# Dana Corp. v. American Standard, Inc.

> District Court, N.D. Indiana · October 24, 1994 · 866 F. Supp. 1481

URL: https://www.frixlaw.com/law-library/cases/1376294

## Case

- **Full name:** DANA CORPORATION, Et Al., Plaintiffs, v. AMERICAN STANDARD, INC., Et Al., Defendants
- **Court:** District Court, N.D. Indiana
- **Decided:** October 24, 1994
- **Citations:** 866 F. Supp. 1481; 40 ERC (BNA) 1298; 1994 U.S. Dist. LEXIS 15814; 1994 WL 608562
- **Precedential status:** Published
- **Opinion:** Opinion by Miller
- **Judges:** Miller
- **Cited by:** 19 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1376294

## How later opinions describe it (automated extraction)

- stating that Title 18, section 201(c)(2) of the United States Code is not violated if the compensation does not induce false testimony
- recognizing that CERCLA requires a plaintiff to prove that each defendant’s waste was disposed of at the site in question
- rejecting contention that an “especially stringent” summary judgment standard applies in CERCLA

## Opinion text

*1489
MEMORANDUM AND ORDER
MILLER, District Judge.
Plaintiffs Dana Corporation, General Motors Corporation, United Technologies Automotive, Inc., and Warsaw Black Oxide, Inc. commenced this action for cost recovery and contribution under Sections 107 and 113 of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). The plaintiffs seek recovery from the numerous defendants of the past and future response costs at a former landfill site near the City of Claypool, Indiana known as the Lakeland Disposal Service Superfund Site (the “Site”), which is on the Superfund National Priority List. The total costs associated with the investigation and remediation of the Site may approach $20 million. Ten defendants
1
have moved for summary judgment on the issue of whether they are generators under CERCLA.
Oral argument on the motions was heard on September 16,1994. At that hearing, the plaintiffs orally requested an opportunity to file supplemental materials in support of John Tatum’s assumptions and a supplemental brief on the applicable legal standards. Since then, American Standard and Syracuse Rubber have sought leave to file supplemental briefs. The court believes that all parties had more than adequate opportunities to submit written argument before the September 16 hearing, and so denies each of those motions.
In Part I of this opinion, the court discusses the basic facts surrounding the case; discussion of the facts surrounding the parties to the summary judgment motions is reserved for Part III. In Part II-A, the court rejects various parties’ suggestions that some different standard governs summary judgment motions in CERCLA eases. The court concludes that the plaintiffs bear the same burden in this case as do all plaintiffs facing summary judgment motions: they must come forth with, evidence that would be sufficient to withstand a motion for judgment as a matter of law at trial; nothing more and nothing less. Application of this standard in Part III of the opinion demonstrates that speculative evidence — testimony that an event “could have happened” or was “possible” — does not satisfy this burden.
Part II-B addresses an issue not clearly answered by other courts: what sort of showing, short of direct evidence that a defendant’s hazardous waste was disposed of at the site in question, will suffice to allow a CERCLA plaintiff to survive a motion for judgment as a matter of law, and hence survive a summary judgment motion. The court concludes that while the plaintiff must present evidence sufficient to support, by a preponderance of the evidence, a finding that a defendant’s hazardous waste was disposed of at the site in question, the plaintiff may satisfy this burden through the use of circumstantial evidence. If the plaintiff demonstrates that the defendant produced a continuous and predictable waste stream that included hazardous constituents of the sort eventually found at the site, and that at least some significant part of that continuous and predictable waste stream was disposed of at the site, the factfinder reasonably may infer that the defendant’s hazardous waste was disposed of at the site. If the plaintiff cannot demonstrate such a continuous and predictable waste stream, or is unable to show that a significant part of the defendant’s waste stream reached the site, the plaintiff must present some further evidence to justify a reasonable factfinder in inferring that the defendant contributed to the hazardous waste at the site. In Part III of the opinion, the court applies this standard to the claims against the ten moving defendants.
Part II-C of the opinion addresses various objections to expert affidavits and deposition testimony offered by the plaintiffs in opposition to the summary judgment motions.
Because of the parties’ extensive disagreement concerning the facts contained in the record, this opinion, in a departure from this court’s usual practice, contains extensive footnote references to the record before the court. Sadly, Part III of this opinion demon
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strates a troubling unreliability in the plaintiffs’ representations as to what is in the record before the court.
I. FACTUAL BACKGROUND
Lakeland Disposal Service, Inc. (“LDS”) was a waste disposal service that hauled its customers’ waste in compactor trucks (standard rear-loaded garbage trucks), roll-offs (large metal box-type containers), and in vacuum-type pumper trucks for liquid wastes. LDS operated the Site as a landfill from about May 1974 until about August 1978. LDS had residential and business, including industrial, customers.
2
The Guide Lamp Division of General Motors was the single largest LDS customer whose waste was disposed of at the Site.
3
Liquid wastes were hauled in tank trucks and then deposited directly onto the soil at the Site. Drummed wastes were buried at the Site. Roll-off and compactor truck waste were disposed of throughout the surface of the Site. The roll-off and compactor truck waste were bulldozed and covered daily.
4
David Lindsay became the owner and operator of LDS in 1973 and of the Site in May 1974. Mr. Lindsay’s operation of the site continued until June 1976 (the “Lindsay era”). During the Lindsay era, LDS utilized several area landfills to dispose of the waste it collected from its customers: Scott’s Landfill, Ransbottom/Custer/Packerton Landfill, Likens/Hoss Hills Landfill, and the Site. LDS hauled sludge waste exclusively to the Site during the Lindsay era.
5
LDS drivers would not use the Site for roll-off and compactor trash if another landfill was more economical, that is, based on the relative proximity of the customer to another landfill.
6
Mr. Lindsay sold LDS and the Site to Stephen W. Shambaugh on or about June 1, 1976. Mr. Shambaugh owned and operated the Site from June 1, 1976 until August 1978 (the “Shambaugh era”). LDS utilized several area landfills, including Scott’s, Ransbottom/Custer/Paekerton, Spring Valley/Dunn & Shambaugh, Beer & Slabaugh, Wabash Valley, Adams Center, and the Site. Mr. Shambaugh disposed of what he considered to be trash (roll-off and compactor truck waste) at the other area landfills. As during the Lindsay era, LDS drivers were to take roll-off waste to the landfill nearest the customer. Mr. Shambaugh used the Site for what he considered to be hazardous substances, since he could earn more money disposing of hazardous substances at the Lakeland Landfill.
During both the Lindsay and Shambaugh eras, all bulk liquid industrial waste hauled by LDS was disposed of at the Site.
7
With the exception of drummed paint sludges received from the General Motors Anderson, Indiana plant after April 1977, all drummed waste hauled by LDS was disposed of at the Site. The General Motors drummed paint sludges were disposed of at the Spring Valley Landfill.
8
Mr. Shambaugh recalled disposing of trash at the Site during a six month period of time in 1977 or 1978.
9
Trash was accepted because Mr. Shambaugh believed he needed to mix trash with General Motors’ hazardous paint sludge that was disposed of at the Site. A trench was excavated for the purpose of mixing trash with General Motors’ paint sludge. LDS also hauled trash to other landfills while the trench was open.
10
Once the
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trench was full, most roll-off and compactor truck trash went to the Ransbottom Landfill at Paekerton.
Virtually all LDS drivers agree that a substantial amount of roll-off waste went to other landfills during the Shambaugh era. Paul Phillipy testified that “a lot” of trash went to the Ransbottom Landfill and to Scott’s Landfill.
11
Mr. Tillman testified that from 1976 through 1978 he “normally went to Packer-ton [Ransbottom].”
12
Mr. Tillman did not think that he ever disposed of trash at the Site during those years.
13
Most of the waste hauled from customers located from north Warsaw to the south went to the Ransbottom Landfill.
14
By late spring or early summer of 1978, the Site no longer accepted any roll-off and compactor truck waste (trash); all roll-off and compactor truck waste hauled by LDS went to other landfills. The Site was closed in August 1978.
15
With a few exceptions, the majority of LDS records do not indicate at which area landfill a particular customer’s waste was disposed.
16
First, hundreds of landfill receipts given LDS by area landfills indicate that LDS hauled customer waste to the other landfills. Most of these landfill receipts do not indicate the customer from whom LDS hauled the waste, but some do specifically identify the source of the waste.
17
Second, the “Kosciusko County Landfill Receipts”— used by the Site while it was open to the general public from January through March 1975 — indicate that a particular customer’s waste was disposed of at the Site.
18
Third, the SPC-17 liquid waste hauler reports
19
also indicate that a particular customer’s liquid waste was hauled to the Site.
II. GENERAL DISCUSSION
A. Summary Judgment Standard
Several defendants contend that because the plaintiffs did not file a “Statement of Genuine Issues” with their answer brief in compliance with Rule 56.1 of the Local Rules for the Northern District of Indiana, the court should “assume that the faet[s] as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy”. N.D.Ind.L.R. 56.1. The Seventh Circuit has “endorsed the exacting obligation” such a rule imposes on the non-moving party, remarking that “district courts are not obliged in our adversary system to scour the record looking for factual disputes.”
See Waldridge v. American Hoechst Corp.,
24 F.3d 918, 922 (7th Cir.1994) (citing eases). The Seventh Circuit has upheld strict enforcement of such a rule by the district courts,
id.,
but whether to strictly apply such a rule is within the district court’s sound discretion.
Waldridge v. American Hoechst Corp.,
24 F.3d at 923 , (citing
McGann v. Northeast Illinois Regional Commuter R.R. Corp.,
8 F.3d 1174 , 1178 n. 3 (7th Cir.1993);
Schulz v. Serfilco, Ltd.,
965 F.2d 516, 519 (7th Cir.1992)).
This court’s June 28, 1994 order afforded the plaintiffs an opportunity to comply with District Rule 56.1 in an effort to avoid scouring the massive record before it in search of factual disputes. The court believes that strict application of District Rule 56.1 in this particular cause would not further the ends of justice, and, therefore, the court will not assume that the facts as claimed by the defendants and supported by admissible evidence are deemed admitted.
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Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment should be granted where:
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
No genuine issue of material fact exists “where the record as a whole could not lead a rational trier of fact to find for the nonmoving party.”
Juarez v. Ameritech Mobile Communications, Inc.,
957 F.2d 317, 322 (7th Cir.1992) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 , 106 S.Ct. 1348, 1355 , 89 L.Ed.2d 538 (1986));
see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-24 , 106 S.Ct. 2548, 2552-53 , 91 L.Ed.2d 265 (1986);
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-52 , 106 S.Ct. 2505, 2510-12 , 91 L.Ed.2d 202 (1986). No genuine issue as to any material fact is created by “evidence of purportedly disputed facts if those facts are not plausible in light of the entire record.”
See Czajkowski v. City of Chicago, Illinois,
810 F.Supp. 1428, 1432 (N.D.Ill.1992) (citing
Covalt v. Carey Canada, Inc.,
950 F.2d 481, 485 (7th Cir.1991)).
The parties cannot rest on mere allegations in the pleadings or upon conclusory allegations in affidavits.
See, e.g., CBS, Inc. v. Henkin,
803 F.Supp. 1426, 1430 (N.D.Ind.1992) (citing cases). The court must view the record and draw all reasonable inferences from the evidence in favor of the non-moving party, and where a fact is disputed, the non-moving party must show that the disputed fact is material under the applicable law.
Hartford Acc. & Indem. Co. v. Chicago Housing Authority,
12 F.3d 92, 95 (7th Cir.1993);
Titran v. Ackman,
893 F.2d 145 (7th Cir.1990);
Conery v. Bath
Assoc., 803 F.Supp. 1388, 1392-1393 (N.D.Ind.1992);
see also Chambers v. American Trans Air, Inc.,
17 F.3d 998, 1002 (7th Cir.1994) (“Rule 56 requires the party opposing a summary judgment motion to come forward with some evidence showing the existence of ... a factual dispute”),
petition for cert. filed
(U.S. Aug. 2, 1994) (No. 94-547). The non-movant’s allegations must be taken as true and given the benefit of the doubt when in conflict with those alleged by the party moving for summary judgment.
Bishop v. Wood,
426 U.S. 341, 347-48 , 96 S.Ct. 2074, 2078-79 , 48 L.Ed.2d 684 (1976);
Thornton v. Evans,
692 F.2d 1064, 1074-75 (7th Cir.1982);
United States v. Wedzeb Enterprises, Inc.,
809 F.Supp. 646, 649 (S.D.Ind.1992).
Summary judgment is appropriate “when the opposing party is unable to make a showing sufficient to prove an essential element of a case on which the opposing party bears the burden of proof.”
Common v. Williams,
859 F.2d 467, 469 (7th Cir.1988);
see also United States v. Bethlehem Steel Corp.,
829 F.Supp. 1023, 1026 (N.D.Ind.1993). The non-moving party must come forward with more than a mere scintilla of evidence in support of its position,
Anderson v. Liberty Lobby,
477 U.S. at 249, 106 S.Ct. at 2510 , and must establish that there is more than “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 .
20
The plaintiffs contend that an “especially stringent” summary judgment standard applies in CERCLA actions because CERCLA is a remedial statute and courts broadly construe CERCLA so as to achieve its objectives.
See
Brief in Opposition, pp. 16-17 (citing
Nurad, Inc. v. William E. Hooper & Sons Co.,
966 F.2d 837, 845-46 (4th Cir.1992),
cert. denied,
— U.S. -, 113 S.Ct. 377 , 121 L.Ed.2d 288 (1992);
United
*1493
States v. Alcan Aluminum Corp.,
964 F.2d 252, 258 (3rd Cir.1992);
United States v. Allied-Signal, Inc.,
820 F.Supp. 1118, 1119 (S.D.Ind.1991);
United States v. Kramer,
757 F.Supp. 397, 416-17 (D.N.J.1991)). The eases cited by the plaintiffs do no more than support the proposition that CERCLA is a remedial statute to be construed broadly; they do not support the plaintiffs’ contention that summary judgment motions in CERCLA actions are subject to “especially stringent standards” in comparison to other cases.
