Halliburton Energy Services, Inc. v. NL Industries 648 F. Supp. 2d 840

648 F. Supp. 2d 840

HALLIBURTON ENERGY SERVICES, INC., et al., Plaintiffs, v. NL INDUSTRIES, et al., Defendants. Tre Management Company, Plaintiffs, v. Georgia-Pacific Corporation, et al., Defendants.

Civil Action Nos. H-05-4160, H-06-3504.

United States District Court, S.D. Texas, Houston Division.

Aug. 18, 2009.

*842Donald Everett Godwin, Bruce W. Bowman, Jr., James E. Johanns, Jenny Lanell Martinez, Robert Alan York, Godwin Ronquillo PC, Dallas, TX, for Plaintiffs.

Joel L. Herz, Law Office of Joel Herz, Tucson, AZ, Russell Hardin, Jr., Rusty Hardin and Associates, J. Douglas Sutter, Kelly Sutter et al Joe W. Redden, Jr., Robert David Daniel, Beck Redden & Sec-rest LLP Houston, TX, for Defendants.

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, District Judge.

This opinion addresses motions for partial summary judgment filed by Georgia-Pacific Corporation (“Georgia-Pacific”) and Milwhite Inc. (“Milwhite”). Georgia-Pacific and Milwhite assert that, as a matter of law, they are not liable to Halliburton Energy Services, Inc. (“HESI”) and DII Industries, LLC (“DU”) (together, “Halliburton”), or to each other, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),1 or under the Arkansas Remedial Action Trust Fund Act (RATFA).2 The parties filed lengthy briefs and a large record, and this court heard oral argument on the motions.

Based on the pleadings, the motions and briefs, the record, the arguments, and the applicable law, this court rules as follows:

• Georgia-Pacific’s motion for partial summary judgment, (Docket Entry No. 189), is denied.
• Milwhite’s motion for partial summary judgment, (Docket Entry No. 228), is denied.
• Halliburton’s related motion for leave to file supplemental evidence in opposition to Georgia-Pacific’s motion for *843summary judgment, (Docket Entry No. 332), is also denied.
Milwhite’s motion to supplement its summary judgment motion, (Docket Entry No. 363), is granted.

The reasons for these rulings are explained below. A scheduling conference is set for September 18, 2009, at 10:00 a.m., to set deadlines for the work needed to resolve this ease.

I. Factual and Procedural Background

This court’s July 2006 Memorandum and Opinion set out the relevant background in detail. Only a summary is provided here. Briefly, Halliburton filed this suit in 2005 against the Tremont Parties — NL Industries, Inc. (“NL”),3 Tremont, LLC (“Tremont”), TRE Holding Corporation (“TRE Holding”), and TRE Management Company (“TRE Management”) — and against MI, L.L.C. (“M-I”), Milwhite, and Georgia-Pacific. Halliburton filed this suit after entering into an Administrative Settlement Agreement in 2000 (“Administrative Settlement”) and a Consent Administrative Order in 2003 (“Consent Order”) with the Arkansas Department of Environmental Quality (“ADEQ”). Halliburton seeks to recover the money it spent investigating and remediating environmental contamination near the towns of Magnet Cove and Malvern, Arkansas (the “Site”). The Site consists of approximately 600 acres located north of Magnet Cove, Arkansas, situated in Sections 10,11,14, and 15 of Township 3 South, Range 17 West in Hot Spring County.4

The Site was used for barite ore mining and milling by the Baroid Sales Division of NL and by Magnet Cove Barium Corporation (“Magcobar”).5 (See Docket Entry No. 189, Ex. 2 at 1; id, Ex. 3 at ES-1). According to the Consent Order, “[n]o mining activity has been conducted at the Site since 1977.” (Id., Ex. 2 at 1). A Site Investigation Report prepared for Halliburton and TRE Management states that “[a]ll mining or milling activity at the Site had ceased by 1982.” (Docket Entry No. 189, Ex. 3 at ES-1). The mining produced a large open pit, (id, Ex. 2 at 1), as well as “a number of piles of mining spoils of unknown acreage ...,” (id, Ex. 1 at 1). According to the Consent Order, “[s]ubsequent to the cessation of mining activities at the Site, the mine pit began to fill with water.” (Id., Ex. 2 at 1). The pit “now *844forms a lake (‘Pit Lake’) that is approximately 90 acres in surface area and more than 400 feet deep at the deepest point.” (Id., Ex. 2 at 1). Some of the water in the Pit Lake “may pass over or through certain of the mining spoil piles.” (Id., Ex. 1 at 2). “The water in the Pit Lake has a low pH and contains dissolved metals and minerals.” (Docket Entry No. 189, Ex. 2 at 1). The Consent Order states that without remedial action, “the Pit Lake will overflow in the near future and release untreated water into Chamberlain Creek and subsequently into other downstream waters to which Chamberlain Creek is a tributary.” (Id., Ex. 2 at 1).

In 1988, NL entered into a restructuring plan (the “1988 Plan”). The 1988 Plan stated that NL was a holding company that conducted it operations through its wholly owned subsidiaries NL Chemicals, Inc. (“NLC”) and Baroid Energy Services, Inc. (“Baroid Energy Services”). NLC owned and operated NL’s titanium and dioxide pigments and specialty chemicals businesses, principally through subsidiaries. Baroid Energy Services owned and operated NL’s petroleum services business, principally through subsidiaries. Through the 1988 Plan and related agreements, NL spun off Baroid Energy Services into a separate publicly traded company, first called NL Petroleum Services, Inc. (“NLPS”) and later called Baroid Corporation (“Old Baroid”). Through a related Amended and Restated Formation Agreement, NL agreed to transfer to Old Baroid all assets related to the petroleum services business or to Titanium Metals Corporation of America (“TMCA”), including the outstanding shares of TMCA capital stock and the subsidiaries engaged in NL’s petroleum services business.

Another restructuring followed in 1990. Under the 1990 Plan, Old Baroid split its titanium and bentonite business from its “Petroleum Services Business.” The 1990 Plan stated that “[NL] has heretofore indirectly owned and operated its petroleum services operations (the ‘Petroleum Services Business’) principally through its subsidiaries ....” Under the 1990 Plan, Old Baroid agreed to assign to a new entity called New Baroid Corporation (“New Baroid”) its properties and assets attributable to its Petroleum Services Business, defined as the “Petroleum Services Assets,” and its properties and assets attributable to its bentonite mining operations (the “Bentonite Business”), defined as the “Bentonite Assets.” New Baroid agreed to assume the liabilities and obligations of Old Baroid arising out of or attributable to the past, present, or future ownership or operations of the Petroleum Services Business, defined as “Petroleum Services Obligations.” Through a series of transactions, the Bentonite Business was transferred back to Old Baroid. Ultimately, Old Baroid retained both its titanium metals operations, defined as the “Titanium Business,” and its Bentonite Business. New Baroid retained the Petroleum Services Business. New Baroid is a predecessor of Halliburton. Old Baroid is a predecessor of the Tremont Parties.

Under the 2000 Administrative Settlement with the ADEQ, HESI, TRE Management, and M-I agreed to investigate the Site condition, submit a report to the ADEQ, and do a feasibility study on ways to remediate the environmental contamination. (See Docket Entry No. 189, Ex. 1). In the meantime, HESI, TRE Management, and M-I had to perform “Interim Remedial Measures” under the Administrative Settlement. (Id., Ex. 1 at 2-4). Under the May 2003 Consent Order, TRE Management and HESI constructed and paid for a water-treatment system for the Pit Lake. (See id., Ex. 2 at 1-2).

In April 2005, TRE Management and HESI entered into a Cost Sharing, Coop*845eration, and Final Allocation Process Agreement (the “2005 Cost Sharing Agreement”). (Id., Ex. 6). This Agreement included a procedure to allow the parties to cooperate in continuing to fund the response and remediation costs for the Site, “allocating on an interim basis.” (Id., Ex. 6 at 1-2, 13-14). The 2005 Cost Sharing Agreement also set out a procedure for the parties to reach a “Final Allocation” of “their and others’ respective shares of such past, present, and future costs, expenses, liabilities, settlements, recoveries, or unpaid shares relating to the Site .... ” (Id., Ex. 6 at 2, 6-9). The 2005 Cost Sharing Agreement defined “Final Allocation” as a “full, final, and binding apportionment among the Parties to the Agreement,” by agreement or by arbitration, of defined categories of costs, including future costs. (Docket Entry No. 189, Ex. 6 at 6). Under the 2005 Cost Sharing Agreement, if mediation did not result in “Final Allocation,” the parties would participate in binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association and the Federal Arbitration Act. (Id., Ex. 6 at 7).

The 2005 Cost Sharing Agreement recognized that there could be both arbitration among the signatories to the 2005 Cost Sharing Agreement and litigation with nonsignatories to resolve contribution disputes. The 2005 Cost Sharing Agreement set out limits on the admissibility in arbitration of any “order, judgment, decree, or decision of any court in any contribution litigation under CERCLA or RAT-FA involving one or more Parties to this Agreement that allocates to the Parties responsibility, fair share, or liability relating to the Site .... ” (Id., Ex. 6 at 10). Under the Agreement, the result of such contribution litigation

shall be ineffective, invalid, and of no force and effect as between the Parties and shall not be used or admissible as evidence in the Final Allocation Process by any Party or against any Party for any purpose other than establishing the amount of liability that has been finally allocated to non-Parties. All allocation of responsibility, fair share, or liability relating to the Site as between the Parties, and all issues or disputes between the Parties relating to whether a cost or expense is a Shared Cost, the reasonableness of any cost or expense to be allocated in the Final Allocation, and the allocability or collectibility of any cost or expenses under CERCLA or RATFA, shall be determined in the Final Allocation Process pursuant to this Agreement without reference to, or consideration of, any arguments made or conclusions reached in any such contribution litigation.

(Id., Ex. 6 at 10-11). Georgia-Pacific and Milwhite were not signatories to the 2005 Cost Sharing Agreement.

In late 2005, Halliburton filed this suit against the Tremont Parties as prior owners and operators of the Site when hazardous substances were released or as successors-in-interest to such owners or operators. Halliburton also sued Georgia-Pacific as a prior owner of property at the Site, and Milwhite as a prior owner and operator. Halliburton asserted cost-recovery and contribution claims under CERCLA, 42 U.S.C. §§ 9607(a) and 9613(f)(3)(B), contribution claims under RATFA, ArkCode Ann. § 8-7-520, and a right to recover response and remediation costs under a state common-law unjust enrichment cause of action. Halliburton also sought a declaratory judgment that the defendants were liable for future response and remediation costs at the Site and that Tremont was obligated to indemnify Halliburton for these costs under the contracts used to restructure the corporate predecessors-in-interest. Georgia-Pacific and Milwhite counterclaimed against Halliburton and crossclaimed against each *846other and against their codefendants, the Tremont Parties, seeking contribution and indemnity.

On December 27, 2005, a few weeks after this lawsuit was filed, TRE Management — which was also a party to the 2000 Administrative Settlement Agreement and the 2003 Consent Order — sued Georgia-Pacific in the federal district court for the Western District of Arkansas, where the Site is located. In that suit, TRE Management sought contribution under CERCLA and RATFA for Georgia-Pacific’s “proportionate share of all costs and expenses TRE Management has incurred and will continue to incur in performing removal actions and remedial actions at the Site.” (Docket Entry No. 38, Ex. E at 7-8).

In March 2006, after this lawsuit and the Arkansas lawsuit had been filed, Halliburton and the Tremont Parties entered into an agreement expanding the entities consenting to arbitrate the allocation of response and remediation costs at the Site. In this 2006 Arbitration Agreement, the parties agreed to “resolve through binding arbitration all claims between them related to the allocation of response and remediation costs incurred or to be incurred at the Site including the claims that have been asserted in the Texas Case or such claims that may be asserted in the Arkansas Case.” (Docket Entry No. 189, Ex. 7 at 2). The arbitration was to be conducted in accordance with certain paragraphs of the 2005 Cost Sharing Agreement, including the provisions on related contribution litigation with nonsignatories. (See id., Ex. 7 at 2). Georgia-Pacific and Milwhite were not parties to this Arbitration Agreement and did not participate in the arbitration.

The arbitration between Halliburton and the Tremont Parties was conducted in two phases and resulted in two awards. The panel allocated response costs between the parties to the arbitration, declining to “assess any liability to entities which are not signatories to the Cost Sharing Agreement,” (id., Ex. 9 at 34), including Georgia-Pacific and Milwhite. The arbitration panel allocated all response costs at the Site to Halliburton. This court confirmed the arbitration awards on March 31, 2008, and later entered final judgment under Federal Rule of Civil Procedure 54(b) on the claims resolved in the arbitration. Halliburton appealed the order confirming the awards and the final judgment on the confirmation order. The Fifth Circuit affirmed.

Georgia-Pacific seeks partial summary judgment that it is not liable to reimburse Halliburton for any of the response costs associated with the Site, past or future. Georgia-Pacific argues that it did not conduct mining or mine-waste disposal activities at the Site and was fully indemnified for such activities conducted by others on its property under leases that it signed. (See id. at 3). For similar reasons, Georgia-Pacific also moves for summary judgment dismissing Milwhite’s cross-claim. (Id.). Georgia-Pacific also seeks summary judgment dismissing Halliburton’s unjust enrichment claim under Arkansas law. (Id. at 3-4). Halliburton has opposed the motion. (Docket Entry No. 218).

Milwhite responded to Georgia-Pacific’s motion by stating that the primary purpose of the crossclaim “is that if Milwhite is found liable in any degree and the possible circumstance in which Georgia Pacific is responsible for any of [Halliburton’s] damages, then Milwhite would be entitled to contribution and/or indemnity.” (Docket Entry No. 213 at 2). Milwhite argues that neither it nor Georgia-Pacific is liable to Halliburton. “Should the Court decide that Georgia-Pacific does not have any liability in this matter, then Milwhite in turn, would not be entitled to any indemnity or contribution from Georgia-Pacific.” (Id.). Georgia-Pacific has stipulated that *847it seeks no relief against the Tremont Parties in its motion for partial summary judgment and that the Tremont Parties need not respond. (Docket Entry No. 215).

Like Georgia-Pacific, Milwhite seeks summary judgment that it is not liable to reimburse Halliburton for past or future response costs associated with the Site, arguing that there is no evidence that Mil-white conducted mining or mine-waste disposal activities at the Site. (Docket Entry No. 228 at 3^4). For similar reasons, Milwhite moves for summary judgment denying Georgia-Pacific’s cross-claim and denying Halliburton’s claim for unjust enrichment. (Id. at 4). Halliburton has opposed the motion. (Docket Entry No. 233). Milwhite is not seeking relief against the Tremont Parties in its motion. (Docket Entry No. 232).

