Full opinion text
FOSCHIO, United States Magistrate Judge. JURISDICTION The parties to this matter executed a consent to proceed before the undersigned on the pending summary judgment motions on March 6, 1995. The matter is presently before the court on Defendant American Premier Underwriters, Inc.’s motion for partial summary judgment, filed April 17, 1995; Defendant Louis E. Wolfson’s motion for summary judgment, dated April 17, 1995; and Defendants Witben Realty, Sereth Properties, Wolsher, Inc., and Universal Marion Corporation’s motion for summary judgment, dated April 17,1995. BACKGROUND Plaintiffs, Idylwoods Associates and Kam, Inc., filed the complaint in this action against Defendants Mader Capital (“Mader”), Slate Bottom Creek Apartments, Inc. (“SBC”), Marc Equity Partners I (“Mare Equity”), and the Trustees of the Mader Construction Corporation Employees Profit Sharing Plan (the “Trustees”) on June 5, 1991, alleging four causes of action, including a claim under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9607(a), claiming that Mader, SBC, Marc Equity, and the Trustees were strictly liable to Plaintiffs for costs and damages relating to the discovery of hazardous waste on property sold by these Defendants to Plaintiffs, along with state claims for false representation, breach of warranty, and fraudulent inducement to enter into a contract. Plaintiffs are seeking a declaratory judgment that these Defendants are hable to Plaintiffs for all past, present, and future response costs incurred in connection with the release, threat of release, or disposal of hazardous substances on the property; damages for costs associated with remediating the environmental conditions on the property, or, alternatively for damages in the amount by which the fair market value of the property has been diminished by the presence of toxic wastes; a declaration that toxic wastes were present on the property prior to the time the property was transferred to Plaintiffs; and, indemnification against any liability or claim which may be asserted with respect to the toxic wastes on the property. These Defendants answered the complaint on September 5,1991. On September 12, 1991, Defendants Mad-er, SBC, Mare Equity, and the Trustees filed a third-party complaint against Defendants Witben Realty Corporation (“Witben”), Ser-eth Properties (“Sereth”), Wolsher, Inc., and Universal Marion Corporation (“Universal Marion”) alleging that the third-party Defendants were all present owners of portions of the property containing hazardous waste, and alleging causes of action against these Defendants under CERCLA, and state causes of action for creating and maintaining a continuing nuisance, trespass, strict liability, negligence, equitable subrogation, and restitution. On August 3, 1992, the undersigned issued an order staying the proceedings in this action pending ongoing negotiations by certain parties with the New York State Department of Environmental Conservation (“NYS-DEC”), except that Plaintiffs or any other party would be permitted to amend the complaint as needed. The parties were directed to report back to the undersigned every three months on the status of the negotiations. On March 8,1993, the court authorized the filing of an amended complaint, and, on the same day, an amended complaint was filed by Plaintiffs adding Witben, Sereth, Wolsher, Universal Marion, Penn Central Corporation (“Penn Central”) and Louis E. Wolfson (“Wolfson”) as named Defendants, and adding five causes of action for nuisance, trespass, strict liability for possession of hazardous wastes, negligence, and violation of New York Navigation Law § 173. Thereafter, on May 18, 1994, an order was entered substituting American Premier Underwriters, Inc. (“APU”), as a successor corporation, for Defendant Penn Central. On May 18, 1994, the court vacated the stay of all proceedings imposed on August 4, 1992 with respect to APU, Wolfson, Universal Marion, Wolsher, Witben, and Sereth. The stay, however, remained in effect for Plaintiffs and Mader, SBC, Marc Equity, and the Trustees. On June 20, 1994, Defendant APU filed a cross-claim against Defendants Witben, Ser-eth, Wolsher, Universal Marion, and Wolfson alleging three causes of action, two claims under CERCLA and one state claim for contribution based on APU’s agreement to undertake the remedial work required by the NYSDEC on the property. On June 22, 1995, Sereth filed two counterclaims against Plaintiffs and two crossclaims against the adverse parties under CERCLA, and for common law contribution and indemnification, and seven cross-claims against Penn Central (now APU) for a violation of Article 12 of the New York Navigation Law, contractual indemnification, negligence, negligence per se, trespass, private nuisance, and public nuisance. On the same day, Defendants Universal Marion, Wolsher, Witben, and Wolfson filed the same counterclaims and cross-claims as Sereth against Plaintiffs, the adverse parties, and APU. On April 17, 1995, Defendant APU filed a motion for partial summary judgment on its first and second cross-claims against Wolf-son, Universal Marion, and Witben. On the same day, Defendant Wolfson filed a motion for summary judgment on the ground that Wolfson was not liable to APU for any damages or costs under CERCLA or any other theory of liability. Similarly, Defendants Witben, Sereth, Wolsher, and Universal Marion filed a motion for summary judgment on the ground that those Defendants were not hable to APU for any damages or costs under CERCLA or any other theory of liability. Supporting and opposition memoranda and affidavits were filed between April 17, 1995 and June 5,1995. Oral argument on the motions was held on June 21,1995. For the reasons as set forth below, Defendant APU’s motion for partial summary judgment is GRANTED in part and DENIED in part; Defendant Wolfson’s motion for summary judgment is GRANTED in part and DENIED in part; and, Defendants Wit-ben, Sereth, Wolsher, and Universal Marion’s motion for summary judgment is GRANTED in part and DENIED in part. FACTS Between 1920 and 1959, the New York Central Railroad Company (“NYCRC”) and a subsidiary, the New York State Realty & Terminal Company (the “Terminal”), jointly owned approximately 1131 acres of property located in the Towns of Cheektowaga and West Seneca, New York near the intersections of Union and French Roads and Losson Road. During that time, NYCRC operated a railroad classification and maintenance yard on the site known as the Gardenville Yard. According to Edmund C. Wesolowski, a laborer for NYCRC from May 14, 1920 until November 30, 1970 who worked at the Gardenville Yard from 1940 until 1955, Deposition of Wesolowski, Exhibit 9, Affidavit of Louis E. Wolfson, at pp. 4, 8, 27 (‘Wesolow-ski Deposition”), railroad cars carrying drums of waste, such as oil, spoiled food, sludge, and scrap, Wesolowski Deposition, at pp. 14-17, were brought to the roundhouse situated at the Gardenville Yard, and dumped into a pit approximately once a month. Wesolowski Deposition, at pp. 26, 28-29. Other items such as stone and bricks were dumped in between the monthly dump-ings of waste. Wesolowski Deposition, at p. 34. The drums were then reused, not left at the site. Wesolowski Deposition, at p. 26. The dumping occurred only in that one area near the roundhouse, and on no