Full opinion text
MEMORANDUM OPINION KATZ, District Judge. I. INTRODUCTION This case is before the Court on the following motions and responses: (1) Joint motion for summary judgment of defendants Allied-Signal, Inc. (“Allied-Signal”), Libbey Owens Ford Co. (“LOF”) and Trinova Corporation (“Trinova”). Plaintiff Plaskon Electronic Materials, Inc. (“PEMCO”) opposes this motion, Allied-Signal, LOF and Trinova filed a joint reply, and Allied-Signal and LOF also filed their own individual replies. (2) Joint motion for summary judgment of defendants Allied-Signal, Hillside Capital Inc. (“Hillside Capital”), Hillside Industries Inc. (“Hillside Industries”), Hillside Delaware Inc. (“Hillside Delaware”) (collectively, these parties will be referred to as the “Hillside Defendants”), PLK Liquidating Corp. (“PLK”), Trinova, and LOF. PEMCO opposes this motion, and Allied-Signal, the Hillside Defendants, PLK, Trinova and LOF filed a joint reply. (3) Motion for summary judgment of PEMCO against Allied-Signal and PLK. The Hillside Defendants and PLK opposes this motion, and PEMCO filed a reply. (4) Motion for summary judgment of the Hillside Defendants and PLK. PEM-CO and Allied-Signal, in separate memoranda, oppose this motion, the Hillside Defendants and PLK filed a joint reply, and Allied-Signal, at the Court’s request, filed a surreply. (5) Motion for summary judgment of LOF. Trinova and PEMCO oppose this motion, and LOF filed a reply. This Court has jurisdiction over this matter pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601, et seq. II. STATEMENT OF FACTS This is an environmental case in which the parties contest liability for the cleanup costs associated with a particular site. The site at issue is located at 2829 Glendale Avenue in Toledo, Ohio, and will be referred to throughout this opinion as “the Site.” The Site was used to manufacture plastic and epoxy molding compounds. It was originally owned by the Libbey Owens Ford Glass Company from 1943 to 1953. Manufacturing operations did not begin on the Site until 1947, when construction of the original plant was completed. In 1953, Libbey Owens Ford Company sold the Site and the attendant operations to Allied Chemical and Dye Corporation. After obtaining the Site in 1953, Allied Chemical and Dye Corporation changed its name to Allied Chemical Corporation. It operated the Site for 26 years and engaged in the production of numerous molding compounds, plasticizers and polyester resins. In 1979, Plaskon Products, Inc. (“PPI”) purchased the Site from Allied Chemical. PPI is a subsidiary of Defendant Hillside Industries, Inc. After the sale, Allied Chemical Corporation changed its name to Allied-Signal, Inc. In 1980, Plaskon Electronic Materials, Inc. (“PEMCO”) was established as a wholly owned subsidiary of PPI for the purposes of manufacturing semiconductor-related products and “446” polyester at the Site. At this time, PPI was a wholly-owned subsidiary of Hillside Industries, Inc., which, in turn, was a wholly-owned subsidiary of Hillside Capital, Inc. Like Hillside Industries, Inc., Hillside Capital, Inc. is also a Defendant in this litigation. PPI leased portions of the Site to PEMCO, which operated the semiconductor. In 1984, PEMCO’s stock was sold to Plaskon Holding, Inc., another subsidiary of Hillside Industries, Inc. After the sale, Plaskon Holding, Inc. changed its name to Hillside Delaware, Inc., a Defendant in this litigation. Later in 1984, Plaskon Holdings, Inc. sold the stock in PEMCO to Rohm and Haas Delaware, Inc. Thus, PEMCO became a wholly owned subsidiary of Rohm and Haas Delaware, which is, in turn, a wholly owned subsidiary of Rohm and Haas Company, a large, publicly traded chemical manufacturer with its principal place of business in Philadelphia, Pennsylvania. In conjunction with the sale, Plaskon Products, Inc. changed its name to PLK Liquidating, a defendant in this action. It retains corporate existence today as a subsidiary of Hillside Industries, Inc., but has not had any active operations since 1983. The term “PLK” is used throughout the remainder of this Memorandum Opinion to refer to Defendants PLK Liquidating Corporation and its predecessor in interest, PPI. After the acquisition by Rohm and Haas Delaware, PEMCO continued its chemical manufacturing operations at the Site until 1991, at which time manufacturing operations in Toledo were terminated and transferred to a new plant in Singapore. After closing its manufacturing operations in Toledo and terminating the remaining PEMCO employees, the structures located at the Site were demolished. III. SUMMARY JUDGMENT STANDARD As an initial matter, the Court sets forth the relative burdens of the parties once a motion for summary judgment is made. Summary judgment must be entered “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Of course, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. 477 U.S. at 323, 106 S.Ct. at 2553. The burden then shifts to the nonmoving party who “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Once the burden of production has so shifted, the party opposing summary judgment cannot rest on its pleadings or merely reassert its previous allegations. It is not sufficient to “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Rather, Rule 56(e) “requires the nonmoving party to go beyond the [unverified] pleadings” and present some type of evidentiary material in support of its position. Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). IV. LAW AND DISCUSSION A. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AGAINST PEMCO (DOC. NO. 106) Defendants Allied-Signal, TRINOVA and LOF move for summary judgment on the counterclaim that PEMCO is jointly and severally hable for response costs associated with the cleanup of contamination caused by the release of hazardous substances at the Site. PEMCO argues that, while it is the current owner of the Site, it is not jointly and severally hable under 107(a) of CERCLA. Initially, PEMCO notes that it does not object to the contention that it is a current owner of the Site, and therefore, that it is a responsible party under § 107(a)(1) and the doctrine of strict liability. PEMCO, however, opposes any claim that is jointly and severally hable for all of the response costs at the Site. In its reply brief to PEMCO’s opposition to the motion for summary judgment, LOF raises the argument that PEMCO’s action cannot be brought under § 107(a) of CERCLA, but instead must be brought under § 113(f) of CERCLA. Subsequently, LOF filed a notice of supplemental authorities supporting its position, PEMCO responded and LOF replied to the response. For the reasons set forth below, this Court is convinced that LOF is correct, and that, regardless of how it is pled, PEMCO’s only action is a § 113(f) contribution action. 1. Applicable Statutory Provisions Section 107(a) of CERCLA states, in pertinent part: 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— (A) all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan; (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan; (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and (D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title. 