Full opinion text
ORDER SCOTT O. WRIGHT, Chief Judge. On June 27, 1985, the Special Master filed a report issuing recommendations concerning the appropriate disposition of twenty-two motions and cross-motions for summary judgment and partial summary judgment. As required, the Court has independently reviewed the record regarding the issues relating to the Master’s report, including the relevant motions and responses thereto, and the objections filed to the report. See United States v. Louisiana, 470 U.S. 93,105 S.Ct. 1074,1080, 84 L.Ed.2d 73 (1985). Accordingly, the Court vacates its Order of July 10, 1986 and enters the following rulings nunc pro tunc in summary form and, with respect to those recommendations approved by the Court, the Court adopts the reasoning stated in the Master’s report in support of those recommendations. Recommendations of the Master not adopted by the Court will be so designated. 1. CHOICE OF LAW— a. Contracts — substantive law of Missouri will apply to all questions involving formation, construction or interpretation of the insurance policies, except for those policies which contain a choice of law provision. There the law of the state chosen will control. b. Torts — substantive law of Missouri will apply to any claims sounding in tort. c. Generally — where Missouri has not established, by statute or decision, a particular issue, general principles of insurance law will be applied. 2. AFTER LITIGATION INSURANCE— As a matter of law, no “occurrence” took place after September 29, 1980 — the date the government instituted suit. Accordingly, summary judgment is (a) Granted in favor of Centaur Insurance Co. on the claims of CCC, CCCI, Hjersted, Armco, AT & T-TI, FMC, IBM, Sperry and Murray-Ohio on each of the three policies issued by Centaur after September 29, 1980; (b) Granted in favor of Central National on the claims of CCC, CCCI, Hjersted, Armco, AT & T-TI, FMC, and IBM; (c) Granted in favor of each third-party defendant insurer issuing a policy to CCC, CCCI and/or Hjersted after September 29, 1980. 3. CLAIMS MADE POLICIES— As a matter of law, claim must be made within the policy period of the relevant “claims-made” policy for coverage to be afforded. Accordingly, summary judgment is (a) Denied as to Lincoln Insurance Co.’s motion on the basis of the “claims-made” policy provision; (b) Granted as to Evanston’s 1985 policy, but denied on the basis of the claims-made policy provision; (c) Denied as to Mutual Fire’s motion on the basis of the claims-made policy provision. 4. FAILURE TO SETTLE— There is no issue as to any material fact existing with respect to the claim for bad faith refusal to settle pleaded in Count III of the OGD’s third-amended third-party complaint. Accordingly, summary judgment is granted in favor of each of the 16 Third-party Defendant Insurers on Count III of the OGD’s Third Amended Third-Party Complaint. 5. ISSUANCE DELIVERY AND PAYMENT— (a) As to the Original Generator Defendants, partial summary judgment is (1) Granted on the issues of issuance, delivery and payment of insurance policies against Central National, Home, American Fidelity, and Continental; (ii) Granted on the single issue of issuance of insurance policies against Centaur, Evanston, Mutual Fire, Foremost, and Lincoln. (iii) Over the recommendation of the Special Master, summary judgment is additionally granted on issues of delivery and payment regarding the policies against the same companies as listed in (ii) above. (b) As to the Site Operator Defendants, partial summary judgment is (i) Granted on the issues of issuance, delivery and payment as to CCCI and Hjerst-ed over the recommendation of the Special Master; (ii) Granted on the issues of issuance, delivery and payment by CCC with respect to Central National, Home, American Fidelity, and Continental; (iii) Over the recommendation of the Special Master, summary judgment is additionally granted as to the issues of delivery and payment by CCC regarding Centaur, Evanston, Mutual Fire, Foremost, and Lincoln. 6. “PROPERTY DAMAGE” UNDER CGL POLICIES— As to the Original Generator Defendants, partial summary judgment is granted on the specific issues that: (a) Environmental harm associated with the CCC site constitutes “property damage” as such term is used and defined in the CGL insurance policies issued and delivered to CCC; (b) Cleanup costs arising out of the environmental harm caused by the discharge, dispersal, release or escape of toxic chemicals and waste material constitutes “damage” as that term is used in the CGL policies issued and delivered to, CCC; (c) Alleged economic losses in the form of response and cleanup costs sought by the United States constituid damage caused by or arising out of the environmental harm for purposes of the CGL insurance policies issued and delivered to CCC. 7. OCCURRENCES— A question of fact remains as to when disposal of waste materials first commenced, when leaking first occurred, or when damage to the environment was first discovered. A further question remains as to the Site Operators’ objective or subjective knowledge that there was a substantial probability that environmental harm would result from their activities. Accordingly, summary judgment is denied as to the various insurers’ motions on the issue that CCC expected and intended harm to result from its operations. 8. OWNED PROPERTY EXCLUSION— While the “owned property exclusion” cannot apply to percolating ground water under the CCC site, there remains a question of fact as to what portion of the remedy relates solely to damage to the CCC site itself. Accordingly, summary judgment is denied as to the motion of Armco, AT & T-TI and FMC on the issue that the owned property defenses are inadequate as a matter of law to bar coverage for remedial measures being undertaken at the CCC site. 9. THE POLLUTION EXCLUSION— Questions of fact remain concerning the ambiguity of this exclusion clause. Further questions remain as to whether the pollution was sudden and accidental, and whether Hjersted had intent to cause harm. Accordingly, summary judgment is denied on the basis of the pollution exclusion clause. However, the exception is for damage occurring after the initiation of this action. Therefore, as pertains to Central National’s January 1983 policy, summary judgment is granted. 10. DUTY TO DEFEND— Both the Original Generator Defendants and the Site Operator Defendants move for summary judgment on the issue of the Insurance Companies’ obligation to defend CCC, CCCI and Hjersted against all claims asserted by the United States and “other parties.” There is no issue as to material facts with respect to the duty to defend CCC. Over the recommendation of the Special Master, the Court additionally finds there is no question of fact as to the duty to defend Hjersted and as to the duty of two companies to defend CCCI. Accordingly, summary judgment is (a) Granted against those primary insurance carriers who issued and delivered standard-form CGL policies (“accident” or “occurrence”) prior to September 29, 1980 to CCC, and for which CCC paid the applicable premium; (b) Granted against Foremost and Mutual Fire as to their duty to defend CCCI; (c) Granted against the same insurance carriers as in (a) above, as to Hjersted; (d) Denied as to any “excess” insurer on the duty to defend. 