Full opinion text
DECISION AND ORDER WARREN, Senior District Judge. This lawsuit concerns the investigation and potential cleanup of a former landfill in Franklin, Wisconsin (the “Site”), which the United States Environmental Protection Agency (“EPA”) has listed on the National Priorities List (“NPL”) established under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq. Plaintiff, Acme Printing Ink Company (“Acme”), is one of a number of companies and persons who may have generated waste that has been disposed of at the Site. Pursuant to CERCLA § 122(a) and (d)(3), 42 U.S.C. § 9622(a) and (d)(3), Acme entered into an Administrative Order by Consent (the “Consent Order”) with the EPA and the Wisconsin Department of Natural Resources (“DNR”). Pursuant to the Consent Order, Acme agreed to conduct a Remedial Investigation (“RI”) to determine to what extent any hazardous substances have been released at the Site and a Feasibility Study (“FS” and, together with the RI, a “RI/FS”) to evaluate alternatives for any removal or cleanup that may be necessary. Acme brought this action against Me-nard, Inc. (“Menard”), the current owner of the Site, and numerous other defendants whom Acme believes share responsibility for any hazardous conditions at the Site. Now before this Court is: (1) defendant Cambridge Chemical, Inc., et al.’s (the “Cambridge defendants”) Motion to Dismiss; (2) Texaco’s Motion for Partial Summary Judgment; (3) Wausau’s Motion to Dismiss; (4) Reliance’s Motion to Dismiss Counterclaims; (5) Acme’s Motion to Strike Pleadings and for Default Judgment for Failure to Answer Interrogatories; and (6) Acme's Motion to Strike and Exclude the Prior Deposition Testimony of Edward Fadrowski. I. CAMBRIDGE DEFENDANTS’ MOTION TO DISMISS A. Background 1. Facts alleged in Acme’s Complaint From approximately 1970 until 1983, Edward J. Fadrowski, owner of Ed’s Trucking, owned the property on which the Site is located. During this period, hazardous waste and solid waste containing hazardous constituents, pollutants and contaminants were disposed of at the Site. In 1983, Menard purchased the property on which the Site is located with knowledge that the property had previously been used for waste disposal. As part of the purchase contract, Menard agreed to allow Mr. Fadrowski to continue to use the Site for waste disposal. Beginning in 1983 and continuing for an undetermined period thereafter, Menard excavated areas of the Site in connection with the construction of a Me-nard Cashway Lumber Store on the property adjacent to the Site. During the excavation, Menard exposed hazardous waste which had been buried at the Site and generated additional hazardous waste by mixing and commingling hazardous and non-hazardous waste. Menard’s excavation of the Site caused the release of hazardous substances, pollutants or contaminants from the previously disposed hazardous and solid waste. Me-nard then illegally disposed of the additional quantities of hazardous waste and waste containing hazardous substances, pollutants or contaminants generated during the excavation of the Site. Menard reburied and/or abandoned the waste without a permit or license from the DNR or the EPA. A sampling analysis by the DNR during Menard’s excavation of the Site identified the presence and release of hazardous substances, pollutants and contaminants within the meaning of CERCLA §§ 101(14) and (33), 42 U.S.C. § 9601(14) and (33). The release of hazardous substances, pollutants and contaminants in the Site created an imminent and substantial threat to human health and/or the environment. Based on the results of the EPA and DNR investigations, the Site was nominated for and placed on the NPL in May 1986, pursuant to CERCLA § 105, 42 U.S.C. § 9605. In placing the Site on the NPL, the EPA took into account such factors as the population at risk, the threatened release of hazardous substances, pollutants and contaminants at the Site, the possible contamination of drinking water supplies and the destruction of sensitive ecosystems. In May 1987, EPA and DNR entered into the Consent Order with Acme. Pursuant to the Consent Order, Acme agreed to conduct: (1) a RI in accordance with the terms of the National Contingency Plan (“NCP”), to determine fully the nature and extent of the release or threatened release of hazardous substances, pollutants and contaminants from the Site; and (2) a FS in accordance with the NCP to identify and evaluate alternative forms of appropriate remedial action to prevent or mitigate the migration of the release or threatened release of hazardous substances, pollutants or contaminants at the Site. The estimated cost of the RI/FS plus other reimbursable Site costs incurred by EPA and DNR exceeds $600,000.00. 2. Acme’s claims for relief In Acme’s Complaint, plaintiff alleges ten (10) claims for relief. However, the Cambridge defendants have moved to dismiss only plaintiffs first two claims. Accordingly, the Court will set forth only Claims I and II of plaintiffs Complaint. In Acme’s first claim for relief, it asserts that pursuant to § 7002(a) of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972(a), it is entitled to: (1) an order declaring the principal defendants liable for their past handling of hazardous waste and solid waste containing hazardous substances, pollutants or contaminants at the Site and (2) a judgment enjoining them to take such action as may be appropriate to rectify their past mishandling, transportation or disposal of waste at the Site and/or such violations of RCRA, Sub-chapter III, as were admitted by them. Acme notes that the transportation and disposal of hazardous waste without a permit constitutes a violation of RCRA, Sub-chapter III, as well as the provisions of the Wisconsin Hazardous Waste Management Plan approved pursuant to RCRA. In addition, plaintiff states that pursuant to 42 U.S.C. § 6972(a)(1)(A) and 42 U.S.C. § 6928(a) and (g), Ed’s Trucking, Mr. Fa-drowski, Marcia Smith, Anthony Ivancich, Menard and such other of the principal defendants that contracted for or actively transported or disposed of hazardous waste without a permit are liable for civil penalties. These penalties may be up to $25,000 for each violation of RCRA, Subchapter III, committed by them for each day that each violation has continued. In its second claim for relief, Acme seeks a declaration of liability for response costs under CERCLA. Pursuant to this claim for relief, Acme asserts that: (1) due to the past releases and threatened further releases of hazardous substances, pollutants or contaminants on and from the waste disposed of at the Site, the Site poses an imminent and substantial danger to public health and welfare; (2) the Site constitutes a facility within the meaning of CERCLA § 101(9), 42 U.S.C. § 9601(9); (3) the waste disposed of, found and released at the Site was hazardous and contained hazardous substances, pollutants or contaminants within the meaning of CERCLA §§ 101(14) and (33), 42 U.S.C. §§ 9601(14) and (33); (4) there have been releases and there continue to be threatened releases of hazardous substances at the Site within the meaning of CERCLA § 101(22), 42 U.S.C. § 9601(22); (5) each of the principal defendants is a responsible party under CERC-LA § 107(a)(l)-(4), 42 U.S.C. § 9607(a)(1)-(4). Acme