other portion near the property. Wesolowski Deposition, at p. 31. NYCRC ceased its operations at the Gardenville Yard in or about 1955. Memorandum of Law of Defendant APU, dated April 17,1995, at p. 8. Universal Marion is a publicly held Florida corporation with a principal place of business in Jacksonville. Wolfson, an investor, owns approximately 11% of the stock, and, when combined with other family members, the Wolfson block holds approximately 39% of the stock of Universal Marion. In the 1950’s Universal Marion was primarily in the industrial supply business. Wolfson Deposition, Exhibits in Support of Defendants Witben, et al’s Motion for Summary Judgment, at p. 10. During that time, Universal Marion became involved in real estate investing and development, although, according to Wolfson, Universal Marion did not remain in that business as the head of its real estate division passed away. Wolfson Deposition, at p. 11. During 1959, however, Wolfson learned that NYCRC was interested in conveying the Gardenville property. Leon Kaye, head of Universal Marion’s real estate division, went to Buffalo at Wolfson’s direction, and met with James Oppenheimer, a Buffalo real estate broker, to assess the property and its potential for industrial development. Notice of Motion by APU, Statement of Material Facts, at p. 8, ¶¶ 45-47. Thereafter, in 1959, NYCRC entered into a lease agreement and executory contract with Wolfson with respect to the entire parcel of 1131 acres. Notice of Motion by APU, Statement of Material Facts, at p. 2, ¶ 6. In that agreement, Wolf-son leased a parcel of 535 acres from the NYCRC, and, in addition, was granted an option to purchase or lease an additional approximately 600 acres (later found to be 595 acres) of the NYCRC property. Notice of Motion by APU, Statement of Material Facts, at p. 2-3, ¶ 6. Subsequently, on December 14 and 18, 1959, Wolfson purchased the 535 acres by two deeds, one for 266 acres, the other for 269 acres. On December 14, 1959, Wolfson conveyed the 266 acres to Defendant Sereth, a corporation; on December 21, 1959, Wolfson conveyed the other 269 acres to four couples who were friends of Wolfson and his brother. Notice of Motion by APU, Statement of Material Facts, at pp. 3-^1, ¶¶ 9, 14-15. Wolf-son, however, retained the rights to fill, gravel, and cinders on both parcels until December, 1962. Notice of Motion by APU, Statement of Material Facts, at p. 5, ¶23. On June 17, 1960, Witben Realty Corporation was formed by the four couples. The 269 acres was then deeded to Witben shortly thereafter. The majority of the inactive hazardous waste disposal site known as the Union Road Site at issue in this case is located on these 269 acres, which includes the former railroad roundhouse area. Notice of Motion by APU, Statement of Material Facts, at p. 4, ¶¶ 17-18. Also in 1960, Universal Marion acquired 100% of the stock of Witben and Sereth. Notice of Motion by APU, Statement of Material Facts, at p. 5, ¶ 20. The officers and directors of Universal Marion were also the officers and directors of both Witben and Sereth. Notice of Motion by APU, Statement of Material Facts, at p. 8, ¶ 40. The rights to fill, gravel, and cinders on both parcels were deeded to Sereth and Wit-ben in December, 1962. Notice of Motion by APU, Statement of Material Facts, at p. 5, ¶ 23. On August 21, 1961, Wolfson exercised his option on the remaining approximately 595 acres from NYCRC when he executed an “Assignment of Lease and Executory Contract” by which he assigned an undivided one-fourth interest in the lease agreement to his friend, Isidore Sherman. On the same day, Wolfson and Sherman assigned the agreement to Wolsher, Inc., a Florida corporation. Notice of Motion by APU, Statement of Material Facts, at p. 5, ¶ 24-25. Wolsher leased the approximately 595 acres from NYCRC by Indenture of Lease, dated April 12, 1965. Notice of Motion by APU, Statement of Material Facts, at p. 6, ¶ 27. In 1968, Penn Central became the successor corporation to NYCRC. At that time, Penn Central conveyed the approximately 595 acres comprising the balance of the former Gardenville Yard to Wolsher in six separate deeds. Notice of Motion by APU, Statement of Material Facts, at p. 6, ¶ 28. In 1966, Sereth deeded its portion of the property, the 266 acres, to Witben. Wolsher, whose two shareholders were Wolfson and Universal Marion, was liquidated in 1971. Notice of Motion by APU, Statement of Material Facts, at pp. 6-7, ¶ 32. Title to Wolsher’s property holdings in the former Gardenville Yard was conveyed to Wolfson and Universal Marion by deed executed May 14, 1971 with an undivided three-fourths interest going to Universal Marion and an undivided one-fourth interest going to Wolfson. Notice of Motion by APU, Statement of Material Facts, at p. 7, ¶ 33. Wolsher’s holdings included a 7.5 acre parcel that is now included in the boundary of the Union Road Site. Notice of Motion by APU, Statement of Material Facts, at p. 7, ¶ 34. According to APU, at this time, Universal and Witben jointly hold title to that 7.5 acre parcel. Notice of Motion by APU, Statement of Material Facts, at p. 7, ¶ 37. During the 1970’s and 1980’s, Universal Marion and Witben, and Universal Marion and Sereth jointly conveyed portions of the real property, not including any property located on the Union Road Site, to third-parties. Defendants Mader, SBC, Marc Equity, and the Trustees were third-party purchasers of parcels of real property from Wit-ben and/or Universal Marion. The proceeds from all of the sales of real property were deposited in Universal Marion’s accounts as Witben and Sereth did not maintain separate accounts from Universal Marion. Notice of Motion by APU, Statement of Material Facts, at pp. 8-9, ¶¶ 42, 50-51. Harry Prince, an employee of Universal Marion who was responsible for Universal Marion’s real estate operations handled maintenance, sales, and marketing of the property. Notice of Motion by APU, Statement of Material Facts, at pp. 6, 9, ¶¶ 29, 49. During this time period, Universal Marion and Witben shared a common office, shared corporate officers, had joint books and records, and filed consolidated tax returns. Notice of Motion by APU, Statement of Material Facts, at pp. 8-10, ¶¶ 43, 52-53, 55-56. Also, Universal Marion paid all of the property taxes for the property owned by Witben, including the parcels which subsequently fell within the boundaries of the Union Road Site, from 1973 until 1983. Notice of Motion by APU, Statement of Material Facts, at p. 9, ¶54. Prior to October, 1984, Universal Marion sold all of the property owned by Witben, with the exception of a parcel of property known as the Losson Road property. Notice of Motion by APU, Statement of Material Facts, at p. 12, ¶ 71. The Union Road Site falls largely within the boundary of the Los-son Road property. Notice of Motion by APU, Statement of Material Facts, at p. 2, ¶1. In late 1982, inspectors from the Erie County Department of Environment and Planning (“DEP”) inspected an area of property, now known as the Union Road Site, located adjacent to Losson Road in response to a complaint. Notice of Motion by APU, Statement of Material Facts, at p. 12, ¶ 72-73. The inspectors found a depression measuring approximately 80 feet by 140 feet containing a tar-like material and approximately 50 drums filled