11. THIRD-PARTY BENEFI- CIARIES— Questions of fact remain with respect to the intention and motive of the parties to confer a benefit on a third party. Accordingly, summary judgment is denied on the motions filed by Foremost, ACIC and Centaur on the issue of third-party beneficiaries. 12. INDIVIDUAL INSURER’S MOTIONS FOR SUMMARY JUDGMENT The conclusions and recommendations of the Special Master concerning the following nine Insurance Companies' motions for summary judgment are adopted in their entirety: (a) Evanston (b) Mutual Fire (c) Lincoln (d) Centaur (e) Foremost (f) Continental Casualty (g) Home (h) Central National (i) American Centennial 13. MOTIONS OF MURRAY OHIO AND SPERRY CORPORATION— As there are questions of fact regarding the identical motions of Murray Ohio Manufacturing Company and the Sperry Corporation for judgments on their cross-claims against CCC for indemnification for all obligations imposed on them as a result of the present litigation, summary judgment is denied. At this time no action will be taken on the motion of Sperry and Murray Ohio against Illinois Employers Insurance of Wausau. 14. CONTRACTUAL INDEMNITY— The Original Generator Defendants’ separate motions for summary judgment against CCC on the issue of indemnification must be denied pending development of those factors which would enable a determination of the state possessing the most significant relationship to the parties and indemnity. Accordingly, subject only to the expressed exceptions contained above, it is ORDERED that the Special Master’s Report of June 27, 1986 is adopted. It is further ORDERED that, subject to the exceptions contained above, the pending motions for summary judgment are ruled in accordance with the Master’s Report. ON REQUEST FOR CLARIFICATION Upon the request of Illinois Employers Insurance Company of Wausau for clarification of this Court’s September 2, 1986, Summary Judgment Order, it is hereby ordered: 1. Claims brought by Murray Ohio and Sperry against Illinois Employers of Wau-sau were dismissed by this Court’s Order of July 18, 1986. Accordingly, no motions between Sperry and Murray Ohio and Illinois Employers Insurance of Wausau remain before the Court for consideration. 2. This Court’s Summary Judgment Order of September 2,1986, does not apply to Illinois Employers Insurance of Wausau because Illinois Employers Insurance of Wausau, having settled with third-party plaintiffs, was not a party to the summary judgment motions addressed in the Court’s ruling. SPECIAL MASTER’S RECOMMENDATIONS ON MOTIONS FOR SUMMARY JUDGMENT REGARDING INSURANCE AND INDEMNIFICATION TABLE OF CONTENTS Page A. INTRODUCTION AND BACKGROUND .... 162 B. SUMMARY JUDGMENT STANDARDS.....170 C. UNCONTROVERTED FACTS.............. 172 D. CHOICE OF LAW......................... 176 E. PRELIMINARY MATTERS................ 178 1. After Litigation Insurance............. 178 2. Claims Made Policies.................. 181 3. Failure to Settle...................... 184 F. ISSUANCE, DELIVERY AND PAYMENT... 185 G. “PROPERTY DAMAGE” UNDER CGL POLICIES ....................................187 H. OCCURRENCES...........................194 I. OWNED PROPERTY EXCLUSION.........199 J. THE POLLUTION EXCLUSION...........201 K. DUTY TO DEFEND.......................204 L. THIRD-PARTY BENEFICIARIES..........208 M. INDIVIDUAL INSURER’S MOTIONS FOR SUMMARY JUDGMENT..................213 1. Maryland Casualty....................213 2. Commercial Union.....................216 3. Evanston.............................219 4. Mutual Fire...........................220 5. Lincoln............................... 220 6. Centaur............................... 222 7. Foremost............................. 225 8. Continental Casualty .................. 226 9. Home................................. 227 10. Central National...................... 227 11. American Centennial .................. 227 12. Great American....................... 228 N. MOTIONS OF MURRAY OHIO AND SPERRY CORPORATION..................... 231 1. Sperry................................ 231 2. Murray Ohio.......................... 234 O. CONTRACTUAL INDEMNITY............. 235 A." INTRODUCTION " AND BACKGROUND From 1960 until the present, defendant Conservation Chemical Company (“CCC”) has owned and operated an industrial chemical waste disposal facility located at 8900 Front Street, Kansas City, Missouri (the “Site,” the “CCC Site” or the “K.C. Site”). The approximately six-acre site is located on the Missouri River floodplain, between East Bottoms Levy and the Missouri River, just upstream of the confluence of the Missouri and Blue Rivers. See, United States v. Conservation Chem. Co., 619 F.Supp. 162, 182-84 (W.D.Mo.1985). On September 29, 1980, the United States of America (“United States” or “Plaintiff”) filed suit, pursuant to 42 U.S.C. § 6973, Section 7003 of the Resource Conservation and Recovery Act (“RCRA”) in the United States District Court for the Western District of Missouri against CCC, Kansas City Power & Light Company (KCP & L) and Mobay Chemical Company (“Mo-bay”). The Complaint alleged that hazardous wastes which had been disposed of and which were stored at the CCC Site were migrating from the site and posed a danger to public health and the environment. The United States sought reimbursement of expenses and injunctive relief to compel cleanup of the site. On September 3,1981, an Amended Complaint was filed by the United States against CCC, KCP & L and Mobay. Pursuant to Section 7003 of RCRA, the United States sought injunctive relief to compel implementation of plans to clean-up the Site and for recovery of costs and expenses expended to determine the nature and extent of contamination. On November 22,1982, the United States filed the present action, Civil Action No. 82-0983-CV-W-5, against CCC, Conservation Chemical Company of Illinois (“CCCI”), Norman B. Hjersted (“Hjerst-ed”), FMC Corporation (“FMC”), International Business Machines Corporation (“IBM”), Armco, Inc. (“Armco”) and AT & T Technologies, Inc. (“AT & T-TI”).. CCCI is a domestic corporation which owned a similar site in Gary, Indiana. Both CCC and CCCI were owned by Norman Hjersted who also acted as President and Chief Executive Officer of the two corporations. The four other defendants were “deep pockets” selected by the Government out of over 150 waste generators who supplied waste to CCC and/or CCCI for disposal at the site. The other generators were subsequently brought into the suit by impleader by the four generator defendants. The factual averments contained in the 1980 and 1981 suits were essentially real-leged. The Complaint asserts claims pursuant to 42 U.S.C. § 6973, Section 7003 of RCRA and 42 U.S.C. §§ 9604, 9606, and 9607(a), of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (hereinafter “CERCLA”). (On December 9, 1982, the Court issued an Order requiring the United States “to show cause ... why Case Number 80-0883-CV-W-5 should not be dismissed with prejudice and why Case Number 82-0983-CV-W-5 should not be the only case to proceed.” On March 31, 1983, a Stipulation for Dismissal was filed with respect to Case No. 80-0883-CV-W-5). In very general terms, the United States seeks reimbursement for response costs incurred by the Government in connection with the CCC Site as well as an injunction requiring defendants to remedy environmental endangerment at the Site due to the handling, disposal and discharge of various industrial waste materials. It is