states that each of the principal defendants is, alternatively, an owner of the Site, an operator of the Site, a person who entered into a contractual relationship or arrangement for the transportation or disposal of waste at the Site or a person who accepted waste for transport to the Site, whose acts have resulted in the release of hazardous substances, pollutants or contaminants from the Site. Acme further asserts that after the discovery of the releases of hazardous substances, pollutants or contaminants, it has initiated response actions to assess, address and identify an appropriate remedial action to the imminent and substantial hazard to human health and the environment. Acme states that its response actions are consistent with the NCP and are being taken at considerable cost to Acme. Acme asserts that it is entitled to three forms of relief under CERCLA. First, pursuant to CERCLA §§ 107 and 113, 42 U.S.C. §§ 9607 and 9613, Acme asserts that it is entitled to judgment against the principal defendants for contribution for their pro-rata share of the amount of actual response costs incurred by it consistent with the terms of the NCP. Second, pursuant to CERCLA §§ 107 and 310, 42 U.S.C. §§ 9607 and 9659, Acme asserts that it is entitled to a judgment declaring that the principal defendants are jointly and separately liable for any further response actions necessary to respond to the releases and threatened releases of hazardous substances at the Site in a manner consistent with the terms of the NCP. Third, pursuant to 42 U.S.C. § 9659, Acme asserts that it is entitled to a judgment enjoining the principal defendants to participate in undertaking appropriate responses pursuant to the NCP. 3. Procedural background On August 21, 1989, defendant Cambridge Chemical, Inc. submitted its Motion to Dismiss. In its motion to dismiss, Cambridge argues that Acme’s Claim I, brought pursuant to RCRA, and Claim II, brought pursuant to CERCLA, should be dismissed. The following defendants have joined in the motion filed by Cambridge: (1) Service Painting Corp.; (2) Williams Petroleum, Inc.; (3) Miller Tilt-Top Trailer, Inc. and Lewis Miller; (4) Texaco, Inc.; (5) Richard Drexler; (6) Pemper Engineering Co., Inc.; (7) Lincoln Savings Bank, S.A.; (8) Menard, Inc.; (9) Cardinal Fabricating Corp.; (10) Robert Howell; (11) Robert Bera; (12) Sun Control Corp.; (13) Chromium, Inc.; (14) Kramer Brass Foundry, Inc.; (15) Commercial Heat Treating, Inc.; (16) Supreme Casting, Inc.; and (17) Frank Povlick, Inc. In addition, Service Painting Corp., Williams Petroleum, Inc., Miller Tilt-Top Trailer, Inc. and Lewis Miller filed a separate Motion to Dismiss. In this motion, these defendants joined in Cambridge's arguments as well as alternative grounds for dismissing. This Court will address these defendants’ additional arguments for dismissal as well as the Cambridge defendants’ arguments below. B. Discussion 1. Claim I Acme’s first claim against defendants is brought under RCRA’s citizen suit provision, § 6972(a) which provides in part: (a) In general. Except as provided in subsection (b) or (c) of this section, any person may commence a civil action on his own behalf— (1)(A) against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement or order which has become effective pursuant to this Act; or (B) against any person ... including any past or present generator, past or present transporter, or past or present owner or operator of a treatment, storage, or disposal facility, who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial - endangerment to health or the environment. Plaintiff’s Complaint appears to have been brought pursuant to both § 6972(a)(1)(A) and § 6972(a)(1)(B). See Complaint at n 73, 75. In their motion to dismiss, the Cambridge defendants assert that plaintiff’s claim pursuant to § 6972(a) is barred because: (1) § 6972(b)(2)(B)(iv) bars citizen suits where a consent order has been obtained by the EPA and a party is conducting a RI/FS; (2) § 6972(b)(2)(C)(iii) bars citizen suits where the State has incurred costs to initiate a RI/FS and is diligently proceeding with a remedial action under that Act; and (3) RCRA citizen suits cannot be brought for allegedly past violations of RCRA. The Court shall address each of the Cambridge defendants’ arguments below. a. Section 6972(b)(2)(B)(iv) The Cambridge defendants first argue that § 6972(b)(2)(B)(iv) prohibits Acme from commencing its RCRA citizen suit because of the Consent Order entered into between Acme, the EPA and the DNR. Section 6972(b)(2)(B)(iv) provides: (b) Actions Prohibited (2)(B) No action may be commenced under subsection (a)(1)(B) of this section if the Administrator, in order to restrain or abate acts or conditions which may have contributed or are contributing to their activities which may present the alleged endangerment— * .k * * * # (iv) has obtained a court order (including a consent decree) or issued an administrative order under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, or section 703 of this Act [42 U.S.C. § 9606, 6973] pursuant to which a responsible party is diligently conducting a removal action, Remedial Investigation and Feasibility Study (RI/FS), or proceeding with a remedial action. In the case of an administrative order referred to in clause (iv), actions under subsection (a)(1)(B) are prohibited only as to the scope and duration of the administrative order referred to in clause (iv). (Emphasis added). As Acme correctly notes, § 6972(b)(2)(B)(iv) provides a bar to citizen suits pursuant to § 6972(a)(1)(B) only, not those under § 6972(a)(1)(A). Accordingly, the Cambridge defendants’ arguments under § 6972(b)(2)(B)(iv) do not affect Acme’s claims under § 6972(a)(1)(A). Acme also argues that § 6972(b)(2)(B)(iv) does not apply to its § 6972(a)(1)(B) claim. In support of this argument, Acme states: (1) the Consent Order is not an order under CERCLA § 106, or RCRA § 7003 but a settlement pursuant to CERCLA § 122; (2) the Consent Order specifically allows Acme to bring claims against the defendants in question; (3) § 6972(b)(2)(B)(iv) only applies as to the scope and duration of the Consent Order and it does not reach areas beyond the initial RI/FS. i. Consent Order under CERCLA § 122, not CERCLA § 106 or RCRA § 7003 As Acme notes, § 6972(b)(2)(B)(iv)’s restriction on citizen suits only applies where the EPA Administrator has (1) obtained a court order (including a consent decree) or (2) issued an administrative order under CERCLA § 106 or RCRA § 7003. In this case, the EPA administrator has not obtained a court order. In addition, the administrative consent order falls within CERCLA § 122, not CERCLA § 106 or RCRA § 7003. CERCLA § 106 provides that “when the President determines that there may be an imminent and substantial endangerment to the public health or environment because of an actual or threatened release of a hazardous substance waste facility,” he may issue “such orders as may be necessary to protect public health and welfare and the environment.” RCRA § 7003 similarly provides that the EPA, when faced with “an imminent and substantial endangerment to health or the environment ... may bring suit on behalf of the United States ... against any person ... who has contributed or is contributing to such