with unidentified substances. Notice of Motion by APU, Statement of Material Facts, at p. 13, ¶ 74. The area was also found to be littered with “a great deal of construction and demolition type debris,” along with household trash. Notice of Motion by APU, Statement of Material Facts, at p. 13, ¶ 75. Surface water was observed to be passing from the depression or pit, through a marshy area, and draining into an adjacent creek known as Slate Bottom Creek. Notice of Motion by APU, Statement of Material Facts, at p. 13, ¶75. Many drums were found abandoned in the tar pit, although the source of these drums was not known as the practice of the railroad was to reuse the drums and not to dispose of the drums in the pit. Notice of Motion by APU, Statement of Material Facts, at p. 16, ¶ 93. The tar-like material was subsequently sampled, along with the water, and some concentrations of metal, asphalt, and lubrication oil were found, along with polychlorinated biphenyls (“PCBs”) and small amounts of phenol and phenolic compounds. Notice of Motion by APU, Statement of Material Facts, at p. 13, ¶ 77-78. The DEP notified Universal Marion, by letter dated December 30, 1982, that an abandoned disposal site had been discovered on the property, and requested cooperation in cleaning up the site. Notice of Motion by APU, Statement of Material Facts, at p. 13-14, ¶¶ 79-80. Counsel for Universal Marion, Charles P. Maxwell, replied to the letter, stating that the situation “may have been caused by the contractors in connection with the Losson Road relocation,” a prior construction project. Notice of Motion by APU, Statement of Material Facts, at p. 14, ¶ 81. A January 14, 1983 letter from DEP to Universal Marion indicated that site ownership needed to be determined. Notice of Motion by APU, Statement of Material Facts, at p. 14, ¶ 83. On July 20, 1983, Universal Marion retained a consulting firm, Recra Research, Inc. to perform testing at the waste disposal site, and paid for the sampling and analysis which was performed. Notice of Motion by APU, Statement of Material Facts, at p. 14, ¶ 84-85. The field tests were performed in August, 1983, and, on March 13, 1984, Recra submitted its report to Maxwell stating, among other things, that waste material had been discovered which should be removed and disposed of, and that there was a source of contamination. Notice of Motion by APU, Statement of Material Facts, at p. 15, ¶ 91. On May 9, 1984, Maxwell submitted the report to the New York State Department of Environmental Conservation (“DEC”). Notice of Motion by APU, Statement of Material Facts, at p. 16, ¶ 95. The DEC, by letter dated June 29, 1984, recommended that Universal Marion undertake certain clean-up activities, including the removal of tars, the removal of drums, and additional sampling; the cost at that time thought to be approximately $500,000. Notice of Motion by APU, Statement of Material Facts, at pp. 16-17, ¶96, 100-101. Not receiving an answer, the DEC again wrote to Universal Marion on October 11, 1984. In the letter, the DEC noted that, in meetings between the DEC and Maxwell, that Maxwell had indicated that the property where the hazardous waste had been found was owned by Witben, not Universal Marion. Notice of Motion by APU, Statement of Material Facts, at p. 17, ¶ 98. The DEC requested financial statements from Witben and Universal Marion, as well as a title, search showing present and previous owners. Universal Marion replied, through Maxwell, on October 26, 1984, stating that Witben had owned the parcel since 1960, and that the parcel was Witben’s sole asset. Maxwell declined to send financial statements from Universal Marion, stating that the shareholders’ position was that the land was owned by Witben. Notice of Motion by APU, Statement of Material Facts, at pp. 17-18, ¶¶ 103-106. At a November 2, 1984 Universal Marion board meeting, Universal Marion voted to dissolve Universal Marion; the shareholders voted unanimously to dissolve a few weeks later. Universal Marion then began to default on property tax bills, previously paid by Universal Marion on Witben’s behalf, on the parcel in question. Notice of Motion by APU, Statement of Material Facts, at p. 19, ¶¶ 111-114. Liquidating distributions were made to the Universal Marion shareholders. Notice of Motion by APU, Statement of Material Facts, at p. 19, ¶ 115. In 1984, the Town of Cheektowaga and the DEC notified counsel for Wolfson, Universal Marion, and Witben of their responsibility to secure the property from unauthorized dumping. Notice of Motion by APU, Statement of Material Facts, at p. 21, ¶ 124. No steps were taken, and the Town of Cheekto-waga caused the property to be fenced, at the Town’s expense, in February, 1986. Notice of Motion by APU, Statement of Material Facts, at p. 20, ¶ 120. Meanwhile, on June 11, 1985, Mader, SBC, Marc Equity, and the Trustees entered into an agreement with Home Leasing Corporation by which they agreed to sell to Home Leasing certain apartment units and vacant land located in the Town of Cheektowaga near the hazardous waste site, known as the “Idylwoods Property.” Complaint, dated June 5, 1991, at p. 3, ¶ 10. On August 8, 1985, Home Leasing assigned its rights to purchase the Idylwoods Property to Plaintiffs KAM and Idylwoods Associates. Complaint, dated June 5, 1991, at p. 3, ¶ 11. By deed dated August 29, 1985, Mader, SBC, Marc Equity, and the Trustees conveyed the Idylwoods Property to Plaintiffs. Complaint, dated June 5,1991, at p. 4, ¶ 12. Investigators inspecting the Union Road Site in 1986 found 81 drums, which were almost completely empty, except for some drums containing a solid material described as “stone with binder.” Notice of Motion by APU, Statement of Material Facts, at p. 21, ¶ 129. The DEC notified Penn Central, in 1986, that the Union Road Site might constitute a threat to the environment, and that Penn Central was considered a potentially responsible party (“PRP”); similar letters were sent to Witben and Universal Marion. Notice of Motion by APU, Statement of Material Facts, at pp. 21-22, ¶ 130-131. After the DEC found that the tar-like material had migrated from the pit to the banks of Slate Bottom Creek, the United States Environmental Protection Agency (“EPA”), in February, 1987, collected samples from the creek, and, in 1988, erected a high visibility fence and hazardous waste warning signs, which the DEC later replaced. Notice of Motion by APU, Statement of Material Facts, at p. 22, ¶¶ 133-135. A Proposed Remedial Action Plan was developed for the Union Road Site by the DEC, and, in February, 1992, APU, the successor to Penn Central, submitted comments on the plan and informed the DEC that it would participate in the remediation. Notice of Motion by APU, Statement of Material Facts, at p. 23, ¶ 140. The DEC requested the participation not only of APU, but of Witben, Universal Marion, and Wolfson in the implementation of the plan. While initially cooperating with negotiations, counsel for Witben, Universal Marion, and Wolfson subsequently withdrew from the negotiations. Notice of Motion by APU, Statement of Material Facts, at p. 23, ¶ 141-42. In June, 1993, the DEC approved APU’s proposed work plan, and, on March 28, 1994, without admitting liability for the Union Road Site, APU entered into a consent order with the DEC, and agreed to perform the remedial action selected by the DEC at a cost of approximately $11 million. Notice of Motion by APU, Statement of Material Facts, at pp. 23-24, ¶¶ 143-44. DISCUSSION Summary judgment will be granted pursuant to Fed.R.Civ.P. 56 when the moving party demonstrates that there are no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The party moving for summary judgment bears the burden of establishing the nonexistence of a genuine issue of material fact. If there is any evidence in the record based upon any source from which a reasonable inference in the nonmoving party’s favor may be drawn, the moving party cannot obtain a summary judgment. Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir.1985). The function of a district court in considering a summary judgment motion is not to resolve disputed issues of fact, but to determine whether there is a genuine issue to be tried. Rattner, supra, at 209. In assessing the record, including any affidavits, exhibits, and other submissions, the court is required to resolve all ambiguities and to draw all factual inferences in favor of the nonmoving party. Anderson, supra, 477 U.S. at 255, 106 S.Ct. at 2514; Rattner, supra, at 209. In this case, Defendant APU seeks summary judgment on its first and second cross-claims alleging causes of action under CERCLA against Defendants Witben, Universal Marion, and Wolfson. Defendant Wolfson seeks summary judgment against APU on the ground that he is not hable to APU for any damages under CERCLA or any other theory of liability; Defendants Witben, Sereth, Wolsher, and Universal Marion seek similar relief in their summary judgment motion against APU. The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., provides for the clean up of hazardous substances that threaten the environment and human health. B.F. Goodrich Company v. Murtha, 958 F.2d 1192, 1197 (2d Cir.1992). The statute imposes strict liability for the costs associated with responding to the release or threatened release of the hazardous substance. B.F. Goodrich Co., supra, at 1198; State of New York v. Shore Realty Corp., 759 F.2d 1032, 1042 (2d Cir.1985). Liability for response costs may be imposed on various classes of responsible persons, including past and present owners or operators of facilities, transporters of hazardous substances, and those who generate or arrange for the disposal or treatment of hazardous substances. 42 U.S.C. § 9607(a). The statute also allows any individual or entity who has incurred response costs in connection with the clean up of hazardous waste sites to sue a responsible defendant for these costs. 42 U.S.C. § 9607(a)(4)(B). In addition, as CERCLA liability is joint and several, any one party found to be liable for response costs is potentially liable for the entire cost of responding to a hazardous waste site. B.F. Goodrich Co., supra, at 1198. To establish a prima facie case for liability under CERCLA, a plaintiff must establish that: (1) the defendant is a responsible person as defined by CERCLA; (2) the site is a facility; (3) there has been a release or threatened release of a hazardous substance at the facility; (4) the plaintiff has incurred response costs in connection with that release; and (5) the response costs incurred were necessary and consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) set up under CERCLA and administered by the Environmental Protection Agency (“EPA”) in order to prioritize hazardous substance release sites throughout the nation. 42 U.S.C. § 9607(a); Shore Realty, supra, at 1043. “Covered persons” under CERCLA are classified into four categories: (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 of hazardous substances at any facility; and, (4) any person who accepted any hazardous substances for transport to disposal or treatment facilities from which there was a release or a threatened release. 42 U.S.C. § 9607(a). A covered person may include an individual, corporation, or partnership. 42 U.S.C. § 9601(21). There are three affirmative defenses available under CERCLA to these covered persons where it can be shown that the release or threatened release of hazardous substances were caused solely by: (1) an act of God; (2) an act of war; or (3) an act or omission of a third party other than an employee or agent of the covered person or where the act or omission occurs in connection with a contractual arrangement if the covered person can establish that he exercised due care with respect to the hazardous substance concerned, and he took precautions against foreseeable acts or omissions of the third party. 42 U.S.C. § 9607(b). The statute also provide that any combination of the first three affirmative defenses may be asserted as a defense. 42 U.S.C. § 9607(b)(4). 1. Witben Realty Corporation APU seeks to hold Witben liable under CERCLA as the current owner of the Union Road Site. Witben, while conceding to be the owner of the Union Road Site, argues that it is entitled to the third party/innocent purchaser defense set forth under Section 9607(b) of CERCLA. Witben, formed in 1960, has been a wholly owned subsidiary of Universal Marion since shortly after its inception in 1960. Witben acquired the property which includes the Union Road Site from four couples, friends of Wolfson and his brother, who in turn had acquired the property from Wolfson on December 21,1959. Wolfson acquired the property from the New York Central Railroad on December 18,1959. APU has established a prima facie case for liability under CERCLA against Witben as a current owner. There is no genuine issue of material fact that Witben is a covered person, as Witben is the current owner of the property which includes the Union Road Site, 42 U.S.C. § 9607(a)(1); that the Union Road Site is a facility as defined by CERCLA; that there has been a release or threatened release of hazardous substances at the Union Road Site; that APU has incurred response costs in connection with that release; and that the response costs incurred were necessary and consistent with the NCP. Therefore, in order to defeat liability under CERC-LA, Witben must successfully assert one of the three affirmative defenses available under CERCLA. In this case, Witben claims that it is an innocent purchaser of the property, was not responsible for any of the hazardous substances found on the property, and thus should not be liable for any response costs incurred to clean up such property. As stated above, under the third-party defense set forth in CERCLA § 9607(b)(3), a defendant is not liable if it establishes that the release or threatened release was caused solely by: an act or omission of a third party other than a defendant, or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the defendant ... if the defendant establishes by a preponderance of the evidence that (a) he exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances [the “Due Care Requirement”], and (b) he took precautions against foreseeable acts or omissions of any such third party and the consequences that could foreseeably result for such acts or omissions [the “Precautionary Requirement”]. A contractual relationship, for purposes of CERCLA, includes “land contracts, deeds or other instruments transferring title or possession.” 