alleged that from the early 1960’s until 1979, large quantities of solid or hazardous waste, hazardous substances and/or pollutants or contaminants were deposited at the Site which present an imminent and substantial danger to the public health or welfare. It is further alleged that as a consequence of the activities of defendants at the CCC Site that such hazardous wastes were and are being released into the environment and/or have seeped or migrated from the site as leachate. In letters dated October 13, 1983 and December 13, 1983, CCC, CCCI and Hjerst-ed requested that nine (9) insurance companies which had issued primary liability insurance policies to CCC assume the defense of CCC, CCCI and Hjersted against the claims asserted by the United States. The letter requests were made to the following primary insurers: (1) American Fidelity Fire Insurance Company (policy period 3/22/71 to 3/22/72); (2) Centaur Insurance Company (policy period 12/14/81 to 12/14/83); (3) Commercial Union Insurance Company (policy period 9/7/60 to 9/7/66); (4) Evanston Insurance Company (policy period 12/14/80 to 12/14/81); (5) Foremost Insurance Company (policy period 3/22/72 to 12/1/76); (6) Great American Insurance Company (policy period 9/7/66 to 9/7/68); (7) Lincoln Insurance Company (policy period 12/14/78 to 12/14/79); (8) Maryland Casualty Company (policy period 9/7/68 to 2/26/71); and (9) Mutual Fire, Marine and Inland Insurance Company (policy period 12/14/79 to 12/14/80). Each of the companies had issued one or more primary liability insurance policies to CCC, CCCI and/or Norman Hjersted during the period of 1960 through 1983. (Commercial Union Insurance Company, Centaur Insurance Company, Evanston Insurance Company, Foremost Insurance Company, Great American Insurance Company, Lincoln Insurance Company, Maryland Casualty Company, and Mutual, Fire, Marine and Inland Insurance Company issued more than one policy). Each of the insurance companies refused to defend CCC, CCCI and Hjersted, except for Commercial Union Insurance Co., Foremost Insurance Co. and Great American Insurance Co. which agreed to assume the defense of CCC and Hjersted subject to a full reservation of rights. The remainder of the primary insurers disclaimed any obligation to defend or indemnify CCC, CCCI and/or Hjersted against the claims asserted by the United States or claims made by other parties to the action. The primary insurers relied upon a number of exclusions and conditions in their respective policies in refusing to defend CCC, CCCI and Hjersted. Their contentions can be summarized as follows: (1) the Government’s Complaint fails to allege the happening of an “occurrence” or “accident” as those terms are defined in the policies; (2) the Government’s Complaint contains no allegation of “property damage” within the meaning of the policies; (3) the “pollution exclusion” clause precludes coverage for claims asserted by the United States; and (4) the policies do not provide coverage for claims seeking injunctive or other equitable relief. In a letter dated April 13, 1984, CCC, CCCI and Hjersted renewed their demand for defense and indemnification. The primary carriers once again declined to defend CCC, CCCI and Hjersted. Thereafter, on June 19, 1984, CCC, CCCI and Hjersted filed a Third-Party Complaint against eleven (11) primary insurance carriers (American Fidelity Fire Insurance Co., Centaur Insurance Co., Commercial Union Insurance Co., Evanston Insurance Co., Foremost Insurance Co., Great American Insurance Co., Lincoln Insurance Co., Maryland Casualty Co., Mutual Fire, Marine and Inland Insurance Co., Hartford Accident & Indemnity Co., and Illinois Employers Insurance Co. of Wausau) and five (5) excess carriers (Continental Casualty Co., American Centennial Insurance Co., The Home Insurance Co., Great Southwest Fire Insurance Co., and Central National Insurance Co. of Omaha) seeking a declaration of the insurers’ obligation to defend and indemnify CCC, CCCI and Hjersted against and for the claims asserted by the United States as well as the claims made by other parties on the numerous cross-claims and counterclaims seeking contribution and indemnity from CCC, CCCI and Hjersted. At issue in this case are a total of twenty-six (26) primary policies underwritten by nine (9) insurance companies. The primary policies include: (1) Six of the policies were written by Commercial Union Insurance Co. (“Commercial Union”) and its predecessor in interest, Central Surety and Insurance Corp. (“Central Surety”), with successive yearly policies covering the period September 7, 1960 through September 7, 1966. (2) Two policies were issued by Great American Insurance Company (“Great American”) with policy periods from September 7, 1966 through September 7, 1968. (3) Three policies were written by The Maryland Casualty Company (“Maryland Casualty”) with annual policy periods from September 7, 1968 through September 7, 1971. (4) One policy with a policy period from March 22, 1971 through March 22, 1972 was issued by American Fidelity Fire Insurance Co. (“American Fire”). (5) Five policies were written by Foremost Insurance Company (“Foremost”) with annual policy periods from March 22, 1972 through March 22, 1976. (6) Two policies were issued by Lincoln Insurance Company (“Lincoln”) with policy periods from December 14, 1977 through December 14, 1979. (7) Two policies were written by Mutual Fire, Marine and Inland Insurance Company (“Mutual Fire”) covering the period of December 14, 1979 through December 14, 1980. (8) Two policies were issued by Evanston Insurance Company (“Evanston”) for the period December 14, 1980 through December 14,1981. (One of the Evanston policies was a “Products and Completed Operations” policy while the other was a Comprehensive General Liability policy). (9) Three policies were issued by Centaur Insurance Company (“Centaur") with policy periods from December 14, 1981 until January 1, 1985. Also at issue are 13 excess policies underwritten by five (5) insurance companies: (1) Three excess policies written by Continental Casualty Co. (“Continental Casualty”) for the period September 19, 1960 to September 7, 1963. (2) Seven excess policies issued by The Home Insurance Company (“Home”) with effective dates from March 3,1966 through March 22, 1977. (3) One excess policy written by Great Southwest Fire Insurance Company (“Great Southwest”) with a policy period of December 14, 1976 to December 14, 1977. (4) One excess policy issued by American Centennial Insurance Co. (“ACIC”) with a policy period of December 14,1981 to January 1, 1983. (5) One excess policy with a policy period of January 1, 1983 to January 1, 1984 issued by Central National Insurance Co. of Omaha (“Central National”). On or about December 26, 1985, CCC, CCCI and Hjersted (“the Site Operator Defendants” or “Third-Party Plaintiff Operators”) filed a First Amended Third-Party Complaint naming seventeen insurance companies as third-party defendants. In fifty numbered paragraphs, the Third-Party Complaint alleges that each of the seventeen insurers is liable for the claims asserted by the United States because each issued one or more policies to CCC, with Hjersted being a “Person Insured” by definition under each of the policies issued by the third-party defendant insurers by virtue of his capacity as an officer, director, stockholder and/or employee of CCC, acting