II. The Legal Standards

A. Summary Judgment

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “The movant bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir.2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).

If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial burden by “ ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325, 106 S.Ct. 2548. While the party moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005) (citation omitted). “ ‘A fact is ‘material’ if its resolution in favor of one party might affect the outcome of the lawsuit under governing law.’ ” Sossamon v. Lone Star State of Texas, 560 F.3d 316, 326 (5th Cir.2009) (quoting Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir.2000) (per curiam)), petition for cert. filed, 77 U.S.L.W. 3657 (U.S. May 22, 2009) (No. 08-1438). “ ‘If the moving party fails to meet [its] initial burden, the motion [for summary judgment] must be denied, regardless of the nonmovant’s response.’ ” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir.2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc)).

When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant must identify specific evidence in the record and articulate how that evidence supports that party’s claim. See Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir.2007) (citation omitted). “This burden will not be satisfied by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence.’ ” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the light most favorable to the nonmoving party. Deville v. Marcantel, 567 F.3d 156, 163-64 (5th Cir.2009) (per curiam) (citing Hockman v. Westward Commc’ns, LLC, 407 F.3d 317, 325 (5th Cir.2004)).

B. CERCLA Liability

Congress enacted CERCLA in 1980 in response to environmental and health dangers posed by property contamination from hazardous substances. See United States v. Bestfoods, 524 U.S. 51, 55, *848118 S.Ct. 1876, 141 L.Ed.2d 43 (1998) (citing Exxon Corp. v. Hunt, 475 U.S. 355, 106 S.Ct. 1103, 89 L.Ed.2d 364 (1986)). The statute was amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), Pub.L. No. 99-499, 100 Stat. 1613. CERCLA’s “broad, remedial purpose is to facilitate the prompt cleanup of hazardous waste sites and to shift the cost of environmental response from the taxpayers to the parties who benefitted from the wastes that caused the harm.” OHM Remediation Servs. v. Evans Cooperage Co., 116 F.3d 1574, 1578 (5th Cir.1997) (citing Matter of Bell Petroleum Servs., Inc., 3 F.3d 889, 894 (5th Cir.1993)). Section 107(a)(4) states that “covered persons” are liable for costs incurred by the federal or state government or Indian tribes in responding to the contamination and for response costs incurred by “any other person.” 42 U.S.C. § 9607(a)(4)(A)-(B). Two contribution provisions, sections 113(f)(1) and 113(f)(3)(B), were added later, as part of SARA. Because CERCLA imposes strict liability, plaintiffs generally do not need to prove that the defendant caused the contamination, only that the defendant is a “covered person.” OHM Remediation Servs., 116 F.3d at 1578 (citing United States v. Alcan Aluminum Corp., 990 F.2d 711, 721 (2d Cir.1993)). If the harm is indivisible, liability is joint and several. Id. at 1579 (citing Bell Petroleum, 3 F.3d at 903).

Section 107(a) identifies four categories of “covered persons” who may be liable for cleanup costs associated with the release or threatened release of hazardous substances. See 42 U.S.C. § 9607(a). “Covered persons” are: (1) owners and operators of facilities at which hazardous substances are located; (2) past owners and operators of such facilities at the time that disposal of hazardous substances occurred; (3) persons who arranged for disposal or treatment of hazardous substances; and (4) certain transporters of hazardous substances. See 42 U.S.C. § 9607(a)(l)-(4). “Covered persons” are also referred to as “potentially responsible parties” or “PRPs.” See Alfred R. Light, Cercla Law and Procedure 94 (BNA Books 1991) (“Under CERCLA, a person becomes a potentially responsible party by becoming an owner or operator at the time of disposal or the time of a response action, by arranging for treatment or disposal of substances that are sent to a facility, or transporting substances to the site that it selected for disposal.”). Unless a statutory defense or exclusion applies, covered persons are liable for “all costs of removal or remedial action incurred by the United States Government or a State or an Indian tribe not inconsistent with the national contingency plan,” “any other necessary costs of response incurred by any other person consistent with the national contingency plan,” “damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release,” and “the costs of any health assessment or health effects study carried out under section 9604© ....” 42 U.S.C. § 9607(a).

Section 113, added in 1986 as part of SARA, contains the following subsection entitled “Contribution”:

Any person may seek contribution from any other person who is liable or potentially liable under [section 107(a) ], during or following any civil action under [sections 106 or 107(a) ] .... In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate. Nothing in this subsection shall diminish the right of any person to bring an action for contribution in the absence of a civil action under [sections 106 or 107].

42 U.S.C. § 9613(f)(1). “ ‘[I]n enacting the contribution section, Congress also con*849templated the 100% shifting of responsibility, by way of indemnification, should the facts so warrant.’ Section 113(f)(1) thus permits a court to deny contribution based on ‘equitable factors.’ ” Light, supra, at 147 (footnotes omitted).

III. Georgia-Pacific’s Motion for Partial Summary Judgment

Georgia-Pacific contends that it should not be held responsible for response costs at the Site because: it no longer owns property at the Site; it never owned property at the Site on which Magcobar or its successors conducted mining, ore-processing, or waste-disposal activities; and there is no evidence that it released any pollutant that necessitated the remediation and response efforts at the Site. (Docket Entry No. 208 at 2). Georgia-Pacific or its predecessor, Malvern Lumber Company (“Malvern Lumber”), leased property to NL or its predecessor. (Id.). According to Georgia-Pacific, all the leases contained indemnity clauses requiring NL to assume liability arising from activities that the leases permitted NL to conduct on the leased property. (Id.). Georgia-Pacific argues that “[t]aken together, (1) the indemnity provisions of the leases and (2) the absence of any physical connection between Georgia-Pacific and the contamination being remediated at the Site are dispositive equitable factors that should preclude statutory recovery against Georgia-Pacific.” (Id. at 3). Georgia-Pacific also argues that Halliburton’s unjust enrichment claim is precluded because the leases explicitly allocated responsibility for aetivities on property Georgia-Pacific owned at the Site and because Georgia-Pacific will not receive anything of value as a result of the environmental response. (Id.).

A. Factual Background Relevant to Georgia-Pacific’s Motion

The following lease agreements are central to Georgia-Pacific’s motion:

• The Mining Lease. Malvern Lumber, a predecessor of Georgia-Pacific, leased the southwest 1/4 of the northeast 1/4 of Section 15 to H.A. Neustaedter in December 1939, for purposes of mining and waste disposal. (See Docket Entry No. 189, Ex. 10). Neustaedter assigned the lessee’s rights and obligations under this lease to NL in 1940. (Id., Ex. 11 at 1). This lease was subsequently amended several times. (See id., Exs. 12, 13, 14, and 15). In 1969, Georgia-Pacific acquired all of the stock of Malvern Lumber, and all of Malvern Lumber’s real estate within the Site was conveyed to Georgia-Pacific. (See id., Exs. 16, 17). Georgia-Pacific and NL executed another amendment to this lease on March 10, 1972, which included an indemnity provision providing that “Lessee [NL] agrees that it will indemnify, defend, protect, hold and save harmless the Lessor [Georgia-Pacific] from and against any claims, loss, liability, attorney’s fees, costs or any other expense arising out of or resulting from any injury, loss or damage to persons or property in, on or about the demised premises.”6 (Id., Ex. 18 at 3). Geor*850gia-Pacifie states that under this lease, “NL dug the southwest corner of the mining pit deep into this tract, piled mining spoils around the pit, and constructed tailings ponds to dispose of mining wastes.” (Docket Entry No. 208 at 6 (citing Docket Entry No. 189, Exs. 3, 5)).
• The 1946 Waste Disposal Lease. Malvern Lumber leased, among other tracts, the north 1/2 and the southeast 1/4 of the southwest 1/4 (except for three acres in the southeast corner previously acquired for a Powder House site) of Section 11 to NL for “the sole purpose of disposal of refuse and waste from [NL’s] mining operations ...” in July 1946. (Docket Entry No. 189, Ex. 19 at 1). The lease had a term of twenty-five years, with NL retaining the option to renew for five additional terms of five years each, and provided for the payment by NL of annual rental fees. (Id., Ex. 19 at 1, 2). The lease contained an indemnity provision stating that “Lessee covenants and agrees that it will indemnify and save harmless Lessor against any claims for damage either to person or property that may be asserted by third parties on account of Lessor’s occupancy or operations on said Lands.” (Id., Ex. 19 at 2). As with the Mining Lease, Malvern Lumber conveyed the 1946 Waste Disposal Lease to Georgia-Pacific in 1969. (Id., Ex. 17). NL extended this lease through at least June 1991. (Id., Ex. 20). Based on an exhibit attached to the expert report of Dr. Daniel B. Stephens, one of Halliburton’s experts in the arbitration, some piles of mining spoils deposited by NL on the adjacent tract within Section 11 — the southwest 1/4 of the southwest 1/4 of Section 11 — may have extended into the tract described in the 1946 Waste Disposal Lease.7 (See id., Ex. 5 at 1).
• The 1947 Waste Disposal Lease. In January 1947, Malvern Lumber leased the northwest ten acres of the southeast 1/4 of the northeast 1/4 of Section 15 to NL for “the sole purpose of disposal of refuse and waste from [NL’s] mining operations .... ” (Docket Entry No. 189, Ex. 21 at 1). This lease contained similar terms to those in the 1946 Waste Disposal Lease, and included a similar indemnity provision, stating: “Lessee covenants and agrees that it will indemnify and save harmless Lessor against any claims for damage either to person or property that may be asserted by third parties on account of Lessee’s occupancy or operations on said lands.” (Id., Ex. 21 at 1). As with the 1946 Waste Disposal Lease, the lease had a term of twenty-five years,
*851renewable for five five-year periods. (Id., Ex. 21 at 1, 2). The lease was conveyed to Georgia-Pacific in 1969. (Id., Ex. 17). Georgia-Pacific contends that the lease was extended until at least July 1990.8 (Docket Entry No. 208 at 7 (citing Docket Entry No. 189, Ex. 22)). Based on the map attached to Stephens’s expert report, it appears that NL deposited piles of mining spoils on this leased tract. (Docket Entry No. 189, Ex. 5 at 1).
• The Tailings Pond Lease. In November 1954, Malvern Lumber leased the northeast 1/4 of the southeast 1/4 of Section 15 to NL “for the sole purpose of disposal of mill tailings and waste from [NL’s] mining and milling operations. ...” (Docket Entry No. 189, Ex. 23 at 1). As with the Waste Disposal Leases, the Tailings Pond Lease contained an indemnity clause stating: “Lessee covenants and agrees that it will indemnify and hold harmless Lessor against any claims for damage either to person or property that may be asserted by third parties on account of Lessee’s occupancy or operations on said lands.” (Id., Ex. 23 at 3). This lease also had an initial term of twenty-five years, with the option to renew for five additional five-year periods. (Id., Ex. 23 at 1-2). The lease was conveyed from Malvern Lumber to Georgia-Pacific in 1969. (Id., Ex. 17). According to the map attached to Stephens’s expert report, it appears that NL constructed a tailings pond and may have deposited mining spoils on this leased tract. (Id., Ex. 5 at 1).
• The Settling Pond Lease. In October 1971, Georgia-Pacific leased ten acres of the north side of the northwest 1/4 of the southwest 1/4 of Section 15 to NL “for the purpose of backing up waters and settling mine waters and waste from Lessee’s mining operations ....” (Docket Entry No. 189, Ex. 24 at 1). The lease had an initial term of ten years, with NL retaining the option to extend the lease for two additional terms of five years each. (Id., Ex. 24 at 1). NL extended the lease until September 30, 1986. (Id., Ex. 26). This lease also contained an indemnity clause stating: “Lessee agrees that it will indemnify, defend, protect, hold and save harmless Lessor from and against any claims, loss, liability, attorney’s fees, costs or any other expense for any injury, loss or damage to persons or property arising out of or resulting from Lessee’s operations hereunder or use of the leased premises.” (Id., Ex. 24 at 3). Based on the map attached to Stephens’s expert report, it appears that NL constructed a settling pond on this leased tract. (Id., Ex. 5 at 1, 2). Georgia-Pacific points out that before allowing the lease to terminate, NL discontinued use of the pond and poured cement to prevent water from reaching the mining sludge at the bot*852tom of the dried out ponds. {Id., Ex. 27).

Georgia-Pacific argues that the only activities at the Site that matter for environmental response costs are the mining activities. (Docket Entry No. 208 at 8). Georgia-Pacific points to the Administrative Settlement, which states that mining operations at the Site resulted in the Pit Lake and piles of mining spoils. {See Docket Entry No. 189, Ex. 1 at 1-2). Georgia-Pacific argues that the only evidence Halliburton submitted connecting Georgia-Pacific to mining activities or contamination at the Site are the leases and Site Investigation Report.9 {See Docket Entry No. 189, Ex. 28 at 4-8 (Responses *853to Interrogatories 3 and 6)). Georgia-Pacific argues that it is not mentioned in the Site Investigation Report and that no document shows that Georgia-Pacific physically conducted any activity at the Site that would have contributed to the environmental degradation caused by the mining activities. (Docket Entry No. 208 at 10). Georgia Pacific points out that Halliburton has formally admitted that Georgia-Pacific: “did not physically conduct or direct the excavation and removal of overburden or barite ore at the Site”; “did not physically conduct or direct the milling of overburden or barite ore at the Site”; and “did not physically conduct the transport of mine and mill wastes disposed of on Georgia-Pacific property on the Site.” (Docket Entry No. 189, Ex. 28 at 4).