42 U.S.C. § 9607(a). Section 113(f)(1) of CERCLA, entitled “Contribution,” provides as follows: Any person may seek contribution from any other person who is liable or potentially hable under section 9607(a) of this title, during or following any civil action under section 9606 of this title or under section 9607(a) of this title. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under section 9606 or section 9607 of this title. 42 U.S.C. § 9613(f)(1). 2. Analysis The question at issue is whether a potentially responsible party (“PRP”), as PEMCO admits it is, is restricted to bringing a contribution claim under § 113(f) or whether such a party may also pursue a cost recovery action under § 107(a). The question is of import because liability under § 107(a) is joint and several, while liability under § 113(f) is merely several. Kaufman & Broad-South Bay v. Unisys Corp., 868 F.Supp. 1212, 1213-15 (N.D.Cal.1994). Numerous recent federal court decisions discuss this issue. In United Technologies v. Browning-Ferris Industries, Inc., 33 F.3d 96 (1st Cir.1994), the United States Environmental Protection Agency (“USEPA”) had placed the site at issue, located in the State of Maine, on its national priority list. USE-PA and Maine thereafter determined that Inmont Corp. had conducted contamination-producing activities at the site from 1950 to 1975. Id. at 97. A consent decree was eventually entered into by several parties. Those parties liable under the consent decree then brought suit against Browning-Ferris Industries (“BFI”) and others alleging that defendants were wholly or partially responsible for contamination of the site, and seeking recovery of cleanup costs paid directly to USEPA under the consent decree. The court held that a responsible party under CERCLA is restricted to bringing a contribution claim under § 113. Id. at 99. In reaching this conclusion, the court began by defining the term contribution appearing in § 113(f). Giving the term its customary legal meaning, the court defined “contribution” as “an action by and between jointly and severally liable parties for an appropriate division of payment one of them has been compelled to make.” Id. at 99 (quoting Akzo Coatings, Inc. v. Aigner Corp., 30 F.3d 761, 764 (7th Cir.1994)). The United Technologies court then adapted this definition to CERCLA cases and concluded that an action by a responsible party to recover response costs from another responsible party is a contribution action under § 113(f). By contrast, the court characterized actions brought by innocent parties — parties who are not themselves subject to CERCLA liability — as cost recovery actions under § 107(a). After distinguishing cost recovery from contribution actions, the court held that the two types of actions are “distinct and do not overlap.” Id. at 100. The court noted that the provision in CERCLA governing the limitations period for cost recovery actions— § 113(g)(2) — is entitled “actions for recovery of costs.” The court reasoned that this phrase suggests full recovery of costs and that “it is sensible to assume that congress intended only innocent parties to ... recoup the whole of expenditures.” Id. Moreover, the court recognized that allowing a liable party to pursue a cost recovery action would swallow the three year limitations period for contribution actions found in § 113(g)(3). If cost recovery actions and contributions are not viewed as separate and direct avenues of recovery, a responsible party could avoid the three year limitations period for contribution actions by simply labeling its action a cost recovery action under § 107, which has a six year limitations period. Id. United Technologies is just one of several cases in which courts that have reached the conclusion that “non-innocent” parties cannot bring an action under § 107(a), but must instead bring a contribution action under § 113(f). See Akzo, 30 F.3d at 764 (defining suit by one responsible party against another as a contribution action); United States v. Colorado & Eastern Railroad Co., 50 F.3d 1530 (10th Cir.1994), (regardless of how they are pled, claims between PRPs are contribution claims under § 113(f)); Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir.1989) (when one party sues another responsible party for its share of response costs, the claim is one for contribution); Kaufman & Broad-South Bay v. Unisys Corp., 868 F.Supp. 1212 (N.D.Cal.1994); Transtech Industries, Inc. v. A & Z Septic Clean, 798 F.Supp. 1079, 1087 (D.N.J.1992)). PEMCO argues that the cases cited above are inapposite to its case because the parties in those eases had apparently admitted § 107 joint and several liability, while PEMCO rejects the claim of LOF and other defendants that it is jointly and severally liable for all of the Site response costs. This position is unconvincing, however, as it is quite clear that PEMCO is liable under § 107(a) because it is the current owner of the Site. Whether it admits § 107(a) liability is irrelevant; as the current owner, PEMCO is a PRP pursuant to § 107(a)(1). This case is very similar to the situation addressed in Kaufman. In that case the current owner of the property, K & B, was held to be a PRP under § 107(a), and therefore allowed only to bring a § 113(f) contribution action. The court stated that “[i]n this case, K & B, as a current owner of a site, is a potentially responsible party under CERCLA____ K & B therefore is relegated to bringing a contribution action ...” Id. at 1216. Moreover, the Kaufman court stated: ... the reality is that the vast majority of private parties will be limited to suing for contribution under [§ 113(f) ]. This is so because CERCLA imposes liability on virtually every private party who would have a reason to recoup cleanup costs. Therefore, a CERCLA plaintiff, other than the government, will rarely be “innocent” and thus permitted to sue under [§ 107(a)]. Id. Based upon the recent decisions of the First, Fifth, Seventh and Tenth Circuits, as well as the cited district courts, this Court is compelled to conclude that, as the current owner of the Site, PEMCO is a PRP under § 107(a)(1), and therefore not an “innocent party.” Consequently, regardless of how its action is pled, this action must be construed to be an action brought for contribution pursuant to § 113(f) of CERCLA. Given this ruling, Defendants may only be held liable for their individual, several and equitable share of responsibility of the recoverable costs incurred by PEMCO. B. PLK’S AND THE HILLSIDE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 116) PLK and the Hillside Defendants move for summary judgment on several issues: (1) Did disposal of hazardous wastes occur during the time that PLK owned and operated the Site? (2) Are the Hillside Defendants liable under CERCLA on the ground that they are or were affiliated with PLK? (3) Are the Hillside Defendants liable as indemnitors of Defendant Allied-Signal’s environmental liability on the basis of the indemnity clause in the agreement between PPI and Allied-Signal? (4) Is PLK liable to Allied-Signal pursuant to the indemnity clause? Each of these issues will be discussed below. 