within the scope of his duties as such. CCCI is a named insured under the policies issued by third-party defendants Great American, Home, Foremost, Illinois Employers Insurance of Wausau (“Wausau”), Great Southwest, Lincoln, Mutual Fire, Ev-anston, Centaur, ACIC, and Central National. The policies of insurance referred to have individual policy periods, as set forth in each policy, covering a total aggregate period of time from 1960 through and including 1983. It is alleged that Third-Party Plaintiff Operators have complied with all conditions under the policies, including payment of the policy premiums. The Third-Party Complaint states that under the terms and provisions of the policies enumerated, which are incorporated by reference, the respective third-party defendants are obligated to defend and pay any judgments recovered by the United States, or by any cross-claiming or counterclaiming party, against CCC and Hjersted in this action. The named insurers of CCCI are alleged to have similar obligations to defend and pay any judgments recovered by the United States or by any cross-claiming or counterclaiming party, against CCCI. The First Amended Third-Party Complaint further alleges that the third-party defendant insurers, although requested to do so, have refused to defend the action and have declared that they would not pay any judgment rendered against defendants CCC, CCCI and Hjersted in the action or have reserved the right to do so. The Third-Party Plaintiff Operators pray for judgment against the insurance companies in such sums, if any, as may be awarded as a judgment against CCC, CCCI and Hjersted under the Complaint filed by the United States, or any other claim, counterclaim or cross-claim asserted; for reasonable fees and expenses of defendants, and for interest and costs of this action. On January 3, 1986, FMC, IBM, Armco and AT & T-TI (collectively referred to as “Original Generator Defendants,” “OGDs” or “Third-Party Plaintiff Generators”) filed a Third Amended Third-Party Complaint against sixteen insurance companies (Commercial Union was alleged to be successor in interest to Central Surety, named in CCC, CCCI and Hjersted’s Third-Party Complaint). Briefly, the Third Amended Third-Party Complaint alleges that each of the insurance companies issued one or more policies of insurance to CCC for its operations at the Kansas City Site. Under the terms of various contracts, purchase orders, or service agreements, CCC was obligated to acquire insurance that would indemnify and hold harmless the Third-Party Plaintiff Generators. It is alleged that CCC entered into insurance contracts issued by the Third-Party Defendant Insurers in order to satisfy obligations to the Third-Party Plaintiff Generators. The Third-Party Plaintiff Generators allege that they are intended and/or creditor beneficiaries of the contracts between CCC and Third-Party Defendant Insurers and/or are additional insureds under certain of the insurance contracts. Based upon the finding of the Court that CCC is liable as a matter of law under § 7003 of RCRA and § 106 and § 107 of CERCLA, and based upon the policies issued by Third-Party Defendant Insurers, the course of dealing and the respective contracts and agreements between CCC and Third-Party Plaintiff Generators referred to in the Third Amended Third-Party Complaint, it is alleged that Third-Party Defendant Insurers are obligated to indemnify and hold harmless Third-Party Plaintiff Generators for all damages, costs and fees incurred, or to be incurred. It is further alleged that the refusal to pay defense costs constitutes a continuing violation of contractual obligations, and that the Third-Party Defendant Insurers have raised numerous unsupported defenses to contractual liability and that they have acted in concert to frustrate and reject any and all efforts to achieve a comprehensive settlement in conscious disregard of the Third-Party Plaintiff Generators’ financial interests. This failure is also alleged to be a breach of the implied covenant to deal fairly and in good faith. The relief requested in the Third Amended Third-Party Complaint is a declaration that each Third-Party Defendant Insurer has a duty to pay and is jointly and severally liable for all damages, costs, and fees incurred by third-party defendant insurers, including without limitation, response costs, attorney’s fees and legal expenses, and sums expended pursuant to the preliminary agreement of settlement reached by defendant generators with the U.S. Government for the remediation of the site. During a hearing before the Special Master on August 12, 1985, a number of the Third-Party Defendant Insurers requested the opportunity to file motions seeking dismissal or judgment on the pleadings with regard to the Third-Party Complaints of thé Site Operator Defendants (CCC, CCCI and Hjersted) and Original Generator Defendants (Armco, AT & T-TI, FMC and IBM) primarily on the grounds that the decision of Judge Russell Clark in Continental Ins. Cos. v. Northeastern Pkarm. & Chem. Co., No. 84-5034-CV-S-4 (W.D.Mo. June 25, 1985), [Available on WESTLAW, DCTU database], appeal pending sub. nom, Continental Ins. Cos. v. State of Missouri, No. 85-1940WM (8th Cir.), (hereinafter “NEPPACO ”), had enunciated a rule of law limiting liability of insurance carriers only to those periods after the United States had incurred response costs. The request was opposed by the Original Generator Defendants primarily on the grounds that the motions under Rule 12, Fed.R.Civ.P., would be inappropriate in light of the complex legal and factual issues existing with respect to insurance coverage. In an effort to resolve matters of a purely legal nature and to consider and take under advisement the NEPACCO decision (albeit on appeal), the Special Master agreed to the request. Thereafter all of the insurers filed motions for dismissal or for judgment on the pleadings under Rules 12(b)(6) and 12(c), Fed.R.Civ.P. With a few exceptions, the Special Master recommended that the motions be denied, primarily for lack of an appropriate factual basis. (Special Master’s Report and Recommendation Regarding Rule 12 Motions on Insurance Issues, Nov. 1, 1985, approved by Order, December 18, 1985). The parties were invited to provide certain facts and to submit motions under Rule 56. Now pending before the Court, pursuant to Rule 56 of the Federal Rules of Civil Procedure, are twenty-two (22) motions and cross-motions for summary judgment and partial summary judgment. The motions, briefs in support and opposition, and exhibits comprise over 3,000 pages and well over 500 cases are cited. 1. Both CCC and the OGDs have filed motions for partial summary judgment against each Third-Party Defendant Insurer on the issues of issuance, delivery and payment of premium, the three prerequisites of an insurance coverage claim. The OGDs contend that the insurers have either admitted these issues or admitted they have no evidence with which to contest these issues. 