Georgia-Pacific has presented evidence that NL and Magcobar were aware that mining activities were polluting adjacent waters, and that NL “planned, but consciously declined to implement, the very environmental remediation solutions that have been and will ultimately be pursued under the ADEQ Settlement and the ADEQ Order.” (Docket Entry No. 208 at 11). Georgia-Pacific presents the following chronology through a series of exhibits:

• In 1946, the Arkansas Fish and Game Commission accused NL and Magcobar of polluting Ouachita River with mine runoff and discharges. (See Docket Entry No. 189, Ex. 29). NL began monitoring the pH level in Chamberlain Creek, and the water samples showed low pH levels (acidic water). (See id., Ex. 30).
• In April 1962, state regulators inspected the mine. NL concluded that there was nothing further to do to prepare for additional surveys, “except continue our present program of watching the Ouachita, continue to lime water pumped from the pit, and continue to slow down erosion from our strip dumps as much as possible.” (Id., Ex. 31 at 2). In June 1970, NL met with state regulators and was directed to submit a “letter of intent for more efficiently neutralizing, precipitating and removing the iron concentration of the mine and run off water presently being discharged from the Magnet Cove Mine into Chamberlain Creek.” (Id., Ex. 32 at 1). What appears to be a draft letter from the superintendent of the plant and mine to the Arkansas Pollution Control Commission describes plans for preventing further environmental effects from the mine. The plans included designing a complete automated system for treating discharge water, for continually monitoring discharge water, and for implementing clarification methods using settling ponds. The plans would require purchasing additional land, leasing additional land, or obtaining the right-of-way for routing water from settling ponds back to Chamberlain Creek. (See id., Ex. 32).
In November 1976, the Arkansas Department of Pollution Control and Ecology approved of a plan by NL for treating and discharging waste water, subject to compliance with several additional requirements. (Id., Ex. 33). In January 1977, NL sent a confidential letter to the U.S. Environmental Protection Agency (EPA), stating that “[t]he significant capital required for the Magnet Cove water treatment facilities and the rather large annual expense incurred in water treatment and discharge has prompted our management to review the economics of maintaining production from the Magnet Cove underground mines beyond May 1977.” (Docket Entry No. 189, Ex. 34). This letter explained that “[i]f the decision is to cease the current mining *854operation then there will be no need to pump water and, therefore, no discharge from the property,” and stated that “construction of the treatment facilities has been suspended for a period of 30 days until a decision is reached.” (Id., Ex. 34).
• In February 1977, state regulators advised NL that “Cove Creek was essentially ‘sterile’ from the junction of Cove-Chamberlain to the Ouachita River,” and that “[n]o fish or aquatic species were found except for a mutated plankton.” (Id., Ex. 35 at 1). An internal, confidential NL memorandum discussing the February 1977 communication from the state regulators indicated that NL had told the regulators of its decision to stop pumping water from the mine in the summer of 1977. (Id., Ex. 35 at 1). In July 1977, NL advised the EPA that it would terminate the mine drainage and rain runoff discharge, and that no further discharges from the mine would be made until a future time when a new mining program was initiated. (Id., Ex. 36 at 1).

Georgia-Pacific has submitted the April 1978 notes of F.R. Baser. F.R. Baser appears to have been an NL employee.10 Georgia-Pacific argues that the notes support the argument that NL supplied regulators with water samples knowing that Chamberlain Creek upstream from the samples was contaminated. (See Docket Entry No. 208 at 12). It is not clear from these notes that NL provided samples of water knowing that a different area of the Chamberlain Creek was more contaminated. The notes suggest that NL wanted to take samples from a different area of Chamberlain Creek because the area the regulators originally tested was not “indicative of discharge to the stream.” The notes, in relevant part, state:

The State of Arkansas tested not only the discharge from the site to the Chamberlain River but also the Chamberlain River itself and found very high concentrations of heavy metals and suspended solids. It was pointed out by NL that this was not indicative of the discharge to the stream and that the State should, in fact, measure up-stream from NL’s discharge point. The State requested NL sample which NL has done knowing full well that the Chamberlain Creek upstream was quite contaminated. This contamination is the result of leachate from the waste piles. The leachate contains heavy metals, sulfate, and is low in pH. During the years of operation of the mine, in excess of 30, over-burden was removed and piled in the area surrounding the pit covering many hundreds of acres. Dresser Industries, who operated a mine adjacent to NL’s, also participated in the accumulation of waste piles [and] therefore has some liability.

(Docket Entry No. 189, Ex. 37 at 2-3).

In May 1978, NL advised Arkansas regulators that it intended to reopen the pit mine and build a comprehensive treatment plant. (Id., Ex. 38). In May 1979, NL informed the regulators that in reactivating the mine, it intended to implement measures to protect nearby waters. (Id., Ex. 39 at 2). These measures included reclaiming existing overburden piles and installing a multimillion dollar plant to treat water pumped from the open pit before discharge into Chamberlain Creek. (Id., Ex. 39 at 2). The plant would first treat water that had been impounded in *855the pit since the mining operations ended in 1977 and then continue to treat water during normal mine operation. (Id., Ex. 39 at 2). In connection with its proposed water treatment plan, NL asked state regulators to revise the water quality standards. NL stated that “without a change in the existing Water Quality Standards for sulfate and total dissolved solids (TDS) in the affected streams, limits would be written into a new NPDES Permit that could not be met,” and that “there is no practicable technology for removal of sulfates from effluent streams in this instance.” (Id., Ex. 39 at 2). In November 1979, an NL consultant issued a “Conceptual Plan for Reclamation of Abandoned Mine Spoils Dump, Disposal of Mine Pit Water Treatment Sludge, and Disposal of Open-Cut Overburden.” (Docket Entry No. 189, Ex. 40).

In October 1981, NL stated in an internal memorandum that it had plans to close the barite plant. (Id., Ex. 41). NL sought internal opinions about “responsibilities and possible liabilities as to reclaimation [sic] if [sic] any of the waste dumps; open pit and tailings ponds.” (Id., Ex. 41). An internal memorandum dated a few months later evaluated the potential for environmental liability associated with the mining operations, stating that “Chamberlin [sic] Creek originates in the vicinity of the plant and also receives significant non-point drainage of acidic leachate from the waste piles, including those on NL Industries’ property.” (Id., Ex. 42 at 1). The memorandum noted that “[t]he cessation of mining activities precedes the enactment of [the Resource Conservation and Recovery Act (RCRA) ] and corresponding State regulations,” but that “clean-up requirements could be mandated under RCRA if the site were to be determined a ‘substantial hazard’ to human health or the environment.” (Id., Ex. 42 at 2). The memorandum concluded that “[s]uch a determination is not anticipated as other disposal sites may be more likely candidates for attention; the site has not yet been targeted for action under the ‘Superfund’ legislation.” (Id., Ex. 42 at 2). As to Closure/Post-Closure environmental requirements, the memorandum concluded that “[t]he only known requirement would be to comply with the terms of the NPDES permit if discharges were to continue from Tailings Pond No. 4.” (Docket Entry No. 189, Ex. 42 at 3). The memorandum noted that “NL’s prior discussion of a reclamation plan for the abandoned mine spoils dump, that was to be associated with the possible renewal of open pit mining operations, might have excessively kindled State interest in the existing acidic mine drainage,” and that “[t]his could possibly precipitate some additional closure requirements or threats to list the site in accordance with the ‘Superfund’ legislation.” (Id., Ex. 42 at 3).

In February 1986, an internal NL memorandum with an “[u]pdated [o]pinion of [potential [environmental [r]equirements/[e]xposures” for Magnet Cove Barite Operations concluded as follows:

The retention of leased property is not recommended unless it could be anticipated to be required for the siting of possible treatment facilities. If the leases were to be discontinued, their renegotiation under such circumstances might not be possible under terms that were favorable to NL Baroid. However, if outrageous terms were to be required by a property owner, this might constitute a denial of access that, until resolved, would protect us from requirement to undertake related remedial action. It has been Environmental Controlas] experience that this regional office of the USEPA may not be aggressive in forcing non-consenting property owners to grant access.

*856 (Id., Ex. 43 at 8 (emphasis added)). Georgia-Pacific uses this memorandum to argue that NL concluded that terminating the leases might help forestall any required environmental response. (Docket Entry No. 208 at 13).

On December 15, 1986, NL submitted notice terminating the 1939 Mining Lease. (See Docket Entry No. 189, Ex. 45 at 1). In an internal memorandum discussing the reasons, NL noted that even after lease termination, it should be granted “reasonable access for reclamation or environmental clean-up projects, if required.” (Id., Ex. 44 at 1).

In June 1981, Georgia-Pacific conveyed certain Arkansas property, including property it owned at the Site, to its subsidiary Rex Timber Inc. (See id., Ex. 46). Rex Timber conveyed certain property at the Site to the Taylor family in 1987. (See id., Ex. 47). Rex Timber was merged into Georgia-Pacific in 1988. (See id., Ex. 48). In 1990, Georgia-Pacific conveyed its remaining interests at the Site to two individuals, W.R. Ward and Dorsey D. Glover.11 (See id, Ex. 49).

The EPA eventually investigated the Site. (See Docket Entry No. 189, Ex. 50 (Expanded Site Inspection Report for Magcobar Mine, Malvern, Hot Spring County, AR, dated December 1996)). The Administrative Settlement and the Consent Order followed, and interim remedial procedures were implemented.

Georgia-Pacific contends that the environmental problems at the Site were caused by the mining activities conducted there. (Docket Entry No. 208 at 14). Georgia-Pacific points to parts of the Site Investigation Report prepared for Halliburton and TRE Management, which state:

A natural phenomenon known as ARD occurs when air and water reach exposed rocks containing pyrite. This phenomenon generally occurs as the result of mining and other activities that disturbed the surface of the earth, but natural occurrences of ARD are also documented .... Where ARD is the result of manmade activities, it generally is the result of the acceleration of natural weathering processes, which occur when disturbed rocks containing sulfides, such as pyrite, are exposed to air and water.
The primary adverse environmental effect caused by the DIM Mine Site (as named by the EPA) involves formation of low pH water that exits the Site in surface pathways and lowers pH in off-Site surface waters. The low pH water formed at the Site results from accelerated weathering processes that generate acidity and increase solubility of metals naturally present in some of the rock that was disturbed by mining.
*857 The mine spoil and pit lake are the most environmentally significant features at the Site because most of the ARD is produced in the spoil and enters the pit lake by seepage and runoff. The pit lake serves as a storage reservoir for ARD historically produced on the Site.
Mine spoil present at the Site will produce ARD for decades, though at a continually decreasing rate.
Surficial runoff from the spoil piles produces ARD, but more concentrated ARD is produced by infiltration through the spoil piles.
In its present condition the pit lake acts as a storage reservoir for ARD. Mine spoil is the primary ongoing source of ARD to the pit lake (very small amounts of ARD may also originate from the small amount of exposed pit wall on the west side of the pit that is comprised primarily of Stanley Formation rocks).
Runoff from the floatation tailings results in ARD that is transported to pooled areas on the tailings impoundments. Water quality in the tailings ponds reflects this source and is acidic with elevated concentrations of metals and sulfate, consistent with ARD that has been diluted by precipitation.

(Docket Entry No. 189, Ex. 3 at 2-13, 8-1, 8-2, 8-3, 8-5, 8-7 (emphasis added)). Georgia-Pacific points out that “[t]he Report attributes no environmental issue to any activity other than mining,” and that “[a]t least in this respect, ADEQ has approved the Report.” (Docket Entry No. 208 at 15).

Georgia-Pacific also points out that Halliburton’s experts in the arbitration found that mining had caused the environmental problems. (See Docket Entry No. 189, Ex. 51 at 10 (“The primary environmental impacts at Magnet Cove are the result of mining rocks of the Mississippian Stanley Formation .... The process of stripping the Stanley Formation to access ore and placing it in piles where it is exposed to the atmosphere and precipitation results in increased production of ARD.”); id., Ex. 52 at 8 (“[T]he contamination at issue stems from mining operations conducted by NL and Magcobar.”)). Halliburton’s counsel told the arbitrators that a “critical and important fact which I would suggest is not contested and has been recognized by all the parties and reflected in the SI report is that the production of acid rock drainage, ARD, and its migration compromises [sic] the primary environment[al] concern at this site.” (Id., Ex. 53 at 565). Georgia-Pacific asserts that it is undisputed that the mining activity caused the Site contamination and that Georgia-Pacific did not conduct the mining operations. (Docket Entry No. 208 at 15). Georgia-Pacific argues that based on these uncontested facts, it is entitled to judgment that it is not liable, as a matter of law. (Id.).

Except as noted below, Halliburton does not contest, for purposes of this motion, the facts Georgia-Pacific recited about the Site history, the Site characteristics, and regulatory response actions. (Docket Entry No. 218 at 4). Halliburton argues, however, that Georgia-Pacific is not entitled to the relief it seeks.

B. The Contribution Analysis

1. Georgia-Pacific’s Status as a Potentially Responsible Party Under Section 107(a) of CERCLA

Under section 107(a)(4) of CERCLA, “the owner and operator of a ... facility ... shall be liable for ... (B) any ... necessary costs of response incurred by any ... person ... consistent with the national contingency plan.” 42 U.S.C. § 9607(a)(4)(B). For the purpose of its *858motion, Georgia-Pacific concedes: “(a) that Plaintiffs and Georgia-Pacific were owners or operators of the Site as a ‘facility;’ (b) that the costs incurred and to be incurred by Plaintiffs with respect to the Site were ‘necessary’ and ‘consistent with the national contingency plan;’ and (c) that Georgia-Pacific does not assert any defense to liability under CERCLA § 107(b).” (Docket Entry No. 208 at 16). “In other words, Georgia-Pacific is willing to assume that it, Plaintiffs and Milwhite are all potentially liable under section 107(a).” (Id.).

Georgia-Pacific focuses its arguments on section 113(f)(1), which provides in relevant part:

Any person may seek contribution from any other person who is liable or potentially liable under section [107(a) ], during or following any civil action under ... section [107(a) ]. Such claims shall be brought in accordance with this section and the Federal Rules of Civil Procedure, and shall be governed by Federal law. In resolving contribution claims, the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate.

42 U.S.C. § 9613(f)(1). The relevant provisions of RATFA are similar. RATFA’s contribution provisions state:

(a) Any person who has undertaken or is undertaking remedial action at a hazardous substance site in response to an administrative or judicial order initiated against such person ... may obtain contribution from any other person who is liable for such hazardous substance site.
(b) Any person who has resolved all or a portion of his liability for a hazardous substance site by undertaking remedial action pursuant to an administrative ... settlement may obtain contribution from any person who is liable for such hazardous substance site and is not a party to the settlement.
(d) ... In resolving contribution claims, the court shall allocate the costs and expenses incurred or to be incurred by the contribution claimant or claimants for undertaking remedial action among all persons liable for the hazardous substance site, using such equitable factors as the court determines are appropriate.

AricCode Ann. § 8-7-520. With respect to the RATFA claims, Georgia-Pacific concedes, for the purpose of its motion only, that:

(1) the Site is a “hazardous substance site” within the meaning of sections 8-7-520(a) and (b); (2) the Halliburton Plaintiffs and TRE Management have standing under subsections (a) and (b); (3) Georgia-Pacific is a “person who is liable” for the Site within the meaning of subsections (a) and (b); and (4) [Georgia-Pacific] is not a party to the settlement giving Plaintiffs standing under subsection (b).