As one district court has explained, “[T]he Act [CERCLA] cannot operate in a vacuum____ Federal Rules of Civil Procedure are an instrumental tool in orchestrating litigation through the courts, and nothing in CERCLA suggests that the rules be subordinated to the Act.”
Rhodes v. County of Darlington, S.C.,
833 F.Supp. 1163, 1198 (D.S.C.1992);
see also CBS, Inc. v. Henkin,
803 F.Supp. 1426 (N.D.Ind.1992) (applying Fed.R.Civ.P. 56 standards in a CERCLA action);
Akzo Coatings, Inc. v. Aigner Co.,
803 F.Supp. 1380 (N.D.Ind.1992) (same),
aff'd in part, rev’d in part on other grounds,
30 F.3d 761 (7th Cir.1994);
Amcast Industrial Corp. v. Detrex Corp.,
779 F.Supp. 1519, 1524-25 (N.D.Ind.1991) (same),
aff'd in part, rev’d in part on other grounds,
2 F.3d 746 (7th Cir.1993),
and cert. denied,
— U.S. -, 114 S.Ct. 691 , 126 L.Ed.2d 658 (1994). The summary judgment standard is not heightened in a CERCLA cause of action.
B. CERCLA Liability
CERCLA liability is established if (1) the site in question was a “facility”, as defined in 42 U.S.C. § 9601 (9); (2) the defendant is a responsible person under § 9607(a); (3) a release or a threatened release of a hazardous substance has occurred; and (4) the release or threatened release has caused the plaintiff to incur response costs.
Kerr-McGee Chemical v. Lefton Iron & Metal Co.,
14 F.3d 321 , 325 (7th Cir.1994);
Environmental Transp. Systems, Inc. v. ENSCO, Inc.,
969 F.2d 503 , 506 (7th Cir.1992);
Amoco Oil Co. v. Borden, Inc.,
889 F.2d 664, 668 (5th Cir.1989);
New York v. Shore Realty Corp.,
759 F.2d 1032, 1043 (2nd Cir.1985);
United States v. Wedzeb Enterprises,
809 F.Supp. 646, 652 (S.D.Ind.1992). At issue in the defendants’ motions for summary judgment is whether the defendants are “responsible persons” under Section 107(a) of CERCLA, 42 U.S.C. § 9607 (a). A “responsible person” includes:
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 owned or operated by another party or entity and containing such hazardous substances____
42 U.S.C. § 9607 (a);
see also United States v. Wedzeb Enterprises,
809 F.Supp. at 654 n. 10.
To establish CERCLA liability, the plaintiffs must prove, by a preponderance of the evidence,
21
that each defendant’s waste was disposed of at the Site and that hazardous substances similar to those found in the defendants’ waste were present at the Site at the time of release.
22
See, e.g., United States v. Monsanto Co.,
858 F.2d 160 , 169 n. 15 (4th Cir.1988),
cert. denied,
490 U.S. 1106 , 109 S.Ct. 3156 , 104 L.Ed.2d 1019 (1989);
Massachusetts v. Blackstone Valley Elec. Co.,
808 F.Supp. 912, 914 (D.Mass.1992);
City of New York v. Exxon Corp.,
766 F.Supp. 177, 191 (S.D.N.Y.1991);
United States v. Marisol, Inc.,
725 F.Supp. 833, 840 (M.D.Pa.1989) (“The minimal causal nexus required by CERCLA is met when the plaintiff proves by a preponderance of the evidence that the defendant’s hazardous waste was deposited at the site and that the substances contained in the defendant’s waste were also found at the site.” (citation omitted));
O’Neil v. Picil
*1494
lo,
682 F.Supp. 706 , 718 n. 2 (D.R.I.1988),
aff'd,
883 F.2d 176 (1st Cir.1989),
cert. denied,
493 U.S. 1071 , 110 S.Ct. 1115 , 107 L.Ed.2d 1022 (1990);
United States v. Wade,
577 F.Supp. 1326, 1332-1333 (E.D.Penn.1983);
see also United States v. Alcan Aluminum Corp.,
964 F.2d at 266 (“the Government must simply prove that the defendant’s
hazardous substances
were deposited at the site”) (emphasis added)). The plaintiffs need not trace the ownership of each generic chemical compound found at the Site.
See, e.g., United States v. Alcan Aluminum Corp.,
964 F.2d at 264 ;
United States v. Monsanto Co.,
858 F.2d 160, 169-70 (4th Cir.1988),
cert. denied,
490 U.S. 1106 , 109 S.Ct. 3156 , 104 L.Ed.2d 1019 (1989);
New York v. Shore Realty Corp.,
759 F.2d 1032, 1044 (2nd Cir.1985);
Massachusetts v. Blackstone Valley Elec. Co.,
808 F.Supp. at 915 ;
Trinity Indus. Inc. v. Dixie Carriers, Inc.,
No. 90-2349, 1992 WL 161123 , at *5 (E.D.La. June 24, 1992).
The plaintiffs incorrectly imply that the defendants bear the burden of showing that none of their hazardous waste was disposed of at the Lakeland site, citing
Massachusetts v. Blackstone Valley Elec. Co.,
808 F.Supp. 912 . The plaintiffs have the burden of proof as to each element of their claim against the defendants. The defendants, as' the moving parties, need only establish that the plaintiffs have insufficient evidence to prove each element of their claims; the defendants have no burden to prove that the plaintiffs’ claims are not true.
See Celotex Corp. v. Catrett,
477 U.S. 317, 324-325 , 106 S.Ct. 2548, 2553-2554 , 91 L.Ed.2d 265 (1986);
Pommier v. Peoples Bank Marycrest,
967 F.2d 1115, 1118 (7th Cir.1992).
Under CERCLA, a “hazardous substance” is either a U.S. EPA-designated “element, compound, mixture, solution, or substance,” CERCLA § 101(14)(B), 42 U.S.C. § 9601 (14)(B), or a hazardous waste having characteristics listed under one of several statutes. CERCLA § 101(14)(C), 42 U.S.C. § 9601 (14)(C);
see also United States v. Serafini,
750 F.Supp. 168, 170 (M.D.Pa.1990). A waste need not contain a certain concentration of a listed hazardous substance to be considered a CERCLA hazardous waste.
See, e.g., United States v. Alcan Aluminum Corp.,
964 F.2d at 264 ;
Amoco Oil Co. v. Borden, Inc.,
889 F.2d at 669 ;
Massachusetts v. Blackstone Valley Elec. Co.,
808 F.Supp. at 915 (“liability does not turn on the disposal of a particular quantity of a hazardous substance”);
United States v. Alcan Aluminum Corp.,
755 F.Supp. 531, 538 (N.D.N.Y.1991);
City of New York v. Exxon Corp.,
744 F.Supp. 474, 483 (S.D.N.Y.1990) (CERCLA liability attaches “regardless of the concentration of the hazardous substances present in a defendant’s waste”) (citations omitted),
opinion adhered to on reconsideration by,
766 F.Supp. 177 (S.D.N.Y.1991).
The plaintiffs attempt to distinguish this cause from the decisions in
United States v. Atlas Minerals & Chemicals, Inc.,
No. 91-5118, 1993 WL 518421 (E.D.Pa. Dec. 7, 1993),
B.F. Goodrich Co. v. Murtha,
840 F.Supp. 180, 184 (D.Conn.1993),
B.F. Goodrich Co. v. Murtha,
815 F.Supp. 539 (D.Conn.1993),
Gallagher v. T.V. Spano Bldg. Corp.,
805 F.Supp. 1120 (D.Del.1992), and
Barnes Landfill, Inc. v. Town of Highland,
802 F.Supp. 1087 (S.D.N.Y.1992), but these eases are more closely analogous to this action than the cases upon which the plaintiffs rely. In
United States v. Atlas Minerals & Chem.,
No. 91-5118, 1993 WL 518421 , at *6, the court found that the plaintiffs had presented no evidence that a defendant’s office trash contained hazardous substances. The only “evidence” presented was an expert’s opinion about composition of the defendant’s office waste, based on the expert’s knowledge of the general composition of office waste.
Id.
at *2 .
In
Gallagher v. T.V. Spano Bldg. Corp.,
805 F.Supp. at 1128 , the summary judgment was granted to the defendant because the plaintiffs failed to present evidence that the defendant disposed of hazardous substances at the site in question. The record established merely that the defendant disposed of “site preparation and construction debris”. 805 F.Supp. at 1130 . The court determined that the references to the release of hazardous substances — an EPA survey revealed the presence of some hazardous substances at the site, but there was no evidence indicating how or when those substances came to be at
*1495
the site—constituted a “mere scintilla of evidence”. 805 F.Supp. at 1180 and n. 8;
see also Barnes Landfill v. Town of Highland,
802 F.Supp. 1087 (complaint dismissed where defendant was known to have contributed only paper and kitchen garbage).
The plaintiffs challenge the applicability of
B.F. Goodrich v. Murtha,
840 F.Supp. 180 , questioning the factual basis upon which the court granted summary judgment. In ruling on the summary judgment motion, the court found that certain defendants could not be held liable if they contributed only ordinary items of commerce — e.g., tires, used bottles of photocopy toner, white-out, household cleaners — because those items were not specifically listed as hazardous substances by the EPA. 840 F.Supp. at 187-90 . The court stated, “[a]bsent a finding by EPA that a particular product warrants classification as a HS [hazardous substance], 42 U.S.C. Sec. 9602 , it cannot be found that the product, notwithstanding its constituent elements, is an HS or HW [hazardous waste].” 815 F.Supp. at 546 (citing
United States v. Serafini,
750 F.Supp. 168 (M.D.Pa.1990) (holding that the defendant could not be held liable under CERCLA for depositing waste which, although not itself a hazardous substance, would release listed hazardous substances when burned)). Evidence that municipal defendants contributed nothing more than municipal sohd waste to the site was not a sufficient basis for holding the municipal defendants hable.
B.F. Goodrich v. Murtha,
840 F.Supp. at 187-88 .
The
Murtha
court ruled that the expert’s conclusion, based upon knowledge of the composition of generic municipal, commercial, and household sohd waste, was insufficient to prove that the municipal defendants’ waste necessarily contained hazardous substances. 840 F.Supp. at 187-89 . The court reasoned:
The soundness of the ... claim must be judged on the Brown [expert] affidavit____ Neither the complaint nor the record created for deciding the summary judgment motions identifies a specific HS [hazardous substance] in the MSW [municipal sohd waste] of any MG [municipal generator].
840 F.Supp. at 188 . The court concluded that the municipal defendants could not be held Hable under CERCLA without further evidence of the type and quantity of materials they allegedly disposed. 840 F.Supp. at 189 .
As to the non-municipal defendants, the court required direct evidence that a specific hazardous substance had been disposed of at the site.
See, e.g.,
840 F.Supp. at 191 . The court determined that, assuming the non-municipal defendants had handled hsted hazardous substances, the plaintiffs had not provided sufficient evidence that the defendants actually disposed of the hazardous substances at the site in question.
Id.
The defendants in these cited
cases
— see,
e.g., United States v. Atlas Minerals & Chem.,
No. 91-5118, 1993 WL 518421 , at *6;
Barnes Landfill v. Town of Highland,
802 F.Supp. 1087 — produced non-industrial, essentially nonhazardous waste streams. Thus, no reasonable inference concerning disposal of a hazardous substance could be drawn from the fact of known shipment or disposal of waste. Similarly, the plaintiffs in the cited cases offered no specific or direct evidence that the defendants disposed of a known hazardous substance at the site in question. The courts required the plaintiffs to come forward with more than general allegations and conclusory affidavits to survive summary judgment; the courts required the plaintiffs to present evidence of disposal of a known hazardous substance at the site in question.
In contrast, with the exception of
New York v. Shore Realty Corp.,
759 F.2d 1032 (2nd Cir.1985), a § 107(a)(1) owner case in which generator habihty was not at issue, all of the cases cited by the plaintiffs,
see
Brief in Opposition, pp. 24-27, involved a defendant that generated a predictable and relatively consistent hazardous substance waste stream.
United States v. Monsanto Co.,
858 F.2d 160 (4th Cir.1988),
cert. denied,
490 U.S. 1106 , 109 S.Ct. 3156 , 104 L.Ed.2d 1019 (1989) (generator defendants shipped drums and containers of known hazardous substances to site);
United States v. Schmalz,
823 F.Supp. 644 (E.D.Wis.1993) (defendant paper mill generated fly ash waste);
Massachusetts v.
*1496
Blackstone Valley Elec. Co.,
808 F.Supp. 912 (defendant electric utility company generated gas production waste);
Arizona v. Motorola, Inc.,
805 F.Supp. 742 (D.Ariz.1992) (defendant manufactured aircraft engines generating a metal grinding sludge);
Trinity Indus., Inc. v. Dixie Carriers, Inc.,
No. 90-2349, 1992 WL 161123 (E.D.La. June 24, 1992) (defendant industrial barge cleaner generated benzene-laden waste oils);
United States v. New Castle County,
769 F.Supp. 591 (D.Del.1991) (defendant manufactured compounded plastics);
United States v. Kramer,
757 F.Supp. 397 (D.N.J.1991) (defendants generated industrial wastes);
United States v. Alcan Aluminum Corp.,
755 F.Supp. 531 (defendant manufactured aluminum generating an industrial emulsion fluid);
City of New York v. Exxon Corp.,
744 F.Supp. 474 (S.D.N.Y.1990),
opinion adhered to on reconsideration by
766 F.Supp. 177 (S.D.N.Y.1991) (defendant Alcan manufactured aluminum products);
United States v. Ottati & Goss, Inc.,
630 F.Supp. 1361 (D.N.H.1985) (defendants disposed of drums containing hazardous substances);
United States v. Carolaum,
21 Env’t Rep.Cas. (BNA) 2124, 1984 WL 178909 (D.S.C. June 15, 1984) (Mobil Oil generated water-based paint waste).
In the cases cited by the plaintiffs, a lower level of proof was required to establish that the defendants disposed of hazardous substances at the site in question. First, because the defendants’ waste streams contained known hazardous substances, the courts could infer from the fact of disposal of waste that the defendants disposed of hazardous substances. Such an inference is not permissible with respect to defendants that do not generate waste streams containing known hazardous substances.