handling, storage, treatment, transportation or disposal to restrain such person from such handling, storage, treatment, transportation, or disposal, to order such person to take such other action as may be necessary, or both.” CERCLA § 106 and RCRA § 7003 describe emergency executive orders which the president may issue in response to situations which cause imminent and substantive endangerment to health or the environment. Congress presumedly wished to prevent citizen suits in cases where the EPA had already taken emergency action for two reasons: (1) there is no need for citizens to act as private attorneys general when the EPA has taken action and (2) court intervention would slow the immediate action necessary. In contrast to the types of court and administrative orders to which § 6972(b)(2)(B)(iv) refers, the Consent Order between the EPA, DNR and Acme was executed under the authority of CERCLA §§ 122(a) and (d)(3), 42 U.S.C. §§ 9622(a) and (d)(3). Section 122(a) authorizes the President to “enter into an agreement with any person (including the owner or operator of a facility from which a release or substantial threat of release emanates, or any other potential responsible person), to perform any response action ... if the President determines that such action will be done properly by such person.” Section 122 governs settlement between the EPA and potentially responsible parties. In contrast to cases involving CERCLA § 106 and RCRA § 7003 orders, there is no need to prevent citizen suits after CERCLA § 122 settlements. In fact, permitting such suits to go forward advances § 122’s policy favoring settlement by allowing those who enter into consent orders to recover their costs. In conclusion, because the Consent Order between the EPA, the DNR and Acme was executed pursuant to § 9622 and not CERCLA § 106 or RCRA § 7003, this Court finds that § 6972(b)(2)(B)(iv) does not prohibit Acme’s citizen suit, ii. Consent Order permitting suit and not reaching beyond initial RI/FS Because this Court has concluded that § 6972(b)(2)(B)(iv) does not bar Acme’s suit since the Consent Order is not a CERCLA § 106 or RCRA § 7003 order, the Court need not address Acme’s remaining arguments. b. Section 6972(b)(2)(B)(iii) The Cambridge defendants next argue that Acme’s citizen suit is barred by § 6972(b)(2)(B)(iii), which provides that no action may be commenced under subsection (a)(1)(B) of this section if the EPA: has incurred costs to initiate a Remedial Investigation and Feasibility Study under section 104 of the Comprehensive Environmental Response Compensation and Liability Act of 1980 [42 USCS § 9604] and is diligently proceeding with a remedial action under that Act; Thus, § 6972(b)(2)(B)(iii) bars citizen suits brought under § 6972(a)(1)(B) if two conditions are met: (1) the EPA has incurred costs to initiate a remedial investigation and feasibility study and (2) the EPA is diligently proceeding with a remedial action. With regard to the first condition, the Cambridge defendants note that the Consent Order provided that Acme was to conduct a RI/FS under the supervision of the EPA and DNR. See Consent Order. In addition, the defendants note that Acme’s Complaint provides that “the estimated costs of the RI/FS plus reimbursement oversight cost incurred by the USEPA and WDNR exceeds $600,000.00.” See Complaint at ¶ 57. In addition, the Cambridge defendants assert that the Consent Order contains provisions putting the EPA at the helm of the RI/FS process and explicitly acknowledges that the EPA will incur costs. For example, the Cambridge defendants cite the costs being incurred for EPA project coordinator. In response, Acme argues that the Cambridge defendants’ argument fails under the plain meaning of § 6972(b)(2)(B)(iii). First, Acme asserts that the EPA and DNR have not incurred costs to initiate a RI/FS under § 104 of CERCLA and that the Complaint unambiguously alleges that plaintiff is the party performing the RI/FS. Acme notes that under the Consent Order, it is obligated to conduct the RI/FS and to reimburse the EPA and DNR for oversight costs. See Consent Order, § IX Work to be Performed; § X Plans and Reports; § XXV Reimbursement of Costs. Second, Acme asserts that the EPA and DNR are not proceeding with any remedial action under CERCLA because the EPA’s and DNR’s involvement in the RI/FS amounts to a removal and not a remedial action, i. Costs This Court finds Acme’s first argument, that the EPA and DNR have not incurred costs, lacks merit. It is clear from both the Consent Order and the Complaint that the EPA and DNR have incurred costs of over $600,000. It appears that Acme must reimburse the EPA and DNR for these costs. Nonetheless, the EPA “has incurred costs to initiate a Remedial Investigation and Feasibility Study.” ii. Remedial action The term “removal” relates to cleanup actions taken on a temporary or emergency basis. See 42 U.S.C. § 9601(23). In contrast, the term “remedial action” refers to permanent solutions and alternative treatments. See 42 U.S.C. § 9601(24). Some courts have indicated that RI/FS’s fall within § 9601(23) removal actions. See Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir.1986); Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1575 (5th Cir.1988) (“ ‘remove’ or ‘removal’ includes ‘such actions as may be necessary to monitor, access, and evaluate the release or threat of release of hazardous substances ... ’ § 9601(23). Investigatory costs fall within the ambit of this provision”). However, the RI/FS in this case and RI/FS’s in general appear to relate to permanent as well as temporary cleanup actions. See Consent Order, § IV Statement Purpose, 11 A. Accordingly, this Court finds that the RI/FS in this action constitutes remedial as well as removal activity. Nonetheless, this Court finds that, even though the RI/FS may fall within CERC-LA’s definition of “remedial actions,” it does not meet the second requirement of § 6972(b)(2)(B)(iii). The parties point to no language in RCRA or CERCLA which indicates that Congress intended to allow a party to bootstrap the EPA’s actions so that the initiation of a RI/FS could meet both the requirement that the EPA has incurred costs to initiate such an investigation and study and that it is diligently proceeding with a remedial action. In order to give meaning to both requirements, this Court must interpret § 9672(b)(2)(B)(iii) to require both that the EPA has initiated a RI/FS and is diligently proceeding with some remedial action beyond the remedial investigation and feasibility study. Because the Cambridge defendants point to no remedial action by the EPA beyond its involvement with the RI/FS, this Court finds that their argument for dismissal based on § 6972(b)(2)(B)(iii) lacks merit, c. Plaintiff is not an appropriate private attorney general The Cambridge defendants next argue that Acme cannot properly act as a private attorney general under § 6972(a). In support of this argument, the Cambridge defendants state: (1) a private attorney general under the citizen suit provision must be a third-party suing for the benefit of others, not for his own private benefit; (2) citizens’ suits are reserved solely for those situations where citizens are needed to act as private attorneys general to fill a void because the government