(Docket Entry No. 208 at 18).

As Georgia-Pacific points out, “CERCLA prevents double recovery. If Plaintiffs recover under CERCLA, they cannot recover under RATFA; if they recover under RATFA, they cannot recover under CERCLA.” (Id. (citing 42 U.S.C. § 9614(b))). Because the contribution provisions are similar under both CERCLA and RATFA, Georgia-Pacific does not separately address RATFA contribution. This court focuses on contribution under CERCLA as well.

Halliburton responds that it has not argued that Georgia-Pacific is an “owner or operator” of the Site liable for costs under section 107(a)(1) of CERCLA. (Docket Entry No. 218 at 6). Instead, Halliburton argues that Georgia-Pacific is liable under sections 107(a)(2) and (3) of CERCLA (and *859the comparable sections of RATFA). (Id.). These sections cover persons who owned or operated a facility, where hazardous substances were disposed, at the time of disposal (“prior owners and operators”), and persons who arranged for disposal of hazardous substances (“arrangers”).

The interplay between section 107(a) and section 113(f) is important to the pending motion. In Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), the Supreme Court “concluded that CERCLA provided for a right of cost recovery in certain circumstances, referring to 42 U.S.C.A. § 9607(a), and separate rights to contribution in other circumstances, referring to 42 U.S.C.A. § 9613(f)(1) and 42 U.S.C.A. § 9613(f)(3)(B).” John J. Dvorske, Annotation, Right of Private Party to Seek Cost Recovery Under CERCLA § 107(a), 42 U.S.C.A. § 9607(a), or Contribution Under CERCLA § 113(f)(1), 42 U.S.C.A. § 9613(f)(1), in Connection with Environmental Response — Post-Cooper Industries, Inc. v. Aviall Services, Inc., 543 U.S. 157, 125 S.Ct. 577, 160 L.Ed.2d 548 (2004), 22 A.L.R. Fed.2d 233 at § 2 (2007). One commentator has explained:

Under a § 107(a) “cost recovery” action, a party, such as a private party landowner or the United States government, who has incurred cleanup and remediation costs at a hazardous waste site, may seek to recover its full response costs from a party or parties who may be potentially responsible for the contamination. The apportionment of liability under § 107(a) is strict, joint, and several — without regard to fault or willfulness, and thus, once liability is demonstrated, a defendant potentially responsible party may be held liable for the entire cost of cleanup, even if multiple potentially responsible parties are involved. Under a § 113(f)(1) “contribution” action, a potentially responsible party is granted the right to recoup from other potentially responsible parties the portion of its cleanup and remediation costs which exceeds its fair share of the overall liability. In other words, under § 113(f)(1), an individual potentially responsible party which has been left with the entire cleanup cost may seek contribution from, and attempt to apportion liability to, other potentially responsible parties. In contrast to a § 107(a) action in which liability is joint and several, under § 113(f)(1), a court is called upon to allocate the response costs among the potentially responsible parties based upon each potentially responsible party’s percentage of fault and, to do so, may use such equitable factors as the court determines are appropriate.

Id. at § 3 (footnote omitted).

The Supreme Court addressed the interplay between sections 107(a) and 113(f) in United States v. Atlantic Research Corp., 551 U.S. 128, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007). In Atlantic Research, the Court held that section 107(a) provides PRPs with a cause of action to recover costs from other PRPs. 551 U.S. at 131, 127 S.Ct. 2331. The Court noted that it had previously held in Cooper Industries that “a private party could seek contribution from other liable parties only after having been sued under § 106 or § 107(a).” Id. at 133, 127 S.Ct. 2331. Atlantic Research leased property operated by the Department of Defense. Id. After cleaning up environmental damage at the relevant site at its own expense, Atlantic Research sought to recover some of its costs by suing the United States under both section 107(a) and section 113(f). Id. After the Court’s Cooper Industries decision, the section 113(f) claim could not proceed. Id. Atlantic Research amended its complaint *860to seek relief only under section 107(a) and federal common law. Id.

The Atlantic Research Court pointed out that in Cooper Industries, it had “recognized that §§ 107(a) and 113(f) provide two ‘clearly distinct’ remedies.” Atlantic Research, 551 U.S. at 138, 127 S.Ct. 2331 (citing Cooper Industries, 543 U.S. at 163 n. 3, 125 S.Ct. 577).12 The Atlantic Research Court noted:

Section 113(f) explicitly grants PRPs a right to contribution. Contribution is defined as the “tortfeasor’s right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault.” Black’s Law Dictionary 353 (8th ed.1999). Nothing in § 113(f) suggests that Congress used the term “contribution” in anything other than this traditional sense. The statute authorizes a PRP to seek contribution ‘during or following’ a suit under § 106 or § 107(a). 42 U.S.C. § 9613(f)(1). Thus, § 113(f)(1) permits suit before or after the establishment of common liability. In either case, a PRP’s right to contribution under § 113(f)(1) is contingent upon an inequitable distribution of common liability among liable parties.

Id. at 138-39, 127 S.Ct. 2331 (footnote omitted). The Court distinguished section 113(f) liability from liability under section 107(a):

By contrast, § 107(a) permits recovery of cleanup costs but does not create a right to contribution. A private party may recover under § 107(a) without any establishment of liability to a third party. Moreover, § 107(a) permits a PRP to recover only the costs it has “ineurred” in cleaning up the Site. 42 U.S.C. § 9607(a)(4)(B). When a party pays to satisfy a settlement agreement or a court judgment, it does not incur its own costs of response. Rather, it reimburses other parties for costs that those parties incurred.

Id. at 139,127 S.Ct. 2331.

The Atlantic Research Court emphasized that while sections 107(a) and 113(f)(1) could overlap, the remedies are generally distinct and “complement each other by providing causes of action ‘to persons in different procedural circumstances.’ ” See id. & n. 6 (quoting Consol. Edison Co. of N.Y. v. UGI Utils., Inc., 423 F.3d 90, 99 (2d Cir.2005)) (additional citation omitted). The Court explained:

Section 113(f)(1) authorizes a contribution action to PRPs with common liability stemming from an action instituted under § 106 or § 107(a). And § 107(a) permits cost recovery (as distinct from contribution) by a private party that has itself incurred cleanup costs. Hence, a PRP that pays money to satisfy a settlement agreement or a court judgment may pursue § 113(f) contribution. But by reimbursing response costs paid by other parties, the PRP has not incurred its own costs of response and therefore cannot recover under § 107(a). As a result, though eligible to seek contribution under § 113(f)(1), the PRP cannot simultaneously seek to recover the same expenses under § 107(a).

Id. The Court noted that at least in the case of reimbursement, a PRP does not have the option to choose the longer statute of limitations for cost-recovery claims over the shorter limitations period for section 113(f) claims. Id. (footnote omitted). *861Moreover, “a PRP could not avoid § 113(f)’s equitable distribution of reimbursement costs among PRPs by instead choosing to impose joint and several liability on another PRP in an action under § 107(a).” 13 Atlantic Research, 551 U.S. at 140, 127 S.Ct. 2331. The Court also noted that “a defendant PRP in such a § 107(a) suit could blunt any inequitable distribution of costs by filing a § 113(f) counterclaim,” and that “[rjesolution of a § 113(f) counter-claim would necessitate the equitable apportionment of costs among the liable parties, including the PRP that filed the § 107(a) action.” Id. (citations omitted).14

Atlantic Research makes clear that cost recovery under section 107(a) is a separate inquiry from equitable allocation in a contribution claim under section 113(f). Georgia-Pacific’s motion asks this court to determine whether it is entitled to a judgment of zero liability, based on section 113(f)’s equitable allocation principles. Halliburton argues that the undisputed facts establish that Georgia-Pacific is liable for response costs under CERCLA sections 107(a)(2) and (3). Halliburton points to contracts between Georgia-Pacific and NL that allowed NL to dispose of mining wastes on property Georgia-Pacific owned at the Site,15 and to a contract between Georgia-Pacific and NL that allowed the removal and disposal of overburden and waste rock from other property Georgia-Pacific owned at the Site.16

Georgia-Pacific concedes for purposes of this motion that it is a PRP under section 107(a) of CERCLA. (Docket Entry No. 208 at 16). This court need not determine *862whether Georgia-Pacific is in fact liable under section 107(a), and if so, under which subsection. Georgia-Pacific has “blunted” Halliburton’s claim for cost recovery under section 107(a) with a counterclaim under section 113(f), and Halliburton has also asserted a claim for contribution under section 113(f). Assuming, for the purpose of this motion, that Georgia-Pacific is a PRP under section 107(a), the issue to be resolved is whether Georgia-Pacific is entitled to judgment of zero liability based on equitable allocation under section 113(f). Cf. Kalamazoo, 274 F.3d at 1047 (“A holding of potential liability does not preclude a zero allocation of response costs.”); Acushnet Co. v. Mohasco Corp., 191 F.3d 69, 77-78 (1st Cir.1999) (“We therefore hold that a defendant may avoid joint and several liability for response costs in a contribution action under § 9613(f) if it demonstrates that its share of hazardous waste deposited at the site constitutes no more than background amounts of such substances in the environment and cannot concentrate with other wastes to produce higher amounts. This rule is not based on CERCLA’s causation requirement, but is logically derived from § 9613(f)’s express authorization that a court take equity into account when fixing each defendant’s fair share of response costs.”) (footnote omitted).

2. Equitable Allocation Under Section 113(f) of CERCLA

a. The Factors to be Considered

Georgia-Pacific points out that before Atlantic Research, “it was generally accepted that the equitable ‘[f]actors which may be considered include the relative fault of the parties, ...; relevant ‘Gore factors,’ ...; and any contracts between the parties bearing on the allocation of cleanup costs.’ ” (Docket Entry No. 208 at 19 (quoting Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 326 (7th Cir.1994) (citations omitted))). In Atlantic Research, the Court commented that “[njothing in § 113(f) suggests that Congress used the term ‘contribution’ in anything other than [the] traditional sense.” Atlantic Research, 551 U.S. at 138, 127 S.Ct. 2331. The Court stated that “Contribution is ... the ‘tortfeasor’s right to collect from others responsible for the same tort after the tortfeasor has paid more than his or her proportionate share, the shares being determined as a percentage of fault.’” Id. (quoting Black’s Law Dictionary 353 (8th ed.1999)). Georgia-Pacific argues that these statements establish that “Comparative fault is ... the key consideration in equitable allocation under section 113(f).” (Docket Entry No. 208 at 19).

As Georgia-Pacific recognizes, the other factors discussed in Korr-McGee, including the “Gore Factors”17 and contracts between the parties bearing on allocation, should also be considered. The Gore Factors include:

(1) the ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished;
(2) the amount of the hazardous waste involved;
(3) the degree of toxicity of the hazardous waste involved;
*863(4) the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;
(5) the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and
(6) the degree of cooperation by the parties with Federal, State, or local officials to prevent any harm to the public health or the environment.

Kerr-McGee, 14 F.3d at 326 n. 4. This list is not exclusive. Nor is a court required to analyze every factor in every case. As one court has explained:

[T]he language of section 9613(f) clearly indicates Congress’s intent to allow courts to determine what factors should be considered in their own discretion without requiring a court to consider any particular list of factors____ [I]n any given case, a court may consider several factors, a few factors, or only one determining factor ..., depending on the totality of the circumstances presented to the court.

Envtl. Transp. Sys., 969 F.2d at 509.18 Comparative fault and the parties’ intent to allocate liability among themselves are the most important of the equitable factors here.

b. Cooperation with Authorities and Ability to Distinguish Contribution

Georgia-Pacific argues that the first Gore Factor — the parties’ ability to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished' — is immaterial because CERCLA authorizes contribution without regard to the divisibility of the harm. (Docket Entry No. 208 at 20). This court agrees that whether the parties can distinguish their contribution to the hazardous waste is not particularly relevant to the equitable analysis here. The divisibility inquiry is part of the section 107(a) analysis, which, as discussed earlier, is not central to analyzing Georgia-Paeific’s motion.

Georgia-Pacific points out that the last Gore Factor — the degree of cooperation by the parties with federal, state, or local officials to prevent any harm to the public health or the environment — is “meaningless” because “neither EPA nor ADEQ ever asked Georgia-Pacific to contribute to environmental response while Georgia-Pacific owned property at the Site.” (Id. at 23). Halliburton responds that Georgia-Pacific has not cooperated with government officials in remediation despite the “substantial financial benefit from its involvement in the activities that led to the contamination of the Site.” (Docket Entry No. 218 at 13). But there is no evidence that any government agency asked Georgia-Pacific to become involved in the cleanup process. Georgia-Pacific did not voluntarily offer assistance to the authorities in remediating a site where it previously owned property. But Georgia-Pacific did not itself participate in the activities necessitating the cleanup, believed itself *864indemnified for any potential liability, and was not asked by authorities to participate. The lack of cooperation is not a strong factor for allocating responsibility to Georgia-Pacific.

c. Comparative Fault

i. The Parties’ Contentions

Gore Factors two through five relate to the comparative fault inquiry. Georgia-Pacific argues that the pollution and remedial response at the Site are the direct result of mining activities conducted by others, specifically NL and Magcobar, the predecessors of Halliburton and TRE Management. (Docket Entry No. 208 at 22). Georgia-Pacific also argues that NL was aware of the environmental problems at the Site, devised remedial plans, and then chose to abandon the polluted Site. (Id.). Georgia-Pacific contends that under fundamental contribution principles, the facts that it did not participate in any mining and did not generate any mining spoils or any pollutants at the Site warrants allocating it zero responsibility for response costs. (See id.).