1. Did Disposal of Hazardous Wastes Occur During PLK’s Ownership? Section 107(a)(2) of CERCLA imposes liability for cleanup on, inter alia, “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.” Therefore, unless PEM-CO, as the Plaintiff in this action, can show that there is a genuine issue of material fact as to whether PLK owned or operated the Site at the time that hazardous substances were disposed of, summary judgment is warranted. Section 101(29) of CERCLA incorporates by reference the definition of the term “disposal” in the Solid Waste Disposal Act, 42 U.S.C. § 6903(3): The term “disposal” means 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. PLK claims that it is not responsible for any Site contamination. There are four separate areas of contamination at the Site: the Wet Dust Settling Pond, the Phthalate Area, and the Methylene Chloride Area, and the East Tank Farm. While PLK admits that it operated the methylene chloride tank in this area, it claims that there is no evidence to show that, between 1979 and 1984, there was any release of methylene chloride into the environment. Moreover, PLK asserts that the presence of methylene chloride contamination at the Site is completely accounted for by the documented spills by both Allied-Signal and PEMCO in the precise area where methylene chloride has been found in the ground water. PLK correctly asserts that speculation that a spill may have occurred during PLK’s tenure is insufficient to establish CERCLA liability, or to defeat summary judgment. Anspec Co., Inc. v. Johnson Controls, Inc., 788 F.Supp. 951, 957 (E.D.Mich.1992) (“conelusory allegations that the hazardous substance located in the soil and surface water of the site are the same as the substances used and disposed of by [defendant] during its ownership and operation of the facility ... [do] not satisfy the specificity requirement under Rule 56 of the Fed.R.Civ. P.”). Moreover, mere passive migration of contaminants released by prior owners during a subsequent owner’s tenure is insufficient to incur CERCLA liability. Joslyn Mfg. Co., v. T.L. James & Co., 836 F.Supp. 1264, 1269 (W.D.La.1993) (“Joslyn II”); United States v. Petersen Sand & Gravel, Inc., 806 F.Supp. 1346, 1351-53 (N.D.Ill.1992); Snediker Developers Ltd. Partnership v. Evans, 773 F.Supp. 984, 987-89 (E.D.Mich.1991); Ecodyne Corp. v. Shah, 718 F.Supp. 1454, 1456-57 (N.D.Cal.1989); In Re Diamond Reo Trucks, Inc., 115 B.R. 559, 565-66 (Bankr.W.D.Mich.1990). However, “leaking” and “spilling” of hazardous substances during ownership of a facility can result in the imposition of liability under CERCLA § 107(a)(2). Based on these cases, PLK asserts that there is no evidence that leaking or spilling of the contaminants subject to this litigation occurred during PLK’s ownership of the Site. Therefore, PLK claims that it cannot be deemed liable pursuant to CERCLA § 107(a)(2), and summary judgment in its favor is warranted. Both Allied-Signal and PEMCO respond that, while it is true that passive migration is insufficient to establish CERCLA liability, their claims against PLK go beyond claims of passive migration. They claim that it is uncontroverted that spilling and leaking of hazardous substances at a facility constitutes “disposal” within the meaning of § 107(a)(2) of CERCLA. See Nurad, Inc. v. William E. Hooper & Sons, Inc., 966 F.2d 837, 846 (4th Cir.), cert. denied, — U.S. -, 113 S.Ct. 377, 121 L.Ed.2d 288 (1992) (“we hold that [107(a)(2) ] imposes liability not only for active involvement in the ‘dumping’ or ‘placing’ of hazardous waste at the facility, but for ownership of the facility at a time that hazardous waste was ‘spilling’ or ‘leaking.’ ”) Allied-Signal claims that, contrary to PLK’s claims, evidence shows that hazardous substances were leaked and spilled at the Site during PLK’s ownership and operation of the Site. Allied-Signal points to several pieces of evidence to support this claim: (1) Doug McKee, an environmental consultant, was hired by PEMCO to survey solid and liquid hazardous wastes on the Site and to make recommendations for their disposal. In a November 18, 1983 memorandum to Malcolm Riddell, president of PEMCO, McKee specifically stated that hazardous wastes were leaking on the Site prior to sale of the Site to Rohm & Haas. (2) James F. Higgins, who is currently employed by Hillside Industries and who was vice-president of finance and administration for PPI (PLK’s predecessor) from 1979 through 1982, testified that a spill of formaldehyde occurred at the site after PPI’s acquisition of the Site. (3) Donald Gore, who had been employed at the Site from 1950 through 1986, including employment as Plant manager during PLK’s ownership of the Site, testified that there was occasional leakage as long as the tank was in use, which was until at least 1988. Thus, Allied-Signal and PEMCO argue that PLK is indeed a statutorily hable person pursuant to CERCLA § 107(a)(2). Given this testimony, this Court must conclude that summary judgment on this issue is inappropriate. There is a genuine issue of material fact as to whether disposal of hazardous materials occurred during PLK’s ownership and operation of the Site. While PLK’s liability may be de minimis given that only leakage as opposed to spillage apparently occurred during its ownership period, it is nonetheless true that summary judgment is not appropriate. 2. Are The Hillside Defendants Liable Under CERCLA On The Ground That They Are Or Were Affiliated With PLK And PEMCO? Allied-Signal and PEMCO argue that the facts surrounding the affiliation between the Hillside Defendants and PLK justify the piercing of the corporate veil to hold the Hillside Defendants hable for any environmental liabilities of PLK related to the Site. For the reasons set forth below, this Court disagrees, and finds that the facts presented do not justify the piercing of the corporate veil. As stated above, Hillside Capital is a holding company that owns the stock of Hillside Industries, which, in turn, is a holding company that owns the stock of PLK. Hillside Delaware was created in 1984 to hold and transfer the stock of PEMCO to Rohm & Haas. The Hillside Defendants are each Delaware corporations. Hillside Capital is owned by three individual shareholders: John Irwin III, C. Barnwell Straut, and Edward Bramson. Hillside Capital and Hillside Industries both operate out of a small executive office in New York City. In addition to the three shareholders, who hold the title of Managing Directors of Hillside Industries, Inc., the company has a chief financial officer and secretaries. (Higgins Affidavit at ¶ 4.) When Hillside Industries acquired the assets of the PEMCO operation from Allied-Signal, five of the six officers of PLK were hold-overs from Allied-Signal’s