has not commenced an action against polluters; and (3) Acme could bring an action for contribution under state law or 42 U.S.C. § 9613. i. Private benefit The Cambridge defendants first argue that plaintiff should not be able to bring a citizen’s suit because it is suing for its own benefit, rather than for the benefit of another. However, this Court is aware of no policy or language within § 6972 which prevents a party from seeking remedies which are to its benefit as well as the benefit of others. ii. Lack of void The Cambridge defendants next argue that citizens’ suits are reserved solely for those instances where citizens need to act as private attorneys general to fill a void where the government has not commenced an action against polluters. See Hudson River Fishermen’s Association v. Westchester Cty., 686 F.Supp. 1044, 1052 (S.D.N.Y.1988). In Hudson River, the court permitted plaintiff to proceed with a Clean Water Act citizen’s suit but only because the government’s enforcement action did not address the factual grievances asserted by plaintiff. See id. The Hudson River holding has relevance to this action because it was brought under citizen’s suit provision of the Clean Water Act, which parallels § 6972. See 33 U.S.C. § 1365(b)(1)(B); 42 U.S.C. § 6972(b)(1)(B). In relevant part, 33 U.S.C. § 1365(b)(1)(B) provides: No action may be commenced— (1) Under subsection (a)(1) of this section— * * * * * * (B) If the Administrator or State has commenced and is diligently prosecuting an civil or criminal action in a court of the United States or a State to require compliance with the standard, limitation, or order, but in any such actions in a court of the United States any citizen may intervene as a matter of right. Similarly, 42 U.S.C. § 6972(b)(1)(B) provides: No action may be commenced under § (a)(1)(A) of this section— * jj! * * * * (b) if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States or a State to require compliance with such permit, standard, regulation, condition, requirement, prohibition, or order. However, in this case, neither the EPA nor the DNR has instituted a civil or criminal action against Acme or the Cambridge defendants. Accordingly, the holding in Hudson River does not bar Acme’s citizen suit. iii.Contribution action available Finally, the Cambridge defendants argue that Acme should be prevented from pursuing their citizen’s suit because they can bring an action for contribution under state law or 42 U.S.C. § 9613. See 42 U.S.C. § 9613(f). However, the Cambridge defendants present no case law supporting this assertion. Moreover, that CERCLA and RCRA provide private parties more than one avenue of relief is hardly surprising. Accordingly, this Court finds that the Cambridge defendants' final argument lacks merit. d. Wholly past violations The Cambridge defendants next argue that Acme’s RCRA citizen suit claim must be dismissed because it is based upon alleged wholly past violations of RCRA. In support of this argument, the Cambridge defendants cite Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc. and National Resource Defense Counsel, 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). In Gwaltney, the Supreme Court held that citizens’ suits could not be maintained under the Clean Water Act for alleged wholly past violations of the Act. In construing the citizen’s suit provision in the Clean Water Act, 33 U.S.C. § 1251, et seq., the Gwaltney court concluded: The most natural reading of “to be in violation” is a requirement that citizen/plaintiff alleged a state of either continuous or intermittent violation— that is, a reasonable likelihood that a past polluter will continue to pollute in the future. Congress could have phrased its requirement in language that looked to the past (“to have violated”), but it did not choose this readily available option. Id. at 57, 108 S.Ct. at 380. In support of this conclusion, the Supreme Court noted that: (1) Congress used identical language in the citizen’s suit provision of several other environmental statutes that authorized only prospective relief, see id.; (2) the pervasive use of the present tense throughout the Clean Water Act’s citizen suit provision indicates the prospective orientation of the provision, see id. at 58-59, 108 S.Ct. at 381-82; and (3) the legislative history of the Act indicates that citizen suits were intended to abate pollution and to enjoin continuous or intermittent violations, not to remedy wholly past violations. See id. at 61-63, 108 S.Ct. at 383-84. As the Cambridge defendants note, several courts have extended the Gwaltney holding to RCRA’s analogous citizen’s suit provision, § 6972(a)(1)(A). See, e.g., Lutz v. Chromatex, 718 F.Supp. 413, 424 (M.D.Pa.1989). The Lutz Court states: Defendants contend that wholly past violations of RCRA cannot be the subject of a citizen suit under section 7002(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A), 42 U.S.C. § 6972(a)(1)(A). This argument is even stronger with respect to RCRA than with CERCLA. In Gwaltney, the Supreme Court specifically mentioned RCRA as an environmental statute that authorizes only prospective relief. See Gwaltney [484 U.S. at 57 n. 2], 108 S.Ct. at 381 n. 2. In addition, every court that has analyzed section 7002 in the wake of Gwaltney has concluded that an allegation of either a continuous or intermittent violation is required. See Ascon Properties, Inc. v. Mobil Oil Co., supra [866 F.2d 1149] [(9th Cir.1989) ]; Coburn v. Sun Chemical Corp., supra [1988 WL 120739] (“The Gwaltney Court’s interpretation of the phrase ‘to be in violation’ contained in the citizen suit provision of the Clean Water Act applies with equal fervor to the very identical phrase contained in the citizen suit provision of RCRA.... Thus, we find that Section 7002(a)(1)(A) of RCRA bars any suit based on ‘wholly past’ violations of RCRA”); McClellan Ecological Seepage Situation v. Weinberger, 707 F.Supp. 1182, 1187 (E.D.Cal.1988) (“The citizen suit provisions of RCRA and the Clean Water Act are forward-looking; they are intended to remedy present and future harmful impacts, not conduct that has occurred entirely in the past and cannot reasonably be expected to result in future harm”). Id. at 424. This Court concurs with the holding in Lutz that § 6972(a)(1)(A) requires an allegation of either a continuous or intermittent violation. Section 6972(a)(1)(A) contains the same “to be in violation” language as 33 U.S.C. § 1365(a)(1)(A). In addition, Acme points to no legislative history or other evidence showing that Congress did not wish to limit the reach of § 6972(a)(1)(A) to continuous or intermittent violations. While this Court finds that the reach of § 6972(a)(1)(A) is confined to allegations of continuous or intermittent violations, this Court also finds that Acme alleges “a state of either continuous or intermittent violation^] — that is, a reasonable likelihood that past polluter[s] will continue to pollute in the future.” Acme’s Complaint states: Each of the principal defendants identified in ¶1¶ 7-43 is, alternatively, a person, generator, transporter, owner or operator, who by contract, arrangement or conduct has contributed to the handling, transportation or disposal of solid or hazardous waste, which has created and presents an imminent or