ohio Casualty’s other arguments lack merit. DTSC provided a declaration from Mr. Wallberg, which states the department had incurred some costs (i.e. at least $4 million). In response to Ohio Casualty’s complaints, DTSC’s reply brief includes a declaration by Ms. Calloway, Senior Accounting Officer assigned to the Cost Recovery Unit of DTSC. Doc. 988. Ms. Cal-loway’s declaration includes a summary of costs and copies of invoices and bills from 1989 through March 2001 and sufficiently proves that the Department has incurred response costs related to the Mobile Smelting Site. Ohio Casualty objected at the October 18th hearing to DTSC’s reply submission of Ms. Calloway’s declaration. Ohio Casualty contends the reply brief submission deprived them of the opportunity to respond. Ohio Casualty’s technical objection was overruled; it is indisputable that DTSC incurred response costs at the Site. Judicial Notice is taken of this fact, based upon the history of the case, findings of fact in related cases such as Courtaulds, and DTSC’s submissions. DTSC is not required at this point to prove the costs were reasonable and related to the site cleanup. Nor is it required to prove the exact amount of past costs or a projection of future costs to determine liability under CERCLA. These issues will be addressed in the litigation’s Cost phase. c. Future Costs Unproven Ohio Casualty repeats its “blank check” analogy and argues that DTSC must provide evidence of expected future costs. CERCLA provides for a declaratory judgment on future cost liability, “the Court shall enter a declaratory judgment on liability for response costs or damages that will be binding on any subsequent action or actions to recover further response costs or damages.” 42 U.S.C. § 9613(g)(2). An order declaring responsible parties liable for future costs is appropriate, although the amount will remain undetermined until proof of the amount of actual costs recoverable under CERCLA is provided by DTSC. d. Transporter and Responsible Party Issue Ohio Casualty argues that because third parties have broken into the site and damaged some of the containment covers, DTSC “is not containing the contamination and may be contributing to the spread of contamination.” Ohio Casualty contends: DTSC has “admitted that its faulty remediation has contributed to the spread of contamination;” DTSC is a responsible party; and, DTSC can only seek contribution, not cost recovery. DTSC refutes Ohio Casualty’s argument: “if third parties have interfered with the department’s measures taken to contain the release of hazardous substances, it is the third parties who are the potentially responsible parties, not the department.” Doc. 991. Governmental regulatory action taken to clean up a contaminated site does not subject the government to liability under CERCLA: “[n]o State or local government shall be liable under this subchapter for costs or damages as a result of actions taken in response to an emergency created by the release or threatened release of a hazardous substance generated by or from a facility owned by another person. This paragraph shall not preclude liability for costs or damages as a result of gross negligence or intentional misconduct by the State or local government. For the purpose of the preceding sentence, reckless, willful, or wanton misconduct shall constitute gross negligence.” 42 U.S.C. § 9607(d)(2). If Ohio Casualty believes DTSC’s actions have been grossly negligent, reckless, willful or wanton, it should have provided evidence that could have offset th