management team. (Id. at ¶ 5.) Irwin, Straut, and Bramson were not the only directors of PLK and PEMCO; the board of PLK also included Bennett, Higgins and Riddell, who were officers of the operating company. PEMCO’s board also included management personnel such as Bennett and Riddell. The Hillside Defendants claim that the only times that Irwin, Straut and Bramson visited the Site was to attend regularly scheduled director’s meetings of PLK or PEMCO. They claim that they did not involve themselves in any way in the day-to-day management of PLK or PEMCO. Riddell testified that, as president of PEMCO he — not the board of directors — was in charge of the operational affairs of the company. (Riddell Depo. at ¶ 68-69, 117-188.) Riddell had the authority to commit capital resources and enter into substantial contracts for the purchase of materials, supplies, and equipment. (Id. at 139, 141-142.) In addition, the two operating companies claim to have controlled the hiring of employees, maintained their own payrolls and bank accounts, maintained their own books, prepared their own financial statements and balance sheets, and held management meetings outside of the regularly scheduled meetings. Moreover, the Managing Directors of the Hillside Companies assert that they were never involved in directing or overseeing environmental compliance and related matters at the Site. (Id. at 243-48.) PLK hired and maintained its own in-house environmental officer — Robert Wholf — who reported directly to PLK management, not the board of directors. (Higgins Depo. at 28.) Any outside environmental consultants were likewise retained by management, not the board. Allied-Signal and PEMCO point to several facts as evidence that the Hillside Defendants were sufficiently affiliated with PLK to justify holding the Hillside Defendants liable as owners of PLK. These factors include: • There was and is significant overlap between the boards of PLK and the Hillside Defendants. • Although on paper the sale of Allied-Signal appeared to be a transaction between Allied-Signal and PPI, the Hillside Defendants were clearly the real parties in interest. Allegedly, Allied-Signal and the Hillside Defendants used the sale as an opportunity to resolve other disputes that had arisen between them that were unrelated to the newly formed PPI. For example, the Hillside Defendants had previously bought Buffalo Color Corporation from Allied-Signal, but part of the purchase price remained unpaid. Accordingly, as part of the Sales Agreement for the Sales Agreement at issue, Buffalo Color Corporation, now a subsidiary of Hillside Industries, reaffirmed its obligation to repay “$13 million amount of 6 percent subordinated notes presently held by Allied Signal,” which had been drawn up as part of the previous acquisition. (Higgins Depo. at 138.) • At least two employees of Buffalo Color had some involvement with the Site. Anthony ten Braak, vice president of Buffalo Color, was hired as a consultant to do audits of the Site in 1979, and J. Gouck, another employee of Buffalo Col- or, was involved in subsequent environmental audits at the Site. The Hillside Defendants seek summary judgment on the grounds that they neither owned or operated the Site within the meaning given those terms in CERCLA. There is general agreement that under CERCLA, “owner” liability and “operator” liability denote two separate standards for determining whether they apply. See Lansford-Coaldale Water Authority v. Tonolli Corp., 4 F.3d 1209, 1220 (3rd Cir.1993), and cases cited therein. a. Operator Liability The Hillside Defendants argue that they were not operators of the Site. The Sixth Circuit has very recently addressed the issue of operator liability under CERCLA, concluding that “a parent corporation incurs liability pursuant to section 107(a)(2) of CERCLA, for the conduct of its subsidiary corporation, only when the requirements necessary to pierce the corporate veil are met.” United States v. Cordova Chemical Co. of Michigan, 59 F.3d 584, 590 (6th Cir.1995) (emphasis added). In determining whether the circumstances in a particular case warrant a piercing of the corporate veil in order to disregard the separateness of the corporate entities, the court must look to state law. Id. In the instant case, because the Hillside defendants were incorporated under Delaware law, Delaware law governs in determining whether to pierce the corporate veil. “[P]ersuading a Delaware Court to disregard the corporate entity is a difficult task____ The legal entity of a corporation will not be disturbed until sufficient reason appears.... In an appropriate ease, however, the corporate veil may be pierced.” Harco Nat’l Ins. Co. v. Green Farms, Inc. Case No. 1131, 15 Del.J.Corp.L. 1030, 1989 WL 110537 at *3 (Del.Ch. Sept. 19, 1989) (citations omitted). Delaware courts have held that, in the interest of justice, when such matters as fraud, contravention of law or contract, public wrong, or where equitable considerations among members of a corporation demand it, the corporate veil may be pierced. See, e.g., Pauley Petroleum, Inc. v. Continental Oil Co., 43 Del.Ch. 366, 231 A.2d 450 (1967), aff'd, 43 Del.Ch. 516, 239 A.2d 629 (Sup.Ct.1968). Further, the Harco court explicitly accepted the alter ego theory of piercing the corporate veil, adopting the test set forth by the District Court of Delaware in United States v. Golden Acres, Inc., 702 F.Supp. 1097, 1104 (D.Del.1988), aff'd 879 F.2d 860 (3d Cir.1989): An alter ego analysis must start with an examination of factors which reveal how the corporation operates and the particular defendant’s relationship to that operation. These factors include whether the corporation was adequately capitalized for the corporate undertaking; whether the corporation was solvent; whether dividends were paid, corporate records kept, officers and directors functioned properly, and other corporate formalities were observed; whether the dominant shareholder siphoned corporate funds; and whether, in general, the corporation simply functioned as a facade for the dominant shareholder____ [N]o single factor could justify a decision to disregard the corporate entity, but ... some combination of them was required and that an overall element of injustice or unfairness must always be present, as well. Harco at 1989 WL 110537 at *3 (quoting Golden Acres, 702 F.Supp. at 1104). Allied-Signal claims that the facts of this case are sufficient to justify piercing the corporate veil. The Hillside Defendants, however, argue that there is insufficient evidence to justify piercing the corporate veil. They claim that there is no significant overlap between the boards, and that, except for monthly board meetings, Irwin, Straut and Bramson never came to the Toledo facility. (Riddell Depo. At 243-15.) The Hillside Defendants admit that the boards reviewed proposals presented by management, approved annual budgets, approved marketing plans, approved certain capital expenditures, were informed of operations and environmental matters