Second,
Massachusetts v. Blackstone Valley Elec. Co.,
808 F.Supp. 912 (D.Mass.1992),
Arizona v. Motorola, Inc.,
774 F.Supp. 566 (D.Ariz.1991), and
United States v. New Castle County,
769 F.Supp. 591 (D.Del.1991), do not support the plaintiffs’ claim of sufficiency of their evidence that the defendants disposed of waste at the Site. In those eases, drivers for the waste hauler (as well as the facility’s owner in
Motorola),
testified that they disposed of the defendants’ waste at the CERCLA facility.
See Massachusetts v. Blackstone Valley Elec. Co.,
808 F.Supp. at 915 ;
Arizona v. Motorola,
774 F.Supp. at 576 ;
United States v. New Castle County,
769 F.Supp. at 599 . The defendant in
Blackstone Valley,
808 F.Supp. at 915 , did not dispute that its waste was taken to the facility; the defendant in
Motorola,
774 F.Supp. at 575 , admitted that its waste was disposed of at the facility. These cases thus differ from the case at bar with respect to the defendants that dispute that their waste was disposed of at the Site.
The plaintiffs contend that
B.F. Goodrich v. Murtha,
840 F.Supp. 180 , cited by several defendants, is distinguishable on three grounds. First, the plaintiffs contend that the defendants in the case at bar contributed at least some waste to the Site. As set forth below in the discussions of each defendant, this contention is not accurate with respect to all defendants. Second, the plaintiffs contend
Murtha
was based on an erroneous premise “that a waste containing admittedly hazardous substances cannot be considered ‘hazardous’ under CERCLA unless it is specifically described as such by the U.S. EPA.”
23
The plaintiffs contend that “the mere fact that a generator’s hazardous substances are mixed into generic wastes that are not specifically named as such” cannot save a defendant from CERCLA liability.
24
The plaintiffs overstate the cases cited to support their contention; the nature of the waste involved in each case is radically different from the nature of the wastes allegedly involved in this cause. “To distinguish a waste
solution
or
mixture
from its hazardous constituents defies reason.”
United States v. Carolawn Co.,
21 Env’t Rep.Cas. (BNA) 2124, 2126 (D.S.C. June 15, 1984) (emphasis added).
If a chemical reaction would be required to cause a party’s non-hazardous waste to generate a hazardous substance, then the likelihood that the reaction could occur at the CERCLA site must be established in
*1497
order to hold the party hable for disposing of a hazardous substance.
‡ Hs ‡ ‡ &
*
When a defendant’s waste is a mixture, like lead-based paint, the dissociation of the hazardous substance from the waste can be presumed and the party disposing of the mixture should be held hable under CERCLA....
United States v. New Castle County,
769 F.Supp. at 596-97 ;
see also Arizona v. Motorola,
774 F.Supp. at 568-569 (holding grinding sludge composed of either hydraulic oil or water-based coolant and various metal grinding particles was hazardous substance);
United States v. Alcan Aluminum Corp.,
755 F.Supp. at 540 (waste emulsion mixture of water and mineral oil containing concentrations of metal was hazardous substance);
United States v. Carolawn Co.,
21 Env’t Rep. Cas. (BNA) 2124 (D.S.C. June 15, 1984) (court held water-based paint wastes were hazardous substances);
cf. United States v. Serafini,
750 F.Supp. 168 (M.D.Pa.1990) (holding that the defendant could not be held liable under CERCLA for depositing waste which, although not itself a hazardous substance would release hsted hazardous substances when burned). The plaintiffs have presented no evidence that each defendant’s waste was a mixture or solution containing hazardous substances similar to those in the cases cited by the plaintiffs from which a release of a hazardous substance could reasonably be inferred.
The plaintiffs contend that
Serafini
provides no guidance in this cause, because none of the materials sent by the defendants have a similar requirement for their release into the environment.
25
To even reach this contention, the plaintiffs first must present some evidence that each defendant’s waste hauled to the Site contained hazardous substances.
See, e.g., Jastram v. Phillips Petroleum Co.,
844 F.Supp. 1139, 1140 (E.D.La.1994) (holding the defendants not liable under CERCLA for the costs of cleanup of brine or salt water, which were not defined as CERCLA hazardous substances),
clarification denied,
No. CIV. A. 92-0763, 1994 WL 90391 (E.D.La. Mar. 16, 1994)
26
Summarizing the discussion of the summary judgment and CERCLA standards, the plaintiffs’ obligation under Rule 56 is -no different because this is a CERCLA case. The plaintiffs must present evidence which, when all reasonable inferences are drawn in the plaintiffs’ favor, is sufficient to allow a trier of fact to find that it is more likely than not that a given defendant sent identifiable hazardous waste to the site in question. As in every summary judgment case, the defendants have no burden of proving the contrary, but merely must point out the alleged defects in the plaintiffs’ proof. That CERCLA is a remedial statute does not affect the operation of Rule 56.
Because reasonable, permissive inferences must be drawn in the plaintiffs’ favor at the summary judgment stage, the plaintiffs need not present eyewitness testimony providing a complete chain of custody of hazardous waste from a defendant to the landfill. It is sufficient if circumstances allow an inference from which a trier of fact could make a finding by a preponderance of the evidence. So, in several cases cited by the plaintiffs, courts have held that if the plaintiffs show that a defendant generated a predictable and relatively consistent waste stream that included hazardous waste of a sort ultimately found at the site, and that defendant’s waste was regularly taken to the site, an inference that the waste found at the site came from that defendant is permissible and is sufficient to defeat a summary judgment motion, even if it would not ultimately be sufficient to persuade the trier of fact.
As in any summary judgment case, the plaintiffs must make their showing, whether directly or indirectly, through evidence that has probative value, meaning there must be something more than testimony that something “could be” or “might
*1498
be” — in other words, there must be evidence of something beyond a witness effectively saying that “anything’s possible”, because such evidence is not sufficient to support a finding.
C. Objections to the Plaintiffs’ Evidence
Several defendants have objected to the plaintiffs’ use of certain evidence: (1) Robert Call’s deposition testimony; (2) the Smith Affidavit; and (3) the Tatum Affidavit. These objections will be addressed in turn.
27
1. Deposition Testimony of Robert Call
Various defendants, including Huber, Hunt & Nichols, K-Mart, and Zimmer, object to the use of Robert Call’s deposition testimony because (1) Mr. Call’s testimony lacks credibility, and (2) Mr. Call’s deposition was not completed.
Determinations of the credibility of witnesses and the weight of the evidence are not within the court’s province when considering a summary judgment motion.
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 , 106 S.Ct. 2505, 2513 , 91 L.Ed.2d 202 (1986). Thus, the issue of Mr. Call’s credibility is not before the court and may not be decided by the court when ruling on the summary judgment motions.
The defendants have offered no authority supporting their contention that the court cannot consider Mr. Call’s testimony because it was not completed. Mr. Call’s deposition was taken over a full two days. The plaintiffs represent that every party had an opportunity to cross-examine Mr. Call. It appears from the transcript of Mr. Call’s deposition that Huber Hunt & Nichols, K-Mart, and Zimmer had an opportunity to, and did in fact, cross-examine Mr. Call. The court is unaware of any authority supporting these defendants’ contention that Mr. Call’s testimony should be disregarded. If further examination was needed for summary judgment purposes, Rule 56(f) should have been invoked.
Accordingly, the court finds that the defendants’ objections to the use of Mr. Call’s testimony should be overruled.
2. Expert
Affidavits
28
Expert testimony is not automatically admissible evidence.
See, e.g., Thomas v. FAG Bearings Corp.,
846 F.Supp. 1382, 1393 (W.D.Mo.1994),
on reconsideration in part on other grounds sub nom., Thomas (Elaine) v. FAG Bearings Corp.,
860 F.Supp. 663 (W.D.Mo.1994);
Amcast v. Detrex Corp.,
779 F.Supp. 1519, 1534 (N.D.Ind.1991) (experts rarely allowed to determine questions of law),
aff'd in part, rev’d in part on other grounds,
2 F.3d 746 (7th Cir.1993),
and cert. denied,
— U.S. -, 114 S.Ct. 691 , 126 L.Ed.2d 658 (1994);
Toro Co. v. Krouse, Kern & Co.,
644 F.Supp. 986, 989 (N.D.Ind.1986), aff
'd,
827 F.2d 155 (7th Cir.1987). In general, evidence submitted for summary judgment must be admissible at trial. Fed.R.Civ.P. 56(e) (“affidavits ... shall set forth such facts as would be admissible in evidence”);
McFeely v. United States,
700 F.Supp. 414 , 418 n. 1 (S.D.Ind.1988). Thus, facts and opinions stated in an expert’s affidavit may be considered only if they would be admissible under the Federal Rules of Evidence.
Porter v. Whitehall Laboratories, Inc.,
791 F.Supp. 1335, 1342 (S.D.Ind.1992),
aff'd,
9 F.3d 607 (7th Cir.1993);
Toro Co. v. Krouse, Kern & Co.,
644 F.Supp. at 988 . To be admissible, expert testimony must satisfy Fed.R.Evid. 401; additionally, the expert must be qualified as an expert by knowledge, skill, experience, training, or education, Fed.R.Evid. 702; the court must find that scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact at issue, Fed.R.Evid. 702; and the facts or data upon which the expert bases an opinion or inference must be of a type reasonably relied upon by experts in the particular field. Fed.R.Evid. 703.
*1499
If an expert’s opinion is so fundamentally unsupported that it cannot assist the trier of fact, the court should exclude that expert’s opinion.
Hurst v. United States,
882 F.2d 306, 311 (8th Cir.1989). Unsupported facts do not provide a sufficient basis from which a reasonable juror could find the expert’s opinion more certain or reasonable.
Porter v. Whitehall Laboratories,
791 F.Supp. at 1348-49 . Whether an expert’s opinion is supported by an adequate basis is a matter of law for the court to decide. 791 F.Supp. at 1348 ;
Richardson v. Richardson-Merrell, Inc.,
857 F.2d 823, 829 (D.C.Cir.1988),
cert. denied,
493 U.S. 882 , 110 S.Ct. 218 , 107 L.Ed.2d 171 (1989). The court must “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.”
Daubert v. Merrell Dow Pharmaceuticals, Inc.,
— U.S. -, -, 113 S.Ct. 2786, 2795 , 125 L.Ed.2d 469 (1993). The court should exclude an expert’s opinion that is not supported by a sufficient basis.
Hurst v. United States,
882 F.2d at 311 .
As the Supreme Court enunciated in
Daubert :
The subject of an expert’s testimony must be “scientific ... knowledge.” The adjective “scientific” implies a grounding in the methods and procedures of science. Similarly, the word “knowledge” connotes more than subjective belief or unsupported speculation. The term “applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.”
— U.S. at -, 113 S.Ct. at 2795 (citation omitted). “Proposed testimony must be supported by appropriate validation — i.e. ‘good grounds’ based on what is known.”
Id.
As the Seventh Circuit stated:
Rule 56(e) ... provides that affidavits supporting and opposing motions for summary judgment must do more than present something that will be admissible in evidence. They shall “set forth facts” and by implication in the case of experts (who are not “fact witnesses”) a process of reasoning beginning from a firm foundation. “It will not do to say that it must all be left to the skill of experts. Expertise is a rational process and a rational process implies expressed reasons for judgment.” An “opinion has significance proportioned to the sources that sustain it.” An expert who supplies nothing but a bottom line supplies nothing of value to the judicial process.
Mid-State Fertilizer Co. v. Exchange Nat’l Bank of Chicago,
877 F.2d 1333, 1339 (7th Cir.1989) (citations
omitted)
29
; see also Porter v. Whitehall Laboratories,
791 F.Supp. at 1347-49 (unsupported expert opinions are insufficient to survive summary judgment motion) (collecting cases);
State Farm Fire & Cos. Co. v. Miles,
730 F.Supp. 1462, 1472 (S.D.Ind.1990),
aff'd,
930 F.2d 25 (7th Cir.1991) (summary judgment cannot be avoided by presenting conclusory testimony of an expert witness).
Expert opinions premised upon speculation and conjecture are insufficient to create a genuine issue of material fact to survive summary judgment.
Thomas v. FAG Bearings Corp.,
846 F.Supp. 1382, 1393 (W.D.Mo.1994),
on reconsideration in part on other grounds sub nom., Thomas (Elaine) v. FAG Bearings Corp.
860 F.Supp. 663 (W.D.Mo.1994).
30
“When basic foundational conditions themselves are conjecturally premised, it then behooves a court to remove the answer from one of admissible opinion to one of excludable speculation.”
Id.
(citation omitted).
The court must, can, and will separate and disregard any legal conclusion opined by the experts from their statements of fact and expert opinion.
See, e.g., Pfeil v.
*1500
Rogers,
757 F.2d 850, 862 (7th Cir.1985),
cert. denied,
475 U.S. 1107 , 106 S.Ct. 1513 , 89 L.Ed.2d 912 (1986) (legal opinion is not a recitation of fact to which an affiant is competent to testify, and may be disregarded);
Zepik v. Ceeco Pool and Supply, Inc.,
118 F.R.D. 455, 462 (N.D.Ind.1987) (court may not consider affiant’s statements as to the law or legal conclusions),
aff'd in part, rev’d in part sub nom. Zepik v. Tidewater Midwest, Inc.,
856 F.2d 936 (7th Cir.1988).
a. The Smith Affidavit
The plaintiffs offer the Smith affidavit in support of their claim that each defendant disposed of hazardous substances at the Site between 1974 and 1978.