Halliburton responds that CERCLA and the case law do not support allocating zero responsibility based on the fact that a PRP did not conduct mining or generate mine spoils. (Docket Entry No. 218 at 7). Halliburton emphasizes cases holding a lessor responsible for cleanup costs. (Id. at 8-9 (citing United States v. R.W. Meyer, Inc., 982 F.2d 568, 571 (6th Cir.1991); Weyerhaeuser Co. v. Koppers Co., 771 F.Supp. 1420 (D.Md.1991))). Halliburton also argues that the cases Georgia-Pacific cites in which no response costs were allocated to a particular party involved exceedingly small amounts of contaminants linked to that party. (Id. at 9). In this case, Halliburton asserts that more than 25% of the total mine wastes were disposed of on Site property owned by Georgia-Pacific. (Id. (citing id., Ex. BB)). Halliburton further argues, without citing evidence, that “an additional (as of yet unquantified) volume of mine wastes was excavated from Georgia-Pacific’s property and disposed of elsewhere at the Site.” (Id.). Halliburton also asserts that even if Georgia-Pacific did not conduct mining activities at the Site, its degree of involvement in the mining activities, its lack of care with respect to hazardous wastes disposed of on its property, and the economic benefit it received from the mining activities all support allocating some response costs to Georgia-Pacific. (Id. at 12).19

In reply, Georgia-Pacific contends that the case law permits allocating zero responsibility to a PRP in appropriate circumstances. (Docket Entry No. 222 at 4-7). Georgia-Pacific argues that undisputed record evidence shows that it: did not conduct or direct the excavation and removal of overburden or barite at the Site; did not physically conduct or direct milling of overburden at the Site; and did not transport mine and mill wastes disposed of on its property at the Site. (Id. at 7-8). Georgia-Pacific contends that Halliburton’s attempt to create a fact issue fails because the document that Halliburton relies on to show the volume of waste disposed of on Georgia-Pacific’s property, which is a document prepared by one of *865Halliburton’s experts in the arbitration, is hearsay. (Id. at 8). Georgia-Pacific argues that the property transactions alone do not show that it was involved in the mining activities. (Id.). Georgia-Pacific also asserts that because of the admissions that it was not directly involved in the mining activities and because it was to be fully indemnified, its property transactions are not material. (Id.).

ii. Analysis

It is permissible in certain circumstances to allocate zero response costs to a PRP. See Kalamazoo, 274 F.3d at 1049 (“The district court’s decision not to allocate any costs for the [Remedial Investigation and Feasibility Study] to Rockwell was based upon its finding that the KRSG was responsible for more than 99.9% of the PCBs in the River. Although the KRSG challenges this finding ..., it fails to show that the district court abused its discretion in looking to the relative quantities of PCBs released by the parties in allocating costs for the RI/FS.”); Acushnet, 191 F.3d at 78 (“In an appropriate set of circumstances, a tortfeasor’s fair share of the response costs may even be zero.”) (citations omitted); PMC, 151 F.3d at 616 (“PMC’s spills may have been too inconsequential to affect the cost of cleaning up significantly, and in that event a zero allocation to PMC would be appropriate. That was the district judge’s judgment, and we cannot say that it was unreasonable.”) (internal citations omitted).

Halliburton has not identified or presented evidence showing that Georgia-Pacific conducted mining activities at the Site. Instead, Halliburton points out that NL contracted with Georgia-Pacific to use property Georgia-Pacific owned at the Site to dispose of mining wastes and that NL disposed of more than a minimal amount of waste on that property. Halliburton cites Weyerhaeuser to argue that courts may allocate CERCLA responsibility to landowners/lessors even if the lessee/operator’s activities were “ ‘the sole cause of the environmental damage.’ ” (See Docket Entry No. 218 at 8 (quoting Weyerhaeuser, 771 F.Supp. at 1427)).

In Weyerhaeuser, the court had previously found that “Weyerhaeuser owned the site at issue, that a release of hazardous materials had occurred on that site, that it was attributable to Koppers’s wood treatment operations on the site, and that each party had incurred recoverable costs in response to the release.” 771 F.Supp. at 1421 n. 1. Koppers Company manufactured treatment preservatives and operated wood-treatment plants on property it leased from Weyerhaeuser. Id. at 1422. The original lease between Weyerhaeuser and American Lumber and Treating Company (“AL & T”), a Koppers predecessor, was “for the purpose of erecting a wood treatment plant.” Id. When they executed the original lease, Weyerhaeuser and AL & T entered into another agreement. AL & T promised to build a treatment plant and to treat lumber and forest products delivered by Weyerhaeuser, and Weyerhaeuser promised to send AL & T all lumber shipped from Baltimore that needed treatment and to use its best efforts to promote the sale of lumber AL & T treated. Id. at 1423.

The court concluded that the environmental contamination at the site was attributable to the wood treatment plant operated first by AL & T and later by Koppers. Id. (footnote omitted). Although the court attributed the contamination to plant operation, the case was “not [one] involving reckless or wanton contamination,” and that AL & T and Koppers were not “unduly sloppy in their work.” Id. The court stated that “Koppers was aware of the negative effects of the chemicals it used” because “[t]hese toxic properties, of course, were why these chemicals were used to preserve *866lumber.” Weyerhaeuser, 771 F.Supp. at 1424 n. 7. But the court concluded that “the containment methods used by Koppers, though maybe insufficient in these environmentally conscious times, were in accordance with common practices in those earlier times.” Id.

The court pointed out that Weyerhaeuser was not involved in the plant operation:

Weyerhaeuser did not operate the wood treatment plant. Koppers managed the delivery, unloading, storage, and use of the chemical preservatives used at the facility; Koppers controlled the daily operation of personnel at the facility; Koppers determined how much lumber to treat at any time and where and how to store the treated lumber; and Koppers maintained the treatment cylinders.

Id. at 1424. But Weyerhaeuser was aware of the activities at the plant:

Weyerhaeuser, however, was not ignorant of wood treatment processes. Indeed, at the time that the parties contemplated the original Lease and Agreement, Weyerhaeuser expressed concern with committing itself to promoting AL & T’s processes when it was anticipating possible development of its own. Weyerhaeuser understood that the chemicals used were not benign and also accepted a certain amount of mess as intrinsic to the wood treatment process and not particularly remarkable.

Id.

The court pointed to facts showing that the relationship between Weyerhaeuser and AL & T was more than lessor/lessee. Although the volume was not great, Weyerhaeuser did sell some treated lumber and maintained a sales force at a terminal operated by Atlantic Terminal (a wholly owned subsidiary of Weyerhaeuser) at the site; Weyerhaeuser used Koppers’s brochures in its own merchandising; Weyerhaeuser took personnel on field trips to the Koppers plant; early on, AL & T had used some of Atlantic Terminal’s equipment and personnel; the Atlantic Terminal/Weyerhaeuser and the AL & T/Koppers properties were adjacent and personnel at both properties were in fairly regular contact; and “Atlantic and Weyerhaeuser were generally aware of what was happening at the [AL & T/Koppers] facility.” Id. The court pointed out, however, that “neither Weyerhaeuser nor Atlantic personnel controlled or concerned themselves with Koppers’s general safety practices or, more specifically, the safety practices regarding the treatment chemicals.” Id. When the lease ended, Weyerhaeuser visually inspected the property, observed creosote staining on the ground, and approved the property’s condition, but did not conduct any environmental tests. Weyerhaeuser, 771 F.Supp. at 1424-25. The court noted that “[i]n 1977 [when the lease ended], it was not common business practice to look for possible environmental ramifications.” Id. at 1425.

In examining CERCLA liability, the Weyerhaeuser court concluded that the environmental harm was single and indivisible. The court stated:

Obviously, the hazardous substances were released because of Koppers’s operation of its plant, but to hold Weyerhaeuser harmless based on a shallow cause-in-fact analysis is to completely undermine the provisions of CERCLA which impose strict liability on both the owner of the facility and the operator of the facility ‘without reference to whether they caused or contributed to the release or threat of release.’ Accordingly, this Court must hold that Weyerhaeuser and Koppers are jointly and severally liable for the environmental damage.20

*867 Id. at 1425-26 (footnote and internal citation omitted). While the court found that the single and indivisible injury required joint and several liability, the court explained that “[hjolding plaintiff and defendant jointly liable under CERCLA does not end the analysis.” Id. at 1426. “In the statute, at 42 U.S.C. § 9613(f)(1), Congress specifically provided for actions for contribution in which equitable factors should be considered by the court.” Id. at 1426. In analyzing the equities, the court found that because “Koppers’s operations were the sole cause of the environmental damage[,] ... Koppers must be allocated the lion’s share of the responsibility,” but that Weyerhaeuser should also be allocated some responsibility. Id. at 1427. The court explained:

Weyerhaeuser not only knew of and acquiesced in Koppers’s wood treatment activities but in fact required them as a condition of the Lease and Agreement: if the facility had not been built as anticipated or if treatment had not been undertaken, Weyerhaeuser would have been able to terminate the lease upon short notice. Weyerhaeuser may not have benefitted so much as had been originally anticipated, but Weyerhaeuser did obtain some benefit from the proximity of Koppers[’s] operations totally aside from the rent paid under the lease.

Weyerhaeuser, 771 F.Supp. at 1427 (footnote omitted). The court continued:

Weyerhaeuser was not duped by Koppers, [and] was not an innocent[], unsuspecting landlord. Both Weyerhaeuser and Koppers, in good faith, were content with Koppers’s maintenance and use of the property. As it happens, that maintenance was not sufficient to prevent the release of hazardous materials, but this was an event equally unanticipated by both sides.

Id. The court allocated 60 percent of the responsibility to Koppers and 40 percent to Weyerhaeuser. Id.

Halliburton also cites R.W. Meyer, 932 F.2d 568, in which the court allocated one-third of the cleanup cost to the owner/lessor. In R.W. Meyer, “[a]ll of the hazardous substances found at the site were chemicals and by-products of metal electro-plating operations,” which were conducted by a lessee of the property at the site. 932 F.2d at 569. The Sixth Circuit had previously affirmed the trial court’s finding that the site damage was indivisible as well as the trial court’s imposition of joint and several liability for removal costs.21 Id. at 570. Although Halliburton *868presents this case as an example of a situation in which the “owner/lessor bore significant responsibility ‘simply by virtue of being a landowner,’ ”22 (Docket Entry No. 218 at 9 (quoting R.W. Meyer, 932 F.2d at 571)), the court relied on factors beyond ownership in allocating responsibility to the landowner. See R.W. Meyer, 932 F.2d at 573 (“[T]he trial court quite properly considered here not only the appellant’s contribution to the toxic slough described above in a technical causative sense, but also its moral contribution as the owner of the site.”) (emphasis added). A concurring opinion explained that owner status could be considered in the equitable analysis, noting that the owner had made other contributions to the contamination:

Insofar as the court considered Meyer’s landowner status as bearing on its relative contribution to the events necessitating the removal action, such consideration does not represent an abuse of discretion when the court viewed the landowner status in combination with other relevant factors. The district court’s decision was not guided solely by Meyer’s landowner status but, rather, by the actions he took or failed to take as the landowner. Landowner status provided Meyer with the opportunity to solicit Northernaire to conduct business on the site — business which involved the use of highly corrosive and caustic substances. Knowing the business to be conducted on its property, Meyer then built and leased to Northernaire a sewer line inadequately designed and constructed for the disposal of the waste generated by Northernaire’s electroplating operations. Meyer’s status as landowner, when viewed in combination with actions taken by Meyer that determined the manner in which its property would be used, is a permissible consideration in determining Meyer’s degree of involvement in the events precipitating the removal action.

R.W. Meyer, 932 F.2d at 577 (Guy, J., concurring) (emphasis added). The concurrence explained that the landowner “was instrumental in efforts to bring Northernaire to Cadillac, was fully aware of the nature of the manufacturing to be conducted on the site, built the building that housed the facility, and failed to construct or maintain an adequate sewer line.” Id. at 578 (Guy, J., concurring).

The facts in the Weyerhaeuser and R.W. Meyer cases are different in several respects from the facts shown in the summary judgment record here. In both Weyerhaeuser and R.W. Meyer, the landowner was more involved in the activities leading to contamination than Georgia-Pacific was in this case. For example, the landowner in Weyerhaeuser “understood that the chemicals used were not benign and also accepted a certain amount of mess as intrinsic to the wood treatment process.” 771 F.Supp. at 1424. The landowner also received benefits from the contractual relationship, beyond rental fees; the landowner and lessee had an ongoing business relationship related to the activity that ultimately caused the environmental damage; and the landowner approved of the property’s condition when the lease ended despite observing chemical stains on the ground. In addition, the lessee in Weyerhaeuser was found not to be negligent. By contrast, Georgia-Pacific has presented uncontested evidence that its *869lessee, NL, knew about environmental problems when it discontinued its mining activities, developed a plan for remedying the waste, and then failed to implement the remedial plan. {See Docket Entry No. 189, Exs. 29-43). In R.W. Meyer, the landowner had built a defective sewer line that contributed to the contamination and the district court observed that the landowner had not assisted or cooperated with EPA officials during the investigation and cleanup. 932 F.2d at 571.

Although the facts in this case are distinguishable from those in Weyerhaeuser and R.W. Meyer, the record does show that Georgia-Pacific knew about the mining activities on its property, executed leases specifically allowing for the disposal of mining wastes on that property, and received lease payments.23 Georgia-Pacific received benefits from facilitating NL’s activities on its land.24 However, Halliburton has not presented any evidence showing that Georgia-Pacific knew that the dis*870posal of mining wastes would cause an environmental problem.25

*871A PRP need not be completely blameless to be allocated zero responsibility. Instead, under section 113(f), the court is required to consider any appropriate equitable factors. The mining activities at the Site were terminated in 1977. Halliburton has presented no evidence showing that at the time of the leases and related mining activities, disposing of mining wastes was known to cause environmental damage. Nor is there evidence that the disposal was contrary to prevailing practices. Cf. Weyerhaeuser, 771 F.Supp. at 1424 n. 7 (“[T]he containment methods used by Koppers, though maybe insufficient in these environmentally conscious times, were in accordance with common practices in those earlier times.”). In addition, Halliburton has not presented evidence that Georgia-Pacific played a role in the mining activities that led to the contamination and necessitated the environmental cleanup.

When a PRP contributes only minimally to the contamination at issue, it may be appropriate to allocate zero response costs to that party. Georgia-Pacific argues that courts have allocated zero responsibility for de minimis polluters, and there is no evidence that Georgia-Pacific conducted activities that led to the Site contamination.