2. Both CCC and the OGDs have filed motions for partial summary judgment against certain defendant insurance companies on the issue of the duty to defend. CCC seeks a partial summary judgment declaring that the third-party American Fidelity, Centaur, Evanston, Lincoln, Maryland, and Mutual Fire have a joint and several obligation to defend CCC, CCCI and Hjersted against all claims asserted by the United States and the other parties to this action. The OGDs seek a similar declaration establishing that each of the insurance companies which issued primary liability insurance policiés to defendant and third-party plaintiff Conservation Chemical Company between 1960 and 1984 are jointly and severally obligated under the terms of their respective policies to defend CCC, CCCI and Hjersted against all claims asserted by the United States. It is asserted that American Fidelity, Evanston, Foremost, Great American, Lincoln, Maryland, and Mutual Fire issued primary liability policies to CCC and Hjersted during that period. It is further alleged that Centaur, Evanston, Foremost, Great American and Mutual Fire issued policies to CCCI during the identified 24-year period. 3. The OGDs also have filed a motion for partial summary judgment against the Third-Party Defendant Insurers on the issue that the escape of environmental contaminants from the CCC site constitutes “property damage” under the insurance policies and that the site investigation and cleanup costs are the proper measure of damage. This motion includes the assertion that the “owned property” exclusion does not preclude coverage since percolating waters permeating a site are subject to the reasonable use doctrine, and cannot be owned absolutely. It is also contended that remediation work performed on the site is within the coverage because it is designed to prevent damage to off-site third parties, particularly to prevent further damage and cost. 4. Armco, AT & T-TI and PMC (but not IBM) have moved for partial summary judgment on the issue of the inapplicability of the “owned property” defense raised by the Third-Party Defendant Insurers. The identified generators assert that the owned property/care, custody or control exclusion does not preclude coverage from remedial actions being taken in this case for contamination that has occurred or will occur because CCC does not control ground water beneath its site or the Missouri River into which the ground water flows. It is argued that the measure of damages includes abatement costs and that the remedy here is to prevent further contamination and migration. It is stated that neither the property damage nor the remedial activities are confined to property owned by CCC, and that a substantial number of activities to remedy migration will be undertaken beyond the property lines of the CCC site. 5. The Third-Party Defendant Insurers have filed individual motions for summary judgment. All of the individual motions refer to the applicable portions of the “Insurers’ Memorandum in Support of Individual Insurers’ Motion for Summary Judgment.” The individual motions use various theories to assert that the policies issued do not provide coverage to CCC, CCCI and Hjersted or to the third-party plaintiff generators. 6. Great American and Continental assert as grounds for the denial of coverage: the failure by CCC to provide the notice required under the policies; that the statute under which liability was found was passed twelve to fourteen years after the effective policy period which precludes a finding of exposure during the policy period; that the Complaint does not allege property damage as defined in the policies; that no insurance coverage exists for equitable relief; that the environmental effects at the site resulting in environmental harm were expected or intended by the site operators, and thus do not constitute an occurrence under the policies; and that coverage under the policies is excluded for damage to CCC’s premises or property in its control. 7. Maryland Casualty seeks summary judgment on theories that: no property damage is alleged; that equitable relief is sought; that no occurrence can be established; and finally non-compliance with the notice provision. In addition, Maryland Casualty asserts that if property damage exists, it occurred after their last policy period; that no major generators or third-party defendant generators are named or constitute additional insureds under Maryland Casualty’s policies with CCC; that contractual liability insurance existed for designated contracts only; and that no insurance coverage theory exists that would hold Maryland liable to the generators having no relationship to the CCC site prior to the expiration of the Maryland Casualty policies. 8. Commercial Union has filed two separate motions for summary judgment. One is against CCC and Hjersted, and one is against the Third-Party Plaintiff Generators/Original Generator Defendants. Against CCC and Hjersted, Commercial Union asserts that there is no allegation of property damage during the policy period, that there is no coverage for CERCLA cost recovery, that the results were intended or expected, that non-compliance with notice provisions forecloses coverage, and that a policy term provides for no action being maintained by the insured against the insurer on the policy until the insured’s obligation to pay has been finally determined by judgment or settlement. Against the OGDS, Commercial Union contends that since the claims are based on the parties being insureds or third-party beneficiaries under CCC’s policies, the same defenses and exclusions are available to Commercial Union. Commercial Union also asserts that the Third-Party Plaintiff Generators are not named insureds under the policy definition, that the action is premature since no insured has become obligated to pay damages for property destruction, and that to be a third-party beneficiary on the insurance contract, the party must be listed in accord with the policy. Commercial Union raises RSMo § 379.200, which entitles judgment creditors to bring a direct action for insurance proceeds only after a final judgment against the insured has been entered. Commercial Union points out that although written agreements and contracts existed between the Original Generator Defendants and CCC, there is evidence that only FMC deposited waste material at the site during the policy period. 9. Foremost’s motion for summary judgment is against CCC, CCCI, Hjersted, the OGDS as well as cross-claimants, Sperry Corporation (“Sperry”) and Murray. Ohio Manufacturing Company (“Murray”). Foremost contends that there is no occurrence under the policy since the government incurred no response costs until two years after the last Foremost policy was cancelled, that the claim of the United States is not for property damage but for a new statutory liability. Foremost argues that coverage is precluded by the “pollution exclusion” clause since leaching contaminants cannot be considered sudden or unexpected and the leaching was a direct result of Hjersted’s intent, design and expectation. Foremost argues in the alternative that remedial costs are barred by the clause excluding damages to insured’s property. Foremost asserts that any liability obligation is precluded by CCC’s failure to mitigate damages or minimize avoidable consequences by accepting materials after the site reached capacity in 1971 and after warnings of leaching in 1972. CCC is stated to have breached the insurance contract by failing to provide notice of investigations, claims and lawsuits by state and federal agencies. It is asserted that retroactive RCRA and CERCLA liability should not be imposed on Foremost because there was no contractual intent to provide coverage for such liability and because it would frustrate the statutory policy of having the chemical industry pay for cleanup. Alleging that actions for breach arising from a contractual duty to indemnify are only for the named insured, Foremost states that the Third-Party Plaintiff Generators do not have standing to bring the action, and that the included contractual liability does not cover the generators. 