42 U.S.C. § 9601(35)(A). However, an affirmative defense may be raised relating to a contractual relationship where: the real property on which the facility concerned is located was acquired by the defendant after the disposal or placement of the hazardous substance on, in, or at the facility and.... [a]t the time the defendant acquired the facility the defendant did not know and had no reason to know that any hazardous substance which is the subject of the release or threatened release was disposed of on, in, or at the facility. 42 U.S.C. § 9601(35)(A). Additionally, the innocent purchaser defense, like the third-party defense, is available to some owners who acquired the property after the disposal or placement of hazardous waste occurred. To qualify as an innocent purchaser under CERCLA one must have undertaken “all appropriate inquiry into the previous ownership and uses of the property, consistent with good commercial or customary practice” at the time of transfer. 42 U.S.C. § 9601(35)(B). “‘Good commercial or customary practice’ is not defined in the statute, and the relevant legislative history is vague, indicating that ‘a reasonable inquiry must have been made in all circumstances, in light of best business and land transfer principles.’” United States v. A & N Cleaners and Launderers, Inc., 854 F.Supp. 229, 238 (S.D.N.Y.1994) (citing H.R.Conf.Rep. No. 962, 99th Cong., 2d Sess., at 187 (1986)). Owners who meet the requirements of 42 U.S.C. § 9601(35) will not be found to be in a “contractual relationship” with the party responsible for the release of hazardous substances at the property. United States v. A & N Cleaners and Launderers, Inc., supra, at 238. In addition, to be able to assert and prevail on the innocent purchaser defense, an owner must also meet the Due Care and Precautionary Requirements of CERCLA § 9607(b)(3)(a) and (b). United States v. A & N Cleaners and Launderers, Inc., supra, at 238. Under the Due Care Requirement, a defendant must show that it took necessary steps to prevent foreseeable adverse consequences arising from the pollution on the site. Kerr-McGee Chemical Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 325 & n. 3 (7th Cir.1994). To satisfy the Precautionary Requirement, a defendant must establish that it took precautionary action against the foreseeable actions of any third parties responsible for the hazardous substances on the property. United States v. Monsanto Co., 858 F.2d 160, 169 (4th Cir.1988), cert. denied, 490 U.S. 1106, 109 S.Ct. 3156, 104 L.Ed.2d 1019 (1989). Finally, a defendant must prove its affirmative defense by a preponderance of the evidence. City of New York v. Exxon Corp., 766 F.Supp. 177, 195 (S.D.N.Y.1991). Witben argues that the release or threat of release of the hazardous substances at the Union Road Site was caused solely by the acts or omissions of APU (through its predecessor corporations Penn Central and New York Central Railroad); that the hazardous substances were placed on the property prior to the purchase of any portion of the property by Witben; that Witben did not know, nor did it have any reason to know at the time of purchase that hazardous substances were or had been disposed of on the property; and, that at the time of purchase in 1960, Witben made all appropriate inquiries into the previous ownership and usage of the property consistent with practice at that time. Witben also asserts that it has met the Due Care and Precautionary Requirements applicable under CERCLA. It is undisputed that New York Central Railroad (APU’s predecessor) engaged in dumping activities at the Union Road Site at least during the period from 1950 until 1960. Railroad cars carrying drums of waste, such as oil, spoiled food, sludge and scrap were routinely dumped into a pit located on the property approximately once a month, with other items, such as stone and bricks, being dumped in the interim. According to Edmund Wesolowski, a laborer for the New York Central Railroad, the drums used to transport the materials for dumping were not left in the pit, but were emptied and then reused by the railroad, although Witben claims that Wesolowski’s statement that, “you received a carload of something — some contractor received a carload of something and he has a barrel of some kind of rubbish, he threw it in there, got rid of it” means that the barrel was also disposed of into the pit. Affidavit of Craig A. Slater, dated May 22, 1995, at p. 22, ¶ 68-69. It is also undisputed that, in 1982, the DEC located fifty-six drums at the Union Road Site, and samples of the water at the site revealed the presence of hazardous waste, and that, in 1986, after a period of inaction, the DEC located eighty-one drums at the Union Road Site. Witben again argues that, in 1982, the fifty-six drums were discovered as a result of a visibility inspection while, in 1986, the eighty-one drums were found as the result of a thorough inspection. Affidavit of Craig A. Slater, at pp. 22-23, ¶¶ 71-73. It is largely undisputed that the Union Road Site was not closed off by Witben, although Universal Marion did put up concrete berms during times after 1973 which were knocked down by “big trucks.” Affidavit of Richard M. Gray, dated November 7, 1994, at p. 31. However, no warning signs were erected by Witben, nor were any security personnel retained to police the area against trespassers, until the Town of Cheek-towaga, after repeated requests to Witben and Universal Marion, finally, in 1986, at its own expense, erected a fence around the area. Later, the EPA cordoned off the area, erecting a high visibility fence and hazardous waste warning signs around the containment area. Universal Marion’s attorney, Charles Maxwell, Esq., and Universal Marion’s real estate agent, James Oppenheimer, acting for Witben, both indicated that they were aware of unauthorized dumping by local contractors on the property, with Oppenheimer stating that “during Witben’s ownership in the 1980’s, some illegal dumping of non-hazardous household wastes began to take place on the property.” Oppenheimer Affidavit, dated April 12, 1995, at p. 7, ¶23. Richard M. Gray, President of Universal Marion from 1973 until the present time stated that, “this piece of land — the contractors were dumping and we had been contacted by the county or the city officials.” Affidavit of Richard M. Gray, dated November 7, 1994, at p. 30. By 1986, the DEC found that tar-like material had migrated out of the containment area to the adjacent banks of Slate Bottom Creek, where, after testing, hazardous substances were found, such as oil and grease, lead, copper, and chromium, with the highest concentration of the hazardous substance being lead. At that time, the cost of the remediation was estimated to be approximately $500,000; by 1994, the cost was estimated to be approximately $11 million. From 1986 until the present, it is clear that Witben did nothing to prevent additional illegal dumping, and that weather factors conspired to continue a deterioration of the drums at the site, causing their contents to leak into the environment. The court finds, after a review of the undisputed material issues of fact, that Witben is not entitled to assert the third party affirmative defense. While there is a significant dispute as to whether the presence of the hazardous substances discovered at the Union Road Site can be attributed solely to APU, or partially to Witben, as the current owner, there is no question but that Witben did not exercise due care after the discovery of the hazardous substances on the property. In order to successfully assert the innocent purchaser defense, a defendant must show that (1) it acquired the facility after the initial deposit of the hazardous substances; (2) at the time of its acquisition, it did not know and had no reason to know that any hazardous substance was deposited at the facility; and, (3) once the presence of the hazardous substance became known, it exercised due care. Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 903 F.Supp. 273, 276 (D.R.I.1995). See also Westwood Pharmaceuticals, Inc. v. National Fuel Gas Distribution Corp., 964 F.2d 85, 90 (2d Cir.1992). Witben, while possibly being able to meet the first two steps of this test, clearly cannot prove that it exercised due care once it became aware of the presence of hazardous substances at the Union Road Site in 1982. In United States v. DiBiase, 45 F.3d 541 (1st Cir.1995), a successor landowner was found liable to pay for a portion of the remediation costs associated with a hazardous waste dumping site located on the property. In that case, the owner of the property from 1946 until 1969 permitted the South Essex Sewerage District (“SESD”) to dump sewerage wastes into unlined “sludge pits” which were surrounded by earthen berms and fences. SESD maintained the site during that period. In 1969, a large tract of land encompassing the site was sold to DiBi-ase. When SESD attempted to dump at the site in 1970, unaware that ownership of the land had changed, DiBiase informed them that such dumping would no longer be permissible. Thereafter, during the 1970’s DiBi-ase received correspondence from various municipal agencies relating to the dump site, “expressing concern over the unrestricted access to the Site and the random dumping that was taking place.” DiBiase, supra, at 543. DiBiase erected gates at the entrances to the property, but did not maintain them, and the random dumping continued. In 1980, although DiBiase was informed that he would be held liable for conditions at the site if he did not take action, he failed to install new gates after he agreed to do so, and made no effort to maintain the earthen berms and interior fencing around the sludge pits which had “completely decayed.” DiBiase, supra, at 543. In 1987, when heavy rains occurred, the sludge pits overflowed causing the waste to run into nearby wetlands, an “easily foreseeable” occurrence. DiBiase, supra, at 543. DiBiase was subsequently held liable for a portion of the remediation costs. The First Circuit, in affirming a consent decree entered in the action, holding DiBiase liable for 15% of the response costs, stated that: To be sure, SESD played a leading role in the contamination of the Site and [DiBi-ase], who came on the scene later, played an appreciably less prominent role. But, an actor cast in a bit part is not to be confused with a mere spectator, whose only involvement is to lounge in the audience and watch events unfold. [DiBiase] contributed to the 1987 incident in a variety of ways. Despite being warned of a potentially dangerous condition, he twiddled his thumbs; he failed to safeguard the Site, thus permitting third parties to dump at will and exacerbate an already perilous situation; fiddled while the earthen berms deteriorated; and turned a blind eye to evolving public health and safety concerns. DiBiase, supra, at 545. Similarly, in this case, Witben, while purchasing the property after the New York Central Railroad had been continually dumping at the Union Road Site for many years, did nothing when informed of unauthorized dumping at the Site by third parties except to erect berms which were concededly knocked down by big trucks, and, upon being informed as early as 1982 of the discovery of the hazardous waste dump site, failed to cooperate in sealing off the area, and did not engage in any affirmative action to guard against a potentially dangerous situation, allowing over ten years to go by while various environmental agencies investigated the situation, during which time foreseeable weather conditions caused the hazardous waste to migrate. In fact, upon learning of the hazardous situation, Witben, and Universal Marion, decided to cease paying property taxes at the Site, hoping that County or Town officials would foreclose on the Site and take away any ownership responsibility. The court finds that Witben’s actions in this matter did not constitute “due care,” rather, Witben attempted to distance itself from the situation and to relieve itself of any potential liability in the matter. The fact that APU, as the successor to Penn Central and New York Central Railroad, may have “played a leading role in contamination of the [Union Road Site],” see DiBiase, supra, at 545, does not alleviate Witben’s responsibility to the site, especially where Witben contributed to the spreading contamination through its deliberate inaction. As such, the court finds that Witben is not entitled to the third-party/innocent purchaser affirmative defense, and that, as the current owner of the property, Witben is liable under CERCLA. 2. Universal Marion Corporation APU seeks to hold Universal Marion, like Witben, liable as both the current owner and current operator of the Union Road Site, arguing that under federal common law, its relationship with Witben and its control of Witben would allow the court to pierce Wit-ben’s corporate veil and cast Universal Marion, its sole shareholder, in liability under CERCLA. APU also seeks to hold Universal Marion liable as both an owner and operator of a facility at a time when hazardous wastes were being disposed. Universal Marion argues that APU cannot establish a prima facie case against it as it is not a covered person within the meaning of CERCLA. a. Universal Marion’s capacity to be sued Initially, Universal Marion argues that it cannot be sued by APU as it is a dissolved corporation. APU contends that, while Universal Marion is in the process of dissolving, it has not yet completed the dissolution process, and can, therefore, be sued. Universal Marion is a corporation organized under the laws of the State of Florida. According to Richard M. Gray, President of Universal Marion, Universal Marion was dissolved pursuant to a resolution adopted by the directors of the corporation on November 2, 1984, and adopted by the shareholders of the corporation on November 30, 1984. See Exhibit F, Affidavit of Richard M. Gray, dated April 10, 1995. The Articles of Dissolution, noting that, under Section 607.297 of the Florida General Corporation Act, any suit against a dissolving corporation must be brought within three years after the date of the dissolution, specifically stated that “[t]he board of directors is proposing the dissolution of the company in order to commence the running of such three year limit on initiation of new suits against the company.” See Affidavit of Richard M. Gray, at p. 5, ¶ 13. As of December 31, 1983, Universal Marion had assets with a value of $1,966,180 of which $1,281,883 was in the form of certificates of deposit and cash. As of December 31, 1984, Universal Marion had assets with a value of $1,354,873 of which $832,883 was in the form of cash or cash equivalents. A liquidating dividend was