For example, in Acushnet, the First Circuit held, based on section 113(f), that “a defendant may avoid joint and several liability for response costs in a contribution action ... if it demonstrates that its share of hazardous waste deposited at the site constitutes no more than background amounts of such substances in the environment and cannot concentrate with other wastes to produce higher amounts.” 191 F.3d at 77. The court “caution[ed], however, that not every de minimis polluter will elude liability in this way. As always, an equitable determination must be justified by the record.” Id. at 78. The court explained that “there is nothing to suggest that Congress intended to impose far-reaching liability on every party who is responsible for only trace levels of waste. Several courts, albeit taking different paths to a similar result, have rejected the notion that CERCLA liability ‘attaches upon release of any quantity of a hazardous substance.’ ” Id. (quoting Licciardi v. Murphy Oil USA, 111 F.3d 396, 398 (5th Cir.1997)).26 The court concluded that *872“[t]he ultimate failure of a contribution claim because someone did only a negligible amount of harm does not impede enforcement by the EPA or frustrate any of CERCLA’s objectives.” Id. at 79. The court affirmed summary judgment in favor of one of the defendants because “even if NETT may be said to have caused plaintiffs to incur response costs, plaintiffs have failed to rebut NETT’s evidence showing that it should bear no more than a de minimis share of the remediation expenditures under § 9613(f).” Id. The court also affirmed the trial court’s grant of judgment as a matter of law in favor of the remaining defendants. Id. at 80. With respect to one of those defendants, the court explained:

Plaintiffs’ evidence at trial tended to show that AFC was responsible for hazardous waste at Sullivan’s Ledge on a scale “thousands of times less than the remaining contribution of others”; that, in terms of sheer mass, the two cubic yards of solid waste attributable to AFC constituted an insignificant amount of pollution when compared to over one million cubic yards of waste found at Sullivan’s Ledge; that the remediation plan was largely driven by the presence of hazardous substances other than copper and zinc; and that the materials attributable to AFC [were] not as toxic as the other substances discovered at the site.... Taking at face value plaintiffs’ own estimates of the costs of remediation, AFC’s share of response costs, in the most generous formulation, would amount to no more than 1/500,000 of $50 million!,] amounting to less than $100.

Acushnet, 191 F.3d at 80-81.

Similarly, in Kalamazoo, the court held: The district court’s decision not to allocate any costs for the [Remedial Investigation and Feasibility Study] to Rockwell was based upon its finding that the KRSG was responsible for more than 99.9% of the PCBs in the River. Although the KRSG challenges this finding, ..., it fails to show that the district court abused its discretion in looking to the relative quantities of PCBs released by the parties in allocating costs for the RI/FS.

Kalamazoo, 274 F.3d at 1049.

The cases allocating zero responsibility to de minimis polluters do not resolve the issue presented here. In those cases, the courts attributed zero responsibility to the de minimis polluters because, beyond *873their slight contribution to the contamination, the polluters had no other reason to be held liable for the cleanup costs. In some cases, the de minimis polluter had never owned the property at the site at issue.27 In another case, the de minimis polluter had owned the property only after all but an inconsequential amount of contamination had occurred.28 While Georgia-Pacific may not have been actively involved in the activities that led to the contamination, it owned property at the Site during the mining activities that led to the contamination, and it leased the property for the purpose of facilitating those mining activities. Georgia-Pacific has not pointed to cases holding that a party that owned land during the disposal of the hazardous waste causing the contamination should be allocated zero responsibility because it did not actively participate in the activity causing the contamination.29 Nor *874has Georgia-Pacific cited cases allocating zero responsibility when the landowner specifically leased its property for purposes of allowing the lessee to perform the activities that caused the contamination.30 Cf. Metro. Water Reclamation Dist. of Greater Chicago v. Lake River Corp., 365 F.Supp.2d 913, 917 (N.D.Ill.2005) (finding — in the context of analyzing whether the party was an “innocent landowner” permitted to seek direct recovery against other PRPs under section 107(a) rather than section 113(f)(1) — that the landowner had “entered into a long-term lease with a party it knew intended to keep and process chemical materials,” and that the case was “clearly distinct from cases where a plaintiff had little or no warning that the property could have been or was being contaminated” because while the landowner “did not itself contaminate the property, it did drastically increase the risk of contamination by leasing the property to Lake River”).

The decision in Bedford Affiliates v. Sills, 156 F.3d 416 (2d Cir.1998), overruled on other grounds by W.R. Grace & Co.Conn. v. Zotos Int’l, Inc., 559 F.3d 85, 90 (2d Cir.2009), involved facts more analogous to those presented here. In Bedford Affiliates, the property owner leased property to a lessee that built a retail dry cleaning store and then sublet the property. 156 F.3d at 420. The dry cleaning operations contaminated the property, but the sublessee did not disclose the spills and leaks, and the landowner did not learn of the contamination until years later. Id. After learning about the contamination, the landowner sent letters to the primary lessee demanding that the problem be fixed. Id. at 421. The lessee did not do so, but the landowner did not terminate the lease until a year and a half after the first letter was sent. Id. The landowner ultimately remediated the site and sued the lessee and one of the sublessees for, among other claims, cost recovery under section 107(a) and for contribution under section 113(f)(1). Id. at 421-22. The trial court found the polluting sublessee at fault and allocated him 95% of the response costs. Id. at 422. The court also allocated 5% to the landowner. Bedford Affiliates, 156 F.3d at 422. The landowner appealed. The Second Circuit upheld the allocation, stating:

[W]e find no abuse of discretion in the district court’s decision to hold Bedford responsible for five percent of the contamination. Bedford faces CERCLA liability as a result of its status as a landowner throughout Sills’ [s] tenancy — the period of contamination. See CERCLA § 107(a)(2), 42 U.S.C. § 9607(a)(2). Moreover, Bedford [the landowner] is not truly blameless for the Site’s contaminated state. Upon learning that the Site was contaminated in 1990, plaintiff waited almost three years to hire [an environmental contractor] and contact a government agency to begin cleanup. While this inaction is not tantamount to pollution, it serves as an *875independent basis for imposing some liability on Bedford. Had it acted quicker, the contamination might have been less. See H.R.Rep. No. 99-253(111), at 19 (1985), reprinted in 1986 U.S.C.C.A.N. 3038, 3042 (permitting courts to consider the degree of care exercised by the parties when apportioning liability).

Id. at 430.31

In the present case, Halliburton has not presented evidence showing that Georgia-Pacific knew of the contamination and did nothing. But the record does show that Georgia-Pacific leased property at the Site specifically to allow mining and disposing of mine spoils and tailings. CERCLA does not require that the direct polluter be responsible for all response costs. See Beazer East, 412 F.3d at 446-47 (“[T]he ‘polluter pays’ principle has no canonical or transcendent importance under § 9613(f)(1); it is certainly not the ‘primary policy’ of contribution claims, as implied by the District Court. It is simply one of many factors that may or may not bear on a given equitable allocation determination.”) (citing Kerr-McGee, 14 F.3d at 326).

Before considering the indemnity provisions in the relevant leases, the equitable factors addressing comparative fault do not clearly establish, as a matter of law, that Georgia-Pacific should be allocated zero responsibility. While Georgia-Pacific’s involvement appears to be small in comparison to those parties who were directly responsible for polluting the Site, it is not de minimis and does not support summary judgment of zero liability.

*876d. The Contractual Intent to Allocate Responsibility

i. The Parties’ Contentions

Georgia-Pacific also argues that the broad indemnity clauses in the relevant leases protect it from liability for any claims arising out of the mining and waste disposal activities on the leased properties, and that the clauses are an additional equitable factor weighing in favor of allocating zero responsibility to Georgia-Pacific. (Docket Entry No. 208 at 23). Georgia-Pacific acknowledges that NL made lease payments and paid fixed per-ton royalties for barite produced on one tract, but argues that the rule that royalty owners do not bear the expenses associated with mineral extraction was “already implicit in the mineral leases executed by Malvern Lumber and Georgia-Pacific, [and] was explicitly confirmed by the indemnity terms of those leases.” (Id.). Georgia-Pacific asserts that “[t]he parties’ intent was to allocate to NL all liability for mining-related activities on land leased from Georgia-Pacific.” (Id.).

In response, Halliburton points to the following contracts between Georgia-Pacific and NL relating to the Site that had no indemnity provisions: (1) a prospecting agreement and option for lease between Malvern Lumber and National Lead Company, dated January 2, 1947, (Docket Entry No. 218, Ex. P);32 (2) an agreement dated April 24, 1946, in which Malvern Lumber granted an easement to NL, (id., Ex. Q); and (3) an agreement, dated June 24, 1947, in which Malvern Lumber granted a railroad right-of-way to NL, (id., Ex. S). Halliburton argues that the Mining Lease’s indemnity provision was limited to claims for premises liability and that “[e]ven those lease agreements that arguably contain broad indemnity language indicate that (with perhaps one exception) the duty to indemnify terminated with the expiration or termination of the lease agreement.” (Id. at 10-11 (citing id., Ex. L at 1, 3 (“providing that ‘this lease shall be and remain in full force and effect for a period of Twenty-Five years’ and upon cancellation ‘shall be null and void except as to rentals then due and unpaid’ ”) (emphasis added by Halliburton); id., Ex. 0 at 4 (“providing that upon termination ‘Lessee shall not be liable or obligated to Lessor by reason of any of the terms, provisions, covenants, or agreements herein ... provided, however, that nothing herein contained shall release Lessee from the payment of any rental that may then be due’ ”) (emphasis added by Halliburton); id., Ex. T at 3 (“providing that upon termination ‘Lessee shall not be liable or obligated to Lessor by reason of any of the terms, provisions, covenants, agreements *877herein; ... provided ... that nothing herein shall deprive Lessor of any right of action it may have hereunder against the Lessee’”) (emphasis added by Halliburton))).33 Halliburton argues that the leases do not establish that NL is obligated to indemnify Georgia-Pacific for response costs or that the parties intended to allocate responsibility for such costs to NL. (Docket Entry No. 218 at 11). In the alternative, Halliburton argues that the parties’ conflicting contract interpretations presents a genuine issue of material fact that precludes summary judgment. (Id.).

Georgia-Pacific argues that there is no need to analyze the legal applicability and enforceability of the indemnity clauses. Instead, Georgia-Pacific relies on the clauses to show the parties’ intent to allocate liability, as part of the equitable allocation analysis. Georgia-Pacific cites Beazer East and Ketr-McGee to support its argument that the enforceability of the indemnity provisions is irrelevant. In Kerr-McGee, the court noted:

Since the district court did not believe the indemnification agreement applied to the cleanup costs at issue, the court ignored the agreement when allocating responsibility for cleanup costs. This was an error. Although contractual arrangements between parties are not necessarily determinative of statutory liability, Lefton’s intent to indemnify Kerr-McGee should be considered in the allocation of cleanup costs.

14 F.3d at 326. The Kerr-McGee court “ultimately concluded that the indemnification provision did cover CERCLA liability, so no equitable allocation proceeding was required.” Beazer East, 412 F.3d at 447 n. 20 (citing Kerr-McGee, 14 F.3d at 327-28). The Beazer East court emphasized that equitable allocation based on intent to indemnify is separate from the legal determination as to enforceability of an indemnity provision:

Beazer I dealt with the legal interpretation of Paragraph 4(c). As a matter of equity, however, the intent of the parties, which is manifested by their actions and in the written agreement, can be taken into account-no matter what our legal conclusion was in Beazer I. Beazer I does not tip the equitable scales one way or the other. In Beazer I, we determined that the 1974 agreement was governed by Alabama law, 34 F.3d at [206,] 211-15 [ (3d Cir.1994) ], and that indemnification agreements are enforceable under Alabama law only if they contain “a plain and unambiguous expression of intent to cover the cost of liability in question.” Id. at 216. Applying this standard, we concluded that “nothing in this agreement demonstrates a clear and unambiguous intent to transfer all CERCLA liability to [KCI].” Id. at 219. The Magistrate Judge correctly reasoned that Beazer I reached no conclusion regarding the parties’ actual intent; only that, as a matter of Alabama law, the contract did not contain a sufficiently clear expression that KCI would indemnify MEAD against all environmental liability associated with the site. See id. Thus, the Magistrate Judge concluded that “there is no inherent inconsistency in the ruling made on appeal and a decision by this court that, as a matter of equity, the parties’ intentions concerning indemnity, to the extent they can be divined from *878both the document and any other evidence offered by the parties, should be considered in equitable allocation.”

Id. at 447 (footnote omitted).

Georgia-Pacific asserts that although it “believes that it would be entitled to summary judgment on the basis of the indemnity clause, it has not (yet) moved for that relief.”34 (Docket Entry No. 222 at 10). Instead Georgia-Pacific argues that the parties’ intent to allocate liability is important in the equitable allocation analysis. (Id.).

ii. Analysis

The analysis of the lease indemnity provisions is limited to determining whether the parties intended NL to indemnify Georgia-Pacific for environmental claims and, if so, how that affects the equitable allocation of response costs.35 The indemnity provision associated with the principal Mining Lease covers “any claims ... arising out of or resulting from any injury, loss or damage to persons or property in, on or about the demised premises.”36 (Docket Entry No. 189, Ex. 18 at 3).37

*879The indemnity provisions in the Mining Lease, the Waste Disposal Leases, the Tailings Pond Lease, and the Settling Pond Lease were agreed to before CERCLA’s enactment. But some courts have found that an indemnity provision predating CERCLA can apply to CERCLA liability. See, e.g., SmithKline Beecham Corp. v. Rohm & Haas Co., 89 F.3d 154, 159 (3d Cir.1996) (“[A]n agreement can require one party to indemnify another against CERCLA response costs even if it was executed before the enactment of CERCLA.”) (citation omitted); Kerr-McGee, 14 F.3d at 327 (“That the indemnity provision was agreed to prior to CERCLA’s enactment should not, however, have affected the district court’s reading of the agreement.”); Olin Corp. v. Consol. Aluminum Corp., 5 F.3d 10, 15-16 (2d Cir.1993) (“Notwithstanding the fact that CERCLA did not exist at the time these contracts were executed, we hold that as to the Hannibal site, these contractual provisions are sufficiently broad to encompass CERCLA liability.”); but see Chrysler Corp. v. Ford Motor Co., 972 F.Supp. 1097, 1108-10 (E.D.Mich.1997) (concluding, in the context of a pre-CERCLA merger in which the surviving company contractually assumed existing (but not future-arising) liabilities, whether absolute or contingent, that CERCLA liability was not included, and disagreeing with and distinguishing cases that “have held that a broad preCERCLA assumption of contingent liabilities can include CERCLA”).38 The case

*880law describes the factors a court is to consider in determining whether an indemnity provision includes CERCLA liability. In Blackstone Valley Electric Co. v. Stone & Webster, Inc., 867 F.Supp. 73 (D.Mass.1994), the court found the following factors relevant under Massachusetts law:

whether any language dealt with CERCLA-type liabilities, whether the scope of the contractual language permitted an inference regarding assumption of future-arising liabilities, whether the agreement predated or post-dated CERCLA’s enactment, whether clean up issues were addressed in the parties’ negotiations, whether the parties knew of the presence of hazardous wastes on the site, and whether any separate consideration was paid for the release of liability.