10. Lincoln asserts that no compensable property damage is alleged, that the “Pollution Exclusion” would exclude coverage, and that they did not receive timely notice. Lincoln also contends that material misrepresentations in procuring its coverage preclude application of its coverage. Lincoln notes that under its “claims-made” policies, claims must be made during the policy period, and that there is no evidence that any claim was made during that period. It is also stated that Lincoln’s policies contain exclusions for mishandled materials and design deficiencies. 11. Home asserts that its excess liability policies do not provide coverage because the harm was expected or intended; there was not an occurrence under the policies; coverage is excluded by the pollution exclusion clause; and that response costs constitute equitable relief, and not property damage, and were incurred after the expiration of Home’s last policy. Alternatively, Home seeks an order pursuant to 56(d), Fed.R. Civ.P., deeming the material facts forming the bases for their motion to be material facts without substantial controversy. 12. Evanston and Mutual Fire argue that no claims were made within the policy periods of its claims-made policies, and that therefore, there is no duty to defend or to indemnify, and that all of their policies incorporate a pollution exclusion which precludes claims when claims arise from gradual and intended pollution. Evanston and Mutual Fire also assert that they did not contract to bear the cost of a known and present danger at the time the policy was issued. 13. Central National seeks summary judgment because their policy cannot provide coverage for relief sought before the policy was purchased and the effective date of coverage. Central National contends that to meet the “occurrence” requirement, the “property damage” for which liability is asserted must occur unexpectedly during the policy period, and that continuing damages cannot act as the basis for coverage under a policy taking effect after litigation is commenced. Central National argues that releases after January, 1983 could not be considered sudden and accidental under the exception to the pollution exclusion clause. Central National asserts that CCC did not reference the K.C. Site, CCC’s waste disposal activities, or the present lawsuit in the application form, and furthermore that CCC’s application affirmatively represents that CCC knows of no other facts that would significantly affect underwriting judgment. These items are alleged to constitute misrepresentations which void coverage. 14. ACIC’s motion for summary judgment contends that as an excess carrier, no duty to defend arises until notice is received that either no defense is being provided by the underlying insurers or that the underlying insurance is exhausted, neither of which has occurred here. ACIC argues that the Government’s Complaint does not allege “property damage,” that the acts alleged were not an “occurrence” under the policy because they were intended or the result of reckless indifference; that if an “occurrence” is found, it is a repeated exposure of the same general conditions existing prior to the ACIC policy; and that the pollution exclusion precludes coverage of a discharge in the regular course of business. ACIC asserts that if there was an intent to procure coverage against the allegations of the Complaint, the insureds intentionally withheld material information which would have prevented the issuance of coverage or limited the risk, and that therefore, the policy is void ab initio. ACIC is the only insurer to raise the doctrine of uberrimae fidei, or absolute and perfect candor, a violation of which is alleged to make an insurance contract voidable. Other arguments raised by ACIC are that there is no contractual liability to the Third-Party Plaintiff Generators either as insureds or third-party beneficiaries since no claim was made, the policy excludes it, and there is no evidence of an intent to procure such coverage. It is also noted that coverage is vitiated by the failure of CCC or Hjersted to provide notice. 15. Centaur’s motion raises the issue that there is a public policy against coverage of pre-existing claims. They assert that contractual coverage is excluded under their first policy, and exists only for designated contracts under the second and third policies. Centaur contends that to find third-party creditor beneficiary status requires the intent of both CCC and Centaur. They also contend that under Missouri law, one cannot act against another party’s insurer until there is a recovery of a final judgment against the insured. Centaur notes that their policies contain a total pollution exclusion and that the policies are void ab initio for either false warranties or material misrepresentations in applying for the insurance. 16. Great Southwest adopts the Insurer’s Joint Memorandum in Support Of the Individual Motions and seeks summary judgment on those grounds. 17. Sperry and Murray (third-party defendant generators) have filed motions for summary judgment on their cross-claims against CCC and two of CCC’s insurers, Foremost and Home, on the issues of their right to indemnification by CCC for all obligations imposed as a result of this litigation, and their right to reimbursement by CCC’s insurers. These two movants contend that as an inducement to enter into business with CCC that CCC explicitly indemnified them against all loss, cost, expense or liability occasioned by CCC’s disposition of their waste, and that their liability in this litigation arises solely out of its dealings with CCC and CCC’s disposal activities. They contend further that CCC’s insurers are responsible for CCC’s liability based on contractual liability insurance covering such contracts; Foremost’s policy is the underlying insurance for Home’s excess coverage. Sperry and Murray also argue that they have an implied right of indemnity even absent an explicit contract based on Missouri law which allows non-contractual indemnity where one party creates a condition which causes injury and another party does not join therein, but is exposed to liability on account of it. Sperry and Murray assert that they are creditor beneficiaries under Missouri law, a party for whom the performance of a contract will satisfy an actual, supposed, or asserted duty of the promise of the contract to the beneficiary, and as such may maintain a direct action against Foremost and Home to obtain reimbursement. The movants also contend that since CCC’s liability has been determined by the Court upon summary judgment, they have become judgment creditors of CCC and have an immediate and direct action against CCC’s liability insurers pursuant to RSMo § 379.200 for all damages, expenses and other costs of the litigation. 