The opinion of the court was delivered by: Levy, United States Magistrate Judge:
Plaintiff City of New York ("plaintiff" or the "City") moves for partial summary judgment against defendant Robert R. Crawford ("defendant" or "Crawford").*fn1 This matter is before me on consent of the parties, pursuant to 28 U.S.C. § 636. For the reasons set forth below, the motion is denied.
Crawford was the owner and CEO of New York Cross Harbor Railroad Terminal Corporation ("Cross Harbor") from 1989 to 1999. (Declaration of Daniel Greene, Esq., dated Aug. 22, 2005 ("Greene Decl."), ¶ 2.) During a voluntary investigation in 1997 and 1998, City consultants discovered contamination at the First Avenue Yard, an approximately 13-acre railroad yard located within the Bush Terminal Complex ("Bush Terminal"), a 200-acre waterfront industrial property in Sunset Park, Brooklyn. (Greene Decl. ¶¶ 2, 3, 4.) The City alleges that Crawford is responsible for the contamination, in that he knowingly allowed chemical drums, rail ties, and other waste to be buried and/or improperly disposed of at the First Avenue Yard. (Greene Decl. ¶ 2; see also Second Amended Complaint, dated Mar. 18, 2005, ¶¶ 1, 2, 18-21.)
By way of background, Bush Terminal was originally developed in 1895 and was privately owned until the City began purchasing parcels of the property in 1965. (Greene Decl. ¶ 3.) In the years since, the City (originally through the New York City Department of Ports and Terminals ("Ports and Terminals") and now through the New York City Economic Development Corporation ("EDC")), has leased parcels of Bush Terminal to various industrial tenants. (Id.) In 1971, the City purchased the First Avenue Yard for approximately 1.8 million dollars, and beginning on September 1, 1983, the City leased the First Avenue Yard to Cross Harbor for "railroad, floatbridge, and intermodal terminal purposes." (Id. ¶ 5.) Cross Harbor replaced the previous tenant, New York Dock Railway ("New York Dock"), and purchased all of New York Dock's assets at the First Avenue Yard (id. ¶ 4, Ex. C.), which has been used for freight railroad operations since at least 1905. (Id. ¶ 4.) Cross Harbor originally entered into a one-year lease for the First Avenue Yard, which consists of a switching yard for rail cars, eight rail tracks, an administrative building, and a roundhouse used for equipment maintenance. (Id. ¶¶ 4, 5.) Cross Harbor's occupancy permit was extended to a month-to-month tenancy in 1985, and Cross Harbor continues to carry out operations at the First Avenue Yard to this day. (Id. ¶ 5.)
Cross Harbor's original chief corporate officer was Frank Dayton, who had previously worked for New York Dock. (See Ex. C.) However, in January 1989, Crawford, together with other investors, assumed ownership of eighty percent of Cross Harbor's outstanding stock and took control of the company's assets, operations and debt. (Affidavit of Robert R. Crawford, sworn to Sept. 26, 2005 ("Crawford Aff."), ¶ 7.) On January 27, 1989, Crawford was elected Cross Harbor's Chairman and CEO. (Pl.'s Ex. I.) Frank Dayton stayed on as the company's president until approximately April 1995.*fn3
In June 1992, Cross Harbor entered into an agreement with a company called Merco Joint Venture ("Merco"), a shipper of dewatered sewerage waste, to use Cross Harbor's rail yard for its transport operations. (Crawford Aff. ¶ 15; Pl.'s Ex. L.) In preparation for Merco's arrival, Cross Harbor conducted renovations at the site, including asphalt repaving. (Crawford Aff. ¶ 15.) In addition, according to Crawford, "fill was needed to raise the Bush rail yard property level to above the 500 year flood level as directed by the NYS [Department of Environmental Conservation] license specifications requirements." (Crawford Aff. ¶ 44.) Merco began its transport operations shortly thereafter. (Id. ¶ 15.) In 1993, Cross Harbor entered into a contract with a waste oil hauler called Safety Clean. (Deposition of Robert Crawford, dated July 31, 2002 ("Crawford Dep.") at 85, 131-32.)
