Full opinion text
MEMORANDUM OPINION SMALKIN, District Judge. This case is currently before the Court on' the following motions: Plaintiffs (HRW and Clark Enterprises, Inc. (“HRW”)) Motion for Partial Summary Judgment on Liability; Plaintiffs’ (Marshall P. Powell, Barbara S. Powell and Shirley T. Powell (“Powell”)) Motion for Partial Summary Judgment on Liability; Defendant Washington Gas Light Company’s (“Washington Gas”) Motion for Summary Judgment as to Successor Liability, its Motion for Summary Judgment as to Counts II-IV as to the HRW plaintiffs, and its Motion for Summary Judgment as to Counts II-IV as to the Powell plaintiffs. The relevant replies and oppositions have been made, and no oral hearing is necessary. Local Rule 105.6 (D.Md.). I. FACTUAL BACKGROUND This lawsuit involves industrial property located in Prince George’s County, Maryland, now owned by HRW. In 1991, this property was the subject of a contract of sale between HRW and Genstar Stone Products Company (“Genstar”) for a sum in excess of $2.6 million. The deal fell through in June 1991, however, when coal-tar was discovered below the surface of the property. HRW claimed to have no knowledge of how the coal-tar came to be on the property. After an investigation was conducted, however, suspicion fell on the property currently owned by the Powells, which is to the north and adjoining the HRW land. A manufactured gas plant (“MGP”) had been located on this site, beginning in 1907 and continuing until at least 1946. This site had been listed in a report prepared in 1985 at the behest of the United States Environmental Protection Agency (“EPA”) as a former MGP. The site had also been visited by personnel from the Maryland Department of Environment, Waste Management Administration (“MDWMA”). MGP sites are of interest both to the EPA and to the MDWMA because of the potential health hazards surrounding the residue of gas production. The principal components of manufactured gas tars are polynuclear aromatic hydrocarbons and light aromatics. Long term exposure to either of these components has been linked to increased risk of cancer. The MGP located on what is now the Powell property was first operated by the Hyattsville Gas and Electric ■ Company (“Hyattsville Gas”), an organization which was incorporated by special .act of the General Assembly of Maryland in 1906, and which began to manufacture gas from coal in the following year. In 1927, Hyattsville Gas changed its name to the Washington Suburban Gas Company (“Suburban”). In 1939, Washington Gas, the current defendants, purchased a majority interest in Suburban. In 1946, Suburban merged with the Washington Gas Light Company of Montgomery County, Maryland, and the surviving corporation was named the Washington Gas Light Company of Maryland, Inc. (“Maryland”). In the same year, the corporation stopped production of gas at the site, and, over the next five years, it demolished the gas-making plant. In January 1952, the plant site was sold to Michael Marinelli. Mr. Marinelli in turn leased the property to the Powells, beginning in 1952. The Powells eventually purchased the property, in 1959. In 1953, “Maryland” was dissolved, and its assets and liabilities were transferred to Washington Gas, the present defendant. As a result of the discovery of the coal tar, HRW and the Powells claim that they have suffered expenses connected with the assessment, evaluation and monitoring of the release of the hazardous substance from the property and have sued Washington Gas under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601 et seq. They claim that the expenses incurred are consistent with the National Contingency Plan, 40 C.F.R. Part 300, and are therefore recoverable costs under CERCLA. The plaintiffs have also included several state-law claims in their complaints. ' Washington Gas disputes liability, by claiming that it cannot be held liable for the alleged acts of a former corporate entity and that the costs incurred by the plaintiffs were not “necessary” as contemplated by CERC-LA. Furthermore, it contends that the plaintiffs are themselves liable under CERC-LA, and that they have no defense to liability. Washington Gas has also cross-filed motions for summary judgment on the various common law claims made by the plaintiffs. These will be discussed in more detail below. II. SUMMARY JUDGMENT STANDARD The moving party has the initial responsibility of informing the court of the basis for the belief that summary judgment is warranted. Celotex Corp. v. Catrett, All U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Pulliam Inv. Co. v. Cameo Properties, 810 F.2d 1282, 1286 (4th Cir.1987). Once a motion for summary judgment is made and supported, the non-moving party “may not rest upon the mere allegations or denials of [that] party’s pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.” Fed. R.Civ.P. 56(e). See also Anderson v. Liberty Lobby, Inc., All U.S. 242, 248,106 S.Ct. 2505, 2510, 91 L.Ed.2d,202 (1986). The non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co. v.' Zenith Record Corp., 475 U.S. 574, 586,106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The court will grant summary judgment if there is “no genuine issue as to any material fact-” Fed.R.Civ.P. 56(c). A fact is material only if, when applied to the substantive law, the fact affects the outcome of the suit. Liberty Lobby, All U.S. at 248, 106 S.Ct. at 2510. A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. Id. While the court may not weigh the evidence, it must determine whether there is a genuine issue for trial. As the Supreme Court stated in Liberty Lobby, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252, 106 S.Ct. at 2512. See also Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985) (“Genuineness means that the evidence must create fair doubt; wholly speculative assertions will not suffice. A trial, after all, is not an entitlement. It exists to resolve what reasonable minds would recognize as real factual disputes.”) Thus, where the record could not support a finding by the trier of fact for the non-movant, there is no genuine issue for trial and summary judgment is appropriate. Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. III. SUCCESSOR LIABILITY The issue of successor liability is crucial to this litigation. Clearly, if Washington Gas cannot, as a matter of law, be held liable for the alleged acts of a corporate predecessor, the plaintiffs cannot recover from it. It is, therefore, no surprise that Washington Gas has first moved for summary judgment on this issue. A. Federal Common Law and CERCLA A threshold issue in determining the question of successor liability is which law applies. There is no question that a successor corporation can, under certain circumstances, be held liable under CERCLA for the acts or omissions of predecessor corporations. United States v. Carolina Transformer Co., 978 F.2d 832, 837 (4th Cir.1992). The issue revolves around what circumstances must exist before successor liability is applicable. The United States Court of Appeals for the Fourth Circuit and Court of Appeals of Maryland law agree as to one theory of analysis of the successor liability issue. There is, however, disagreement as to a second theory, that of “continuity of enterprise,” which is applicable, in the Fourth Circuit, on federal claims, but not on Maryland state-law claims, under Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Although the practical effect of this disagreement between the federal and state standards for successor liability might be minimal in this case, the emphasis placed by the Fourth Circuit on the “continuity of enterprise” test in Carolina Transformer is such that consideration of the question of which law applies is warranted here. This is especially true where, as here, the complaint has state as well as federal counts contained within it. No court in this District appears to have ruled on this issue. The Fourth Circuit and the Court of Appeals of Maryland both agree that the general rule is that a corporation that acquires the assets of another does not take on the liabilities of the predecessor corporation. There are, however, exceptions to this general rule which will permit recovery from a successor corporation. The first theory of recovery, called the “settled” rule by the Federal court, Carolina Transformer, 978 F.2d at 838, and the “traditional” rule by the Maryland court, Nissen Corp. v. Miller, 323 Md. 613, 617, 594 A.2d 564, 565 (1991), is stated as follows: [A] corporation which acquires the assets of another corporation does not take the liabilities of the predecessor corporation from which the assets are acquired unless one of four generally recognized exceptions are met: (1) the successor expressly or impliedly agrees to assume the liabilities of the predecessor; (2) the transaction may be considered a de facto merger; (3) the successor may be considered a “mere continuation” of the predecessor; or (4) the transaction is fraudulent. Carolina Transformer, 978 F.2d at 838 (citations omitted), see also Nissen Corp., 323 Md. at 617, 594 A.2d at 565-66. The “continuity of enterprise” exception considers a series of factors, which are set out by the Fourth Circuit as follows: (1) retention of the- same employees; (2) retention of the same supervisory personnel; (3) retention of the same production facilities in the same location; (4) production of the same product; (5) retention of the same name; (6) continuity of assets; (7) continuity of business operations; and (8) whether the successor holds itself out as the continuation of "the same enterprise. Carolina Transformer, 978 F.2d at 838 (citations omitted). This exception, as predicted by this Court in Giraldi v. Sears, Roebuck & Co., 687 F.Supp. 987 (D.Md.1988), was expressly rejected by the Court of Appeals of Maryland. Nissen Corp., 323 Md. at 632, 594 A.2d at 573. The language of CERCLA itself is silent as to the appropriate decisional law which should be used to interpret the statute. Where this is the case, courts will traditionally turn first to the legislative history of the statute in attempt to glean the intent of Congress. Unfortunately, the legislative history of CERCLA gives more insight into the ‘Alice-in-Wonderland’-like nature of the evolution of this particular statute than it does helpful hints on the intent of the legislature. The confusion inherent within the legislative history of CERCLA is ably demonstrated by a passage from Senator Randolph’s comments: It is intended that issues of liability not resolved by this act, if any, shall be governed by traditional and evolving principles of common law. An example is joint and several liability. Any reference to these terms has been deleted, and the liability of joint tort feasors will be determined under common or previous statutory law. 126 Cong.Rec. 30,932 (1980). Although indicating that “common law” should be used to interpret the statute, the question of which common law is left, unfortunately, unanswered. Despite its questionable value, several courts have used CERCLA’s legislative history to inform their decisions developing federal common law in this area. See, i.e., Mobay Corp. v. Allied-Signal, Inc., 761 F.Supp. 345, 350 (D.N.J.1991) (“CERCLA’s legislative history reveals that Congress intended that the courts should develop federal common law to fill in the gaps in the statute.”), New Castle County, 642 F.Supp. at 1267 (based on recent legislative developments, CERCLA contribution should be developed as matter of federal common law), Smith Land & Improvement Corp. v: Celo-tex, 851 F.2d 86, 91' (3d Cir.1988) (meagre legislative history indicates Congress expected courts to establish federal common law to supplement statute). In this Court’s opinion, however, the legislative history of CERCLA is too slender a reed to support the weight of a determination as to the choice of appropriate law. The better course is to look at the nature of the legislation itself and the desirability of uniformity of interpretation. Clear-field Trust Co. v. United States, 318 U.S. 363, 63 S.Ct. 573, 87 L.Ed. 838 (1943). When it is appropriate to adopt local standards, the federal courts can use state law, provided there is no conflict with federal statutes. Royal Indemnity Co. v. United States, 313 U.S. 289, 61 S.Ct. 995, 85 L.Ed. 1361 (1941) (suitable rate of interest in action at law to recover amount due from taxpayer’s surety is that prevailing in state where obligation was contracted and was to be performed). The purpose of CERCLA, whether articulately stated by the Congress or not, is to impose national standards in the area of liability for environmental pollution. As noted by another court, “[o]ne can hardly imagine a federal program more demanding of national uniformity than environmental protection.” In re Acushnet River & New Bedford Harbor Proceedings, 675 F.Supp. 22, 31 (D.Mass.1987). Application of the various state laws governing successor liability in order to interpret this statute could cripple the effectiveness of CERCLA by creating a patchwork of potentially inconsistent rulings. Thus, based on the nature and purpose of the statute, federal common law should be applied in the area of successor liability under CERCLA. For this reason, the Fourth Circuit’s “continuity of enterprise” test, if applicable under the facts, should be 'used to assess Washington Gas’ potential liability to HRW and the Powell plaintiffs. B. Analysis The substantive analysis of successor liability in this case begins, as it must, with the language of the statute. CERCLA provides, in pertinent part, as follows: [A]ny person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, ... 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 H« H« Hi. ' ❖ Hi Hi (B) any other necessary costs of response incurred by any other person consistent with the national contingency plant.] 42 U.S.C." §§ 9607(a)(2), (4)(B) (1992) For purposes of CERCLA, the term “person” includes “corporations.” 42 U.S.C. § 9601(21) (1992). A “facility” has been defined as “any ‘area’ in and around which hazardous substances have ‘come to be located.’ ” Carolina Transformer, 978 F.2d at 836, quoting Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 842-843 (4th Cir.), cert. denied, — U.S. —, 113 S.Ct. 377, 121 L.Ed.2d 288 (1992). Finally, liability under CERCLA is borne by, among others, the current owner of the facility, and any person who “owned” or'“operated” the facility at the time of the disposal of any hazardous substances. Nurad, 966 F.2d at 841. The “operator” of the facility has been defined by the Fourth Circuit as one who has the authority to control the site and abate damage caused by the disposal of hazardous substances. Id. at 842. The definition includes one who had the authority to act, but declined , to exercise that authority. Id. Washington Gas has moved this Court for summary judgment on the issue of successor liability. It contends that it cannot be considered as an owner or operator of the Hyattsville site. Furthermore, it contends that there was no statutory merger between the predecessor corporation and itself, that the general rule excludes a successor corporation from liability, and that none of the recognized exceptions to this rule applies in this ease. 1. Owner or Operator Washington Gas claims that it cannot be considered as the owner or operator of the Hyattsville site. In support of this contention, it notes that it never owned the site. The convoluted history of ownership runs from Hyattsville, later Suburban, to Maryland, to Mr. Marinelli, and finally to the Powells. Thus, claims Washington Gas, any liability under CERCLA for the Hyattsville site belongs to Suburban, which was merged into Maryland in 1946. Maryland was liquidated and dissolved in 1953. Furthermore, Washington Gas claims that CERCLA liability did not exist until the enactment of the legislation, long after the sale of the site. As support for this proposition, Washington Gas cites the Court to Matter of Penn Central Transportation Co., 944 F.2d 164 (3d Cir.1991). Thus, alleges Washington Gas, the 1953 liquidation extinguished any potential liability which otherwise might have accrued to it. The comfort Washington Gas draws from the Penn Central opinion is illusory. Despite Washington Gas’ attempts to stretch the case into fitting the proposition that retroactive application of CERCLA is unwarranted, the plain language of the Third Circuit will not support this interpretation: “[I]n 1980 Congress passed CERCLA, which imposed retroactive liability on both present and past owners of facilities where hazardous substances ... are being or have been released-” Penn Central, 944 F.2d at 166 (emphasis supplied). Indeed, the Penn Central court noted that the parties in that case did not dispute the retroactive nature of CERCLA, citing to United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 732-33 (8th Cir.1986). In this case, the Eighth Circuit engaged in a detailed analysis of the retroactivity of CERCLA, ultimately concluding that “it is manifestly clear that Congress intended CERCLA to have retroactive effect.” Id. at 732-33. This Court agrees with the proposition that CERCLA liability can attach retroactively, and therefore Washington Gas’ position as to this issue is not persuasive. Washington Gas’ other contention need not long trouble the Court. Briefly stated, Washington Gas argues that because it never owned the Hyattsville site, no liability should accrue to it. Were this simplistic position in fact the law, any corporate entity could avoid successor liability under CERC-LA by simply reforming itself at regular intervals. The question, rather, is whether liability which may or may not have accrued to any of Washington Gas’ predecessors has been passed on to Washington Gas. The fact that this corporate entity never owned the site is irrelevant. Thus, Washington Gas’ position as to the absence of liability predicated on its lack of ownership of the property is unpersuasive, and it does not support its motion for summary judgment. 2. Statutory Merger Washington Gas next contends that, because there was no statutory merger in this case between Washington Gas and Maryland, there can be no liability. As support for this proposition, Washington Gas cites the Court to Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86 (3d Cir. 1988), cert. denied, 488 U.S. 1029, 109 S.Ct. 837, 102 L.Ed.2d 969 (1989), said by Washington Gas to be the “leading case” on successor liability under CERCLA. Memorandum in Support of Motion for Summary Judgment as to Successor Liability, at 7. This argument is irrelevant to the Court’s consideration. Without analyzing the substance of the Smith holding, it is sufficient to note that Carolina Transformer, the leading case on the issue in this Circuit, provides several alternative methods for determining potential successor liability. Although it is true that there was no statutory merger here, that fact does nothing to support the defendant’s motion for summary judgment in light of Carolina Transformer. 3. Exceptions to the General Rule of Non-Liability As noted above, the general rule is that a successor corporation cannot be held liable for the action or inaction of its predecessors unless one of four exceptions to the rule applies. For ease of analysis, the Court will examine each of these exceptions in turn, i. Fraud Where a transaction was fraudulently entered into for the purpose of escaping liability, the court can hold the successor corporation liable for. the acts of the predecessor. Carolina Transformer, 978 F.2d at 838. A brief glimpse at the chronology of this case confirms that fraud is not at issue here. It would have taken clairvoyant powers for Washington Gas somehow to have structured the transaction with Maryland in order to ávoid liability under a statute that would not be enacted for almost thirty years, and the mere idea of which, in an era of limited federal rule, would have been ridiculed by any sane lawyer. ii. Mere Continuation The substance of this exception, as opposed to the “continuity of enterprise” exception discussed earlier, is as follows: “[A] corporation is not to be considered the continuation of a predecessor unless, after the transfer of assets, only one corporation remains, and there is an identity of stock, stockholders, and directors between the two corporations.” Carolina Transformer, 978 F.2d at 838, citing Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 175 (5th Cir.1985). Washington Gas contends that there was no continuation of business between the two corporate entities, and that therefore no continuation of business can be said to have occurred. Furthermore, Washington Gas contends that there is no identity of officers, stockholders or directors between the two corporations, and that therefore the test for mere continuity is not met. a. Continuation of Business Although not part of the test for mere continuity as set out above, the question of whether there is continuation of business between a predecessor and successor corporate entity does have a common-sense flavor about it, when analyzing the fact of continuity between predecessor and successor corporations. Washington Gas notes that the predecessor corporation in this case manufactured gas, while the successor did not, and that therefore there was no mere continuation of business. Washington Gas, Memorandum, at 15. This contention is disingenuous at best. ' In this