substantial endangerment to the public health or the environment. Complaint at 1172 (emphasis added). RCRA includes in its broad definition of “disposal” the continuous leaking of hazardous substances. See 42 U.S.C. § 6903(3); see also Jones v. Inmont Corp., 584 F.Supp. 1425, 1436 (S.D.Ohio 1984) (continual leaking from a site is “disposal” and joinable under § 6973); see also United States v. Waste Industries, Inc., 734 F.2d 159, 164 (4th Cir.1984). Accordingly, leaking of hazardous substances may constitute a continuous or intermittent violation of RCRA. Because plaintiff alleges present conduct on the part of the Cambridge defendants, this Court cannot properly dismiss plaintiffs § 6972(a)(1)(A) claim on the ground that it is based on wholly past violations. e. Cambridge defendants did not control disposal The Cambridge defendants next argue that this Court should dismiss Acme’s claim under § 6972(a)(1)(B) because they have not “contributed to” the imminent and substantial endangerment at the Site. In support of this argument, the Cambridge defendants cite United States v. Aceto Agricultural Chemicals Corp., 699 F.Supp. 1384 (S.D.Ia., W.D.1988). In Aceto, the district court dismissed a RCRA § 7003 action brought by the government on the grounds that there were insufficient facts alleged in the government’s complaint to establish that the defendant’s actions “contributed” to the imminent and substantial endangerment condition at the site. The district court adopted a narrow interpretation of the phrase “contributing to” and required specific allegations in the complaint to demonstrate how defendants had the authority to control the manner in which hazardous substances or waste were disposed of at the site. See id. at 1391-92. The court was concerned with the possibility of “a very slippery slope” if all prior owners of hazardous waste were held accountable for their disposal. See id. at 1392. The Eighth Circuit reversed the district court’s holding with respect to the meaning of “contributed to.” See United States v. Aceto Agr. Chemical Corp., 872 F.2d 1373, 1383-84 (8th Cir.1989). The circuit court disagreed with the district court’s conclusion that RCRA should be narrowly construed. See id. at 1383. The circuit court noted that “[t]he relevant .legislative history supports a broad, rather than a narrow construction of the phrase ‘contributed to.’ ” See id. (Citing H.R.Rep. No. 31, 96th Cong., 1st Sess. 31 (1979) (the Eckhardt Report); S.Rep. No. 172, 96th Cong., 2nd Sess. 5, reprinted in 1980 U.S.Code Cong. & Admin.News 5019, 5023.; United States v. Waste Industries, Inc., 734 F.2d 159, 166 (4th Cir.1984)). More importantly, the Eighth Circuit noted that “like CERC-LA, RCRA is a remedial statute which should be liberally construed.” See Aceto at 1373 (citing United States v. Price, 688 F.2d 204, 211, 213-14 (3d Cir.1982)). The circuit court went on to state that an explicit allegation of control is not necessary and that a plaintiff’s complaint is sufficient if it alleges that a defendant had “the authority to control ... waste disposal.” See id. This Count concurs with the Eighth Circuit’s finding with respect to Congress’ intent. In addition, this Court finds that Acme’s Complaint need not explicitly allege control on the part of the Cambridge defendants. Rather, Acme’s Complaint states a cause of action under § 6972(a)(1)(A) if it alleges that the Cambridge defendants had authority to control the disposal of the hazardous waste. Acme’s Complaint alleges that the Cambridge defendants “contracted for or otherwise arranged for the transportation and disposal of the waste [they] generated.” See Complaint at ¶¶ 62-67, 69. Accordingly, the Complaint adequately pleads that the Cambridge defendants contributed to the imminent and substantial endangerment at the site. g. Failure to serve United States Attorney General The Cambridge defendants next argue that this Court should dismiss Acme’s claim under § 6972(a)(1)(B) because Acme failed to serve a copy of the Complaint on the United States Attorney General. See § 6972(b)(2)(F). The Cambridge defendants note that while Acme’s Complaint states that it gave notice of its intent to file this action by serving a “Notice of Intent” on the EPA, see Complaint at ¶ 59, the Complaint does not contain any allegation that it notified the Attorney General of this action. The defendants argue that this Court should find the failure of the Complaint to contain any allegation of notice or service of the Complaint on the Attorney General to be fatal to Acme’s § 6972(a)(1)(B) action. In support of this argument, the Cambridge defendants cite Ascon Properties, Inc. v. Mobil Oil Corp., 866 F.2d 1149, 1159 (9th Cir.1989). The Court’s Docket Sheet makes clear that Acme served both the United States Attorney General and the Administrator of the EPA. See Docket Sheet, Entry No. 161A. Since § 6972(b)(2)(F) merely requires that a plaintiff serve a copy of the complaint on the Attorney General and the Administrator and does not require that the plaintiff record that service in his complaint, this Court finds that Acme has met the requirements of subsection (b)(2)(F). 2. Claim II Acme’s second claim of relief is for recovery and declaration of liability for response costs under CERCLA §§ 107, 113, and 310. See Complaint at ¶1¶ 82-86; 42 U.S.C. §§ 9607, 9613 and 9659. Acme seeks recovery of the costs it has incurred in performing the RI/FS from defendants under the liability provision of § 107(a)(1)-(4)(B). See Complaint at 111182, 84; 42 U.S.C. § 9607(a)(l)-(4)(B). Incident to its cost recovery claim under § 107, Acme also seeks a declaratory judgment finding the principal defendants liable for response costs or damages under § 113(g)(2), that would be binding in any attempt to recover such costs or damages in the future. See Complaint at 111184-85; 42 U.S.C. § 9613(g)(2). In addition, Acme asks the Court to allocate equitably, pursuant to § 113(f)(1), the response costs among those persons found liable under § 107(a). See Complaint at 1184; 42 U.S.C. §§ 9607(a) and 9613(f)(1). Finally, Acme requests the Court for relief under § 310, enjoining the principal defendants to participate in undertaking the appropriate responses or remedial actions according to the NCP. See Complaint at If 86; 42 U.S.C. § 9659. The Cambridge defendants argue that this Court should dismiss each of the sub-claims contained in Claim II. a. Subclaim 1: § 107(a)(l)-(4)(B) Pursuant to CERCLA § 107(a)(l)-(4)(B), Acme seeks recovery of costs it has incurred in performing the RI/FS from the principal defendants. Section 107(a)(1)-(4)(B) provides: (a) Covered person; scope; recoverable costs and damages; interest rate; “comparable maturity” date. Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section— (1) the owner and operator of a vessel or a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged 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 or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) 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 incurrence of response costs, of a hazardous substance, shall be liable for— * sfc * * * sfs (B) any other necessary costs or response incurred by any other person consistent with the national contingency plan In order to bring an action under § 107(a)(l)-(4)(B), a plaintiff must allege: (1) that the site in question is a “facility” as defined in CERCLA § 101(9), 42 U.S.C. § 9601(9); (2) that the defendant is a responsible person under § 107(a); (3) that a release or threatened release of a hazardous substance has occurred; and (4) that the release or threatened release has caused the plaintiff to incur response costs. See, e.g., Amoco Oil Co. v. Borden, Inc., 889 F.2d 664 (5th Cir.1989); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1152-53 (9th Cir.1989). In this case, Acme has met each of the four requirements. First, Acme alleges that the Site constitutes a facility within the meaning of § 101(9). See Complaint at ¶ 79. Second, plaintiff alleges that each of the principal defendants is a responsible person under § 107(a). In paragraphs 60-62, 64-67, 72 and 82, Acme alleges that various generator defendants, including the Cambridge defendants, arranged for disposal of hazardous substances that were disposed of at the Site. See 42 U.S.C. § 9607(a)(3). In paragraphs 60, 69 and 82, Acme alleges that several transporters, including members of the Cambridge defendants, transported and disposed of hazardous waste at the Site. See 42 U.S.C. § 9607(a)(4). In paragraphs 6, 7, 9, 50, 51, 70 and 82, plaintiff alleges that present and past owners and operators of the facility, including members of the Cambridge defendants, are liable parties. See 42 U.S.C. § 9607(a)(1) and (2). Third, in paragraphs 6, 52, 53, 54, 80 and 81, Acme alleges the “release” or “threatened release” of “hazardous substances” has occurred at the Site. Fourth, in paragraphs 57 and 83, Acme alleges that it has incurred “response costs.” In spite of Acme’s allegations, the Cambridge defendants argue that Acme’s § 107(a) claim should be dismissed because “it has not incurred or agreed to incur remedial costs.” The Cambridge defendants note that Acme’s Complaint alleges that it only has incurred “response costs” for “properly assessing, addressing and identifying an appropriate remedy.” See Complaint at ¶ 83. The Cambridge defendants further note that there are no allegations that Acme has incurred or has agreed to incur costs associated with actually cleaning up the Site. In fact, the Cambridge defendants note, the Consent Order states that Acme makes no commitment to perform remedial work at the Site other than the preparation of the RI/FS. See Consent Order at § IV, II A. The Cambridge defendants argue that Congress intended to authorize private parties to bring suits under § 107(a)(1) — (4) only if they incurred costs associated with remedial action as well as removal costs. In support of this argument, the Cambridge defendants note the differing language in § 107(a)(4)(A) and § 107(a)(4)(B). Section 107(a)(l)-(4)(A) governs suits by the government and states that the government can recover “all costs of removal or remedial action.” See 42 U.S.C. § 9607(a)(1)-(4)(A) (emphasis supplied by Cambridge defendants). Section 107(a)(l)-(4)(B) governs suits by private persons and states that such parties can recover any “... necessary costs of response incurred by [them] consistent with the national contingency plan.” See 42 U.S.C. § 9607(a)(l)-(4)(B). The Cambridge defendants argue that, while the government can recover costs of either remedial or removal actions, a private party must incur both removal and remedial costs in order to obtain reimbursement under § 107(a). In support of this argument, the Cambridge defendants cite the definition of the term “response:” The terms “respond” or “response” means [mean] remove, removal, remedy, and remedial action, and all such terms (including the terms “removal” and “remedial action”) includes enforcement activities related thereto. 42 U.S.C. § 9601(25) (emphasis supplied by Cambridge defendants). Based on the above definition, the Cambridge defendants argue that Congress did not define the term “response” in the alternative and intended it to encompass the terms “remove,” “removal,” “remedy,” and “remedial action.” The Cambridge defendants then state that Acme’s RI/FS does not fall within the meaning of the terms of “remedy” and “remedial action.” This Court concedes that neither CERC-LA § 101(25) nor § 107(a)(l)-(4)(B) is a model of legislative clarity. Section 101(25) could have been written more clearly to state that the term response relates to either a removal or a remedial action. In addition, Congress could have clarified § 107(a)(l)-(4)(A)-(B) by using the same language to describe the costs recoverable by the government and private parties. However, given the remedial nature of CERCLA, it is clear that Congress intended a private party to recover under § 107(a) for either removal or remedial costs. Moreover, the RI/FS in this case is both a removal and a remedial action, as discussed above. Accordingly, even under the Cambridge defendants’ construction of § 107(a)(l)-(4)(B) and § 101(25), Acme may seek relief under § 107(a). b. Subclaim 2: § 113(f)(1) and § 113(g)(2) Pursuant to § 113, Acme requests this Court: (1) to allocate equitably pursuant to § 113(f)(1) the response costs among those persons found liable under § 107(a); and (2) to enter a declaratory judgment, finding defendant liable for response costs or damages under § 113(g)(2), that would be binding in any attempt to recover such costs or damages in the future. i. Section 113(f)(1) CERCLA § 113(f)(1) provides: Contribution. Any person may seek contribution from any other person who is liable or potentially liable under Section 107(a), during or following any civil action under Section 106 or Section 107(a) ... In resulting contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. 42 U.S.C. § 9613(f)(1). The Cambridge defendants’ sole argument against Acme’s request for relief under CERCLA § 113(f)(1) is that Acme cannot maintain an action under CERCLA § 107(a). Because this Court has already determined that Acme may properly maintain an action under § 107(a), the Cambridge defendants’ argument for dismissal of Acme’s § 113(f)(1) claim must fail. ii. Section 113(g)(2) Acme seeks declaratory relief under CERCLA § 113(g)(2) which provides in part: Actions for recovery of costs ... in any such action described in this subsection, 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.... In spite of § 113(g)(2)’s clear language, the Cambridge defendants argue that Acme is not entitled to declaratory relief for two reasons: (1) there is no case or controversy under § 107(a); and (2) it is impossible to determine the extent of liability for any of the principal defendants because Acme has not yet agreed to incur cleanup costs at the Site. As stated above, Acme states a claim under § 107(a). Accordingly, the Cambridge defendants’ argument based on an absence of a case or controversy lacks merit. In support of their second argument, that it is impossible to determine the extent of liability because Acme has not yet agreed to incur cleanup costs, the Cambridge defendants cite three cases: (1) United States v. Dickerson, 660 F.Supp. 227 (M.D.Ga.1987), aff'd 834 F.2d 974 (11th Cir.1987); (2) Bulk Distribution Centers, Inc. v. Monsanto Co., 589 F.Supp. 1437, 1446 (S.D.Fla.1984); and (3) United States v. Seymour Recycling Corp., 686 F.Supp. 696 (Ind.1988). The defendants in