In approximately 1997, the City hired a company called Valid Construction ("Valid") to remove two underground petroleum storage tanks at the First Avenue Yard. (Affidavit of James Peronto, sworn to Aug. 19, 2005 ("Peronto Aff."), ¶ 6.) During the removal, Valid discovered significant concentrations of chlordane in the soil*fn4 and was told by persons working in the vicinity that chemical drums were buried in the area. (Id.) Upon discovering the presence of chlordane and receiving reports of buried drums, Valid performed a preliminary geophysical survey that identified two suspected locations of possible drum burials. (Id. ¶ 7.) Valid then hired a company called Ballard Engineering Consulting ("BEC") to conduct a subsurface soil boring investigation at the site. (Id.) In December 1997, the EDC hired TRC Environmental Corporation ("TRC") to oversee BEC's subsurface investigation, which consisted of drilling twenty soil borings in the First Avenue Yard. (Id. ¶¶ 6, 8.) Based on the results of that investigation, the EDC asked TRC to conduct further investigations at the First Avenue Yard, which TRC did in May, June, and September 1998. (Id. ¶ 9.)
TRC first conducted a geophysical survey, which confirmed the presence of geophysical anomalies, primarily in three large areas. (Id. ¶ 10.) TRC then retained a contractor to excavate test pits at those locations and collect soil samples. (Id. ¶ 11.) At a depth of one foot, the excavations uncovered a large amount of debris, including wood, railroad ties, concrete, crushed drums, and other solid waste. (Id. ¶ 12.) Soil samples taken at a depth of eight feet revealed pesticide contamination and the presence of polynuclear aromatic hydrocarbons ("PAHs").*fn5 (Id.) Further excavations led to the discovery of 18 crushed drums, several of which had what appeared to be puncture holes, as well as 7 drum lids and 11 drum fragments. (Id.) In addition, TRC found buried wooden rail ties, railroad switching equipment and remnants of a box truck intermixed with waste and other debris. One of the box truck parts bore a New York State Department of Finance State Highway Use Tax ("HUT") sticker bearing the number K19382. (Id. ¶ 15.) Documents obtained from the New York State Department of Taxation and Finance indicate that a box truck bearing that permit number was destroyed in a fire outside the First Avenue Yard on January 23, 1989. (Pl.'s Ex. LL.)
TRC continued its excavation activities, uncovering, among other things, pesticide and PAH-contaminated soil. (Peronto Aff. ¶ 16.) TRC's soil samples indicated the presence of several pesticides, including chlordane, as well as elevated levels of semivolatile organic compounds ("SVOCs"), consisting primarily of PAHs. (Id. ¶ 17.) In sum, TRC's investigation led to the excavation of approximately 1,818 tons of contaminated soil and other debris at the First Avenue Yard. (Id. ¶ 19.)
Crawford stepped down as a director and Chairman of the Board in January 1999. He and his family members continue to maintain their equity holdings in Cross Harbor but no longer participate in the company's administration or management. (Crawford Aff. ¶ 18.)
In the spring of 2001, TRC conducted a follow-up investigation of the First Avenue Yard, which included geophysical surveys, test pit excavations, and soil sampling. (Peronto Aff. ¶ 22.) That investigation uncovered wooden railroad ties, metal debris, and contaminated soils, plus four buried crushed 55-gallon drums. (Id. ¶¶ 24, 25.) Soil sample testing revealed the presence of volatile organic compounds, elevated levels of acetone, elevated levels of SVOCs, consisting primarily of PAHs, and elevated levels of several metals. (Id. ¶ 27.) Low levels of pesticides and PCBs were also detected in soil samples from three test pits. (Id.)
Crawford denies having had any involvement in or knowledge of the burial of hazardous waste at the First Avenue Yard. (Crawford Aff. ¶¶ 3, 19.) He states that, at the time of the alleged incidents, he "was not involved in rail yard operations" (id. ¶ 20), but rather was "the financial man" and, as an engineer, "would be brought into the technical engineering aspects." (Id. ¶ 23.)
A. Summary Judgment Standard
The City seeks summary judgment on liability for eight of the causes of action set forth against Crawford in its Second Amended Complaint. (Memorandum of Law in Support of Plaintiff City of New York's Motion for Partial Summary Judgment on Issues of Liability ("City Mem.") at 2.) Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and decide only whether there is any genuine issue to be tried. Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). A genuine factual issue exists if, taking into account the burdens of production and proof that would be required at trial, there is sufficient evidence favoring the non-movant such that a reasonable jury could return a verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To avoid summary judgment, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 582 (1986). Likewise, speculative and conclusory allegations are insufficient to defeat a motion for summary judgment. Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir. 1995).