Id. at 78 (quoting John Boyd Co. v. Boston Gas Co., Civ. A. No. 89-675-T, 1992 WL 212231, at *3 (D.Mass. Aug.18, 1992) (internal quotation marks omitted), aff'd, 992 F.2d 401 (1st Cir.1993)); accord United States v. Hardy, 916 F.Supp. 1385, 1389 (W.D.Ky.1996) (quoting Blackstone, 867 F.Supp. at 78). Another court has explained that “[a] pre-CERCLA indemnification provision covers response costs if it is either ‘specific enough to include CERCLA liability or general enough to include any and all environmental liability ....’” SmithKline Beecham, 89 F.3d at 159 (quoting Beazer East, Inc. v. Mead Corp., 34 F.3d 206, 211 (3d Cir.1994)). “The key is whether there is language limiting the indemnity and whether the language shows an intent to allocate all possible liabilities among the parties. If there is limiting language, the clause does not cover CERCLA.” Am. Nat’l Bank & Trust Co. of Chicago as Trustee for Ill. Land Trust No. 120658-01 v. Harcros Chems., Inc., No. 95 C 3750, 1997 WL 281295, at *16 (N.D.Ill. May 20, 1997) (citing Elf Atochem N. Am. v. United States, 866 F.Supp. 868, 870-71 (E.D.Pa.1994)).

The indemnity provision in the Mining Lease does not specifically include CERCLA liability. But the breadth of the indemnity provision is important. The question is whether the parties intended to encompass future environmental liability arising from NL’s activities on the leased property.39 Although the issue is not whether the indemnity provisions apply to *881this case or are enforceable, but what the parties intended as to allocation, it is helpful to look at cases examining whether indemnity provisions covered CERCLA liability, even if those cases were focused on the legal' issue of whether an indemnity provision covered a CERCLA claim rather than equitable allocation under section 113(f). On the present record, the indemnity provision in the Mining Lease does not appear to be as broad as some other indemnity clauses — many of which were agreed to before CERCLA’s enactment— that have been held to encompass CERCLA claims in contexts other than equitable allocation.40

*882In Harcros Chemicals, for example, the court considered whether two lease indemnity provisions covered CERCLA claims. The first provision stated:

Lessee shall and does hereby indemnify and agree to save and hold harmless lessor against and from any and all loss, liability, claims, damages, costs and expenses of suit, interest, fines and penalties which Lessor may suffer or incur arising out of Lessee’s failure to comply with [all present and future] laws, rules, orders, ordinances, regulations or zoning regulations....

Harcros Chems., 1997 WL 281295, at *16 (quotation marks omitted). The court held that “[t]his provision contains no limiting language, but contemplates all present and future laws,” and found the provision “broad enough to cover CERCLA liability.” Id. The court then examined a second indemnity provision containing some similarities to the provision in the Mining Lease in the present case. The court concluded that this second provision was neither “broad [n]or specific enough to include indemnity for CERCLA liability.” Id. Under this second indemnity provision, the lessee agreed to “indemnify lessor and lessor’s beneficiaries, if lessor is an Illinois Land Trust,” as follows:

from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses ... imposed upon or incurred by or asserted against Lessor by reason of (a) any accident, injury to or death of persons or loss of or damage to property occurring on or about the demised premises or any part thereof or the adjoining properties, sidewalks, curbs, streets or ways; (b) any failure on the part of Lessee to perform or comply with any of the terms of this Lease; or (c) performance of any labor or services or the furnishings of any material or other property in respect of the demised premises or any part thereof.

Id. (emphasis added) (quotation marks omitted). The court concluded that “[t]his provision specifically limits the types of situations in which indemnity may be found and thus is not broad enough to cover CERCLA liability.” Id. (citations omitted); see also Blackstone Valley Elec., 867 F.Supp. at 78 (holding that an indemnification agreement that predated CERCLA’s enactment and did not mention “ ‘CERCLA-type’ ” liabilities, coupled with a lack of evidence that the parties considered cleanup issues, as well as affidavits by both parties suggesting that the agreements were signed without contemplating possible environmental liabilities, did not cover CERCLA liability). The Harcros Chemicals court concluded that this second indemnity provision also was “not specific enough to include CERCLA liability because the three situations which are listed make no reference to environmental or related liability.”41 Harcros Chems., 1997 *883WL 281295, at *17 (citation omitted); see also BP Amoco Chem. Co. v. Sun Oil Co., 166 F.Supp.2d 984, 995-96 (D.Del.2001) (warranty clauses agreed to before CERCLA’s enactment, which did not refer to environmental liability or state that the warrantor would assume future liabilities that might arise out of the transaction, did not cover CERCLA liability), reconsideration granted in part on other grounds, 200 F.Supp.2d 429 (D.Del.2002).42

The case law does not support Georgia-Pacific’s argument that the indemnity provision associated with the Mining Lease shows an intent that Georgia-Pacific be indemnified for future environmental liabilities, such that it would be inequitable to allocate any response costs to Georgia-Pacific. Unlike some of the very broad provisions that have been held to encompass CERCLA liability in contexts other than equitable allocation, on the present record it is not clear that the indemnity provision in the Mining Lease covers environmental clean-up. The provision states that indemnity applies to claims “arising *884out of or resulting from any injury, loss or damage to persons or property in, on or about the demised premises.” The indemnity provision in the Mining Lease does not refer to environmental liability. Georgia-Pacific has not submitted evidence showing that the parties contemplated including future environmental liability in this indemnity provision.43 Because Halliburton has asserted that mining conducted under this Mining Lease contributed to the Site contamination, the lack of evidence that the parties intended NL to indemnify Georgia-Pacific for claims such as the CERCLA claims here weighs against allocating zero responsibility to Georgia-Pacific at this stage.44

The present record does not support finding the indemnity provisions to be a strong equitable factor for allocating zero responsibility to Georgia-Pacific. See CMC Heartland Partners, 1994 WL 498357, at *19 (“For the purpose of this motion [for summary judgment], [the nonmovant] only had to come forward with some evidence that, if believed, would permit the court to allocate some fraction of the costs of remediation to [the movant].”). The evidence that the mining activities were the main cause of the Site contamination and the lack of evidence that the parties intended the indemnity provision in the Mining Lease to cover environmental claims weigh against allocating zero response costs to Georgia-Pacific at this stage.

It is worth emphasizing that the only decision is that the parties’ intent, as evidenced in the indemnity provisions, does not tip the balance of equities in favor of allocating zero response costs to Georgia-Pacific. The legal questions of whether the indemnity agreements are enforceable, or whether those agreements on their own would relieve Georgia-Pacific of all response costs, are not addressed.

e. The Lessee’s Duty to Clean Up the Leased Premises

i. The Parties’ Contentions

Georgia-Pacific also argues that Arkansas law obligates a lessee to clean up pollution on leased premises after the lease terminates, relying on Bonds v. Sanchez-O'Brien Oil & Gas Co., 289 Ark. 582, 715 S.W.2d 444 (1986). In response, Halliburton asserts that the “implied duty to restore the land surface has not been extended by Arkansas courts to mining operations, and it cannot logically be applied where, as here, the express terms of the lease agreements contemplate the permanent alteration of the land surface through excavation and the disposal of mine wastes.” (Docket Entry No. 218 at 12 n. 5). Georgia-Pacific contends that Halliburton’s argument “that Arkansas oil and gas law does not apply to a mining lease is sufficiently specious to require no detailed reply.” (Docket Entry No. 222 at 10 n. 2).

*885ii. Analysis

In Bonds, the court held that under an oil and gas lease, the lessee had to clean up abandoned sites. The court reasoned that allowing the lessee to use the land without cleaning up “would constitute an unreasonable surface use, and no rule is more firmly established in oil and gas law than the rule that the lessee is limited to a use of the surface which is reasonable.” Bonds, 715 S.W.2d at 446. “[T]he duty to restore the surface, as nearly as practicable, to the same condition as it was before drilling is implied in the lease agreement.” Id.

Bonds was based on the rule that in an oil and gas lease, the lessee is limited to a “reasonable” use of the surface land in conducting the drilling permitted under the lease. Bonds may not provide a basis to find an implied duty to clean up surface land in the present case. The leases at issue here were not solely for excavating underground natural resources. The leases permitted such activities as:

[pjrospecting, developing, mining, digging, taking and checking samples, excavating, extracting and otherwise producing and removing therefrom any and all mineral substances of whatsoever nature, together with the right of ingress and egress to and from said lands, and the right to build ore and refuse dumps, run water mains, tracks and pipe fuel, and to build suitable plants for proper milling and treating of ores, together with the right to free use of such water as may be found or developed on or under said lands for processing and treating such ores as may be found, (and the rights to impound such water)45 and the free use of roads and rights of way for removing and transporting any of said ores or mineral substances and equipment incident to the mining, removal and transportation of same....

(Docket Entry No. 189, Ex. 10 at 1). The leases also permitted “disposal of refuse and waste from Lessee’s mining operations ...,” (see id., Ex. 19 at 1; id., Ex. 21 at 1); “disposal of mill tailings and waste from Lessee’s mining and milling operations ...,” (id., Ex. 28 at 1); and “backing up waters and settling mine waters and waste from Lessee’s mining operations ...,” (see id., Ex. 24 at 1). Unlike the lessee in Bonds, the lessee in the present case had the right to use the leased premises, including the surface, for activities far beyond drilling for underground minerals. The implied duty under Arkansas law to clean up the surface on termination of an oil and gas lease is not a strong equitable factor favoring allocating zero response costs to Georgia-Pacific.

f. Halliburton’s Arguments in the Arbitration

Finally, Georgia-Pacific contends that this court should consider statements by Halliburton’s experts in the arbitration that they would allocate no response costs to Georgia-Pacific. Dr. Daniel Stephens testified in the arbitration that allocation should be based on the relative volume of spoils and tailings the party generated. (Docket Entry No. 208 at 23; Docket Entry No. 189, Ex. 51 at 11-12). In response to a question from the Tremont Parties’ counsel about whether Georgia-Pacific would be allocated zero responsibility under this allocation theory, Stephens testified: “[A]ssuming Georgia-Pacific didn’t have anything to do with the site involving vegetation or any other activity out there, they probably wouldn’t be given an allocation share in a model such as I developed.” *886 (Id., Ex. 55 at 1098). The arbitration panel adopted the allocation approach advocated by Stephens. (Id., Ex. 9 at 8 (“Based on the expert testimony, the Panel believes that Dr. Stephens[’s] July 5, 2007 report reflects the proper basis for allocation.”)). Georgia-Pacific also points out that in the arbitration, Halliburton’s counsel argued that allocation based on the volume of mining waste generated was appropriate. (See id., Ex. 54 at 1-2 (“Because it bears a close relationship to the degree of environmental harm caused by each party and provides a good measure of the costs attributable to each party’s conduct, the relative volume or mass of wastes contributed by parties is the starting point for virtually every allocation of response costs under CERCLA and comparable state-law statutes.”) (footnote omitted); id., Ex. 56 at 3 (“[T]he relative volume or mass of wastes contributed by parties is the starting point for virtually every allocation of response costs under CERCLA and comparable state-law statutes.”)). Georgia-Pacific argues that it would be inequitable to use a different allocation approach in this litigation than that urged by Halliburton and adopted by the panel in the arbitration. (Docket Entry No. 208 at 24).

Halliburton disputes that its experts’ opinions in the arbitration are relevant to allocating the response costs in this litigation. (Docket Entry No. 218 at 9-10). Halliburton points out that its experts were only asked to allocate environmental harm and response costs between the parties to the arbitration. (Id. at 10). Halliburton also points out that those parties were the successors to the mine operators that generated the mine wastes. (Id.). Halliburton argues that the experts did not opine on allocating response costs to other entities who did not participate in the arbitration and who had a different involvement with the Site. (Id.). The arbitration panel did not allocate liability beyond the parties before it. (See id., Ex. AA at 32 (noting that no evidence was presented regarding the liability of non-parties and questioning the panel’s authority to make any allocation as to nonparties)).

The arguments Halliburton’s experts presented in the arbitration do not weigh strongly in favor of allocating zero response costs to Georgia-Pacific, which was not a party to that proceeding. The fact that Halliburton argued in the arbitration for allocation between it and the Tremont Parties based on the volume of mining waste generated does not make it inequitable to consider allocating some response costs to other entities that were not directly involved in generating mining wastes, such as Georgia-Pacific.

In sum, weighing the equities, this court concludes that fact issues remain as to the proper allocation of response costs to Georgia-Pacific under section 113(f)(1). While Georgia-Pacific’s responsibility is likely to be small in comparison to that of the parties that directly polluted the Site, on the present record, Georgia-Pacific has not shown that it is entitled to judgment allocating it zero responsibility for response costs. Georgia-Pacific’s motion for partial summary judgment that it has zero liability based on equitable considerations is denied.

C. Halliburton’s Unjust Enrichment Claim

1. The Parties’ Contentions

Georgia-Pacific also seeks summary judgment on Halliburton’s unjust enrichment claim. Georgia-Pacific argues that responsibility for response costs are the subject of written leases between NL and Georgia-Pacific. (Docket Entry No. 208 at 24-25). In addition, because Georgia-Pacific no longer owns property at the Site, Georgia-Pacific asserts that it has received no benefit from Halliburton’s *887payment of response costs. (Id.). In response, Halliburton contends that the leases do not support Georgia-Pacific’s argument that they obligate NL to indemnify Georgia-Pacific for response costs. (Docket Entry No. 218 at 14). As a result, according to Halliburton, the leases are not “ ‘valid, legal, and binding contraet[s]’ that would preclude an unjust enrichment claim.” (Id.). Halliburton also argues that even though Georgia-Pacific no longer owns Site property and would not benefit from an increase in the property’s value, Georgia-Pacific was unjustly enriched by avoiding paying response costs for which it shares some responsibility. (Id.).