and the like. However, they claim that those were merely oversight functions that are precisely the purpose of corporate boards. The Court finds instructive Riddell’s sworn testimony that he, not the board, was directly responsible for facility operations and the day-to-day management of the Site, and that he had the ability to commit capital resources. (Id.) Riddell testified that he “didn’t go to them at all. It would be annual budgets and strategies and that kind of stuff, and then if I had something that was going to cost an appreciable amount of money — or it was something very different from what I had been doing and just wanted to let them know.” (Id. At 246-47.) The record shows that the boards of PLK and PEMCO essentially functioned to consent to policies established by the management team, which did not include Irwin, Bramson, or Straut. The board consented to such things as policies, budgets, marketing strategies, and operational plans, but, as Rid-dell stated: In all the years I worked as president of PEMCO, I cannot remember any recommendation being turned down. I can only remember one where one of the people, one of the three people, said that he didn’t think I should be doing something, that after a matter of time, I just — we went ahead and did it anyway, but that he understood it by that time and that had nothing to do with [the] environmental area. But with every other proposal I made or capital request I made, market strategy, anything like that was approved. (Id. at 141-42.) The Court does not find that the portions of the record cited by PEMCO and Allied-Signal are sufficient to raise a genuine issue of material fact as to whether the Hillside Defendants actually controlled PLK so as to justify piercing the corporate veil. There is no evidence before the Court that PLK was not adequately capitalized, that it was not solvent, that dividends were not paid, that the Hillside Defendants siphoned corporate funds, or that PLK functioned as a facade for the dominant shareholder. See Harco, 1989 WL 110537 at *3. The overlap among the boards is simply insufficient under Delaware law to justify piercing the corporate veil. Moreover, there has not been shown to be an overall element of injustice or unfairness present. Accordingly, this court finds that there is no genuine issue of material fact with respect to piercing the corporate veil, and will not hold the Hillside Defendants hable as operators of the Site, b. Owner Liability Under CERCLA, a corporation may be held hable as an owner for the actions of its subsidiary in situations where it is determined that piercing the corporate veil is appropriate. Cordova, 59 F.3d at 590-91; Lansford-Coaldale, 4 F.3d at 1220; Joslyn Mfg. Co. v. T.L. James & Co., 893 F.2d 80 (5th Cir.1990), cert. denied, 498 U.S. 1108, 111 S.Ct. 1017, 112 L.Ed.2d 1098 (1991). As stated above, such piercing is not warranted in this case. Therefore, the Hillside Defendants will not be held hable as owners of the Site. c. The Indemnity Clause In its counterclaim against PLK and the Hillside Defendants, Allied-Signal claims that PLK and the Hillside Defendants are contractually bound to indemnify Allied-Signal. PLK and the Hillside Defendants move for summary judgment, claiming they are not obhgated to indemnify Allied-Signal. The indemnity clause at issue states as fohows: (a) Effective the Closing Date, [PLK] shah assume and agree to pay, perform and discharge, and to indemnify [Allied-Signal] against and hold it harmless from the following liabilities and obhgations, and only the following liabilities and obhgations: * * # * * * (2) all obhgations, liabilities, costs, and expenses, including reasonable attorneys’s fees, relating to the Assets or the operation of the Assets, arising out of claims made, or suits brought, on or after the Closing date for injury, sickness, disease or death of any person, damage to any property, or violations of Federal, state or local laws or regulations relating to the protection of the environment or the safety or health of employees in any ease which is ultimately determined by the finder of fact to have resulted in whole or in part from (a) any substance introduced into or removed from the Plants, or discharged from operations, by [PLK]; (b) any product manufactured by [PLK] at either of the Plants; or (c) any condition of any physical asset sold hereunder, real or personal existing on or prior to the Closing Date (whether or not such condition resulted, in whole or in part, from Seller’s negligence or fault), provided the incident causing such injury, sickness, disease or death, property damage or violation of laws or regulations relating to the protection of the environment or the safety or health of employees occurred, in whole or in part, on or after the Closing Date____ State law governs the interpretation of pendent contractual claims asserted in private cost recovery and contribution actions under CERCLA. AM Int’l Inc. v. International Forging Equip. Corp., 982 F.2d 989, 994-95 (6th Cir.1993); Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240, 1248 (6th Cir.1991). In deciding which state’s law applies, federal courts apply the forum state’s choice of law rules. Boyle v. Jacor Communications, Inc., 799 F.Supp. 811, 813 (S.D.Ohio 1992). Under Ohio law, specific choice of law provisions contained in a contract between the parties controls the interpretation of that agreement. Id. at 813. In the instant case, PLK and Allied contractually stipulated that the 1979 Purchase Agreement (“the Agreement”) “shall be governed and interpreted in accordance with the laws of the State of New York.” Id. See Agreement at § 25. Therefore, New York law governs the interpretation of the contractual provisions allegedly giving rise to Allied-Signal’s cross-claims in this action. Allied-Signal claims that, based upon the indemnification agreement as interpreted under Delaware law, PLK and Hillside, as purchasers of the Site, are to indemnify and hold Allied-Signal harmless for any claims for damage to property which is ultimately determined by a trier of fact to result “in part” from: any substance released by PLK and Hillside, any product manufactured by PLK and Hillside, or any condition on the Site existing at the time of sale (provided that the incident causing such property damage occurred in whole or in part on or after the closing date). Such a claim presents two different inquiries: first, whether PLK, as a party to the agreement, must indemnify Allied-Signal, and second, if so, whether the Hillside Defendants can be held to be a party to the agreement as the alter ego of PLK. Because the Court finds that the first of these questions must be answered in the negative, the second question need not be addressed. PLK first claims that it is not bound to indemnify Allied-Signal because it did not cause any contamination to the Site. However, as has been discussed above, there is a genuine issue of material fact as to whether PLK contaminated the Site after it acquired it in 