Dickerson, as potentially responsible persons, sought a declaration of non-liability prior to any cost recovery action by the EPA. See Dickerson at 231. The Dickerson court held that “[b]e-cause the relief the Dickersons seek depends to a great extent on factual issues not developed at the present, the court concludes that there is not an ‘actual controversy’ ready for decision.” See Dickerson at 232. This Court finds Dickerson inapplicable here for two reasons. First, unlike the Dickersons, Acme does not seek a declaration of non-liability prior to an action by the EPA. While the Dickersons had no statutory basis for seeking declaratory relief, Acme’s request for such relief is properly brought under § 113(g)(2). Second, unlike Dickerson, Acme’s § 107(a) claims should provide opportunities for discovery to determine whether the defendants in this case should be held liable under § 113. Accordingly, this case does not possess problems with factual development similar to those the Dickerson court faced. In Bulk Distribution, the court held that the plaintiff could not maintain an action under § 107(a)(l)-(4)(B) because neither the state nor federal government had approved a cleanup proposal. See Bulk Distribution at 1446. Bulk Distribution was decided more than two years before the enactment of § 113(g)(2). Accordingly, this Court finds that Bulk Distribution is not applicable to this case. In Seymour Recycling, the court denied defendant’s motion for declaratory judgment that other defendants were liable to it for contribution. See Seymour Recycling at 700. In reaching this conclusion, the Seymour Recycling court found that the defendant’s motion was not ripe for adjudication. See id. The court held that because the generator defendants did not resolve their liability with the United States, their request for declaratory relief on their contribution claims was premature. See id. In reaching this conclusion, the Seymour Recycling court noted: Under Section 113(f) CERCLA, which governs claims for contribution, a person may “seek contributions from any other person who is liable or potentially liable ... during or following any civil action under” Section 106 or Section 107(a) of CERCLA. 42 U.S.C. § 9613(f)(1) (emphasis added). However, a person can gain contribution only after it “has resolved its liability with the United States or a State.” Id. § 9613(f)(3)(B) ... Thus, until a party has settled with the United States or a State, its motion for declaratory relief on a contribution claim is premature. Id. (emphasis in original). The Seymour Recycling decision has been criticized because the CERCLA section upon which it relies, § 113(f)(3)(B), applies only to situations in which the responsible parties have reached “administrative or judicially approved settlement[s].” See Rockwell International Corp. v. IU International Corp., 702 F.Supp. 1384, 1389 (N.D.Ill.1988). Because this Court concurs that Seymour Recycling improperly relied on § 113(f)(3)(B), this Court shall not adopt its rationale. Instead, this Court adheres to the apparent majority rule that the absence of a government enforcement action against a party seeking a declaratory judgment does not bar a party from such declaratory relief. See Rockwell at 1389; Wickland Oil, 792 F.2d 887, 893 (9th Cir.1986). 11. TEXACO’S MOTION FOR PARTIAL SUMMARY JUDGMENT The majority of Texaco’s motion for partial summary judgment deals with matters contained in the Cambridge defendants’ motion to dismiss. Since this Court has resolved the matters contained in the Cambridge defendants’ motion, this Court need not further address them. Texaco’s motion, however, also makes several factual allegations which this Court must address. In particular, Texaco alleges: [The EPA and DNR] have determined that Acme is a generator of waste that may have been disposed of at the Site. [The EPA] has notified several other parties of their potential responsibility for clean-up at that Site. [The EPA] has also directed information requests to other parties, including Texaco, that it does not consider to be potential responsible parties ... but who may have some information concerning the Site. Acme entered into an administrative order by consent with the [EPA and DNR] in which Acme agreed to conduct a remedial investigation and feasibility study ... under the supervision of the [EPA]. Acme is required under the order to commence work to clean-up the Site within ten (10) days after the [EPA] approves Acme’s RI/FS Work Plan for the Site. The order also provides penalties if Acme does not comply with its provisions. Texaco’s Memorandum in Support of Its Motion for Partial Summary Judgment at 2-3. As Acme notes in its responsive brief, several of Texaco’s factual assertions are misleading. First, Texaco’s statement that the EPA and DNR have determined that Acme is a generator of waste that may have been disposed of at the Site differs somewhat from findings the Consent Order. The Consent Order states: On the basis of information available to the U.S. EPA, Respondent, Acme Printing Ink Company may have generated hazardous substances which were disposed of at the Site, and, as such, is a responsible person pursuant to Section 107 of CERCLA, 42 U.S.C. § 9607. Consent Order, § 5, ti C (emphasis added). The Consent Order also states: Nothing in this Consent Order is intended by the parties to be an admission of law or fact by the Respondent. Id. at § I, tí C. Second, Texaco’s statement that the EPA does not consider it to be a potentially responsible party is misleading since it infers that Texaco has been found to be a non-responsible party. Texaco has submitted no final agency decision or Record of Decision to support the inference that it has been found not to be responsible. Rather, Texaco merely submits a letter from the EPA to it requesting information regarding its dealings with the Site. See Bogart Aff., Ex. B. If anything, the EPA’s letter indicates that the EPA considers Texaco to be a possible violator of CERCLA and RCRA. See id. at 1. Finally, Texaco’s assertion that the Consent Order requires Acme to commence cleanup on the Site within ten days after the EPA approves Acme’s RI/FS Work Plan is incorrect. The Consent Order expressly limits the scope of Acme’s work at the Site to conducting a RI/FS. See Consent Order at § V, ¶ A. Texaco apparently wishes this Court to rely upon its factual assertions to determine that it is not a potentially responsible party under § 107(a) of CERCLA. However, Acme presents evidence that Texaco service stations contracted with Ed’s Masonry and Trucking for transportation and disposal of waste. See Warpinski Aff. at 11 5, Ex. D, E. Accordingly, Texaco may fall within the ambit of § 107(a)(3). In response to Acme’s evidence, Texaco notes that the evidence does not show that it arranged for the disposal of any hazardous substances. This Court concurs with Texaco. However, when Texaco filed its motion, no discovery had been set in this case. Accordingly, this Court cannot find that Acme can present no evidence that Texaco arranged for the disposal of hazardous waste. III. WAUSAU’S MOTION TO DISMISS Wausau moves this Court pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6) for dismissal of Count VII of plaintiff’s Complaint and all cross-claims