case, Maryland’s business was the “distribution of gas for ultimate consumption in areas in Maryland adjoining the District of ColumbiaMemorandum of Recommen-dátions Re Elimination of Maryland Subsidiaries of Washington Gas Light Company, Washington Gas Memorandum, Appendix 4, at 2. Immediately prior to the merger, Washington Gas was “engaged in the purchase, storage, transportation in interstate commerce, sale for resale and distribution for ultimate consumption of gas.” Id. at 1. Indeed, immediately prior to the merger, Maryland, Washington Gas, and two Virginia based subsidiaries of Washington Gas formed “an integrated system for the supply of gas to the metropolitan area of the City of Washington.” Id. at 2, There is no indication that supplying gas to the Washington metropolitan area did not continue to be Washington Gas’ business after the merger. Indeed, although Washington Gas was involved in some other activities, it is clear from the Annual Report for fiscal year 1953, appended to Washington Gas’ Memorandum as Appendix 6, that sale of gas was the principal business of the company. This Court therefore finds that both prede-céssor and successor corporations were in the business of supplying gas to consumers. Because of this finding, the Court holds that there was continuation of.business between the two corporate entities. b. Identity of Stockholders Washington Gas claims that there is no identity of stockholders between Maryland and Washington Gas, thus there should be no finding of a ‘mere continuation’ of business between the predecessor and successor corporations. Washington Gas’ reason for this, claim is that the minority shareholders of Maryland did not participate in the 1953 merger. The majority shareholder of Maryland was Washington Gas. It held 299,716 out of 300,-000 shares of capital stock (approximately 99.9%). Washington Gas Memorandum, Appendix 4, at 1. The identity of the Washington Gas shareholders is not known. What is known is that the stockholders of the two corporations were not identical, since Washington Gas was not its-own principal shareholder. It is not as clear as Washington Gas would wish to believe, however, that mathematical precision is what the- test requires. Washington Gas seeks to interpret “identity” as meaning “identical.” The Court prefers the dictionary definition: “sameness of essential or generic character in different instances.” Webster’s Ninth New Collegiate Dictionary at 597 (1st ed. 1986). This definition would allow for some variation as long as the essential character is the same. In particular, the underlying rationale for this test — -control over first one organization and then the other by the same group of stockholders — is clearly met here. Although there is no information provided as to the identity of the Washington Gas stockholders, it is clear that these stockholders controlled the pre-transaction affaire of both Washington Gas and its virtually wholly-owned subsidiary, Maryland. It is not necessary, however, for the Court to base its analysis on semantic interpretation. It is clear from the memorandum of recommendations concerning the elimination of Maryland that the existence of minority shareholders might have complicated the proposed dissolution. Therefore, Washington Gas’ plan was to eliminate the minority interest in- Maryland before dissolving the corporation. Id. at 4. Indeed, the memo-randüm outlines in some detail two alternative means of accomplishing this goal, one involving the purchase of the minority shares by Washington Gas, and one involving the purchase of the shares by Maryland. Id. at 10-13. The documents supplied as exhibits to the Court are not specific about what happened next. What is clear, however, is that something did indeed occur. Exactly one year after the memorandum of recommendations was dated, on September 17, 1952, Washington Gas refers to itself as the sole stockholder of Maryland. HRW Exhibit F-6, at 89. Furthermore, when the vote to dissolve Maryland was taken on July 23, 1953, the 299,-716 votes of Washington Gas are described as being “the entire issued and outstanding shares of capital stock of the Washington Gas Company of Maryland, Inc.” Id. at 123. It would therefore appear that Washington Gas took the advice of its counsel and had Maryland negotiate with the minority stockholders, and either retire or hold in the treasury the 284 minority shares. Washington Gas was therefore the single shareholder of Maryland at the time of the dissolution. There were no minority shareholders to participate in the 1953 transaction. Thus, prior to the time of the 1953 transaction, the same shareholders controlled the affairs of both Maryland and Washington Gas. After the transaction, ’the same shareholders controlled the affairs of Washington Gas. This constitutes sufficient continuity for the Court to hold that, there was identity of stockholders between the predecessor and successor corporations in this case. c. Identity of Directors Washington Gas cites the Court to the Washington Gas Light Company Annual Report For The Year Ended Dec. 31, 1953,’ and to the Washington Gas Light Company of Maryland, Inc. Articles of Dissolution,’ for proof of the proposition that there was no identity of directors between the two corporations. In fact, according to these documents, all but two of Washington Gas’ directors were also directors of Maryland. Although not part of the test, it is also interesting to note that all of Washington Gas’ principal officers were also officers of Maryland. This information does nothing to diminish the possibility of a finding of ‘mere continuation’ between the predecessor and successor corporation, iii. Assumption of Liability The third exception to the general rule of non-successor liability.is that of assumption of liability. If the successor corporation affirmatively assumes the liabilities of its predecessor, then clearly it can be held liable for that which the predecessor could be held liable. Washington Gas admits that at the time of the 1953 transaction, it assumed the liabilities of Maryland. Indeed, the articles of transfer are quite explicit on this point: The Transferee Corporation [Washington Gas], effective upon such transfer, will assume all -liabilities and obligations, liquidated or "tíriliquidated, of the Transferor '"Corporation [Maryland] to persons other than the Transferee Corporation. The necessary steps will be taken to extinguish all indebtedness of the Transferor Corporation to the Transferee Corporation. HRW, Appendix F-6 to Motion for Partial Judgment on Liability, at 313. Washington Gas claims, however, that this agreement does not, indeed, cannot, apply to CERCLA liability, which appears for the first time almost forty years after this transaction. Moreover, itf claims that, because the land which is the subject of this litigation was no longer even in the possession of Maryland at the time of the transaction, there can be no question of liability. The defendant’s position is weakened by the Court’s finding ante that CERCLA does apply retroactively. Consistent with that earlier finding, the Court finds that the retroactive nature of liability here will not prevent successor liability from being established. The defendant’s other contention, that there can be no successor liability here because Maryland did not own the Hyattsville site at the time of the transfer, is also not persuasive. Had Maryland sold the Hyatts-ville site, but had kept going as a viable corporation rather than subsequently dissolving, and had there come a time when the pollution was discovered and proved to have been caused by Maryland, then, under CERCLA, Maryland would be held liable. CERCLA is unequivocal about holding responsible “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.” 