31
The plaintiffs contend that “Smith’s testimony explains what constituents of each defendant’s waste are ‘hazardous substances’ within the meaning of CERCLA and then matches those constituents to the hazardous substances ... [at the Site].”
32
The defendants object to the Smith affidavit primarily on the grounds that Mr. Smith’s opinions lack a sufficient foundation, and that Mr. Smith lacks personal knowledge, or assumes, that the defendants sent hazardous waste to the Site. The plaintiffs contend that the defendants’ objections are founded upon the defendants’ belief that the plaintiffs must prove either (1) that a “specific load of each defendant’s waste containing a specific hazardous substance went to Lakeland”; or (2) that each defendant produced an unvarying waste stream comprised solely of hazardous substances which LDS hauled to Lake-land.”
33
The plaintiffs contend that they need only prove under CERCLA that each defendant’s waste was shipped to the Site, and that hazardous substances similar to those contained in each defendant’s waste were present at the Site at the time of release.
34
The plaintiffs misunderstand what the law requires them to prove to prevail. The plaintiffs bear the burden on two factual issues: (1) whether each defendant’s hazardous waste was disposed of at the Site; and (2) whether the hazardous substances similar to those contained in each defendant’s waste were present at the Site. First, if the plaintiffs do not prove that each defendant’s hazardous waste was disposed of at the Site, the court need not reach the second issue— whether hazardous substances similar to those contained ’ in each defendant’s waste were present at the Site. Second, logic dictates that if the plaintiffs cannot prove (even by inference) what, if any, hazardous substances were in each defendant’s waste, then the plaintiffs cannot prove that hazardous substances similar to those contained in each defendant’s waste were present at the Site.
Mr. Smith has no personal knowledge that any defendant disposed of a hazardous substance at the Site and, therefore, bases this crucial assumption on the discovery taken in this cause, particularly the deposition testimony of former LDS owners, drivers, and other employees.
See
Fed.R.Evid. 703. The testimony upon which Mr. Smith relies must be sufficient to establish that the defendants disposed of a hazardous substance at the Site to provide an adequate foundation for Mr. Smith’s opinion. As discussed below with respect to the individual defendants, the deposition testimony and other evidence is insufficient to prove that each defendant disposed of a hazardous substance at the Site. Therefore, when Mr. Smith’s opinion rests on the assumption that a given defendant disposed of a hazardous substance at the Site, the opinion lacks an essential evidentiary foundation and is inadmissible.
Mr. Smith’s conclusion that each defendant is a responsible party under CERCLA is premised upon Mr. Smith’s assumption that each defendant disposed of a hazardous substance at the Site. Thus, Mr. Smith assumes one of the very facts that the defendants contend the plaintiffs cannot prove. As Mr. Smith opined
35
:
*1501
On the reasonable assumptions set forth in Paragraph 16, above, that at least a portion of each moving Defendants’ waste containing hazardous substances came to the site, and in light of the analyses set forth in Paragraphs 17 and 18 above, my opinion is that each of the moving defendants contributed hazardous substances to the site____
The court agrees that “it is very easy to render an opinion concerning a fact if one assumes that fact to be true for purposes of the opinion. That is exactly what [Mr.] Smith has done in his Affidavit.”
36
Mr. Smith states as facts the ultimate facts which the plaintiffs must prove to prevail. As in
Thomas v. FAG Bearings Corp.,
846 F.Supp. at 1393-1394 , Mr. Smith’s opinions are premised upon assumed hypothetical facts.
Furthermore, an expert’s opinion “must be an ‘expert’ opinion (that is, an opinion informed by the witness’ expertise) rather than simply an opinion broached by a purported expert.”
United States v. Benson,
941 F.2d 598, 604 (7th Cir.1991) (citation omitted),
opinion amended by
957 F.2d
SOI
(7th Cir.1992);
cf. Mid-State Fertilizer v. Exchange Nat'l Bank of Chicago,
877 F.2d at 1340 (rejecting an economist’s “expert” opinion that drew on inferences from the record rather than any economic expertise). To the extent that Mr. Smith’s opinion draws exclusively on inferences from the record rather than expertise, Mr. Smith’s opinion is inadmissible. Thus, Mr. Smith’s opinion that each of the defendants contributed hazardous substances to the Site is inadmissible.
Not all of Mr. Smith’s opinions are inadmissible. As discussed, Mr. Smith made certain assumptions not within his expertise in reaching his opinions, and the defendants are correct that an expert may not assume a fact and then apply his expertise to the assumed fact to produce an opinion. In several instances, however, Mr. Smith did more than that. He based his opinions on his understanding of what various depositions reported, and he may do that under Rule 703. But an expert’s opinion that is without foundation is worth nothing as evidence, and so is irrelevant for purposes of Rule 402 and not reliable for purposes of Rule 702 as construed in
Daubert .
In the instances in which the record provides no such foundation, Mr. Smith’s opinion adds nothing to the question of whether a defendant disposed of hazardous wastes at the landfill.
Finally, as to whether each defendant’s waste contained hazardous substances, Mr. Smith opines solely with respect to the hazardous constituents of a generic class or type of waste, e.g., flashlight batteries or paint, without limiting his opinion to the particular brands or products actually carried by the defendants.
37
Mr. Smith does not state that all classes or types of given products contain hazardous constituents.
Mr. Smith does not state that the hazardous substances contained in the defendants’ inert solid waste allegedly hauled to the Site, such as vinyl flooring or roofing materials, would be released under normal landfill conditions. If a chemical reaction is required to cause such waste, not otherwise listed as a hazardous substance, to generate a hazardous substance, then the plaintiffs must establish the likelihood of such a reaction.
See, e.g., B.F. Goodrich v. Murtha,
840 F.Supp. 180 (D.Conn.1993) (mere presence of a hazardous substance in a constituent of a product does not render that product a hazardous substance);
United States v. New Castle County,
769 F.Supp. 591 (D.Del.1991);
United States v. Serafini,
750 F.Supp. 168 (M.D.Pa.1990) (concluding that an inert solid not itself a listed hazardous substance, but containing a hazardous substance, was not a hazardous substance).
b. The Tatum Affidavit
The plaintiffs rely on John Tatum’s affidavit to estimate the approximate volume of waste contributed by each defendant to
*1502
the Site from May 1974 through August 1978, compiled in a “waste-in” database.
38
Mr. Tatum relied on LDS records and deposition testimony in compiling his waste-in database. As the plaintiffs aptly remark, “Mr. Tatum’s database simply confirms the eyewitness testimony of owners, drivers, and defendants themselves that some of each defendant’s waste went to Lakeland.”
39
Waste is not the same as hazardous waste, however, and Mr. Tatum does not offer any opinion that some of each defendant’s hazardous waste went to Lakeland.
Mr. Tatum uses a “mass balancing” technique to determine that while David Lindsay operated LDS, 77% of the “solid waste” hauled by LDS was disposed of at the Site, and that while Mr. Shambaugh operated LDS, 36% of the solid waste was disposed of at the Site.
40
Mr. Tatum acknowledged that, apart from the tickets issued by LDS when it operated the Site as a county landfill, LDS kept no records of the specific loads disposed of at the Site
41
Mr. Tatum then speculates that if 77% and 36% of the aggregate solid waste hauled during the respective eras was disposed of at the Site, then 77% and 36% of each defendant’s waste was disposed of at the Site for the respective time period.
The defendants objected to Mr. Tatum’s statement
42
that adjustments in his calculations were based on a defendant’s distance from the Site and deposition testimony regarding LDS’s practices. The defendants contend that Exhibit C to Mr. Tatum’s affidavit does not support the allegation that such adjustments were made, and therefore, Mr. Tatum did no more than assume that a defendant’s waste was disposed of at the Site.
The defendants are correct. Mr. Tatum calculated the volume of each defendant’s waste hauled by LDS while Mr. Lindsay operated LDS and while Mr. Shambaugh operated LDS and simply multiplied those volumes by 77% and 36%, respectively. Mr. Tatum then added the two figures to obtain the approximate total volume of each defendant’s waste disposed of at the Site. It appears that Mr. Tatum made no adjustments for distance, the form of each defendant’s waste, or deposition testimony of LDS personnel. Mr. Tatum discounted the volume of waste hauled by LDS by the same factor regardless of the defendant’s location. Mr. Tatum’s calculation of approximate waste volume is often contrary to deposition testimony. For example, the 36% figure is not supported by the deposition testimony relied on by the plaintiffs establishing that 10% of Liberty’s waste would have been disposed of at the Site.
43
Mr. Tatum assumes that any LDS customer’s waste had an equal probability of being in the last load of the day when the truck returned to the Site as being in the truck as it went from one route to another past the Site
44
Mr. Tatum provides no factual basis for this assumption, and when viewed in the context of deposition testimony, the assumption is not well-founded. This assumption underlies Mr. Tatum’s application of the mass balancing technique; thus, the lack of a factual basis for the assumption renders the application of the mass balancing technique highly questionable.
Mr. Tatum’s mass balancing technique is based on conjecture and broad assumptions made without a supporting factual basis. That LDS may have disposed of 77% and 36% of all customer waste at the Site during the respective eras does not prove, nor create an inference, that LDS disposed of 77% and 36% of any defendant’s waste. Moreover, Mr. Tatum fails to account for the increased number of LDS customers under Mr. Shambaugh’s ownership.
For these reasons, the court agrees with the defendants that Mr. Tatum’s opinion is
*1503
insufficiently reliable to be admissible under
Daubert .
Ill INDIVIDUAL DEFENDANTS
A. American Standard, Inc.
Peabody Modernfold, a division of American Standard, Inc. (“ASI”), was located in North Manchester, Indiana. John Rish, Peabody’s plant manager from 1972 to 1980, was responsible for Peabody’s waste handling practices and off-site disposal contracts. Peabody generated three types of waste: (1) liquid waste, which was disposed under contract with Enviro-Chem from Indianapolis; (2) scrap metal, which was sold to scrap metal companies; and (3) trash, consisting of solid waste generated by Peabody’s business operations. Beginning around 1975, Peabody began using two waste hauling companies— LDS and Yogie Disposal Service (‘Yogie”)— to dispose of its trash. LDS and Yogie both provided compactor truck services; LDS provided all roll-off services. Mr. Rish stated that he did not know where LDS took the Peabody’s roll-off trash or waste.
45
ASI contends the plaintiffs cannot prove that ASI’s former Peabody Division disposed of hazardous substances at the Site. ASI contends, first, that the uncontradicted testimony of LDS’s owners and drivers is that they have no recollection of hauling any of Peabody’s general trash in compactor trucks to the Site; and second, that the undisputed testimony of Paul Phillipy (the only driver who recalls hauling Peabody’s trash to the Site) is that Peabody’s roll-offs contained only wood and other large materials, but no cans, buckets, paint, liquids or sludges.
That ASI disposed of some type of waste at the Site is undisputed. ASI admits that LDS transported ASI’s roll-off wastes, but denies that the roll-off wastes contained hazardous substances. Former LDS driver Paul Phillipy recalled that Peabody generally used one roll-off per week, and that he disposed of the roll-off wastes from Peabody at the Site.
46
According to Mr. Phillipy, the roll-offs contained the “bigger, larger stuff’ and the “wood and stuff that was too large.” Mr. Phillipy further testified that during the time period that he hauled roll-offs from Peabody, Peabody had daily compactor truck service.
47
No other LDS driver recalled hauling waste from Peabody to the Site.
48
Former Peabody employee John Rish testified that Peabody’s general production wastes generated throughout the plant included vinyl, oil and oil filters, brake fluid, transmission fluid, lacquer, used paint filters, five-gallon buckets containing solvent based paint, paint scrapings, adhesives, and alkaline cleaners.
49
The plaintiffs’ expert, James Smith, established that such substances would contain such hazardous substances as BTEX compounds, PAHs, wear metals, plasticizers, and metal hydroxides, which were detected in the sampling of the Site.
50
Mr. Rish further testified that Peabody disposed of its general production wastes in its roll-off waste hauled by LDS;
51
but, as noted during oral argument, Mr. Rish also testified that Peabody used roll-offs for its general production wastes only for a few months during 1977 or 1978 when compactor truck services were unavailable.
52
Mr. Phillipy testified that compactor truck services were available throughout the time he hauled Peabody’s roll-offs.
53
Therefore, Mr. Rish’s testimony that Peabody briefly used roll-offs for general production waste does not contradict Mr. Phillipjfs testimony that Peabody’s roll-offs contained the “bigger, larger stuff’ and “wood
*1504
and stuff that was too large.” The plaintiffs have not presented any evidence that any roll-off wastes containing hazardous substances were disposed of at the Site.
The plaintiffs contend that ASI omits two other services LDS provided to Peabody that would support a finding that Peabody wastes containing hazardous substances were disposed of at the Site. The plaintiffs first allege that in December 1974, LDS transported one load of waste from Peabody containing at least 1,743 full aerosol spray paint cans. In support of this allegation, the plaintiffs rely on the testimony of former LDS owner David Lindsay, a Peabody shipping order, and Mr. Rish’s testimony. Mr. Lindsay testified, based on an LDS invoice, that the aerosol spray paint cans were “hauled to my landfill.”
54
Mr. Lindsay added, however, “there is a possibility that it [the aerosol spray paint cans] could have got to the one ... in Syracuse,”
55
and that he could not tell where the aerosol cans were hauled based on the invoice.
56
Mr. Lindsay could not testify for certain whether the aerosol cans were taken to the Site.
