area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located . . . ." 42 U.S.C. § 9601(9).
12. While "operate" or "operator" are not defined in the statute, courts have focused on the degree of control exercised over a facility in construing these terms. E.g., United States v. Northeastern Pharmaceutical & Chem. Co., 810 F.2d 726, 743 (8th Cir. 1986), cert. denied, 484 U.S. 848, 108 S. Ct. 146, 98 L. Ed. 2d 102 (1988). There appears to be direct and circumstantial evidence suggesting that defendants possessed the requisite control to qualify as "operators" under the statute. Plaintiff maintains that Pioneer, Textile and Chemclene not only delivered TCE to Hunter Spring, but that they also transferred the TCE from tank trunks to the TCE storage tank, and that in carrying out the delivery operation exercised control over the handling of the TCE and over activities at the place where TCE came to be stored. On this point there exists a genuine issue of material fact.
13. "Release" is defined by the statute as "any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment. . . ." 42 U.S.C. § 9601(22).
14. Whether or not releases of TCE occurred constitutes a genuine issue of material fact. There is evidence based on soil and groundwater sampling that there were very high concentrations of TCE at varying depths beneath and around the TCE storage tank and pad as well as in the grassy area west of the tank pad. Plaintiff is prepared to offer expert opinion testimony to the effect that the soil contamination found beneath the storage tank came from a discharge or several discharges of TCE onto the ground around the tank. There is further circumstantial evidence that the TCE contamination in the grassy area occurred during the period when defendant Chemclene was the sole supplier of TCE to the Hunter Spring site.
15. The term "disposal" is defined as "the discharge, deposit, injection, dumping, spilling, leaking, or placing of any . . . hazardous waste into or on any land or water so that such . . . hazardous waste . . . may enter the environment . . . ." 42 U.S.C. § 9601(29); 42 U.S.C. § 6903(3).
16. Whether disposals of TCE occurred during defendants' tank filling operations poses a genuine issue of material fact. There is circumstantial evidence suggesting that defendants "disposed of," i.e., discharged, TCE during their TCE tank filling operations. When Ametek purchased the Hunter Spring site in the 1960s, it was farmland. Ametek had only one storage tank for TCE, which was purchased and installed in 1975. Between 1980 and 1986 Pioneer and defendants Textile and Chemclene supplied bulk TCE to Ametek. TCE was removed from the storage tank for utilization by Ametek in its manufacturing processes through a closed system. There were no leakages in the tank and adjacent pipe. As noted at para. 14, supra, there is in addition circumstantial evidence that the TCE contamination in the grassy area occurred during the period when defendant Chemclene was the sole supplier of TCE to the Hunter Spring site.
17. Plaintiff contends that defendant Coyne is liable under 42 U.S.C. § 9607(a) as Pioneer's successor-in-interest. In the face of statutory silence on the issue, the traditional common law test for successor liability has been held to apply in suits brought under CERCLA. See, e.g., United States v. Vertac Chemical Corp., 671 F. Supp. 595, 614 (E.D.Ark. 1987).
18. The purchaser of a company's assets does not assume the liabilities of the seller unless: (1) there is an express or implied agreement on the purchaser's part to assume the seller's obligations; (2) the transaction amounts to a de facto merger of the seller and purchaser; (3) the purchasing corporation is merely a continuation of the selling corporation; or (4) the transaction is entered into fraudulently to escape liability. Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303, 308-09 (3d Cir. 1985). Plaintiff contends that Coyne is liable because the asset sale amounted to a de facto merger of Pioneer and Coyne.
19. In determining whether a transaction constitutes a de facto merger, courts look to the following factors: (a) there is a continuation of the enterprise of the seller, so that there is continuity of management, personnel, physical location, assets, and general business operations; (b) there is a continuity of shareholders which results from the purchaser paying for the acquired assets with shares of its own stock, this stock ultimately coming to be held by the shareholders of the seller so that they become a constituent part of the purchasing corporation; (c) the seller ceases its ordinary business operations, liquidates, and dissolves as soon as legally and practically possible; (d) the purchaser assumes those obligations of the seller ordinarily necessary for the uninterrupted continuation of normal business operations of the seller. Philadelphia Elec. Co. v. Hercules, Inc., 762 F.2d 303, 310 (3d Cir. 1985).
20. There is circumstantial evidence suggesting that there was a continuation of Pioneer's enterprise following the sale and that Pioneer had a contingent stake (like an equitable interest in profits less certain obligations) in its former business. Under the circumstances, I will defer this issue to trial.
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