1979. Next, PLK argues that Allied mistakenly treats the indemnification issue as whether a discharge of hazardous substances by PLK at one location will cause it to assume liability for previous contamination at another part of the facility. Instead, PLK asserts: that the alleged liability-creating acts of PLK and its resulting potential responsibility under CERCLA based on its own Site ownership and operation are irrelevant. The sole purpose of the indemnification clause is to shift liabilities of Allied-Signal to PLK under certain carefully enumerated circumstances. The only question here is whether the liability of Allied-Signal sought to be established in this action fits within the contractual description of assumed liabilities. It does not. (Reply Memorandum of Defendants Hillside Capital, Inc., Hillside Industries, Inc., Hillside Delaware, Inc., and PLK Liquidating Corp. at 5.) PLK goes on to argue that Allied’s potential liability in this case under CERCLA does not result in whole or in part from any incident in which PLK may have discharged hazardous substances after Allied sold the Site, but rather from Allied’s own disposal activities before it sold the Site. PLK claims that Allied’s liability is predicated solely upon the fact that it was an owner and operator of the Site from 1953 through 1979 and disposal of hazardous substances during that time period. “Only if Allied were to be held liable to plaintiff for incidents contributing to contamination that occurred after the 1979 closing date,” PLK argues, “would the contractual indemnity take hold.” {Id. at 6.) Allied-Signal counters that PEMCO, the Plaintiff in this action, explicitly seeks to have the Court find Allied-Signal “jointly and severally liable” to PEMCO “for any and all its costs of response, resulting from the release and threat of release of hazardous substances at the Site____” (Complaint at p. 12.) PEMCO does not limit its claims for property damage against Allied-Signal to cleanup costs related to the release of hazardous substances which occurred prior to 1979. While the Complaint in the instant case would indicate that Allied-Signal is correct, given this Court’s ruling that PEMCO’s action is one for contribution, regardless of how it is pled, impacts upon the determination at hand. As this Court has found that PEMCO is limited to a contribution action and, therefore, that the Defendants in this case are not subject to joint and several liability, this Court is logically constrained to conclude that Allied-Signal cannot be held liable to PEMCO for incidents contributing to contamination that occurred after the 1979 closing date. Accordingly, the indemnification provision of the 1979 contract is not triggered, and this Court will grant the motion for summary judgment of PLK and the Hillside Defendants on the indemnification issue. C. PEMCO’S MOTION FOR SUMMARY JUDGMENT (DOC. NO. 115) PEMCO moves for partial summary judgment against Allied-Signal and PLK. Specifically, PEMCO seeks an order from the Court that Allied-Signal and PLK are liable parties in this litigation as a matter of law under § 107(a) of CERCLA, 42 U.S.C. § 9607(a). The Sixth Circuit has set forth the elements that a plaintiff must prove in order to establish a prima facie case for liability for response costs under § 107(a) of CERCLA: that the property on which hazardous substances were contained was a facility under CERCLA’s definition of that term, that the release or threatened release of any hazardous substance from the facility had occurred, that such release or threatened release caused them to incur response costs that were necessary and consistent with the National Contingency Plan (NCP), and that defendant was one of the statutory classes of persons subject to liability. Donahey v. Bogle, 987 F.2d 1250, 1255 (6th Cir.), cert. denied sub nom., Donahey v. Livingstone, — U.S. -, 114 S.Ct. 636, 126 L.Ed.2d 594 (1993), cert. granted, judgment vacated sub nom., Livingstone v. Donahey, — U.S.-, 114 S.Ct. 2668, 129 L.Ed.2d 805 (1994). Initially, it must be noted that PEMCO explicitly states that it does not seek summary judgment that the response costs it incurred were necessary and consistent with the NCP. Thus, PEMCO is not arguing that summary judgment is warranted on the entire prima facie case; rather, it is merely arguing that there are no genuine issues of material fact with respect to the following elements of the prima facie claim: (1) that the Site constitutes a facility within the meaning of CERCLA; (2) that a release or threatened release of hazardous substances at the Site has occurred; (3) that the release or threatened release has caused PEMCO to incur response costs; and (4) that both Allied-Signal and PLK are covered persons under § 107(a)(2) of CERCLA. While the Court questions the value of spending numerous pages of analysis to establish what are, for the most part, facts that could be stipulated to, the Court finds no reason that it cannot grant summary judgment, where warranted, on individual elements of a prima facie case. 1. Does the Site Constitute a Facility? The term “facility” is defined in CERCLA as any building ... equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works) well, pit, pond ... ditch ... or site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise came to be located. CERCLA § 101(9)(B), 42 U.S.C. § 9601(9)(B). PEMCO contends that the various chemicals used at the Site by all of the past owners are well documented, and that there is no genuine issue of material fact regarding whether the Site is a facility. Neither PLK nor Allied-Signal argues that the Site is not a facility within the meaning of § 101 of CERCLA. Under Rule 56(e), the non-moving party bears the responsibility to demonstrate that summary judgment is inappropriate. “The adverse party may not rest upon the mere allegations or denials of [his] pleadings, but [his] response, by affidavits or otherwise ..., must set forth specific facts showing there is a genuine issue for trial. If [he] does not so respond, summary judgment, if appropriate, shall be entered against [him].” Fed.R.Civ.P. 56(e). “[I]f the non-moving party fails to discharge that burden [of setting forth specific facts showing there is a genuine issue for trial] — for example, by remaining silent — its opportunity is waived and its case wagered.” Guarino v. Brookfield Township Trustees, 980 F.2d 399, 405 (6th Cir.1992). Consequently, the Court finds that there is no genuine issue of material fact as to whether the Site constitutes a facility under CERCLA, and summary judgment will be granted on this issue. 