42 U.S.C. § 9607(a) (emphasis supplied).' This result would obtain even though the pollution occurred nearly forty years before. The pollution at the Hyattsville site would have been held as a liability of Maryland had it survived, albeit an unliquidated one in 1953. In that Washington Gas assumed all liabilities, liquidated and unliquidated, of Maryland at the time of the transfer, liability can now be asserted against Washington Gas. Neither passage of time nor post hoc transfer of .ownership to another party can alter Maryland’s, and therefore Washington Gas’, potential liability in this matter. Washington Gas finally argues that it cannot be held to liabilities which it could not know about, such as CERCLA liability, because they did not exist at the time of the transfer. The theory behind this argument is that, because CERCLA liability could not even have been contemplated at the time of the transfer, Washington Gas could not have assumed it. Unfortunately for Washington Gas, there is no qualifying language in the Articles of Transfer which lends weight to this proposition. Although the defendant again brings out Penn Central in an attempt to.bolster its position, the Court is no more convinced by the defendant’s citation to the case here than it was previously. A simple reading of Penn Central makes it clear that the retroactive nature of liability under CERCLA was contemplated and accepted by the court and the parties in that case. Indeed, the case law on this issue goes against Washington Gas’ position. See, Pu-rolator Products Corp. v. Alliedr-Signal, Inc., 772 F.Supp. 124, 132 (W.D.N.Y.1991) (“Although parties could not be expected to have foreseen CERCLA before it was enacted, an agreement which is broad enough to encompass any and all claims ... has been held to cover CERCLA liability.”) (citations omitted), In re Hemingway Transport, Inc., 126 B.R. 650 (D.Mass.1991) (In determining whether to recognize an assumption of CERCLA liability, “[t]he better approach is that which allows broad, unambiguous transfers of liability to stand in those cases where the intent of the parties is clear”). Washington Gas might seek solace in the Mobay opinion, in which the court held that “in order for the Court to interpret a contract as transferring CERCLA liability, the agreement must at least mention that one party is assuming environmental-type liabilities.” Mobay Corp., '761 F.Supp. at 368. The language of the assumption agreement in Mobay, however, was much more specific than in-the present case. As the Mobay court noted: “Although a contract containing a broadly-worded clause, waiving all . liabilities of any type whatsoever, is not involved in this cáse, the Court would expect that such a contract would also constitute a waiver of CERCLA liability.” Id. at 358 n. 15 (emphasis in original). The Mobay court therefore seems to have been more concerned with the fact that the agreement in that' case was specific in some matters, but yet did not address environmental issues. Had the agreement been extremely broad, as it is in this case, it is possible that the Mobay court would have held it sufficient to assume all liabilities, including' CERCLA liability. Even should this not be the case, however, the two cases are sufficiently distinguished for the Mobay holding to be unpersuasive here. Thus the failure of Washington Gas to make an- express adoption either of specific CERCLA type, or general environmental, liability will not bar a finding of successor liability in this case. iv: De Facto Merger Washington Gas claims that there was no de facto merger here. As justification for this position, Washington Gas points to the failure of the facts of this case to conform to the test set' out by other courts to determine whether or not a de facto merger has occurred. The test for a de facto merger has been summarized as follows: ■ (1) continuity of management, personnel, physical location, assets, and general business operations (i.e., continuity of enterprise); (2) continuity of ownership; (3) prompt cessation of the seller corporation’s operations; and (4) assumption by the purchaser of obligations ordinarily necessary for the uninterrupted continuation of normal business operations o.f the seller. Crawford Harbor Assoc. v. Blake Const. Co., Inc., 661 F.Supp 880, 884 (E.D.Va.1987) (footnote omitted). Because the. theory of de facto merger is equitable in nature, no one of these factors alone is sufficient to establish successor liability, nor does the absence of just one of these factors disqualify a finding of successor liability. Acushnet■ River, 712 F.Supp. at 1015. a. Continuity of Enterprise As noted above, the business engaged in by Maryland-and Washington Gas was the distribution of gas in -the Washington, D.C. metropolitan area. Once the 1953 transaction was effectuated, this continued to be the business of the successor corporation. There was, in large degree, continuity of directors. There was complete continuity of officers. Washington Gas argues that the employees of Maryland were transferred to other locations. Washington Gas, Memorandum at 13. This is not the issue. The question is whether the employees of the predecessor corporation became employees of the successor corporation, and the answer in this case is that they did. It is true that the location at which these activities occurred was different, since the Hyattsville site was sold to Mr. Marinelli. All other components of the continuity of enterprise portion of this test, however, are met. b.Continuity of Ownership Again, as described above, Washington Gas took pains to eliminate the minority stockholders of Maryland prior to the 1953 transaction. Thus at the time of the transaction, the stockholders, or owners, of Washington Gas effectively controlled both corporations. They continued to control Washington Gas after it became the successor corporation. Therefore there was continuity of ownership in this case, and the requirements of this portion of the test, referred to by the Crawford Harbor court as the most critical of the four, are met. c. Cessation of Seller’s Operations Washington Gas admits that Maryland ceased to operate as part of the 1953 transaction. It notes that this was a logical and necessary step, because Maryland was a manufacturer of gas, while the new corporation was merely a distributor. This argument is both incorrect, for reasons analyzed above, and irrelevant. The reasons for the cessation of the predecessor corporation’s operations are not important — merely