The plaintiffs also rely on a Peabody shipping order, allegedly documenting the transaction indicating a delivery address of “Clay-pool Indiana”, where the landfill was located.
57
But, as ASI points out, the shipping order lists no disposal site. Mr. Lindsay testified that the reference on Peabody’s shipping order to “Claypool, Indiana” as the delivery address would not require LDS to haul the aerosol cans to the Site.
Mr. Rish testified that the aerosol cans were disposed of at a landfill for which Steve Shambaugh had state approved licensing.
58
When the aerosol cans were hauled in 1974, Mr. Shambaugh was not affiliated with LDS or the Site; rather, he operated another waste hauling company, Dunn & Shambaugh, and was not affiliated with LDS or Lakeland until 1976. Mr. Rish did not know where the particular landfill affiliated with Mr. Shambaugh was located.
59
He knew only that the landfill was located north of Peabody.
60
Mr. Rish believed that the landfill was the “Four Square” landfill,
61
or the “Four Counties” landfill in Fulton County.
62
The plaintiffs also allege that LDS provided Peabody with packer truck service from July 1976 until the Site closed in September 1978, which was during the time Mr. Shambaugh owned LDS. Mr. Lindsay’s testimony that compactor trucks servicing North Manchester would use the Site, as relied on by the plaintiffs, is irrelevant to this issue; Peabody did not use LDS for compactor truck service while Mr. Lindsay owned and operated LDS. Mr. Phillipy testified that all compactor truck waste from Peabody was disposed at Spring Valley.
63
Although Mr. Phillipy testified that waste from Manchester went to Lakeland when a compactor truck was serviced, he could not say that when a compactor truck carrying waste from Manchester went to Lakeland it was carrying waste from Peabody. Thus, the plaintiffs have presented no evidence that even one compactor truck serviced at the Site contained Peabody waste.
The plaintiffs have not come forward with material facts establishing a genuine issue for trial with respect to the aerosol spray paint cans, compactor truck services, or roll-off wastes. Therefore, the plaintiffs have failed to present evidence sufficient to withstand ASI’s motion for summary judgment on the issue of whether ASI is liable as a CERCLA generator who disposed of hazardous substances at the Site.
Accordingly, ASI’s motion for summary judgment should be granted.
*1505
B. City of Warsaw
The City of Warsaw, Indiana (“Warsaw”), was a generator of municipal solid waste (“MSW’) and sewage digester sludge, produced by the publicly-owned sewage treatment works. LDS once hauled about 600,000 gallons of Warsaw’s sewage sludge from the sewage plant. The plaintiffs do not dispute that the sewage sludge was spread on farm fields rather than being taken to the Site.
Warsaw’s municipal solid waste generally was taken to the Ransbottom Landfill in Packerton, Indiana, but Warsaw disposed of twenty loads of municipal solid waste at the Site between March 10, and 19, 1975. Former LDS driver Robert Call testified that he hauled waste for Warsaw and disposed of the waste at the Site and at Packerton.
64
Mr. Call remembered that the trash he hauled was “[b]asically miscellaneous trash.”
65
Posey Lester testified that Warsaw’s waste was deposited at the Site.
66
Mr. Lester could not remember how long Warsaw dumped waste at the Site.
67
Warsaw contends that the determinative issue is whether the plaintiffs have presented any evidence that its municipal solid waste deposited at the Site contained any specifically identified hazardous substances. The plaintiffs contend that the evidence shows that Warsaw’s waste contained hazardous substances. Even assuming this as true, the plaintiffs cannot prevail. The plaintiffs have presented absolutely no evidence to establish that any of Warsaw’s waste that was hauled to the Site during the ten day period in March 1975 actually contained hazardous substances. The plaintiffs established no more than a metaphysical possibility that Warsaw’s waste disposed of at the Site contained hazardous substances.
The plaintiffs rely on the testimony of former LDS and Warsaw employees that Warsaw’s waste contained wastes generated by commercial enterprises and residences.
68
The plaintiffs are correct that Pat Ragan, supervisor of Warsaw’s waste disposal during the relevant time period, stated that small batteries or flashlight batteries “would have been considered I think inconsequential” and have gone to the Site.
69
Mr. Ragan stated that oil filters were not picked out of the general trash, but that if someone saw an oil can in the trash, they would pick it out.
70
Waste Management picked up Warsaw’s waste oil.
71
Mr. Ragan’s testimony is nothing more than speculation as to what Warsaw’s waste might have contained. The plaintiffs have come forward with no evidence that any batteries or oil filters were contained in any of the trash disposed of at the Site.
Contrary to the plaintiffs’ contention,
72
Mr. Ragan did not admit that residential paint waste would pass unnoticed in the trash. Rather, Mr. Ragan testified that Warsaw had a special truck pickup for paint cans and that the truck disposed of the cans at the Ransbottom Landfill.
73
When asked whether he recalled that paints and paint cans were in the general trash, Mr. Ragan responded, “I don’t remember. I am sure that if somebody was painting a room in their house and had a half a gallon left, it would hit the trash. We wouldn’t know that.”
74
Similarly, Mr. Ragan testified that if somebody put a car battery in the general trash, Warsaw would not know.
75
*1506
Mr. Ragan also testified that five gallon paint thinner cans, five gallon paint buckets, and used paint brushes utilized by Warsaw were discarded in the trash and would go to “the landfill”,
76
but he did not state that such cans, buckets, or brushes would go to the “Lakeland landfill”. Again, this aspect of Mr. Ragan’s testimony is mere speculation and does not prove that any paint or paint cans were in the Warsaw trash disposed at the Site.
The court finds persuasive the approach taken in
B.F. Goodrich Co. v. Murtha,
840 F.Supp. 180 (D.Conn.1993) (holding municipal solid waste generators not liable for disposal of materials that were not CERCLA hazardous substances but contained elements which were CERCLA hazardous substances). The municipal generator defendants in
Murtha
conceded that municipal solid waste may include materials containing hazardous substances, but the court found that there was no direct evidence that any of the defendant’s MSW deposited at the site contained a hazardous substance. 840 F.Supp. at 187 . The plaintiffs relied on an expert’s affidavit stating that as a general rule, municipal solid waste contains hazardous substances. 840 F.Supp. at 187-88 . The court determined that the expert affidavit was insufficient to permit an inference that any of the municipal generator defendants disposed of a hazardous substance at the site. 840 F.Supp. at 188 .
Similarly, Mr. Smith’s affidavit, proffered by the plaintiffs to establish that Warsaw disposed of wastes containing hazardous substances, is insufficient evidence on the critical issue. As in
B.F. Goodrich v. Murtha,
840 F.Supp. at 189 , Mr. Smith reaches his expert opinion by assuming unsupported facts. He assumes that the Warsaw waste hauled to the Site included flashlight batteries, used oil filters, paint, paint cans, paint brushes, waste motor oil, and other waste generated from service on city vehicles.
77
Because the plaintiffs have not established that any of the twenty loads of Warsaw waste hauled to the Site contained any of those items, Mr. Smith’s assumption is inadmissible in light of Fed.R.Evid. 703. The plaintiffs cannot use Mr. Smith’s affidavit to prove the very fact — that Warsaw’s waste hauled to the Site contained hazardous substances — that Mr. Smith assumes to be true.
In summary, Warsaw’s municipal solid waste was taken to the landfill about twenty times during a ten-day period in March 1975. This is far from the predictable and relatively consistent waste stream that has been held to be sufficient to survive summary judgment in other cases. Accordingly, to survive summary judgment the plaintiffs must show something more about the waste actually hauled to the Site. The record before the court contains nothing more than what may be described as basically “anything’s possible” testimony, which would not suffice to allow a reasonable trier to find that it is more likely than not that Warsaw deposited hazardous waste in the landfill.
Accordingly, the City of Warsaw is entitled to summary judgment.
C. Dalton Foundries, Inc.
Dalton Foundries, Inc. (“Dalton”) operates a gray iron foundry in Warsaw, Indiana. Dalton makes iron castings by melting scrap metals, pig iron, and coke. Molten iron is poured into sand molds also made at the foundry. Dalton also makes the sand core molds for the cavity of the finished product.
78
Between 1974 and 1978, Dalton used two types of “wet scrubber” air emission control systems to control air pollution.
79
The “venturi scrubber” was an air pollution control device found in the cupola (melting apparatus) that precipitated airborne particulates discharged during the cupola melting process.
80
The venturi scrubber was used only in the cupola.
81
Dalton’s melting process generated a non-metallic residue known as
*1507
“slag”,
82
which was cooled in a slag tank and disposed of by Ruse Construction, which Bob Barsh owned and operated from 1974 through 1978.
83
The other wet scrubber air control device Dalton used was the “Schneible wet dust collector” that removed dust from the plant’s air.
84
The Schneible wet dust collectors, located in and around the sand systems in the shake house, including the molding and mold cooling rooms,
85
generated a watery sludge (sometimes referred to as “slurry”).
86
This sludge was collected in a tank beneath the dust collector stacks, which was separate from the venturi and slag tank.
87
Ruse Construction usually hauled the slurry from drying beds,
88
but the slurry occasionally would be pumped directly from the Schneible tanks.
89
LDS hauled three types of Dalton waste: (1) slurry from Dalton’s Schneible dust collector tanks between 1974 and late 1975; (2) thirty to forty mostly empty drums hauled on one occasion; and (3) general industrial trash in roll-offs between late 1974 and August 1978. Posey Lester testified that he once hauled thirty to forty mostly “empty” drums from Dalton to the Site; Mr. Lester did not know what was in the drums.
90
The roll-off waste included broken pallets, cardboard, and office trash, and occasionally contained used filters, batteries, and empty containers of “typical household cleaners.”
Mr. Shambaugh believes that the Packer-ton Landfill was the landfill nearest Dalton.
91
During the Shambaugh era, the majority of waste hauled from customers located from north Warsaw to the south went to Packer-ton.
92
The plaintiffs have not challenged Dalton’s assertion that it is and was located south of Warsaw.
There is no evidence that Dalton was included among the waste generators reflected in the “Kosciusko County” landfill receipts used by the Site when it was open to the general public from January through March 1975. Dalton is not included on the January 1976 through August 1978 SPC-17 liquid waste hauler reports, consistent with Mr. Shambaugh’s testimony that LDS did not haul sludge for Dalton during the Shambaugh era.
93
Some landfill receipts from the Custer Landfill indicate Dalton’s waste was hauled there.
94
Dalton contends summary judgment is appropriate because the plaintiffs have insufficient evidence to support a finding that Dalton disposed of hazardous substances at the Site.
1. Schneible dust slurry
No one disputes that LDS hauled Dalton’s Schneible dust collector slurry to the Site on occasion in 1974 and 1975 during the Lindsay era,
95
but the parties dispute whether the slurry was hazardous. In June
*1508
1976, the State Board of Health performed the only known test conducted on the Schneible dust collector slurry between 1974 and 1978. The Board of Health concluded that the material was about half water and had “no heavy metals present — no phenols” and only a “small amount of oil.”
96
Petroleum, “including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance”, is specifically excluded from the definition of CERCLA hazardous substances. 42 U.S.C. § 9601 (14);
see also City of New York v. Exxon Corp.,
766 F.Supp. 177, 185-89 (S.D.N.Y.1991). The plaintiffs have presented no evidence that the oil in the Schneible slurry was contaminated with a waste oil such that it would not fall within the CERCLA petroleum exclusion.
The plaintiffs attempt to show that Dalton’s Schneible slurry contained various types of waste containing hazardous substances. They contend that “the particulate collected included molding sand, parting [or release] agents and binding agents,”
97
and that the molding sand contained “metal residue and phenols”.
98
The evidence in the record before the court, however, does not support an inference that the Schneible slurry hauled by LDS in 1975 contained hazardous substances.
Dalton’s operations changed with respect to the Schneible wet dust collector system after 1976 — after the Lindsay era. In early May 1979, Dalton installed a pump between the venturi system and Schneible wet dust collector system which introduced heavy metals from the venturi system into the Schneible system.
99
That first pump was then replaced by another mechanism that also introduced heavy metals into the Schneible system.
100
Dalton also expanded the capacity of its core room manufacturing processes in 1976, causing an increase in Dalton’s use of phenolic agents.
101
The posH979 Micon laboratory test results,
102
upon which the plaintiffs rely, would reflect these changes in the composition of Dalton’s wet dust collector wastes. The plaintiffs have offered no evidence to establish that Dalton’s waste stream in 1975 would have obtained the same or similar laboratory test results. Likewise, the May 5, 1983 correspondence from Mr. Rawlings to David Koepper of the Indiana State Board of Health,
103
does not indicate that Dalton’s core sands from the wet dust collector system contained hazardous substances in 1975. The plaintiffs have offered no evidence that contaminates listed in the 1983 correspondence would have been contained in Dalton’s core sands in 1975 when LDS hauled the Schneible slurry. The plaintiffs have not established the relevance of these post>-1979 test results with respect to the constituents of Dalton’s 1975 wet dust collector waste.
The plaintiffs also rely on correspondence from Robert Rawlings, dated April 22, 1980, that identifies alleged hazardous substances that “may” be found on foundry sands.
104
The correspondence indicates that the list came from the manufacturer’s data sheets. The correspondence does not indicate which,
*1509
if any, of the allegedly hazardous substances actually would be found in the foundry sands. Moreover, as discussed previously, the plaintiffs have provided no basis for inferring that Dalton’s 1975 wet dust collector waste was the same as Dalton’s post-1979 wet dust collector waste. Thus, the correspondence is insufficient to establish that such allegedly hazardous substances were, in fact, in the foundry sands.
105
The plaintiffs rely on Robert Rawlings’ testimony in an effort to show that the wet dust collector waste contained hazardous substances. First, the plaintiffs rely on Mr. Rawlings’ testimony to establish that particulate from the wet dust collectors contained parting agents and binding agents. Mr. Rawlings also testified, however, that the binding and release agents used in the shell and core making processes would have either burned off or evaporated during the core making process.