2. Were Hazardous Wastes Released or Threatened to be Released From the Facility? CERCLA defines the term “release” as “any spilling, leaking, pumping, pouring, emitting, employing, discharging, injecting, escaping, leaching, dumping or disposing into the environment.” CERCLA § 101(22), 42 U.S.C. § 9601(22). PEMCO states that it is undisputed that throughout the periods of ownership and operation of the Site by the various Defendants, hazardous substances were released into the ground as the result of spillages, leaks or other discharges. Neither PLK nor Allied-Signal makes an argument that hazardous wastes were not released or threatened to be released from the facility. Accordingly, summary judgment will be granted on this element of the prima facie ease. 3. Has PEMCO Incurred Response Costs Because of the Releases of Hazardous Substances? Neither PLK nor Allied-Signal maintains that PEMCO has not incurred response costs in connection with the Site. Therefore, summary judgment will be granted on this element of the prima facie case. This does not mean, however, that such response costs were either necessary or consistent with the NCP. 4. Did Allied-Signal and PLK Belong to One of the Statutory Classes of Persons Held Liable Under CERCLA? Section 107(a) of CERCLA provides that “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). PEMCO maintains that, pursuant to this section, both Allied-Signal and PLK are covered persons. a. Allied-Signal PEMCO argues that it is undisputed that Allied-Signal is a successor-in-interest to Allied Chemical and Dye Corp., which owned the Site under that name or the name of Allied Chemical Corporation from 1957 to 1979. Allied-Signal does not dispute such a contention. Consequently, summary judgment will be granted on this issue. A successor corporation can be held liable for cleanup costs incurred by its predecessor. Anspec Co. v. Johnson Controls, Inc., 922 F.2d 1240 (6th Cir.1991). The Anspec court directed the district court to follow state law in the application of successor liability. Under Ohio law, a corporation that purchases the assets of another corporation is responsible for the contractual liabilities of its predecessor corporation when the buyer corporation is merely a continuation of the seller corporation. Welco Industries, Inc. v. Applied Companies, 67 Ohio St.3d 344, 349, 617 N.E.2d 1129 (1993). b. PLK PLK argues that it is not a responsible person within the meaning of § 107(a) of CERCLA because it did not own or operate the Site at a time of disposal of any hazardous substance. However, as discussed above, there is a genuine issue of material fact as to whether disposal of hazardous substances at the Site took place at the time PLK owned it. Consequently, summary judgment is premature either way as to whether PLK is a PRP. PLK argues that such testimony is insufficient to meet the burdens of Fed.R.Civ.P. 56. This Court, however, disagrees. Gore, a long-time employee at the Site, testified that there was continual spillage into the ground of methylene chloride, a hazardous chemical, during PLK’s ownership of the Site. This unrebutted testimony is sufficient to render PLK a potentially responsible person within the meaning of § 107(a) of CERCLA. The Court notes, however, that such a determination is not to say that PLK is liable. PEM-CO has not established that the response costs it incurred were either necessary or consistent with the NCP. 5. Conclusion This Court, in ruling on PEMCO’s motion for summary judgment, has merely determined that the Site constitutes a facility within the meaning of CERCLA; that a release or threatened release of hazardous substances at the Site has occurred; that the release or threatened release has caused PEMCO to incur response costs; and that both Allied-Signal and PLK are covered persons under § 107(a)(2) of CERCLA. These determinations are not to be construed as a finding that either Allied-Signal or PLK is hable in this case; there has been no showing that the response costs incurred by PEMCO were either necessary or consistent with the NCP. PEMCO has not, therefore, established a prima facie case of CERCLA liability; PEMCO has instead merely established selected elements of the prima facie case. D. MOTION FOR PARTIAL SUMMARY JUDGMENT OF DEFENDANTS ALLIED-SIGNAL, HILLSIDE CAPITAL, HILLSIDE INDUSTRIES, HILLSIDE DELAWARE, PLK, TRINOYA AND LOF Allied-Signal, the Hillside Defendants, PLK, Trinova and LOF move for summary judgment on certain of PEMCO’s claimed response costs, claiming that they are not properly classified as such under CERCLA. As stated above, in order to prove a prima facie case under either section 107 or 113 of CERCLA, a plaintiff must prove, inter alia, that the release of hazardous substances caused the plaintiff to incur response costs, and that such response costs were both necessary and consistent with the NCP. See, e.g., Dedham Water Co. v. Cumberland Farms Dairy, Inc., 889 F.2d 1146, 1150 (1st Cir.1989). Thus, to recover expenditures which PEMCO has made at the Site, PEM-CO must establish that each expenditure is a “response cost” as defined by CERCLA, and that it was “necessary” to incur such costs. The term “response costs” is defined in section 101(25) of CERCLA, 42 U.S.C. 9601(25): The terms “respond” or “response” means [sic] remove, remedy and remedial action; all such terms (including the terms “removal” and “remedial action”) include enforcement activities related thereto. CERCLA differentiates between costs recoverable by the United States or a State on the one hand, and costs recoverable by a private party on the other. The government need only show that its actions were consistent with the NCP in order to recover response costs. § 107(a)(4)(A). A private party, however, must demonstrate that its expenditures were both “necessary” and consistent with the NCP. § 107(a)(4)(B). Defendants assert that four types of costs upon which these Defendants seek summary judgment were not necessary response costs under CERCLA and therefore cannot, as a matter of law, be recovered by PEMCO. These costs include demolition costs, asbestos removal costs, internal operating costs, and attorney fees. 1. Demolition Costs PEMCO seeks to recover the costs of demolishing the buildings that existed on the Site. Defendants argue that such costs are not necessary response costs, but instead were incurred solely in an effort to improve the aesthetics and marketability of the Site after the cessation of manufacturing operations. When manufacturing operations were halted at the Site in 1990, the buddings and structures on the Site were demolished. Defendants claim that testimony from responsible executives at both PEMCO and Rohm & Haas demonstrates that it was not necessary to demolish the buddings at the Site in order to implement any remedial activities relating to soil and groundwater contamination. Defendants cite to the deposition of Robert Master, Safety, Health and Environmental Manager for New Ventures at Rohm and Haas Company: Q. Can you tell me why PEMCO, or for that matter Rohm & Haas, elected to demolish all of the structures on the site? A. There were a number of reasons. The economics were looked at [and it was] concluded that tearing these structures down was more economical than leaving them up____there were concerns that if the building was left up there would be maintenance costs for those buildings. There was a concern that children and derelicts