the fact that it did cease to operate is sufficient. Because Maryland did indeed cease operations, this wing of the test is satisfied. d. Assumption by the Purchaser of Obligations Necessary for Business The last branch of the test requires that the successor corporation assume all obligations ordinarily necessary for the uninterrupted continuation of the predecessor’s business. Washington Gas argues that this branch of the test is inapplicable, because the predecessor’s business — the manufacture of gas — was not the business of the successor corporation. Under the plan of liquidation, entered into by Washington Gas and Maryland on July 31, 1953, Washington Gas agreed to assume all liabilities and obligations of Maryland, as well as agreeing to “assume, perform and carry out all of the contracts of [Maryland] and in every respect to fulfill all of its duties and obligations.” Powell Memorandum, Exhibit 4, at 305. Furthermore, one of the issues raised in the memorandum of recommendations concerning the elimination of Maryland, prepared for Washington Gas, concerned the action which Washington Gas should take in order to secure authority to continue operations in certain territory then controlled by Maryland. This question was deemed to be of “great importance” which should be given “prompt consideration” by counsel. Washington Gas Memorandum, Exhibit 4, at 22. Maryland had the right to distribute gas in Hyattsville, Chevy Chase, Takoma Park and other areas of Prince George’s and Montgomery Counties. In order to retain the rights to distribute gas in these areas, Washington Gas and Maryland were advised to seek approval from the Maryland Public Service Commission for their transfer. This permission was sought and obtained. The decision of the Maryland Public Service Commission was then challenged by Montgomery County, and this challenge was dismissed by the Court of Appeals of Maryland. Montgomery County v. Public Ser. Comm., 203 Md. 79, 98 A.2d 15 (1953). Thus Washington Gas obtained the rights to distribute gas in the areas in which gas was previously distributed by Maryland. This result was confirmed in the articles of transfer, in which all franchises of Maryland were transferred to Washington Gas. HRW Memorandum, Exhibit 6, at 313. The assumption by Washington Gas of all of Maryland’s contracts can therefore be seen to have more than merely formal significance. Clearly, the rights Maryland owned to distribute gas in Montgomery and Prince George’s Counties were significant to Washington Gas. Washington Gas’ general assumption of all Maryland’s contracts, contained within the liquidation plan, combined with its successful attempts to retain specific distribution rights in certain geographic areas, convince this Court that the final branch of the de facto merger test is met in this case. e. Other Considerations There are several other miscellaneous factors raised by the parties which, although not strictly part of the test to determine whether a de facto merger has occurred, could have a bearing on the analysis. The first of these factors is the intent of the parties. In the memorandum of recommendations prepared in anticipation of the 1953 transaction, it is clear that the merger of the two corporations was considered, but was deemed “inadvisable” given the necessity of seeking express legislative authorization which, in all probability, would not be forthcoming. Washington Gas, Memorandum, Exhibit 4, at 2-3. In that a de jure merger was not possible, Washington Gas then considered other options by which the same result could be achieved, one being the transaction that ultimately occurred in 1953. The intent of the parties, therefore, seems to have been to effect a merger, either de jure or de facto. The plaintiffs also raise the tax implications of the 1953 transaction. The court in Acusknet River found that, where the parties were obliged to obtain an opinion letter stating that the transaction was a tax-free reqr-ganization within the contemplation of the Tax Code, such a transaction should be considered as a de facto merger. In re Acush-net River, 712 F.Supp. at 1018-19. In the case currently before this Court, the tax implications of the transaction were prominent ’ in the thinking of the parties. The initial memorandum outlining the structure of the transaction recommended that a ruling be sought from the Bureau of Internal Revenue to the effect that there should be no adverse tax consequences accruing to Washington Gas as a result of its absorption of Maryland. Washington Gas Memorandum, Exhibit 4, at 4. Such a ruling was, indeed, sought and received. HRW Memorandum, Exhibit 6, at 87. In the words of the Acush-net River court, the tax treatment in this case “militates in favor of finding a de facto merger.” In re Acushnet River, 712 F.Supp. at 1018. The final miscellaneous factor raised by the plaintiffs is a social policy issue. They argue that a transaction that is structured as an asset sale should be considered as a de facto merger, under social policy considerations regarding loss spreading. As authority for this position, both the HRW and Powell plaintiffs cite the Court to Knapp v. North American Rockwell Corp., 506 F.2d 361, 370 (3d Cir.1974), cert. denied, 421 U.S. 965, 95 S.Ct. 1955, 44 L.Ed.2d 452 (1975). Given the plethora of information presented by the plaintiffs, it is possible for the Court to decide the de facto merger issue based on the facts of this case. The Court, therefore, sees no need to engage in an analysis of such an amorphous issue and declines the plaintiffs’ invitation to decide that a de facto merger occurred here based on “social policy” considerations. C. Conclusion Based on the above analysis, the Court is of the opinion that Washington Gas can be held liable as a successor corporation to Maryland. As noted above, Washington Gas can, and should be, considered as an owner or operator of the Hyattsville property which is at issue in this case. Moreover, the absence of a statutory merger will not bar recovery here. As discussed above, fraud is not at issue in this case. However, the undisputed facts do support the finding that Washington Gas, after the 1953 transaction, was, at least in part, a “mere continuation” of Maryland’s business. Furthermore, Washington Gas unequivocally assumed the liabilities of Maryland in the articles of transfer. Finally, the facts of this case clearly support a finding that the 1953 transaction between Washington Gas and Maryland was a de facto merger. For the above-stated reasons, Washington Gas’ Motion for Summary Judgment as to Successor Liability will be, by separate order, denied. Furthermore, to the extent that the HRW plaintiffs’ Motion for Partial Summary Judgment on Liability and the Powell plaintiffs’ Motion for Partial Judgment on Liability encompass the issue of successor liability, these motions will be, by separate order, granted. These holdings apply both to the CERCLA claims of the plaintiffs and to the common law counts contained within the complaint. Because the Court did not need to engage in a formal analysis of the “continuation of enterprise” standard (which, as noted above, has not been