106
Mr. Rawlings specifically testified that the shell core process did not generate particulate.
107
Second, the plaintiffs rely on Mr. Rawlings’ testimony to establish that the molding sand contained phenols, but Mr. Rawlings merely speculated that the wet dust collector would generate sand particles.
108
Third, the plaintiffs rely on Mr. Rawlings’ testimony to establish that the molding sand contained metal residues, even though Mr. Rawlings testified that it would be unlikely that heavy metals would have been collected in the wet dust collectors since the heat velocity was not sufficient to drive them into the air.
109
Mr. Rawlings further testified that he would expect that laboratory tests would indicate whether the dust collected by the wet dust collector contained heavy metals.
110
No heavy metals were present in the 1976 laboratory tests.
Finally, contrary to the plaintiffs’ assertion,
111
metal particulates and dust from the grinding operations were collected by the dry bag house filter system rather than the wet dust collector.
112
Non-airbome particulates from the grinders were remelted.
113
The plaintiffs have not presented evidence that could support a finding that it is more likely than not that Dalton’s Schneible slurry, hauled by LDS in 1974 and/or 1975, included any material containing hazardous substances.
2. Venturi sludge
Although the evidence shows that Schneible dust slurry was pumped on occasion, no evidence suggests that the venturi sludge would have been pumped.
114
Mr. Lindsay testified that the only way LDS hauled Dalton’s slurry was with the pumper wagon.
115
Robert Call testified that he pumped two or three loads of some material from Dalton, which he then hauled to the
*1510
Site.
116
John Canan, Dalton’s Vice President of Engineering from 1974 through 1978, and Jim Corbett, Dalton’s Director of Engineering from 1974 through 1978, both recall that LDS pumped Schneible dust collector slurry-on an experimental basis.
117
Bob Rawlings, who was responsible for Dalton’s manufacturing operations during the relevant time period, testified that pumping would have been an alternative means of removing the slurry from the Schneible dust collector if the drag chain malfunctioned.
Neither Mr. Canan, Mr. Corbett, nor Mr. Rawlings believes that the venturi sludge was pumped.
118
Mr. Canan and Mr. Corbett both stated that venturi sludge would have been “too thick to be pumped.”
119
Mr. Rawlings testified there would be no reason to pump the venturi sludge from the tank because it could be drained through a valve.
120
In support of their allegation that LDS hauled venturi sludge to the Site, the plaintiffs claim that the Schneible collectors were not installed until late 1975, but the plaintiffs have misread Dalton’s Supplemental Discovery Response as stating that no Schneible wet dust collector air control system was in operation prior to late 1975.
121
Thus, the plaintiffs deduce that any sludge taken from Dalton’s pollution control system must have been from the venturi scrubber. Dalton’s supplemental response merely stated that Dalton had installed a “No. 4 Schneible dust collector system” in 1975
122
; nothing in Dalton’s supplemental discovery response suggests that the No.
4
Schneible system was the first or only such system installed at Dalton. To the contrary, Dalton’s response further states that other wet scrubber systems were in place during the 1974r-1976 period. Mr. Corbett and Mr. Canan also stated that Dalton had two wet scrubber air emission control systems, including the Schneible dust collector, in place during the entire period of time of 1974 through 1978.
123
The plaintiffs further seek to show that LDS hauled venturi sludge based on the allegedly different colors of the venturi sludge and Schneible slurry. The plaintiffs contend the testimony shows that venturi sludge was much blacker than the Schneible slurry. Mr. Lindsay testified that the sludge that he pumped was dirty and black and necessitated a great deal of washing to remove.
124
The plaintiffs then claim, relying solely on Dalton’s supplemental discovery responses, that the Schneible slurry would have been “sandy” in appearance.
125
Dalton’s supplemental discovery response upon which the plaintiffs rely related to the texture of the Schneible sludge rather than to the color.
126
The evidence shows that the Schneible slurry was a black color — Mr. Rawlings testified that the Schneible slurry was a “gritty black” substance similar in color to the venturi sludge.
127
Indeed, the Schneible slurry may have been darker in color than the venturi sludge.
128
The plaintiffs attempt to distinguish the sludge hauled by Mr. Lindsay in 1974 from
*1511
the Schneible slurry hauled by Robert Call, who testified that he pumped “reddish-brown” sludges from Dalton in 1975.
129
It is undisputed that the sludge that Mr. Call pumped in 1975 would have been Schneible slurry.
130
The plaintiffs claim that Mr. Call's description of the Schneible slurry differs from Mr. Lindsay’s description of the sludge, and therefore, they assert that the sludge hauled by Mr. Lindsay must have been a different type of sludge than that hauled by Mr. Call. Hence, the plaintiffs contend that because the sludge Mr. Call hauled was Schneible slurry, Mr. Lindsay’s sludge of a different color must have been venturi sludge.
Importantly, there is no evidence that Mr. Call actually compared the sludge he hauled to the sludge hauled by Mr. Lindsay. The plaintiffs have not established that Mr. Call would have described the sludge hauled by Mr. Lindsay differently — that is, there is no evidence that Mr. Call would not have described that sludge as “reddish brown” as well. Thus, Mr. Call’s testimony is not necessarily inconsistent with the other evidence that Mr. Call hauled the same material that Mr. Lindsay pumped,
131
and that neither the venturi sludge nor the Schneible slurry, at least in Mr. Rawlings’ opinion, was “reddish brown”.
132
The plaintiffs’ efforts to distinguish the sludge hauled by Mr. Lindsay from that hauled by Mr. Call are too speculative to warrant a reasonable inference that the sludge hauled by Mr. Lindsay in 1974 was venturi sludge rather than Schneible slurry.
3. 30 to k.0 Empty Drums
The plaintiffs have not presented any admissible evidence that Dalton’s drums contained hazardous substances.
133
Posey Lester, the only LDS driver to testify that he hauled drums from Dalton to the Site,
134
did not know what was in the thirty to forty drums which he hauled to the Site. Mere disposal of drums at the Site is not sufficient to establish liability under CERCLA.
See, B.F. Goodrich v. Murtha,
840 F.Supp. 180 ;
United States v. Wade,
577 F.Supp. 1326, 1341-42 (E.D.Pa.1983) (holding “mere placement of drums at the site will not suffice to establish [liability],” in the absence of such information as their contents, number, and frequency of disposal). Therefore, Dalton is entitled to summary judgment with respect to the alleged disposal of drummed waste.
If. Rollroff Waste
Most of Dalton’s roll-off waste went to other landfills, particularly Ransbottom. One LDS driver, Tony Tuell, was primarily responsible for hauling roll-off waste from Dalton.
135
Mr. Tuell has not been located or
*1512
deposed. Posey Lester, who occasionally hauled Dalton’s roll-off waste in place of Mr. Tuell,
136
testified that he hauled Dalton’s roll-off waste to both Ransbottom and the Site.
137
Mr. Lester went to the Site only during the Shambaugh era, but, even then, he hauled most of Dalton’s roll-off waste to Ransbottom.
138
Paul Phillipy also hauled Dalton roll-off waste to both Ransbottom and the Site.
139
Don Conley stated that he may have hauled one or two Dalton roll-offs
140
; half the loads Mr. Conley hauled for LDS went to other landfills.
141
Robert Call also hauled Dalton roll-offs — half went to Ransbottom and half went to the Site.
142
Alan Regenos hauled Dalton roll-offs to the Site.
143
No documents or records indicate that any particular load of roll-off waste was taken from Dalton to the Site.
The plaintiffs misinterpret the record regarding Dalton’s waste hauled by LDS. The plaintiffs contend that Dalton’s waste contained foundry sand, metal grindings, broken cores, oils, and other wastes.
144
Contrary to the plaintiffs’ assertion,
145
foundry sand that was used for floor sweeping was not disposed of in the waste hauled by LDS. Mr. Warren testified that the foundry sand “was generally put in hoppers and taken outside with the scrap sand or broken cores.”
146
Mr. Warren also testified that, to his knowledge, the foundry sand was not disposed of in the LDS hoppers.
147
Mr. Warren merely speculated that it was “possible” that foundry sand could have been placed in the LDS hoppers.
148
The record shows that plant floor sweepings were disposed of in “tilt” hoppers, which were dumped into a concrete bunker and later hauled by Ruse Construction.
149
Thus, if the plant floor sweepings contained foundry sand, the foundry sand would have been disposed in the concrete bunker.
150
Mr. Regenos testified that “floor sweepings” were contained in the Dalton roll-offs that he hauled,
151
but this testimony is consistent with Mr. Warren’s testimony that Dalton had janitors who swept the office floor and disposed of the office floor sweepings in the containers hauled by LDS.
152
Nothing in the record establishes that the floor sweepings observed by Mr. Regenos were “plant” floor sweepings from the manufacturing area rather than general office floor sweepings. The evidence is unchallenged that only office floor sweepings, not plant floor sweepings, were hauled by LDS to the Site.
153
The plaintiffs have presented no evidence from which a factfinder could find that Dalton office floor sweepings contained hazardous substances.
The foundry sand collected in bag house filters contained particulates from the grinding area. These bag house filters were disposed of in the roll-offs hauled by LDS, but Dalton changed and disposed of the bag
*1513
house filters only once each year.
154
Given this infrequent disposal, the plaintiffs cannot prove by a preponderance of the evidence that the bag house filters were hauled to the Site rather than to another area landfill.
The plaintiffs strive to show that LDS hauled broken cores to the Site.
155
The plaintiffs rely on the deposition testimony of three LDS drivers, Mr. Phillipy, Mr. Call, and Mr. Tillman, but none of these drivers testified that they hauled broken cores to the Site. It seems that Mr. Phillipy confused “broken molds” with the dust and grindings he expected to encounter in any roll-off container.
156
Mr. Call never referred to broken molds in the portion of his deposition cited by the plaintiffs.
157
Likewise, Mr. Tillman never referred to broken molds; he described a powder or dust in the roll-off waste.
158
Dalton does not dispute that used oil filters occasionally were disposed of in the roll-off waste, but, like the bag house filters, the plaintiffs have presented no evidence to show that the used oil filters more likely than not were disposed of at the Site rather than another landfill. In any event, the plaintiffs have not carried their burden of proving by a preponderance of the evidence that the used oil filters contained hazardous substances.
The plaintiffs contend that paint, used paint brushes, paint thinners, and paint buckets were disposed of in the roll-off waste hauled by LDS, but have not come forth with sufficient evidence to support this contention. First, the plaintiffs erroneously claim that Mr. Warren testified regarding “paint thinners”. Mr. Warren’s testimony was that he recalled seeing “empty cans of paint thinner” in the containers to be hauled by LDS;
159
empty cans do not contain hazardous substances. Second, Mr. Bice and Mr. Fraley did not testify that paint brushes or paint cans were disposed of in containers hauled by LDS.
160
Rather, Mr. Bice testified that he did not recall how the paint buckets were discarded,
161
and Mr. Regenos merely speculated that “maybe an old paint bucket” was contained in the roll-offs.
162
Thus, the plaintiffs have not come forth with evidence to support an inference that such materials were disposed of in the roll-off containers hauled by LDS.
The plaintiffs’ contention that LDS hauled rust-proofing paints and solvents is not supported by the evidence (nor by the testimony cited by the plaintiffs). Neither Mr. Fraley, Mr. Corbett, nor Mr. Rawlings testified that rust-proofing paints were disposed of in containers hauled by LDS.
163
Neither Mr. Rawlings, Mr. Fraley, nor Mr. Warren testified that any solvents were disposed of in waste hauled by LDS. Mr. Fraley merely testified that Dalton purchased trichloroethylene and kerosene.
164
Mr. Rawlings testified that solvents dripped onto the floor, were swept up, and disposed in the concrete pits.
165
Those concrete pits were disposed of by Ruse Construction.
166
The plaintiffs have not established that LDS hauled rust-proofing paint and solvents.
Even assuming an occasional Dalton roll-off contained hazardous substances from used oil filters, batteries, dry bag house filters, and empty containers of household type cleaners, the plaintiffs cannot establish that particular roll-off more likely than not went to the Site rather than to another area landfill. At best, Dalton waste was disposed of at the Site half of the time. This is not the consistent and predictable waste stream that
*1514
supports an inference that it is more likely than not that such materials were disposed of at the Site. Something more was needed to show that Dalton generated hazardous substances that were disposed of at the Site. Nothing more was presented.
Accordingly, Dalton’s motion for summary judgment should be granted.
D. GTE North, Inc.
GTE North, Inc. (“GTE”) operated several Northern Indiana facilities — in North Manchester, Mentone, Bippus, Wabash, Silver Lake, and Atwood — from July 1973 through December 1978. Those facilities provided telephone service, stored new telephone equipment, and even maintained vehicles. LDS provided services to the facilities when Mr. Shambaugh operated LDS and the Site. GTE operated a fleet garage in North Manchester, which serviced GTE vehicles. The fleet garage and North Manchester office shared a common dumpster, which LDS serviced. LDS provided only compactor truck services, with the exception of the roll-off services provided to the Mentone and Bippus offices when they were under construction.
GTE contends it is entitled to summary judgment because the plaintiffs have no evidence that any GTE waste was disposed of the Site, and the uncontradieted evidence establishes that GTE’s waste was not a hazardous substance. GTE contends that its waste was disposed only at the Spring Valley Landfill.
Mr. Shambaugh testified that GTE’s waste was hauled not to Lakeland, but to the Spring Valley Landfill. No LDS books or records contradict this testimony; none of the books or records indicate whether any particular load of GTE waste was disposed of at the Site. LDS books and records establish merely that GTE was a general trash customer. Although Mr. Shambaugh stated that the Site may have been the closest landfill to GTE’s facilities in Atwood, Men-tone, and Silver Lake, he was uncertain about the approximate locations of those GTE facilities and had no recollection of serving those facilities.