filed by other defendants against Wausau. In support of its motion, Wausau argues: (1) that this Court lacks subject matter jurisdiction over Acme’s pendent party claim against Wausau and (2) that the ancillary cross-claims of the principal defendants lack subject matter jurisdiction and fail to state a claim upon which relief may be granted. A. Acme’s Pendent Party Claim Federal courts are courts of limited jurisdiction and have authority to hear only those cases invoking a federal statute or based on diversity jurisdiction. See Owen Equipment and Erection Company v. Kroger, 437 U.S. 365, 374, 98 S.Ct. 2396, 2402, 57 L.Ed.2d 274 (1978); U.S. Const. art. Ill, § 2; 28 U.S.C. §§ 1331-1367. This Court has subject matter jurisdiction over Acme’s action against the principal defendants based upon two federal statutes, RCRA and CERCLA. See 28 U.S.C. § 1331. However, Acme’s claims against the insurance defendants are not based upon RCRA, CERCLA, another federal statute or diversity jurisdiction. See Complaint at ¶ 3. Rather, Acme requests this Court to exercise discretionary pendent jurisdiction over its state law insurance contract claims against Wausau and the other insurance defendants. There are two types of pendent jurisdiction: pendent claim jurisdiction and pendent party jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976). Pendent claim jurisdiction “arises when a plaintiff brings both federal and related state claims against the same defendant in federal court, and no independent basis of federal jurisdiction ... exists regarding the state claim.” Huffman v. Hains, 865 F.2d 920, 922 (7th Cir.1989). “On the other hand, pendent party jurisdiction arises when a plaintiff brings a federal claim in federal court against one party, and brings a related state-law claim against another party without an independent basis of federal jurisdiction.” Huffman at 922. In United Mine Workers of America v. Gibbs, 383 U.S. 715, 721-29, 86 S.Ct. 1130, 1136-41, 16 L.Ed.2d 218 (1966), the Supreme Court set forth the test for determining a federal court’s jurisdiction over pendent claims. Gibbs held that pendent jurisdiction, in the sense of judicial power, exists whenever a plaintiff alleges a claim arising under the Constitution, a federal statute or treaty and “the relationship between that claim and the state claim permits the conclusion that the entire action before the court comprises but one constitutional ‘case.’ ” Id. at 725, 86 S.Ct. at 1138 (emphasis in original). “The requisite relationship exists, Gibbs said, when the federal and non-federal claims ‘derive from a common nucleus of operative fact’ and are such that a plaintiff ‘would ordinarily be expected to try them in one judicial proceeding.’ ” Finley v. U.S., 490 U.S. 545, 549, 109 S.Ct. 2003, 2006, 104 L.Ed.2d 593 (1989) (quoting Gibbs, 383 U.S. at 725, 86 S.Ct. at 1138). In Aldinger v. Howard, 427 U.S. 1, 13, 96 S.Ct. 2413, 2419, 49 L.Ed.2d 276 (1976), the Supreme Court made explicit the non-transferability of Gibbs to the context of pendent-party jurisdiction. See also Finley 490 U.S. at 549, 109 S.Ct. at 2007. Later, in Finley, the Supreme Court “assume[d], without deciding, that the Constitutional criterion for pendent-party jurisdiction is analogous to the Constitutional criterion for pendent-claim jurisdiction.” See id. at 549, 109 S.Ct. at 2006-2007. The Finley Court went on to state, however, that “with respect to the addition of parties, as opposed to the addition of only claims, we will not assume that the full constitutional power has been congressionally authorized, and will not read jurisdictional statutes broadly.” See id. at 549, 109 S.Ct. at 2007; see also Aldinger, 427 U.S. at 17, 96 S.Ct. at 2421 (“Resolution of a claim of pendent-party jurisdiction ... calls for careful attention to the relevant statutory language.”) In this case, even assuming plaintiff meets the constitutional criterion of Gibbs, it fails under the requirements of the relevant jurisdictional statute, 28 U.S.C. § 1331. Section 1331 provides: The district courts shall have jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. Acme’s claim against Wausau does not “arise under the Constitution, laws or treaties of the United States.” Accordingly, this Court may not rely on plaintiff’s Complaint to obtain subject matter jurisdiction over Wausau. This Court notes that Finley has since been effectively overruled by 28 U.S.C. § 1367 (codifying a rule of “supplemental jurisdiction” that permits the inclusion of pendent parties in a federal action). However, § 1367 does not apply to this action because Acme filed its Complaint on July 11, 1989, before the December 1, 1990 effective date of the statute. See McGraw Edison Co. v. Speed Queen Co., 768 F.Supp. 684, 688 (E.D.Wis.1991). B. Cross-Claims Defendant Menard has filed cross-claims against all other defendants, including Wausau, claiming that it is entitled to contribution and/or indemnification if it is found liable to Acme. Menard’s cross-claim against Wausau must be dismissed because (1) this Court lacks subject matter jurisdiction and (2) Menard fails to state a claim upon which relief may be granted. Menard’s cross-claim is a state law claim for which diversity does not exist. Under the cross-claim, Menard seeks state law contribution and indemnification pursuant to Wisconsin’s Direct Action Statute. See Wis.Stat. § 632.24 and § 803.04. Me-nard is a Wisconsin corporation with its principal place of business in Wisconsin. See Complaint at 1111. Wausau is a mutual insurance company organized and existing under the laws of the state of Wisconsin with its principal place of business at Wau-sau, Wisconsin. Wausau Answer at ¶ 10. Consequently, Menard’s cross-claim has no independent basis of federal jurisdiction. In American Nat. Bank & Trust Co. v. Bailey, the Seventh Circuit held that “the reasons that led the Supreme Court to state in ... Gibbs ... that a district court judge should generally relinquish pendent jurisdiction when the main claim is dismissed before trial also compel the conclusion that he should (subject to a qualification to be noted shortly) relinquish ancillary jurisdiction when the main claim is dismissed before trial-” 750 F.2d 577, 581 (7th Cir.1984) (citing In re Oil Spill of Amoco Cadiz, 699 F.2d 909, 913 (7th Cir.1983)). The Bailey Court noted, however, that “exceptional circumstances may warrant retention of the ancillary claim....” See id. For example, the Bailey Court stated that a district court would be justified in retaining an ancillary claim, even if the main claim was dismissed before trial, if the statute of limitations would prevent the plaintiff from filing suit in state court based on the claim. See id. (citing Joiner v. Diamond M Drilling Co., 677 F.2d 1035, 1043 (5th Cir.1982)). In this case, there appear to be no such limitations problems. In addition, this Court sees no other exceptional circumstances which would warrant the retention of Menard’s ancillary claim. Accordingly, it is proper for this Court to dismiss Menard’s cross-claim. In addition, Menard’s cross-claim must be dismissed because it fails to state a claim upon which relief may be granted. If Acme is successful in obtaining reimbursement of its costs from Menard pursuant to Claims I and II of its Complaint