Moreover, it is well-settled that "[o]n a motion for summary judgment, the court is not to weigh the evidence, or assess the credibility of the witnesses, or resolve issues of fact, but only to determine whether there are issues to be tried." United States v. Rem, 38 F.3d 634, 644 (2d Cir. 1994) ("Resolutions of credibility conflicts and choices between conflicting versions of the facts are matters for the jury, not for the court on summary judgment."). "'Where an issue as to a material fact cannot be resolved without observation of the demeanor of witnesses in order to evaluate their credibility, summary judgment is not appropriate.'" Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, Vol. 10A, § 2726 (quoting Advisory Committee Notes to 1963 amendment of Rule 56(e)).
The City asserts a claim against Crawford pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601, et seq. Congress passed CERCLA on December 11, 1980 "to provide for liability, compensation, cleanup, and emergency response to hazardous substances released into the environment." United States v. Reilly Tar and Chem. Corp., 546 F. Supp. 1100, 1111 (D. Minn. 1982). Congress's expansive goal in establishing CERCLA's strict liability scheme was to place the financial burdens of hazardous waste cleanups on the responsible parties. Id. (describing one of CERCLA's most important goals as making "those responsible for problems caused by the disposal of chemical poisons bear the costs and responsibility for remedying the harmful conditions they created"); see also S. Rep. No. 96-848, 96th Cong., 2d Sess. 33 (1980) (CERCLA's strict liability scheme is intended "to assure that the costs of injuries resulting from defective or hazardous substances are borne by the persons who create such risks rather than by the injured partes who are powerless to protect themselves"); Pennsylvania v. Union Gas Co., 491 U.S. 1, 21 (1989) ("The remedy that Congress felt it needed in CERCLA is sweeping: everyone who is potentially responsible for hazardous-waste contamination may be forced to contribute to the costs of cleanup") (Brennan, J., plurality opinion), overruled on other grounds, Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).
To establish a prima facie case of CERCLA liability under § 107(a),*fn6 a plaintiff must prove that (A) the site in question is a "facility," (B) a release or threatened release of a hazardous substance has occurred, (C) the release or threatened release has caused the plaintiff to incur certain response costs, and (D) the defendant in question is a responsible person. 42 U.S.C. § 9601 (1994). In keeping with CERCLA's broad remedial purpose, there are four categories of potentially responsible persons ("PRPs")*fn7 : (1) the current owners and operators of a vessel or of a facility, (2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of, (3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and (4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance. 42 U.S.C. § 9607(a) (1994). PRPs are held strictly liable for necessary cleanup costs "incurred by any other person consistent with the national contingency plan." 42 U.S.C. § 9607(a)(4)(B).
The City's CERCLA claim against Crawford is predicated on a theory of past operator liability. The Supreme Court has defined "operator" as follows:
[A]n operator is simply one who directs the workings of, manages, or conducts the affairs of a facility. To sharpen the definition for purposes of CERCLA's concern with environmental contamination, an operator must manage, direct, or conduct operations specifically related to pollution, that is, operations having to do with the leakage or disposal of hazardous waste, or decisions about compliance with environmental regulations.
United States v. Bestfoods, 524 U.S. 51, 66-67 (1998) (emphasis added). The Court in Bestfoods further explained that, "when [Congress] used the verb 'to operate,' . . . the statute obviously meant something more than mere mechanical activation of pumps and valves, and must be read to contemplate 'operation' as including the exercise of direction over the facility's activities." Bestfoods, 524 U.S. at 71.
Although the Supreme Court's decision in Bestfoods established the general standard for holding a party directly liable as an operator under CERCLA, the determination of which factual scenarios will justify such liability has been left to the lower courts. In remanding to the Sixth Circuit, with instructions to return the case to the district court for further proceedings, the Court declined to set forth specific guidelines for exactly how much control a party must exhibit before liability will be imposed, and which factors should be considered. See, e.g., United States v. Township of Brighton, 153 F.3d 307, 312-15 (6th Cir. 1998) (three judges disagreeing on the requisite level of control required, citing Bestfoods' lack of factors to consider). One thing, however, is clear: before one can be considered an "operator" for CERCLA purposes, "one must perform affirmative acts." Township of Brighton, 153 F.3d at 314. The failure to act, even when coupled with the ability or authority to do so, cannot make a person or entity into an operator. Id. After operator liability is established, however, a party is equally liable for omissions as for affirmative acts. See id. at 315. Moreover, "the imposition of operator liability does not require a finding that the [defendant] directly participated in the day-today activities at the hazardous waste facility." United States v. Kayser-Roth Corp., 103 F. Supp. 2d 74, 82 (D.R.I. 2000), aff'd, 272 F.3d 89 (1st Cir. 2001). Rather, Bestfoods recognizes that operator liability may be imposed when one generally controls the management of operations having to do with the leakage or disposal of hazardous wastes or decisions about compliance with environmental regulations. Id.