167
LDS driver Posey Lester also testified that GTE waste went to the Spring Valley Landfill. Mr. Lester stated that “[o]nce in a while” and “occasionally” someone named “Bob”
168
would haul a load from the Manchester route to the Site.
169
Mr. Lester testified that “[a]ll Wabash trash went to Spring Valley.”
170
This only occurred when the LDS truck needed a maintenance job.
171
Mr. Lester had no recollection that he ever hauled GTE waste.
172
Similarly, other LDS drivers — Richard Fruit, Larry Tillman, Robert Call, and Paul Phillipy — did not recall ever hauling GTE waste. Two LDS drivers, Donald Conley and Allen Regenos, testified that they never hauled any GTE waste. Mr. Call and Mr. Phillipy both testified that they had no knowledge that GTE hauled its own waste to the Site.
GTE’s general dumpster trash consisted of ordinary office and business trash, including paper, empty janitorial supply and building maintenance containers, floor sweepings, discarded paint cans, paint stir sticks and brushes, used filters for heating and cooling units, empty oil and grease containers, empty solvent containers, and rags saturated with solvent, vinyl floor tiles, plastic bags with epoxy residue, paint thinner containers, adhesive containers, used generator oil filters, used oil filters, empty oil cans, used fuel filters, oil, metal containers for brake fluid and fluid residue, degreaser containers, small used auto parts (such as spark plugs, shock absorbers, and fan belts), used light bulbs, and cartridge ballasts. Only the Wabash Main and North Manchester facilities had a
*1515
generator,
173
so all used generator oil filters were disposed of in the dumpster at either Wabash Main or North Manchester.
174
Each generator required two filters; GTE changed the four filters only once each year.
175
The majority of these types of waste was disposed of exclusively at the Wabash facility. All discarded paint materials — paint cans, paint stir sticks and brushes, and paint thinner cans — from all GTE facilities in the Northern Indiana area were disposed of in the Wabash facility’s dumpster.
176
Likewise, most empty solvent containers, rags saturated with solvents, and containers of degreaser, were disposed of at the Wabash facility.
177
Adhesive containers all were disposed of at the Wabash facility.
178
The plastic bags with epoxy residue were kept at the Wabash facility.
179
However, all vehicle maintenance waste (other than lubricants) — drained oil filters, empty oil cans, drained fuel filters, brake fluid cans, aerosol cans, and brake cleaner cans — was disposed of exclusively at the automotive waste dumpster at the North Manchester fleet garage.
180
GTE disposed of its central office back-up storage batteries, vehicle maintenance lubricant wastes, scrap wire, and metals in drums or dumpsters that were separate from those which contained GTE’s general trash; contractors other than LDS hauled those wastes. GTE collected all used phones and phone parts from the Wabash area and sent them to the GTE Fort Wayne office for repair.
That LDS hauled GTE waste does not prove that any GTE waste was disposed of at the Site.
B.F. Goodrich v. Murtha,
815 F.Supp. 539 , 544^5 (D.Conn.1993). The sole evidence in the record to suggest that any GTE waste was disposed of at the Site is the deposition testimony of LDS driver Paul Phillipy, who testified that “[o]nce in a while” and “occasionally” when an LDS truck needed a maintenance job, a driver named “Bob” would haul a load from the Manchester route to the Site. Waste hauled from the North Manchester facility would have contained general business and office trash, and occasionally would contain used filters for heating and cooling units, vinyl floor tiles, and vehicle maintenance waste.
181
Any inference that the occasional load of waste hauled from the Manchester area to the Site contained GTE waste would not be a reasonable inference. No evidence even suggests that the waste load hauled on occasion when the LDS truck needed maintenance contained any GTE waste. Assuming that the waste hauled when the LDS truck needed maintenance contained GTE waste, no evidence suggests that particular GTE waste would actually have contained used oil filters, vinyl floor tiles, or vehicle maintenance waste.
The plaintiffs have neither presented direct evidence that any GTE waste was disposed of at the Site nor shown a steady and predictable stream of hazardous waste taken to the Site. The plaintiffs have presented only a mere scintilla of evidence to support their claim against GTE, which is not sufficient to withstand GTE’s motion for summary judgment.
Anderson v. Liberty Lobby, Inc.,
477 U.S, 242, 106 S.Ct. 2505 , 91 L.Ed.2d 202 (1986).
To find for the plaintiffs, a factfinder would have to infer, first, that Robert Call, who has no recollection of ever hauling GTE waste, disposed of GTE waste at the Site when his truck occasionally needed servicing when he was hauling waste on the Manchester route; second, that GTE waste from the North Manchester facility occasionally contained hazardous substances; and third, that the GTE waste that was hauled from the North Manchester facility on the particular occasion
*1516
the truck needed servicing contained hazardous substances. Such an a chain of inferences would be impermissible speculation based on conjecture.
GTE is entitled to summary judgment.
E. Huber, Hunt & Nichols, Inc.
Huber, Hunt & Nichols, Inc. (“Huber Hunt”) contends that it is entitled to summary judgment because the plaintiffs have not presented evidence to establish, first, that Huber Hunt disposed of any hazardous substances, and, second, that Huber Hunt sent any hazardous substances to the Site.
Huber Hunt is a construction firm that contracted with Kosciusko County to construct a new hospital in Warsaw, Indiana from June 1974 to July 1976. LDS provided dumpsters at the hospital construction site and hauled away the trash and debris deposited in the dumpsters. The evidence shows that not all of the construction site trash was disposed of at the Site. No LDS driver, other than possibly Robert Call, has any recollection that the trash hauled from the construction site was anything other than general construction trash.
Almost all receipts, ledger sheets, and invoices establish merely that LDS hauled waste from the hospital construction site, and do not indicate the location to which the waste was hauled. The only document that specifically states where hospital waste was disposed of indicates that the waste went to the Custer Landfill, rather than to the Site. The parties dispute the precise number of times LDS provided hauling service and the volume of waste hauled, but these issues are not material to Huber Hunt’s motion for summary judgment that relates solely to CERCLA liability, and not to damages.
The plaintiffs argue that the deposition testimony of Robert Call and Robert Richards (Huber Hunt’s project superintendent at the hospital construction site) shows that Huber Hunt’s waste contained such hazardous substances as discarded paint cans, paint stir-sticks and paint brushes, vinyl composite flooring tile, discarded containers of tile adhesive, and five gallon buckets containing roofing tar. The court’s copies of those depositions apparently differ from the copies on which the plaintiffs rely.
182
Mr. Richards expressly stated that no empty paint cans (also referred to as buckets) were discarded at the construction site,
183
and that the painter put the paint cans back in his car.
184
Mr. Richards could not recall whether the painter used paint stir-sticks,
185
but stated that the painter “put everything” in his vehicle and took it with him, including such painting supplies as paint brushes.
186
When asked whether some of the vinyl floor tile ended up being discarded, Mr. Richards stated, “It could be.”
187
When asked whether containers of adhesive were discarded at the construction site, Mr. Richards answered that “you wouldn’t see a bucket in that dumpster.”
188
*1517
The plaintiffs contend that Robert Call recalled seeing paint cans in the dumpster and “that five gallon buckets containing roofing tar, and shingles and tar paper were discarded at the construction site.”
189
The court cannot find such testimony in Mr. CaH’s deposition. Mr. Call remembered that the roll-offs contained “miscellaneous trash, wood, paper, [and] five-gallon buckets. It was just miscellaneous trash.”
190
Mr. Call could not remember seeing any paint cans in the roll-offs.
191
The plaintiffs also argue that Mr. Call recalled “that five gallon buckets containing roofing tar, and shingles and tar paper were discarded at the construction site.”
192
Mr. Call stated that the five-gallon buckets were basically empty, and that some of the buckets were open, some were closed.
193
Mr. Call added that “it looked like a tarry substance” was contained in the five-gallon buckets.
194
Huber Hunt does not dispute that Mr. Call mentioned seeing shingles and tar paper, but Huber Hunt challenges Mr. Call’s testimony on the ground that he has not identified the type of shingles or roof tar. Mr. Call’s testimony as to shingles is contradicted by that of Mr. Richards, who indicated that no shingles were used on the hospital roof.
195
Huber Hunt contends that Mr. Call’s testimony as to the contents of the five-gallon buckets is inadmissible speculation because there is nothing to indicate that Mr. Call had personal knowledge regarding the contents of the buckets or that he is competent to testify as to the contents.
Even if it is assumed that the plaintiffs have presented evidence that Huber Hunt generated some hazardous substances, Huber Hunt must prevail because the plaintiffs have not produced any evidence to show that those hazardous substances were disposed at the Site. Mr. Smith’s affidavit is insufficient evidence to establish this issue; Mr. Smith expressly stated that he has assumed that at least some waste containing hazardous substances was taken from Huber Hunt to the Site.
196
At best, the evidence is sufficient to show that some Huber Hunt waste went to the Site; the evidence does not support an inference that it is more likely than not that any of Huber Hunt’s waste taken to the Site contained hazardous substances. Mr. Call initially testified that about 75%-80% of the “Kosciusko County Hospital project wastes” were hauled to the Site,
197
but later recanted his testimony and said that he could not remember “without guessing” how many roll-offs he took to the Site or the Packerton site.
198
Although the summary judgment stage is not the time to weigh evidence, it is noteworthy that Mr. Call even recanted his testimony concerning the number of times he picked up trash at the construction site.
199
The plaintiffs quote Don Conley’s testimony that he remembered hauling general construction trash from the hospital construction site to the Site,
200
but Mr. Conley stated that he was uncertain whether he remembered hauling trash from the hospital to the Site or to Ransbottom.
201
At best, Mr. Conley’s testimony establishes that he hauled some of Huber Hunt’s trash to the Site, but does not support a finding that he hauled waste containing hazardous substances to the Site. That LDS hauled Huber Hunt’s waste proves neither the character nor the deposit site of
*1518
that waste.
See B.F. Goodrich v. Murtha,
815 F.Supp. at 544-545 .
With all reasonable inferences in the plaintiffs’ favor, the most the evidence shows is that Huber Hunt may have generated some waste containing hazardous substances, and that some of Huber Hunt’s waste was taken to the Site, but it does not necessarily follow that the waste actually taken to the Site contained hazardous substances,
see B.F. Goodrich v. Murtha,
815 F.Supp. at 544-545 . The evidence is insufficient to bridge the two material issues; the plaintiffs have not shown that any of Huber Hunt’s waste taken to the Site was the same waste that contained hazardous substances. Therefore, the plaintiffs cannot establish that Huber Hunt is liable under CERCLA, and Huber Hunt is entitled to summary judgment on the issue whether it is hable as a CERCLA responsible party.
Huber Hunt is entitled to summary judgment.
F. K-Mart Corporation
K-Mart Corporation (“K-Mart”) has operated a general merchandise retail store in Warsaw, Indiana since May 6, 1976. The Warsaw store generated solid waste, consisting of construction trash, packaging debris (cardboard, plastic, styrofoam, and paper), restaurant waste, light fixtures, damaged merchandise, metal counters, paint cans and paint wastes, tin cans, carburetor cleaner, and hangers. The Warsaw store’s waste was collected and placed in a dumpster or roll-off compactor for pickup by the solid waste hauler. From July 1, 1973 through 1978, LDS picked up, hauled, and disposed of the Warsaw Store’s waste. Some, but not all, of this waste was disposed of at the Site; LDS disposed of K-Mart waste at four or more different landfills.
202
Posey Lester, an LDS driver who picked up the Warsaw Store’s solid waste and delivered it to the Site, testified that the waste included “[c]lothes, shoes, electric blankets, games, stuff like that, cardboard ... [and] trash, too.”
203
Beginning on February 27, 1975, K-Mart operated a general merchandise retail store in Wabash, Indiana. Like the Warsaw store, the Wabash store generated solid waste consisting of construction trash, packaging debris (cardboard, plastic, styrofoam, and paper), restaurant waste, light fixtures, damaged merchandise, metal counters, paint cans and paint wastes, tin cans, carburetor cleaner, and hangers. The Wabash store’s waste was. collected and placed in a roll-off dumpster or compactor for pickup by the solid waste hauler.
The Wabash store was not a customer of LDS; rather, Sposeep & Sons, Inc. (“Sposeep & Sons”) provided hauling and disposal service for the Wabash store from the opening of the store on February 27, 1975 through the end of 1978,
204
and disposed of all the Wabash store’s waste at the Spring Valley Landfill.
205
Additionally, the Wabash store had an automobile service center (“Wabash Auto Center”) that generated non-reeyclable solid waste and recyclable solid waste. The waste generated from the Wabash Auto Center was segregated, in a separate container, from the waste generated by the Wabash store’s general merchandise retail operations. Wabash Auto Center’s non-recyclable solid waste included oil, brake, coolant, and transmission fluid containers and residues, drained oil filters and transmission filters, brake springs and hardware, exhaust system parts, used
*1519
shock absorbers,'used spark plugs, oily towels, and degreaser residues. Wabash Auto Center’s non-recyelable waste was collected and placed in an automotive dumpster for pickup by a waste hauler.
LDS hauled and disposed of Wabash Auto Center’s nonreeyelable waste from July 1973 through the end of 1978. LDS hauled the non-recyclable waste to the Spring Valley Landfill; nonreeyelable waste was not disposed of at the Site.
Wabash Auto Center’s recyclable solid waste included scrap tires, used automotive batteries, certain brake parts, used oil and transmission fluid, and used coolants. Salvageable automotive metal parts were collected and picked up by recyclers. Used oil and brake fluid was collected and stored in an underground tank, to be picked up by recyclers. Used coolant was collected and stored in 55-gallon drums to be picked up by recyclers. Brake shoes and batteries were collected and returned to their respective suppliers. Scrap tires were collected and picked up by a recycler. LDS did not haul or dispose of Wabash Auto Center’s recyclable materials.