would come on the site and there would be problems from that end, and that we possibly would need full time security guards if the buildings were left up____ (Master Depo. at 238-240.) Q. Was there a particular reason why the buildings had to be demolished in order to proceed with the cleanup that you’ve implemented at the site for the ground water or soil contamination? A For the corrective action, no. (Id. at 242.) A. I would say the buildings were not demolished because of ground water contamination____ I’d make the same statement for soil contamination. (Id. at 329-330.) Q. ... the removal of ... raw materials and the removal of ... equipment had nothing to do with either ground water or soil contamination, isn’t that correct? A. That’s correct. (Id. at 332.) Q. Would you agree, sir, that all the corrective actions taken on site and all the systems that have been installed could have been installed and all actions could have been taken with the presence of the buildings? A Yes. Q. So there was no need to tear down the buildings in order to take the corrective action that was done? A. That’s correct. Mr. Light: By corrective action— Mr. O’Shea: As it’s described in JJ. Mr. Light: You’re talking about the corrective action undertaken by Woodward-Clyde, not other action that was taken in terms of the diking systems or he testified about the piping system. Q. Yes, is there any corrective action taken by anyone, any contractor or employee of PEMCO or Rohm & Haas that could not have been performed if the buddings were still on site? A. The installation of — well, maybe define corrective action. The installation the trenches and the wells and the treatment facility could have been done without the buildings being torn down. Q. Could have been? A. Yes. Q. And is there anything that could not have been done? A. No. (Id. at 333-335.) Defendants further rely on the deposition of Jeffrey Mausteller, the Safety Director at PEMCO’s Toledo facility from 1986 to 1989, who also participated in the investigation into contamination at the Site. Mausteller testified as follows: Q. Okay. You never heard any suggestion while you were there that the buildings needed to be demolished because of contamination of the water or the soil, did you? A. I recall no discussion of any kind like that. Q. And would you remember them if they had taken place? A. I believe so, yes. Q. To the best of your knowledge, did the buildings themselves pose any risk to the health and safety of the workers? Mr. Light: What period are you talking about now? Ms. Daley: During the time that he was employed there. A. That was one of our concerns, and no, it did not. Q. So the buildings did not pose any risk? A. That’s correct. (Mausteller Depo. at 133.) Moreover, at the time the demolition of the buildings took place, Master was quoted in a newspaper article stating that: the buildings are being removed to prevent the 50-acre site from becoming an eyesore____ At this point, our objective is to take the buildings down and make it an aesthetically pleasing site. (JPEMCO Demolition a $1 Million Project, THE TOLEDO BLADE, Nov. 17, 1990, at 33.) Based upon this deposition testimony, Defendants argue that the buildings on the Site were not razed to minimize public exposure to hazardous substances, but rather to make the Site more aesthetically pleasing and more marketable. As such, the Defendants argue, the demolition costs were not necessary response costs under CERCLA. PEMCO argues that the dismantlement expenditures do indeed fall within the scope of the term “necessary costs of response” under CERCLA. PEMCO claims that the buildings on the Site were tied into the Site’s underground storm system, and that this system was collecting and discharging contaminated groundwater off the Site into nearby Delaware Creek. PEMCO claims that after trying unsuccessfully to bypass the sections of the underground system collecting the contaminated groundwater and leading to its discharge off-Site, PEMCO was forced to seal the system off at its discharge point and to crush its piping where it was located. (Master Depo. at 39-47.) PEMCO argues that the discontinuance of the underground storm water system meant that the storm water from the vacant buildings would accumulate on-Site, leading to the possibility that it would infiltrate building foundations, flood building basements through sump pump wells and other sources and cause general budding deterioration. PEMCO provides the affidavit of Charles Kovach to support these claims, and PEMCO asserts that these factors presented an endangerment to public health and welfare. Additionally, PEMCO claims that the vacant buildings on the Site would have created an attractive nuisance and would have fostered an invitation for vandalism, compounding their presence as a hazard for the community. (Master Depo. at 239-240.) Moreover, PEMCO asserts that the removal of the buildings supported the hydraulic containment plan instituted at the Site. PEMCO’s response activity at the Site uses wells and a trench. Through these mechanisms, PEMCO captures and collects contaminated groundwater which is subsequently disposed of off-Site. PEMCO provides the affidavit of David Hillman, a hydrogeologist, who avers that the removal of the Site buildings was an essential feature in the PEM-CO’s response activity in that it relates to an enhanced, beneficial rechargeability of the recovery system implemented at the Site by PEMCO. He further describes the contribution of the dismantled buddings to the minimization of damage which may otherwise occur through migration of contaminated groundwater to noneontaminated areas of the site as well as to areas off-Site. Thus, PEM-CO claims that the demolition of the buildings was a “necessary cost” under § 107(a)(4)(B) of CERCLA. Defendants seek to refute PEMCO’s assertions by arguing that the affidavits of Hill-man and Kovach contradict the sworn deposition testimony of Mausteller and Master. Defendants claim that the affidavits of Kovach and Hillman were made in hindsight after this litigation had begun, and, as such, must discounted. This Court agrees with defendants. It is well-established in the Sixth Circuit that “a plaintiff may not create a factual issue for the purpose of defeating a summary judgment motion by filing an affidavit contradicting a statement the plaintiff made in a prior deposition.” Jones v. General Motors Corp., 939 F.2d 380, 385 (6th Cir.1991) (citing Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir.1986). This is precisely what PEMCO has attempted to do in this case. PEMCO’s own executives testified in their depositions that the demolition of the buildings was carried out because it was economically beneficial and because it would avoid the potential for problems resulting from trespassers onto the Site. Mausteller and Master both clearly testified that demolition of the buildings was not a necessary component of the corrective action. The justification offered in the affidavits of Hillman and Kovach cannot contrad