paid to the shareholders between December 31, 1983 and December 31, 1984. See Deposition of Richard M. Gray, APU’s Notice of Motion for Partial Summary Judgment, at pp. 23-28. According to counsel for Universal Marion, Craig A. Slater, Esq., Universal Marion still holds assets, including movie rights, $200-400 thousand in cash and cash equivalents, and the Witben stock. The language of CERCLA that provides for liability “notwithstanding any other provision or rule of law,” 42 U.S.C. § 9607(a), conflicts with Fed.R.Civ.P. 17(b) which states that “[t]he capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.” AM Properties Corp. v. GTE Products Corp., 844 F.Supp., 1007, 1011 (D.N.J.1994). While courts have disagreed as to the liability of dissolved corporations under CERCLA as to whether CERCLA preempts state capacity laws, the majority of the courts have held that CERC-LA preempts state capacity statutes to the extent their operation would shield a dissolved corporation from CERCLA liability. Compare Hillsborough County v. A & E Road Oiling Service, 877 F.Supp. 618, 621-22 (M.D.Fla.1995); AM Properties Corp. v. GTE Products Corp., supra, at 1011-12; BASF Corp. v. Central Transport, 830 F.Supp. 1011, 1012-13 (E.D.Mich.1993); Chesapeake and Potomac Tel Co. v. Peck Iron & Metal Co., 814 F.Supp. 1285, 1291 (E.D.Va.1993); United States v. Sharon Steel Corp., 681 F.Supp. 1492 (D.Utah 1987) (cases holding that CERCLA preempts state capacity statutes) with Louisiana-Pacific Corp. v. ASARCO, Inc., 5 F.3d 431, 433-34 (9th Cir.1993); Levin Metals Corp. v. Parr-Richmond Terminal Co., 817 F.2d 1448 (9th Cir.1987). Neither the Second Circuit nor any district court within the circuit has ruled on this issue. The reasoning followed by the majority of courts is that Congress intended that CERCLA provide for broad liability, and that CERCLA should supersede other laws or rules that would ordinarily limit that liability. BASF Corp., supra, at 1013. Further, these courts have reasoned that, because environmental cleanup may occur years after the activities that caused the pollution, mere dissolution should not be allowed to block further inquiry into the status of the identifiable resources of the companies responsible for that pollution. BASF Corp., supra, at 1013. This is in contrast to the reasoning espoused by the Ninth Circuit which believes that such an interpretation of CERCLA would prevent courts from looking to state law to determine whether a dissolved corporation could be sued in any case involving a federal cause of action, and that the risk of state corporate-capacity statutes operating to preclude CERCLA liability is inherent in the language of Fed.R.Civ.P. 17(b). ASARCO, Inc., supra, at 434. This court finds the reasoning employed in the BASF Corp., and the other similar holdings, to be more persuasive, and concludes that the holdings of the majority of the courts should be followed, and that state statutes governing the capacity of a dissolved corporation to be sued are preempted by the overall purposes of CERCLA. However, the court must also determine whether Universal Marion possesses assets that would make it amenable to suit under CERCLA. Two general approaches to the issue of whether CERCLA liability may be imposed on a dissolved corporation whose assets have been completed distributed have been used. Under the first approach, the majority of courts have drawn a distinction between a “dead” and a “dead and buried” corporation. A “dead” corporation is one that is dissolved but has not yet distributed its assets. A “dead and buried” corporation is one that has distributed all of its assets to its shareholders. AM Properties Corp. v. GTE Products Corp., supra, at 1012. The courts adopting the first approach have concluded that a “dead and buried” corporation cannot be included within the definition of a liable “person” under CERC-LA, 42 U.S.C. § 9607(a)(2) because [i]n such a case there is no entity to sue or to defend against a lawsuit, and any judgment entered by the court would be unenforceable much less uncollectible. Traverse Bay Area Intermediate School Dist. v. Hitco, Inc., 762 F.Supp. 1298, 1301 (W.D.Mich.1991). Under the second approach, courts have held that CERCLA liability of a dissolved corporation should not hinge on whether the dissolved corporation has already distributed its assets, see, e.g., United States v. SCA Services of Indiana, Inc., 837 F.Supp. 946, 953-56 (N.D.Ind.1993), reasoning that the goals of CERCLA would be “entirely frustrated by any interpretation of a statute which allowed a corporation to merely dissolve itself and distribute its assets prior to the filing of a CERCLA action in order to completely absolve itself of any liability under the statute.” Allied Corp. v. Acme Solvents Reclaiming, Inc., 1990 WL 322940 at *5 (N.D.Ill.1990). Following the majority of courts, this court finds that CERCLA liability cannot be precluded as to a corporation that has been dissolved, but whose assets have not yet been fully distributed, i.e. a “dead” corporation. See, e.g., Hillsborough County, supra, at 622; AM Properties Corp., supra, at 1013. See also Stychno v. Ohio Edison Co., 806 F.Supp. 663, 670 (N.D.Ohio 1992) (stating that “[wjhether a [sic] inactive corporation falls within the scope of the definition of ‘person’ under CERCLA necessarily depends upon whether that corporation still holds assets”). As it is clear that Universal Marion still holds assets in the form of cash or cash equivalents, stock in a subsidiary company, and movie rights, and that CERCLA preempts state law as to a corporation’s ability to be sued, Universal Marion may be liable under CERCLA, despite the fact that it dissolved in 1984. b. Liability of Universal Marion under CERCLA Under CERCLA § 9607(a), liability for response costs may be imposed on various classes of responsible persons, including past and present owners or operators of facilities, transporters of hazardous substances, and those who generate or arrange for the disposal or treatment of hazardous substances. “Owner” liability and “operator” liability are two distinct concepts. State of New York v. Solvent Chemical Co., Inc., 875 F.Supp. 1015, 1019 (W.D.N.Y.1995). A corporation may be held liable as the owner of another corporation under circumstances warranting “piercing the corporate veil.” Lansford-Coaldale Joint Water Authority v. Tonolli Corp., 4 F.3d 1209, 1224-25 (3d Cir.1993). Additionally, an affiliated corporation may be held liable as an operator when it is “deemed ... to have had substantial control over the facility in question.” Lansford-Coaldale Joint Water Authority, supra, at 1220. (i) Owner Liability The claim that Universal Marion is liable as the parent of Witben is based upon piercing Witben’s corporate veil, thereby characterizing Universal Marion as an owner under CERCLA. United States v. Kayser-Roth, 724 F.Supp. 15, 23 (D.R.I.1989), aff'd, 910 F.2d 24 (1st Cir.1990), cert. denied, 498 U.S. 1084, 111 S.Ct. 957, 112 L.Ed.2d 1045 (1991). Whether or not a corporation is liable under corporate veil-piercing standards should be analyzed under federal common law, since “ ‘[i]t is well established that when a federal statute is silent as to the choice of law to be applied, but overriding federal interests exist, courts should fashion uniform federal rules of decision.’” City