K-Mart contends that it is entitled to summary judgment on all claims asserted by the plaintiffs for two reasons: (1) the plaintiffs have presented no direct evidence that any K-Mart waste known to have been disposed of at the Site contained a hazardous substance; and (2) the plaintiffs have not presented any evidence that any K-Mart waste that may have contained a hazardous substance was disposed of at the Site.
K-Mart contends evidence that its waste was disposed of at the Site is insufficient to support a conclusion that K-Mart disposed of a hazardous substance at the Site. K-Mart asserts that the plaintiffs must present specific evidence of disposal of a known hazardous substance at the Site to establish K-Mart’s liability.
See, e.g., United States v. Atlas Minerals & Chemicals, Inc.,
No. 91-5118, 1993 WL 518421 , at *2 (E.D.Pa. Dec. 7, 1993) (“Absent some evidence on the actual composition of Kleinert’s waste beyond mere speculation [affidavit containing an expert opinion about the composition of Kleinert’s office waste based upon knowledge of what office waste generally contains] as to what ‘office waste’ would likely contain ... summary judgment is unavoidable.”);
B.F. Goodrich v. Murtha,
840 F.Supp. 180 (D.Conn.1993);
B.F. Goodrich v. Murtha,
815 F.Supp. 539 (D.Conn.1993);
Barnes Landfill v. Town of Highland,
802 F.Supp. 1087 , 1088 n. 2 (S.D.N.Y.1992) (“[T]here should be some indication that a particular defendant contributed hazardous waste, not merely waste, to the landfill.”).
The plaintiffs contend that wastes containing hazardous substances from both the Wabash and Warsaw stores were disposed of at the Site during the time period from July 1, 1973 through December 31, 1978. The plaintiffs rely on LDS invoices and accounts receivable records, as well as the testimony of former LDS employees and current K-Mart employees, regarding K-Mart’s waste practices. As stated in
B.F. Goodrich v. Murtha,
815 F.Supp. at 544-45 , evidence that K-Mart did business with LDS “proves neither the quantity, the character nor the deposit site of waste.” Therefore, LDS invoices and accounts receivable records do not establish that K-Mart disposed of hazardous waste at the Site.
The plaintiffs have not established that any K-Mart waste disposed of at the Site contained any specific hazardous substances. The only K-Mart waste identified at the Site consisted of clothes, shoes, electric blankets, games, cardboard, and other trash, none of which is a hazardous substance under CERCLA § 101(14).
See, e.g., B.F. Goodrich v. Murtha,
815 F.Supp. at 545-46 (“The absence of evidence of breakdown of products that contain HS [hazardous substances] and the absence of identification of the product as a HS [hazardous substance] by the EPA precludes a finding that disposal of that product constitutes disposal of HS [hazardous substances].”). When asked whether he could identify any of the items that would have been in the waste taken from the Wabash store to the Site, Mr. Call answered, “I don’t think anybody can do that,” and added, “[C]an I say did I take [a] particular load? I
*1520
can’t say that.”
206
The plaintiffs’ failure to identify any hazardous substances in the K-Mart waste disposed of at the Site dooms the plaintiffs’ claim against K-Mart.
United States v. Atlas Minerals & Chem.,
No. 91-5118, 1993 WL 518421 , at *2;
B.F. Goodrich v. Murtha,
815 F.Supp. at 545 ;
Barnes Landfill v. Town of Highland,
802 F.Supp. at 1088 . For the plaintiffs to prevail, the court must accept a string of inferences: “that
some
hazardous substance
may
have found its way into a K-Mart dumpster, and that dumpster load
may
have found its way to the Site.”
207
As the court in
Barnes Landfill v. Town of Highland
reasoned:
A showing of concrete facts supporting the CERCLA claims should be required before allowing this ease to go forward, in order to assure that there is some factual basis for having initiated the litigation. Because of the importance of environmental protection ... it is particularly crucial that judicial intervention be founded on adequate factual allegations.
802 F.Supp. at 1088-1089 .
The plaintiffs’ claims against K-Mart must fail for a second independent reason: the plaintiffs have not presented evidence that K-Mart generated or disposed of hazardous substances. Assuming that K-Mart’s waste contained paint cans, carburetor cleaner, and “bug bombs”, as stated by Robert Call,
208
the plaintiffs’ evidence is insufficient to prove that K-Mart disposed of hazardous substances. First, paint cans are not
per se
hazardous substances.
See Gallagher v. T.V. Spano Bldg. Corp.,
805 F.Supp. 1120, 1126-1128 (D.Del.1992) (holding that disposal of construction debris, including empty paint cans, did not constitute disposal of hazardous substances). The plaintiffs’ failure to identify the specific carburetor cleaner and “bug bombs” used, as well as their failure to identify the constituent elements of the specific carburetor cleaner and “bug bombs”, prevents a finding that K-Mart disposed of hazardous substances.
See B.F. Goodrich v. Murtha,
840 F.Supp. at 184 ;
B.F. Goodrich v. Murtha,
815 F.Supp. at 545 ;
United States v. Serafini,
750 F.Supp. 168, 171 (M.D.Pa.1990).
Second, that K-Mart’s waste may have contained paint cans, carburetor cleaner, and bug bombs does not compel a finding that the K-Mart waste disposed of at the Site contained any of those items.
The plaintiffs rely almost exclusively on the inconsistent deposition testimony of Robert Call to create a genuine issue of material fact. The court has the discretion to disregard implausible claims.
City Environmental, Inc. v. United States Chemical Co.,
814 F.Supp. 624, 632 (E.D.Mich.1993). A nonmoving party must present more persuasive evidence in support of an implausible claim to avoid summary judgment.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 , 106 S.Ct. 1348, 1356 , 89 L.Ed.2d 538 (1986).
Mr. Call was employed by LDS only during the period that David Lindsay owned LDS. Mr. Lindsay unequivocally testified that LDS did not go to Wabash for any customers.
209
Mr. Call could not identify any particular load of waste from the Warsaw store that had been delivered to the Site. Mr. Call’s testimony about what he saw in the Wabash waste is implausible. Mr. Call stated that the Wabash Store waste contained “clothes, cosmetics, food, wood, paper, paint cans,”
210
but the undisputed testimony is that LDS picked up the Wabash Auto Center waste, not waste from the general store.
211
The undisputed testimony further establishes that the waste from the Wabash store and Wabash Auto Center were corn
*1521
pletely segregated.
212
Mr. Call incorrectly identified the LDS employee who accompanied him to K-Mart. The plaintiffs have no evidence to corroborate Mr. Call’s testimony.
Even if Mr. Call's deposition testimony is credited, his testimony does not rebut K-Mart’s explanation of how hazardous waste was segregated from the trash LDS hauled. Likewise, the plaintiffs’ failure to identify the specific damaged merchandise allegedly discarded into the waste, as well as the constituents of that damaged merchandise hauled by LDS, prevents a finding that K-Mart disposed of hazardous substances. Defective merchandise was returned, to the vendor; damaged merchandise was sold at a reduced price. Non-salvageable leaking paint cans were donated to a homeless shelter. The plaintiffs alleged that various items, such as water-based paint, coolants, and automobile related fluids, would likely contain hazardous substances, but the evidence is that most (if not all) of these items were contained in plastic, cardboard, or metal containers unlikely to break while in a store. Mr. Lester’s observations were consistent with K-Mart’s explanation, and Mr. Call testified that while he saw other things, he could not identify any specific K-Mart waste item.
Further, there is no evidence that K-Mart waste was taken to the Site as opposed to Spring Valley, although Mr. Call conceded that anything is possible. The plaintiffs ask the court to assume, without evidence, first that K-Mart disposed of a particular product; second, that product contained a particular hazardous substance; and third, that the product was disposed at the Site. The plaintiffs need to provide evidence of actual disposal of K-Mart waste containing an identified hazardous substance that is similar to a hazardous substance identified at the Site. Beeause the plaintiffs have not presented such evidence, K-Mart is entitled to summary judgment.
Accordingly, K-Mart’s motion for summary judgment must be granted.
G. Liberty Homes, Inc.
Liberty Homes, Inc. (“Liberty”) is a mobile home manufacturer that operates a plant in Syracuse, Indiana. Liberty was a roll-off customer of LDS for a few months beginning in April 1978. Mr. Shambaugh testified that no Liberty waste was disposed of at the Site,
213
and that the Site was closed during the summer of 1978.
214
LDS picked up waste from Liberty on an “on-call” basis rather than on a regular schedule.
215
None of the drivers for LDS when Liberty was a customer recall disposing of Liberty waste at the Site.
216
No Liberty representatives have any personal knowledge of where LDS hauled Liberty’s waste.
217
Liberty contends that the plaintiffs have failed to present evidence sufficient to support a finding that any of Liberty’s waste was disposed at the Site, or that Liberty disposed of any hazardous substances at the Site.
Again, the deposition testimony to which the plaintiffs cite in an effort to create a genuine issue of material fact seems to be missing from the court’s copy of the record. Although the plaintiffs allege that Robert Lantz
218
stated that “he had no evidence that Liberty’s waste transported by LDS was disposed of at any location except at the Lake-land Landfill,”
219
Mr. Lantz actually stated that he had no personal knowledge of where Liberty’s waste was transported.
220
Although the plaintiffs allege that Paul Phillipy testified that he “frequently hauled
*1522
roll-offs and compactor containers from Liberty ... of which he believes approximately 10% was disposed of at the Lakeland Landfill,”
221
Mr. Phillipy actually testified that he disposed of Liberty’s waste at Scott’s Landfill.
222
Mr. Phillipy added that “it might be on a rare occasion that a guy’s out a little late and he can’t dump at these other landfills because they’re closed ... so he might take it on back and ... and dump it at Lakeland.”
223
The plaintiffs assert that Posey Lester testified that he “hauled Liberty wastes, including containers of glue, which he thought may have been transported to the Lakeland Landfill,”
224
and that Donald Conley stated that “he hauled roll-offs from Liberty several times per week, and that some of these wastes were disposed of at the Lakeland Landfill.”
225
In reality, both Mr. Lester and Mr. Conley testified only that “it is possible” that Liberty’s waste “could have” gone to Lakeland, but that “most” went to Scott’s.
226
Both Mr. Lester and Mr. Conley specifically stated that they could not recall taking Liberty waste to Lakeland.
227
The plaintiffs also rely on the deposition testimony of Robert Call to establish that Liberty waste was disposed of at the Site, but Mr. Call testified that he only worked for LDS during the Lindsay era, and that he last worked for LDS in 1975. Liberty was not a customer of LDS until 1978; even the plaintiffs concede that LDS hauled waste for Liberty only during 1978. Thus, Mr. Call would have no knowledge of whether Liberty’s waste was disposed of at the Site.
The cases cited by the plaintiffs,
Arizona v. Motorola, Inc.,
774 F.Supp. 566 (D.Ariz.1991),
Massachusetts v. Blackstone Valley Elec. Co., 808
F.Supp. 912 (D.Mass.1992), and
United States v. New Castle County,
769 F.Supp. 591 (D.Del.1991), do not support the plaintiffs’ contention that they have presented sufficient evidence that Liberty disposed of waste at the Site. In those cases, drivers for the waste hauler (as well as the facility’s owner in
Motorola)
testified that they disposed of the defendants’ waste at the CERCLA facility.
See Arizona v. Motorola,
774 F.Supp. at 576 ;
Massachusetts v. Blackstone Valley,
808 F.Supp. at 915 ;
United States v. New Castle County,
769 F.Supp. at 599 . The defendant in
Blackstone Valley,
808 F.Supp. at 915 , did not dispute that its waste was taken to the
facility, and the
defendant in
Motorola,
774 F.Supp. at 575 , admitted that its waste was disposed of at the facility. In contrast, Liberty has not admitted, but rather disputes, the plaintiffs’ allegation that any of its waste was disposed of at the Site. The LDS drivers did not recall disposing of Liberty’s waste at the Site.
No other evidence establishes that Liberty’s waste was disposed of at the Site; the evidence shows that the contrary is true. That LDS provided roll-off services to Liberty for a few months in 1978 does not compel the conclusion that Liberty’s waste was disposed of at the Site. Importantly, the Site was closed shortly after Liberty first became a customer of LDS. Mr. Shambaugh, then owner of LDS, testified that no Liberty waste was taken to the Site. Therefore, the plaintiffs have not come forward with evidence that Liberty waste was disposed of at the Site.
The plaintiffs rely on the deposition testimony of LDS drivers and former Liberty employees, as well as Mr. Smith’s affidavit, to support their allegation that Liberty generated waste containing hazardous substances and that LDS hauled that waste on some occasions. Assuming these facts to be true, the plaintiffs cannot survive summary judgment. Mere generation of waste containing hazardous substances is not sufficient to prove that hazardous substances were dis
*1523
posed of at a particular site.
B.F. Goodrich v. Murtha,
815 F.Supp. 539, 544 (D.Conn.1993). That LDS may have hauled loads of waste containing hazardous substances does not prove that such waste was disposed of at the Site. 815 F.Supp. at 544 — 45. That Liberty may have generated hazardous substances is inconsequential because the plaintiffs have not provided the necessary connection between any hazardous substances and the Site. Thus, the plaintiffs have not established that LDS hauled any Liberty waste containing hazardous substances to the Site.
Liberty is entitled to summary judgment.
H. R.R. Donnelley & Sons Company, Inc.
R.R. Donnelley & Sons Company, Inc. (“Donnelley”) contends that the plaintiffs have failed to present evidence that could establish that Donnelley disposed of any hazardous substances at the Site.
Donnelley operates a printing facility in Warsaw, Indiana. Donnelley generated a waste ink and solvent mixture which was drummed for off-site disposal.
228
Debra Woodward described the mixture as a “multicolored sludge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1376294. Public record. Not legal advice.