Crawford does not challenge the First Avenue Yard's status as a "facility" within the meaning of § 107(a) or deny that the City has incurred response costs as a result of a release of hazardous substances at the site.*fn8 The parties' dispute centers on whether there is sufficient evidence to demonstrate that Crawford was an "operator" of the First Avenue site at the time hazardous substances were released there. Crawford denies having had any knowledge of contamination at the First Avenue Yard. (See Crawford Dep. at 159-61.) He avers that he was involved with Cross Harbor's financing and business prospects, but was unfamiliar with the actual operation and management of the railroad. (Crawford Aff. ¶ 9; Crawford Dep. at 85.) He states that he relied on others, including Frank Dayton, to operate the railroad and performed none of its day-to-day functions. (Crawford Aff. ¶ 20.)
The City alleges that Cross Harbor engaged in a number of instances of illegal dumping at the First Avenue Yard, during which Crawford was an operator of the site. The City's evidence consists primarily of Cross Harbor documents and the deposition testimony of three individuals: Raymond Aufiero, Cross Harbor's maintenance foreperson from 1987 through 1996; Dominick Massa, whose company, Harborside Management, leased warehouses next to the First Avenue Yard and managed utilities at the First Avenue Yard; and Graviel Baez, a welder employed by Cross Harbor from 1993 through 1997.
Aufiero testified that when he first arrived at Cross Harbor in 1987, prior to Crawford's involvement in the company, there were two drums containing creosol, as well as "probably" fifty other barrels, stored at the site. (Deposition of Raymond Aufiero, dated Feb. 27, 2003 and May 14, 2003 ("Aufiero Dep."), City of New York Ex. G., at 56-57.) He also recalled seeing the word "chlordane" on one or two drums at the site. (Id. at 112.) Aufiero did not know what, if anything, the remaining barrels contained, but he did recall that all of the drums were removed from the property at some point, and that the removal took place over the course of a week. (Id. at 58.) Aufiero could not recall exactly when the removal occurred, but he stated that "the barrels were disappearing just around the time [Cross Harbor was] bringing in a new customer, Merco [ ], and everything was getting cleaned up, before they got there." (Id. at 59.) He said, "They were talking about this customer coming in and they wanted to have the yard that was just adjacent to the offices and they wanted to get it all cleaned up and, you know, that's what they did. They got it all cleaned up." (Id.) He stated that he had no direct knowledge of any drums being buried at the First Avenue Yard. (Id. at 113.)
Much of Aufiero's testimony concerned the activities of Crawford's son, Bruce Crawford, who worked at the First Avenue Yard.*fn9
According to Aufiero, Bruce Crawford was heavily involved in all of Cross Harbor's operations, from sales to the "day-to-day operations . . . in the shop." (Id. at 41.) Aufiero said that, by 1997, Bruce Crawford "knew how to do everything, run a train, everything" (id. at 224) and "would do physical work or clerical work, whatever was needed at the time." (Id. at 244.)
Among the equipment Cross Harbor owned was a large yellow pettibone speed swing, referred to by Cross Harbor's employees as "Bertha." (Id. at 44.) Aufiero testified that a speed swing is "an articulated bulldozer" with an hydraulic arm, a plow shovel, and the capacity for all four wheels to turn. (Id. at 46.) According to Aufiero, Bruce Crawford knew how to operate the pettibone, and did so often in the course of the company's operations. (Id. at 50-51.) In fact, Aufiero testified that he twice witnessed Bruce Crawford using "Bertha" to bury rail ties. On one occasion, Aufiero was standing outside, near the office, when he allegedly saw Bruce Crawford using the yellow pettibone to bury "maybe" ten ties in a large hole. (Id. at 67-69, 71.) He could not recall when this happened, but he remembered that "the Crawfords were in charge at the time." (Id. at 67.) Aufiero testified that he never told anyone about this, but ...