18. Third-party defendant insurer Wau-sau has filed a separate motion for summary judgment against the third-party defendants and cross-claimants Sperry and Murray. In its motion, Wausau points out that they have settled with CCC, and CCCI, and with other third-party plaintiffs (FMC, IBM, Armco, and AT & T-TI). Checks have been issued to the Settlement Fund for Wausau’s total aggregate policy limit for property damage. Wausau asserts that there is no basis for the claims of Sperry or Murray; they are neither named insureds nor do they fit within the definition of insureds, the policy’s contractual liability exclusion is not modified by any endorsement, and there is no evidence that Wau-sau, CCC or CCCI intended that Murray or Sperry would be beneficiaries under the Wausau policy. It should be noted that application of the rules for summary judgment precludes approval of a sizeable number of the motions that have been filed. Of the motions that should be denied on that basis, most present a straightforward question of fact or mixed fact and law. Time and space prevent a discussion of the facts of all the motions. Therefore, motions which cannot be granted because there are material facts in dispute are, for the most part, dealt with in a summary manner unless an important or novel question of law is also raised. However, the fact that a particular party’s motion is dealt with without full discussion does not mean that the motion was not given full and careful consideration. On the contrary, every motion was reviewed very carefully. Moreover, the fact that a particular motion is dealt with without full discussion or in a footnote is not a reflection of its relative merit. B. SUMMARY JUDGMENT STANDARDS Summary Judgment, pursuant to the Federal Rules of Civil Procedure, Rule 56(c) “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Utilization of the summary judgment procedure is encouraged to promote judicial economy. Butler v. MFA Life Ins., 591 F.2d 448, 451 (8th Cir.1979). An essential purpose of summary judgment is to determine “whether the parties can provide evidentiary support for their version of the facts.” Perma Research & Development Co. v. Singer Co., 410 F.2d 572, 573 (2nd Cir.1969). As the Special Master has previously noted, summary judgment is a drastic and extreme remedy, not to be granted if there is even the slightest doubt as to a factual dispute on any genuine issue of material fact. Clausen & Sons, Inc. v. Theo. Hamm Brewing Co., 395 F.2d 388, 389 (8th Cir.1968). Judicial reluctance to grant summary judgment is common, and prompted one court to comment: Summary judgment, with ever-lerking issues of fact, is always a treacherous shortcut and, in cases like these, too fragile a foundation for so heavy a load. Such relief is always discretionary, and in cases posing complex issues of fact and unsettled questions of law, sound judicial administration dictates that the court withhold judgment until the whole factual structure stands upon a solid foundation of a plenary trial where the proof can be fully developed, questions answered, issues clearly focused and facts definitively found. Petition of Bloomfield Steamship Co., 298 F.Supp. 1239, 1242 (S.D.N.Y.1969). Summary judgment is authorized under the rule only “where it is quite clear what the truth is, * * * [and where] no genuine issue remains for trial * * * [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Arkansas Nat. Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944)). In assessing the propriety of a motion under Rule 56, Fed.R.Civ.P., the court must scrutinize the evidence to determine whether the movant has met the heavy burden of proving an absence of any material fact, Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The evidence is viewed in the light most favorable to the non-moving party, Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076,1077 (8th Cir.1980), and the non-moving party is to be accorded the benefit of every reasonable factual inference. Buller v. Buechler, 706 F.2d 844 (8th Cir. 1983). All doubts as to the facts or the existence of any material fact are resolved against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). The party seeking judgment has the burden of establishing the right to a judgment with such clarity as to leave no room for any doubt or controversy, Westborough Mall, Inc. v. City of Cape Girardeau, Mo., 693 F.2d 733, 737 (8th Cir.1982), cert, denied sub nom. Drury v. Westborough Mall, Inc., 461 U.S. 945, 103 S.Ct. 2122, 77 L.Ed.2d 1303 (1983); Jewson v. Mayo Clinic, 691 F.2d 405, 408 (8th Cir.1982); Snell v. United States, 680 F.2d 545, 547 (8th Cir.), cert, denied, 459 U.S. 989, 103 S.Ct. 344, 74 L.Ed.2d 384 (1982), and to prove that the non-moving party is not entitled to recover under any discernable circumstances. McGee v. Hester, 724 F.2d 89, 91 (8th Cir.1983); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361, 1363-64 (8th Cir.1983). Factual allegations underlying a motion for summary judgment must be established by sworn testimony of a competent witness, and only admissible evidence may be considered by the trial court. Fed.R.Civ.P. 56(e); Security Nat’l Bk. v. Belleville Livestock Comm’n Co., Inc., 619 F.2d 840 (10th Cir.1980); Hollingsworth Solderless Term. Co. v. Turley, 622 F.2d 1324 (9th Cir.1980). Evidence that is presented to support or oppose the motion that is subject to conflicting interpretations, or is such that reasonable men might differ as to its significance, makes summary judgment improper. Snyder v. United States, 717 F.2d 1193, 1195 (8th Cir.1983). This is also true where the affidavits or other sworn statements require an evaluative judgment between rationally possible conclusions. Minnis v. U.A.W., 531 F.2d 850, 854 (8th Cir.1975). In considering specific evidence submitted to support motions for summary judgment, courts have held that statements of counsel made at oral argument or in legal memoranda may not be used to establish facts. See, Transurface Carriers, Inc. v. Ford Motor Co., 738 F.2d 42, 46 (1st Cir.1984); Watts v. United States, 703 F.2d 346, 353 (9th Cir.1983); British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978), cert, denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 241 (1979). Statements of opinion, belief and hearsay which would be inadmissible in evidence and which are contained in affidavits must similarly be disregarded. Neff v. World Publishing Co., 349 F.2d 235, 253 (8th Cir. 1965). Furthermore, the affiant must be qualified to render opinions on the issues or subjects, National Souvenir Center v. Historic Figures, Inc., 728 F.2d 503, 512 n. 5 (D.C.Cir.) cert, denied, 469 U.S. 825, 105 S.Ct. 103, 83 L.Ed.2d 48 (1984); Union Ins. Society of Canton, Ltd. v. William Glue-kin & Co., 353 F.2d 946, 952 (2d Cir.1965), and speculative assertions which involve issues of subjective knowledge, intent and state of mind are particularly unsuited for summary disposition by affidavit. Hanke v. Global Van Lines, Inc., 533 F.2d 396, 398 (8th Cir.1976); McSpadden v. Mullins, 456 F.2d 428, 430 (8th Cir.1972). Issues of corporate knowledge or understanding are similarly unsuited for resolution by affidavit. Hanke, supra. Documents offered in support of motions for summary judgment must be authenticated through sworn testimony as to their connection, authenticity, and completeness before they will be considered. E.g., Havo-co of America, Ltd. v. Hollobow, 702 F.2d 643, 646 n. 2 (7th Cir.1983); Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir.1970); Goldman v. Summer-field, 214 F.2d 858, 859 (D.C.Cir.1954); Midland Engineering Co. v. John A. Hall Const. Co., 398 F.Supp. 981, 990 (N.D.Ind. 1975). The same rules apply to testimony given at deposition which is offered in support of a motion for summary judgment. Deposition testimony must be based on personal knowledge, must not contain hearsay, may contain only conclusions the deponent/witness is qualified to make, and must be otherwise unobjectionable under the Federal Rules of Evidence to support a motion for summary judgment. Nadler v. Bay-bank Merrimack Valley, 733 F.2d 182, 184 (1st Cir.1984); Sires v. Luke, 544 F.Supp. 1155, 1160 (S.D.Ga.1982); Liberty Leasing Co., Inc. v. Hillsum Sales Corp., 380 F.2d 1013, 1015 (5th Cir.1967); Standard Rolling Mills, Inc. v. National Mineral Co., 2 F.R.D. 236, 237 (E.D.N.Y.1942). A party opposing summary judgment need not respond or file counter-affidavits or other evidentiary materials under Rule 56 if the affidavits and other evidence of the moving party are intrinsically insufficient to establish its entitlement to summary judgment. Securities & Exchange Comm’n v. Spence & Green Chem. Co., 612 F.2d 896 (5th Cir.) cert, denied, 449 U.S. 1082, 101 S.Ct. 866, 66 L.Ed.2d 806 (1981); Sheet Metal Workers’ Int’l Ass’n Local No. 355 v. NLRB, 716 F.2d 1249, 1254 (9th Cir.1983); Security National Bank v. Belleville Livestock Comm’n Co., 619 F.2d 840, 848 (10th Cir.1980); John v. Louisiana Bd. of Trustees for State Colleges and Univs., 757 F.2d 698 (5th Cir. 1985); Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir.1976). C. UNCONTROVERTED FACTS During the course of this litigation, the Court has issued several Memorandum Opinions and Orders containing specific findings of fact and conclusions of law which relate to a number of the allegations in the United States' Complaint. From the Order of the Court adopting the Special Master’s Recommendation on summary judgment concerning statutory liability, United States v. Conservation Chem. Co., 619 F.Supp. 162 (W.D.Mo.1985), are the following uncontroverted facts: From 1960 until the present, defendant CCC has owned and operated an industrial chemicals waste disposal facility located at 8900 Front Street, Kansas City, Missouri. The approximately six (6) acre site is located on the Missouri River floodplain, between the East Bottoms Levy and the Missouri River, just upstream of the confluence of the Missouri and Blue Rivers. CCC purchased the KC Site in 1959. By early 1963, CCC had constructed a shop and office building, installed various storage tanks and reaction vessels, and constructed six basins at the Site. Basins 1 through 5 were constructed by excavating soils. Basin 6 was constructed by excavating soil and constructing walls. CCC stored, treated and disposed of various chemical wastes in Basins 1 through 6. In addition, CCC operated one or more incinerators at the Site for the destruction of chemical waste from the early 1960s until approximately 1971. CCC also buried various chemical wastes on the Site. Over 50 million gallons of waste materials were transported to the Site during its period of operations. The type of waste which CCC treated, stored or disposed of at the KC Site included: (1) liquid acidic metal finishing wastes, such as spent steel pickling solutions containing sulfuric acid or hydrochloric acid, spent electroplating solutions, and bright dipping solutions; (2) liquid alkaline metal finishing wastes, including wastes containing cyanide; (3) solid cyanide wastes; (4) laboratory wastes; (5) non-pourable organic chemicals; (6) sludge containing arsenic sulfide and elemental phosphorous; (7) filter cake containing arsenic sulfide; and (8) solid cyanides. As a consequence of CCC’s activities, each of the waste disposal basins at the KC Site contains at least the following hazardous substances: methylene chloride; tetrachloroethylene; trichloroethylene; toluene; 1,1,1-trichloroethane; phenol; 2,3,7,8-tet-rachlorodibenzo-P-dioxin; arsenic; beryllium; cadmium; chromium; copper; lead; mercury; nickel; selenium; zinc; and cya-nides. The surface soil at the CCC Site contains at least the following hazardous substances: methylene chloride; tetrachloroe-thyene; tricholoreothylene; bis (2-ethyl-hexyl) phthalate; PCB-1254; arsenic; beryllium; cadmium; chromium; copper; lead; nickel; selenium; zinc; and cyanides. The groundwater beneath the CCC Site contains at least the following hazardous substances: benzene; chloroform; ethyl-benzene; methylene chloride; tetrachloroe-thylene; toluene; 1,1,1-trichloroethane; trichloroethylene; vinyl chloride; phenol; arsenic; cadmium; chromium; copper; nickel; selenium; zinc; and cyanides. The subsurface soil at the CCC Site contains at least the following hazardous substances: methylene chloride; tetrachloroe-thylene; toluene; trichloroethylene; phenol; bis (2-ethylhexyl); phthalate; arsenic; beryllium; cadmium; chromium; copper; lead; nickel; selenium; zinc; and cyanides. Some of these hazardous substances are being released into the environment into areas likely to be directly encountered by humans or other living organisms. The “Remedial Investigation Report” states that hazardous substances are being and may be released from the CCC Site in several ways: Waste materials from the site have the potential for migration via groundwater, surface water or air. Migration to groundwater can occur through leaching or by direct infiltration. These materials can also enter the atmosphere through volatilization or particulate transport while migration to surface water can occur by way of overland flow and flood inundation. Wastes which enter the aquifer beneath the site can be transported by groundwater flow to discharge points along the Blue River and Missouri River. The surface water flow can, in turn, transport these materials to receptors along the Missouri River. By defendants’ own estimates, more than 22,000 pounds of hazardous substances are being discharged into the Missouri River and Blue River each year. Such discharges include the following hazardous substances: benzene; carbon tetrachloride; chloroform; 1,1-dichloroethane; 1,2-dichlo-roethane; 1,1-dichloroethane; ethylben-zene; methylene chloride; tetrachloroe-thyelene; toluene; 1,2-trans-dichloroethy-lene; 1,1,1-trichloroethane; 1,1,2-tricholo-roethane; tricholoroethylene; trichlorofluo-romethane; vinyl chloride; 2,3-dichlorophe-nol; 2,4-dimethyIphenoI; phenol; 2,4,6-tri-chlorophenol; arsenic; cadmium; chromium; copper; nickel, selenium; thallium; zinc; and cyanides. These substances absent remediation will continue to be discharged for many years. Of the substances listed in the preceding paragraphs, at least the following are known or suspected carcinogens for which the recommended exposure level is zero: benzene; carbon tetrachloride; chloroform; 1,2-dichloroethane; 1,1-dichloroethylene; tetrachloroethylene; 1,1,2-trichloroethane; trichloroethylene; polychlorinated biphe-nyls (PCBs); vinyl chloride; trichlorophe-nol; arsenic; and beryllium. There is potential for exposure of humans to these substances. The site is surrounded by Kansas City, Missouri and its suburbs. A farmer cultivates soybeans on the land immediately adjacent to the Site on the southeast side. Mobay Chemical Corporation (“Mobay”) operates a manufacturing facility which is located one-quarter mile south of the site. A Kansas City Power & Light Company (“KCP & L”) plant is locate