of New York v. Exxon Corporation, 112 B.R. 540, 552-53 (S.D.N.Y.1990), aff'd in part, 932 F.2d 1020 (2d Cir.1991). “In considering whether or not to pierce the corporate veil under CERC-LA, courts have considered several factors, including, in approximate descending order of importance: (1) inadequate capitalization in light of the purposes for which the corporation was organized; (2) extensive or pervasive control by the shareholder or shareholders; (3) intermingling of the corporation’s properties or accounts with those of its owner; (4) failure to observe corporate formalities and separateness; (5) siphoning of funds from the corporation; (6) absence of corporate records; and, (7) nonfunctioning officers or directors.” City of New York v. Exxon Corp., supra, at 553 (quoting In re Acushnet River & New Bedford Harbor Proceedings, 675 F.Supp. 22, 33 (D.Mass.1987)). “No one of these factors is either necessary or sufficient to disregard corporate separateness. The equitable decision to pierce the veil is dependent on the facts peculiar to each case.” Acushnet, supra, at 33. According to APU, Universal Marion should be held liable under CERCLA as the parent corporation of Witben based on the following factors: (1) Universal Marion is the sole shareholder of Witben, holding 100% of Witben’s stock since 1960; (2) Universal Marion has filed consolidated tax returns' with Witben since at least the early 1970’s; (3) Universal Marion and Witben have shared a common business office since at least 1973; (4) Universal Marion finances Witben as evidenced by the fact that Universal Marion paid the property taxes assessed for property owned by Witben, including the parcels which fall within the boundaries of the Union Road Site from at least 1973 through 1983; (5) employees of Universal Marion, and Universal Marion’s attorney have worked on the business affairs of Wit-ben while being paid by Universal Marion; (6) any sales of property owned by Witben were discussed at Universal Marion board meetings, and the proceeds from such sales were deposited in Universal Marion’s bank accounts, leaving Witben with no cash flow; (7) day-to-day managing of Witben properties was handled by Universal Marion employees and agents; (8) Witben did not keep separate books and records, nor did it hold separate board meetings; all Witben business was discussed at Universal Marion board meetings; (9) Witben did not keep separate bank accounts, instead utilizing the bank accounts of Universal Marion; and (10) the officers and directors of Witben were also the officers and directors of Universal Marion. Universal Marion does not dispute APU’s assertions as to the factors set forth above. Rather, it argues that APU’s characterization of these factors as determinative of Universal Marion’s control over Witben is a misrepresentation of the facts. Agreeing that Universal Marion and Witben have common officers and offices for parent and subsidiary, and consolidated tax returns, Universal Marion states that these facts only establish that Universal Marion and Witben “operated their affairs according [to] standard business practices applicable to parent and subsidiary corporations.” See Defendants Witben, et al, Memorandum of Law, dated May 23,1995, at p. 42. Universal Marion’s payment of property taxes for Witben on the Union Road property is alleged to be “due to an uncor-reeted mistake by the Tax Assessor regarding the ownership of the property.” See Defendants Witben, et al, Memorandum of Law, dated May 23, 1995, at p. 42. The discussion of sales of property at Universal Marion board meetings is stated to be “not unusual in subsidiary relationships and ... ultimately irrelevant to the inquiry of ‘control.’ ” See Defendants Witben, et al, Memorandum of Law, dated May 23,1995, at p. 42. Universal Marion also asserts that Witben is fully and separately capitalized, but it does not address the fact that only one bank account was kept which both Universal Marion and Witben utilized, and that any proceeds of sales of Witben property were deposited in this joint account. As to the Universal Marion personnel who also handled property transactions for Witben, Universal Marion simply states that “the fact that [the park manager] performed some tasks for the subsidiaries while being paid by Universal is hardly enough to support the ‘control’ theory espoused by APU.” See Defendants Witben, et al, Memorandum of Law, dated May 23, 1995, at p. 43. Finally, Universal Marion contends that, as it was in voluntary liquidation as of 1971, and Witben was only a landowner, it would not have made sense to maintain separate accounts, and to have separate shareholder meetings and board meetings. See Defendants Witben, et al, Memorandum of Law, dated May 23,1995, at p. 45. In City of New York v. Exxon Corp., supra, the court found that a parent corporation, Refinement, was liable for the acts of its subsidiary, Newtown, a generator and transporter of hazardous waste which was taken to the City of New York’s landfills. In holding Refinement liable, the court noted that Newtown’s board of directors, which consisted of Refinement’s officers and directors, never met; that Newtown’s customers occasionally communicated directly with Refinement, indicating that corporate separateness was not strictly observed; that Refinement paid the president of Newtown’s salary; that Refinement contributed over $3 million to Newtown’s operations; that Refinement guaranteed at least two of Newtown’s loans and paid its insurance; and that Refinement’s approval was required for all of New-town’s major financial undertakings. Exxon Corp., supra, at 553. The court also noted that Newtown’s assertion that corporate formalities were always observed was “plainly self-serving” and conclusory. Exxon Corp., supra, at 553. The court finds that the facts set forth in Exxon Corp. are similar to the facts in this case. It is clear that Universal Marion comingled all of its funds with that of its subsidiary, Witben, by virtue of the fact that it only had one bank account. Therefore, Universal Marion, with its own money, along with proceeds of sale of properties belonging to Witben, which were not kept separate, paid all of Witben’s expenses, including the property taxes on the Union Road Site. Neither the board of directors of Witben nor its shareholders ever met; thus, no corporate formalities as to Witben were maintained. Rather, any business relating to Witben was conducted at Universal Marion board of directors and shareholders meetings. There is no evidence of any payroll for Witben, rather, personnel working on Witben business were employees, agents, or independent contractors of Universal Marion. Indeed, Witben did not have its own office, and its affairs were run out of the Universal Marion office with Universal Marion personnel. As such, the court finds that Witben’s corporate veil should be pierced to hold Universal Marion liable as a current owner because of the control which Universal Marion holds over Witben. (ii) Operator liability A parent corporation may not be held liable under CERCLA as an operator based solely on its status as a shareholder. Kayser-Roth Corp., 724 F.Supp. at 22. “The parent corporation’s control over the subsidiary’s management and operations is an essential element of proving operator liability on the paren