accepted by the Maryland courts), the above analysis is equally applicable to the state-law counts of the complaint. IV. LIABILITY Having determined that Washington Gas can be held liable under CERCLA, the Court now moves to the issue of whether it should be so held. Both the HRW and the Powell plaintiffs have moved for partial summary judgment on liability. Washington Gas has opposed these motions and has cross-moved for summary judgment on the same issue. The plaintiffs have opposed Washington Gas’ motion, and both sides have replied to the various oppositions. Once again, the Court turns to the statute to begin the analysis. Liability under CERCLA is determined pursuant to the statute, which provides, in pertinent part, as follows: “[A]ny person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, 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 ... any other necessary costs of response incurred by any other person consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(2), (4)(B) (1992). The Court will analyze each of the elements required for liability under CERCLA, but for convenience’s sake, these elements will be treated in an order different to that set out in the statute. A. Person The statute provides for liability if the owner or operator of a facility is a person. Under the statute, a “person” is defined as “an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body.” 42 U.S.C. § 9601(21) (1992). Washington Gas clearly falls within this definition, as do HRW and the Powells. All parties to this litigation are therefore “persons” as contemplated by CERCLA. B. Owned or Operated As discussed supra, Washington Gas was an owner and operator of the Hyattsville site. The Powells are now the owners and operators of the relevant portion of that site. HRW owns and operates its own site, which adjoins the property currently owned by the Powells, and previously owned and operated by Washington Gas. Neither the Powells nor HRW disputes this. All parties, therefore, are owners and operators within the contemplation of the statute. C. Hazardous Substance Pursuant to the definition in CERCLA, a hazardous substance is: (A) any substance designated pursuant to section 1321(b)(2)(A) of Title 33, (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under, or listed pursuant to section 3001 of the Solid Waste Disposal Act (but not including any waste the regulation of which under the Solid Waste Disposal Act has been suspended by Act of Congress), (D) any toxic pollutant listed under section 1317(a) of Title 33, (E) any hazardous air pollutant listed under section 112 of the Clean Air Act, and (F) any immanently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 2606 of Title 15. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquified natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas). 42 U.S.C. § 9601(14) (1992). The substance at issue in this case is commonly called “coal-tar.” The principal constituent elements of coal-tar which have been located on the land owned by HRW, as well as the land now owned by the Powells and previously owned by Washington Gas, are polycyclic aromatic hydrocarbons and include “naphthalene, 2-methylnaphthalene, acena-phthene, fluorene, phenanthrene, fluoran-thene, anthracene, and pyrene.” HRW Memorandum, Exhibit A 1, at 30. There is no dispute between the parties that these are hazardous substances as contemplated by CERCLA. Indeed, it is well established that constituent elements of coal-tar are hazardous substances for CERCLA purposes. See, ie., United States v. Union Gas Co., 586 F.Supp. 1522, 1523 (E.D.Pa.1984) (acenaphthene, pyrene, naphthalene, and fluoranthene are all hazardous substances under CERCLA.) See, also, 40 C.F.R. § 302.1 et seq. (designates all substances listed above as hazardous substances under CERCLA, with exception of 2-methyl-naphthalene.) In addition to these substances, Washington Gas claims that there are other hazardous substances located in the soil of the property at issue in this case. These substances, tetrachloroethane, acetone, and methylene chloride, are not constituent elements of coal-tar, nor are they by-products of the gas-making process. Washington Gas, Memorandum at 10, and Ex. 5, ¶ 3. Again, there appears to be no dispute that these substances are indeed hazardous for the purposes of CERCLA. 40 C.F.R. § 302.1 et seq. D. Facility Under CERCLA, a “facility” is: (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, im-poundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located; but does not include any consumer product in consumer use or any vessel. It is clear from this definition that the former Washington Gas property, now owned by the Powells, is a “facility” as contemplated by CERCLA, as it is a site where hazardous substances have come to be located. Furthermore, it is also apparent that the HRW property is also a “facility” under CERCLA’s extremely broad definition of that term, since it is also a site where “hazardous substances” were stored. HRW, Memorandum in Opposition to Washington Gas’ Cross-Motion, at 3 (“Products containing acetone and methylene chloride were kept at the HRW property....”). Therefore, both the Powell site and the HRW site are “facilities” within the contemplation of CERCLA. E. Disposal The term “disposal” in CERCLA, § 9607(a)(2), is defined as having the meaning provided in the Solid Waste Disposal Act. 42 U.S.C. § 9601(29). In that act, the term “disposal” is defined as “the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.” 42 U.S.C. § 6903(3) (1983). “Environment” is defined in pertinent part by CERCLA as being: “[A]ny ... surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or under the jurisdiction of the United States.” 42 U.S.C. § 9601(8) (1992). There is no dispute that the various chemicals, both the constituent elements of coal-tar and the tetrachloroethane, acetone, and methylene chloride, found on the HRW site and the land currently owned by the Powell plaintiffs are hazardous substances under CERCLA. The Court is convinced that these chemicals also constitute “hazardous waste” under the definition supplied in the Solid Waste Disposal Act. Furthermore, there is no question that the coal-tar constituent elements have entered the environment, as defined by the statute, ánd that their presence indicates a “disposal” pursuant to the statute. Disposal may occur without any volitional human participation. Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir.), cert. denied, — U.S. —, 113 S.Ct. 377, 121 L.Ed.2d 288 (1992). All that is required is that the hazardous substance has been released into the environment at some point during a party’s control of the facility. It is undisputed that Washington Gas’ corporate predecessor, was in some way involved with the disposal of hazardous substances. Indeed, Washington Gas has admitted as much in its pleadings. (“[T]he activities that produced the contamination had ceased ...” Washington Gas, Memorandum in Support of Motion for Summary Judgment as to Successor Liability, at 16, (emphasis supplied)). Furthermore, the absence of any requirement of human participation means that HRW and the Powell plaintiffs may be held liable for the disposal of hazardous waste, in the absence of a suitable defense or failure of Washington Gas to prove another prima facie element under the liability analysis, even if they did nothing personally to contribute to the disposal. Washington Gas, however, contends that HRW and the Powell plaintiffs were active in the disposal of the coal-tar hazardous wastes. It suggests that both plaintiffs achieved the active' disposal of hazardous wastes by performing construction, - grading and filling, and, in the case of HRW, using hazardous substances in their operations on the site which had some of the same constituent elements as coal-tar. Washington Gas acknowledges that not all of the contamination could have occurred from HRW’s activities. It suggests, however, that it is “probable” that some did. Washington Gas, Memorandum, at 9-10. Washington Gas’ contention is simply too speculative. A mere “probability” is not enough to throw the issue into doubt for purposes of summary judgment, even were it the case that any contamination from HRW’s activities was “probable.” In fact, Washington 'Gas’ contention 'that at least some of the coal-tar contamination found in the ground Of the property was probably caused by HRW is precisely the “metaphysical doubt as to the material facts” which Matsushita warns is insufficient to raise a genuine issue. Matsu-shita Electric Industrial Co., 475 U.S. at 586, 106 S.Ct. at 1355. Nor can the Court accept the assertion that the activities of HRW and the Powell plaintiffs constitute an active disposal of hazardous substances. Although the defendant cites the Court to Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1572-73 (5th Cir.1988), this citation is not persuasive. That case stand's for the proposition that current owners of property can be held liable for the disposal of hazardous substances — a point which is not here in dispute. The case also stands for the proposition that “disposal” of hazardous waste can occur after hazardous materials are placed into the ground, for example when the materials are “moved, dispersed, or released during landfill excavations and fillings.” Id. at 1573. What Tanglewood East Homeowners does not stand for, however, is the proposition for which the defendants cite it — namely, that the current owner of property must be found liable of disposing of hazardous materials if it has, however unwittingly, “probably” disturbed hazardous material, which was placed into the ground without its knowledge, during landfill and grading. Such a result would fly in -the face of the clear intent of CERC-LA. Any present landowner, as well as all other intermediate landowners, who discovered hazardous waste placed on its land by some distant previous owner could, by application of the defendant’s logic, be held liable under CERCLA and compelled to share in the expense of cleaning up the land. This, according to the defendant, would be the result even if the landowner’s only act was the moving about of land with no reason to tfiink the act was unsafe. This result would surely act as a disincentive to current landowners to report the pollution of land and begin the process of voluntary clean-up. . That this result was not the intent of Congress is shown by the inclusion of the ‘innocent landowner’ defense to liability under § 9607(a), which the Court will discuss below. Furthermore, the Fourth Circuit anticipated, and rejected, almost this very argument in Nurad. The court observed that analyzing the term “disposal” as requiring an active component was logically unsound, since it might introduce “the anomalous situation where a current owner ... who never used the storage tanks could bear a substantial share of the cleanup costs, while a former owner who was similarly situated would face no liability at all. A CERCLA regime which rewards indifference to environmental hazards and discourages voluntary efforts at waste cleanup cannot be what Congress had in mind.” Nurad, 966 F.2d at 845-46. There is also the question posed by the acetone, methylene chloride, and tetrachlo-roethane alleged by Washington Gas to be present in the ground underneath the HRW property. Washington Gas’ expert, Mr. John A. Quagliotti, Jr., claims to have discovered acetone, methylene chloride, and tetrachlo-roethane in the soil and/or groundwater of the HRW and Powell,properties. Washington Gas, Memorandum, Exhibit 5, at 2. The chart accompanying Mr. Quagliotti’s affidavit, however, indicates that the numerical value assigned to the milligrams per kilogram measurement used to indicate the presence of these substances is an estimated quantity. Washington, Gas, Memorandum, Exhibit 5, Appendix B. HRW therefore questions the very existence of these substances, arguing that because the values are so small that the amounts have tobe estimated, there is a possibility that 'the substances may not even be present in the soil at all. Washington Gas, in its reply, takes the position that the designation of an estimated quantity of acetone, methylene chloride, and tetrachloroethane means only that the concentration of the substances is in doubt, not the fact that they are present in the soil. Furthermore, it argues that amount is not an issué under CERCLA. The only question, for purposes of determining a disposal of the substances, is whether they exist in the soil. The Solid Waste Disposal Act’s definition of “disposal” encompasses the placing of any solid waste or hazardous waste into the environment. There is no question of amount, either in this statute or in CERCLA. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 669 (5th Cir.1989), United States v. Al-can Aluminum Corp., 755 F.Supp. 531, 537-38 (N.D.N.Y.1991) (and cases cited therein). Therefore the presence of any detectable amount of these substances, without regard to concentration, is sufficient to satisfy the requirements of the statute. United States v. Western Processing Co., Inc., 734 F.Supp. 930, 936 (W.D.Wash.1990) (proof that a release was above background levels was unnecessary; common law principle that the law does not concern itself with trifles is not a CERCLA defense). In this case, Washington Gas has sufficiently alleged that acetone, methylene chloride, and tetrachloroethane are present in the soil of the HRW property, and that their presence is proof of a “disposal” under the statute. HRW’s contention that the designation of estimated values for the quantities of these substances is an indication that they do not exist at all is simply too speculative for this Court, and once again constitutes a mere possibility, which is not enough to throw the issue into doubt for purposes of summary judgment. F. Release CERCLA requires a release, or threatened release, in order for liability to be triggered. A release pursuant to CERCLA is defined as follows: [A]ny spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping,'or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant).... 42 U.S.C. § 9601(22) (1992). The self-referential quality of CERCLA thus requires that there be both a disposal and a release in order to establish liability, but subsumes within its