2. Analysis

Georgia-Pacific relies on Varner v. Peterson Farms, 371 F.3d 1011 (8th Cir.2004), to support the argument that unjust enrichment does not apply if there is a valid and binding contract between the parties. In Varner, the plaintiffs had borrowed money from a bank to upgrade real estate for use as a poultry-production facility. 371 F.3d at 1014. After default, the bank filed foreclosure actions. Id. at 1015. The plaintiffs filed a federal lawsuit against the bank, a property appraiser, and another party they had contracted with to produce poultry. Id. at 1014. The claims included one for unjust enrichment, based on the assertion that the defendants had been unjustly enriched from the poultry production contracts and the loan contracts. Id. at 1015. The district. court dismissed the unjust enrichment claim, explaining that “this equitable doctrine did not apply where valid, legal, and binding contracts existed.” Id. The Eighth Circuit agreed, explaining that “[o]ne who is free from fault cannot be held to be unjustly enriched merely because one has chosen to exercise a legal or contractual right.” Id. at 1018 (citation omitted). The court held that the plaintiffs’ failure to plead that their contracts with the bank or the poultry producer were illegal defeated the unjust enrichment claim. Varner, 371 F.3d at 1018.

Varner does not resolve the issue here. In Varner, the bank and poultry-producer defendants had valid contracts with the plaintiffs. The plaintiffs’ unjust enrichment claim was based solely on the premise that these defendants were unjustly enriched by those contracts. The plaintiff failed to state a claim for unjust enrichment because the defendants acted under binding legal contracts. In this case, by contrast, Halliburton does not claim that Georgia-Pacific was unjustly enriched as a result of actions taken under the leases between Georgia-Pacific and NL. Instead, Halliburton contends that Georgia-Pacific was unjustly enriched by Halliburton’s payment of cleanup costs for which Georgia-Pacific has some responsibility. Under Varner, the fact that there may be a valid, legal, and binding lease from Georgia-Pacific to NL does not prevent Halliburton’s unjust enrichment claim if the claim is not based on that lease. Halliburton does not claim that Georgia-Pacific was unjustly enriched by the lease or lease payments. In addition, Georgia-Pacific has not moved for summary judgment based on the indemnity clauses in the leases. Instead, Georgia-Pacific relies on the indemnity clauses to show the parties’ intent as part of analyzing the equitable factors. Whether the indemnity clauses in fact cover the response costs at issue is not resolved. Those clauses do not preclude Halliburton’s unjust enrichment claim.

Georgia-Pacific also contends that it has not received anything of value. Georgia-Pacific has conceded for the purpose of its summary judgment motion that it is a PRP under CERCLA’s statutory liability scheme. This court has determined that Georgia-Pacific has not shown its entitlement to summary judgment of zero responsibility for the response costs based *888on equitable allocation. Because Georgia-Pacific may be responsible for some amount of response costs, it may have been unjustly enriched by Halliburton’s payment of Georgia-Pacific’s share. As a result, Georgia-Pacific is not entitled to judgment that it has not been unjustly enriched by Halliburton’s payment of cleanup costs. See Day v. Case Credit Corp., 427 F.3d 1148, 1154 (8th Cir.2005) (“The party claiming unjust enrichment must prove another’s receipt of ‘something of value to which he is not entitled and which he should restore.’ ”) (quoting Smith v. Whitener, 42 Ark. App. 225, 856 S.W.2d 328, 329 (1993)). Georgia-Pacific’s motion for summary judgment on Halliburton’s unjust enrichment claim is denied.46

D. Halliburton’s Request for Additional Discovery

Because this court has determined that summary judgment of zero liability is not *889appropriate on the present record, a continuance under Federal Rule of Civil Procedure 56(f) is not necessary.

IV. Milwhite’s Motion for Partial Summary Judgment

Milwhite has moved for summary judgment denying Halliburton’s claim for past or future response costs and denying Georgia-Pacific’s crossclaim for contribution. Milwhite asserts that there is no competent evidence that it participated in mining or mine-waste disposal at the Site. (Docket Entry No. 228 at 3-4). Milwhite also moves for summary judgment denying Halliburton’s claim for unjust enrichment, raising the same arguments as Georgia-Pacific. (Id. at 4).

A. Factual Background Relevant to Milwhite’s Motion

Milwhite has presented evidence of additional facts relevant to its motion. Mil-white submitted the agreements that it asserts are its only connections to the Site:

• The Jernigan Lease. On December 20, 1938, Albert and Eva Jernigan and W.S. and Mabel Richardson leased the east 1/2 of the southeast 1/4 of Section 10 to Roy G. Smith for the right to core drill, mine, and store barite and bauxite. (Docket Entry No. 228, Ex. B at 1). The lease was for a term of ten years “and as long thereafter as barite or bauxite shall be produced from said land in [illegible] quantities.” (Id., Ex. B at 1). Much of the copy of the lease submitted by Milwhite is illegible, but it appears that Smith agreed to pay the lessors royalties under the terms of the lease. (See id., Ex. B at 2). The lease contained an indemnity provision, stating: “Lessee shall pay for all damages caused by all operations to growing crops on said lands and agrees not to use the said lands except for the purpose of prospecting and mining for barite or bauxite and receiving the same therefrom. Lessee shall not be liable for any damage to the land occasioned by its mining operations conducted in the usual and customary manner.” (Id., Ex. B at 4). Smith assigned this lease to Milwhite on or before March 31, 1939. (Id., Ex. E at l).47 On May 6, 1941, the Jernigans, the Richardsons, and Smith agreed to an amendment to the lease that included a price to be paid by the lessee for concentrated barite. (Id., Ex. F at 1). Smith assigned the amendment to Milwhite on that same day. (Docket Entry No. 228, Ex. G).48
• The Collie Lease. On February 2, 1939, W.R. Collie, Jr. and his wife leased the southwest 1/4 of the southwest 1/4 of Section 11 to Smith for the purposes of prospecting and mining for barite or other minerals, exclusive of oil and gas. (Id., Ex. D at 1). The lease had a term of 10 years, “and so long thereafter as such mineral substances including Barite may be found *890therein in paying quantities, provided the lessee or their successors are continuing to mine and market such minerals as may be found in and to” the leased tract of land. (Id., Ex. D at 1). Smith assigned this lease to Milwhite on February 13, 1939. (Id., Ex. C).49
• The Milwhite/NL Contract. On August 2, 1943, Milwhite agreed to assign to NL all rights and interests under certain mining leases, assignments, and options by special warranty.50 (Id., Ex. H). Included in the assigned agreements are, among others, the Jernigan Lease, and its assignments and amendment, and the Collie Lease and its assignment. (Id., Ex. H at 1-3). The Milwhite/NL Contract also states that Milwhite agrees to grant to NL the surface rights that Milwhite acquired from Malvern Lumber in the southeast 1/4 of the southeast 1/4 of Section 10. (Docket Entry No. 228, Ex. H at 3). Under the contract, Mil-white was to obtain a yearly royalty per ton of barite mined, to be paid monthly, amounting to “6.45% of the actual net selling price on ground barytes, f.o.b. Butterfield, Arkansas.” (Id., Ex. H at 5). The contract was to “continue in force so long as it is possible commercially to produce ground barytes at the rate of at least 2500 tons per month from any or all of the premises covered by the instruments described in paragraph I hereof unless [NL] shall cease to produce barytes within the State of Arkansas.” (Id., Ex. H at 7). This contract was modified on July 30, 1959,51 with the modification noting that the reserve of crude baryte ore on the leased premises was almost depleted, modifying the minimum royalty and tonnage provisions for the following fifteen months, and terminating the contract on December 31,1960. (Id., Ex. L at 1-2).
• The 1940 Warranty Deed. On July 22, 1940,52 Malvern Lumber conveyed by warranty deed 40 acres in the southeast 1/4 of the [south]east53 1/4 of Section 10 to Milwhite. (Docket Entry No. 228, Ex. J).
• The 1943 Deed. On November 9, 1943, Milwhite transferred 40 acres to NL in the southeast 1/4 of the southeast 1/4 of Section 10. (Id., Ex. I).

*891Milwhite has also pointed to a “flow sheet of barite,” dated January 1943,54 arguing that the sheet indicates only 10-and 37-foot mining depths.55 (Docket Entry No. 229 at 6). Milwhite contends that there is no competent evidence that it conducted mining or mine waste disposal at the Site. (Id. at 7). Milwhite also states that by July 30, 1959, it was not receiving royalties from the leases.56 (Id.).

Like Georgia-Pacific, Milwhite argues that the only activities at the Site that matter are mining and mine-waste disposal activities, pointing to the ADEQ Settlement.57 Milwhite points to the Site Investigation Report prepared for Halliburton and the Tremont Parties and approved by the ADEQ, which describes the historical mining and milling activities engaged in by NL and Magcobar from the 1930s to the 1970s.58 Milwhite also emphasizes the statements by Halliburton’s experts in the arbitration that they believed mining to be the primary cause of the contamination.59 Milwhite argues that there is no genuine issue of material fact as to the contamination’s source.

Halliburton does not contest Milwhite’s description of the Site characteristics and regulatory response actions. (Docket Entry No. 233 at 3-4). Halliburton does dispute Milwhite’s version of its involvement at the Site. Milwhite asserted in its brief that Halliburton admitted that Mil-white “ ‘did not physically conduct or direct the excavation and removal of overburden or barite ore at the Site’ “ ‘did not physically conduct or direct the milling of overburden at the Site’ and “ ‘did not physically conduct the transport of mine and mill wastes disposed of on Milwhite’s property on the Site.’ ” (Docket Entry No. 229 at 10-11). Milwhite states in its brief that it is quoting from Halliburton’s response to a request for admission from Milwhite. (Id. at 11). In fact, Halliburton specifically stated that “upon information and belief, this request is denied. ” (Docket Entry No. 228, Ex. N at 6 (emphasis added)). Halliburton explained why it denied the request for admission, as follows:

Plaintiffs are informed and believe that Milwhite engaged in mining activities at the Site. Evidence supporting this belief includes the following: (i) Milwhite was formed “to transact a manufacturing, mining and refining business” (Bates Nos. 105688-105692, copy enclosed); (ii) Milwhite acquired mining leases for portions of the Site beginning in 1938 (Bates Nos. 003046-003054); (iii) Mil-white acquired property at the Site be*892ginning in 1940 (Bates Nos. 105693-105694, copy enclosed); (iv) Milwhite held a mining permit in Arkansas (See Bates No. 003033); (v) Milwhite conducted drilling activities on portions of the Site (Bates No. 024610); (vii) photographic evidence shows additional mining activities on properties owned or leased by Milwhite; and (viii) Milwhite announced plans to open a barite processing facility near the Site (Bates No. 008274).

(Docket Entry No. 233, McCall Deck, Ex. 1 at 7).60

Milwhite also discusses NL’s response to the environmental issues at the Site, citing exhibits submitted by Georgia-Pacific in support of its motion for partial summary judgment. The facts relevant to NL’s environmental response have already been discussed in connection with Georgia-Pacific’s motion.

B. Milwhite’s Evidentiary Objections

In response to Milwhite’s motion, Halliburton has submitted the declaration of Duke McCall and attached exhibits. Mil-white argues that Halliburton’s discovery responses — which Milwhite previously submitted as summary judgment evidence— are inadmissible, self-serving statements as submitted with the McCall Declaration, and that the remainder of the exhibits attached to the McCall Declaration are hearsay. (Docket Entry No. 237 at 2). Milwhite asserts that because the exhibits are inadmissible, Halliburton has failed to create a fact issue precluding summary judgment. Milwhite alleges that “Mr. McCall simply provided ‘unsubstantiated assert[ion]s’ which cannot amount to competent summary judgment evidence.” (Id. at 3). The exhibits attached to the McCall Declaration, if admissible, may support a finding that Milwhite was involved in mining activities at the Site, an important consideration in determining whether Mil-*893white is entitled to a judgment of zero responsibility for response costs.

Milwhite has objected to documents that Milwhite also submitted to support its own motion. Exhibits 1-6, 8, 10, 12, and 14 to the McCall Declaration have been submitted by Milwhite in connection with its own motion.61 Milwhite’s objections are overruled.

Exhibit 1 to the McCall Declaration includes Halliburton’s answers to interrogatories and responses to requests for admission. McCall is one of Halliburton’s lawyers.62 Milwhite argues that using the McCall Declaration to submit Halliburton’s discovery responses is impermissible and self-serving. (Docket Entry No. 237 at 2). Putting aside the fact that Milwhite submitted the same discovery responses as part of its own summary judgment evidence, Halliburton’s submission of the discovery responses is not objectionable. See Fed R. Civ. P. 56(c) (“The judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact ....”) (emphasis added); see also Bartucci v. Jackson, No. 04-2977, 2006 WL 2631925, at *3 (E.D.La. Sept.13, 2006) (“It has long been established that, if they comply with the evidentiary standards of Rule 56(e) ..., a party’s verified answers to interrogatories may serve as support or rebuttal of a motion for summary judgment.”) (citation omitted), aff'd, 246 Fed.Appx. 254 (5th Cir.2007) (unpublished) (per curiam), cert. denied, — U.S. -, 128 S.Ct. 1897, 170 L.Ed.2d 749 (2008); Snelling v. Fall Mountain Reg’l Sch. Dist., No. Civ. 99-448-JD, 2001 WL 276975, at *4 n. 4 (D.N.H. Mar.21, 2001) (unpublished) (“The plaintiffs’ chart of abuse, which the defendants criticize as ‘self serving,’ was submitted to the defendants as part of the plaintiffs’ sworn answers to interrogatories, which are competent evidence in the context of summary judgment.”) (citing Fed. R. Civ. P. 56(c) and (e)).

The discovery responses are not “self-serving” on this record. Halliburton used the responses to show that Milwhite misrepresented Halliburton’s discovery response. Milwhite asserted that Halliburton had admitted that Milwhite did not conduct or direct excavation and removal of overburden or barite at the Site, did not conduct or direct milling of overburden at the Site, and did not conduct the transport of mine and mill wastes disposed of at the Site. (See Docket Entry No. 229 at 10-11). The discovery responses show that Mil-white’s description was inaccurate.

Nor are the discovery responses hearsay. Halliburton has not submitted the discovery responses to prove the truth of *894the assertions made in the responses, but to show that Milwhite misrepresented Halliburton’s responses. See Fed.R.Evid. 801(c) (“ ‘Hearsay1 is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). Exhibit 1 to the McCall Declaration is admissible for summary judgment purposes.

Milwhite separately submitted as summary judgment evidence the documents attached as Exhibits 2-6, 8, 10, 12, and 14 to the McCall Declaration. In his affidavit submitted in support of Milwhite’s motion, Douglas Sutter (Milwhite’s counsel) states that the exhibits submitted with Milwhite’s motion are true and correct copies of documents produced in discovery. (Docket Entry No. 228, Ex. 0 at 2). Under Federal Rule of Evidence 901(a), “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a). In at least some circumstances, production in discovery may be sufficient to authenticate a document. See MGE UPS Sys., Inc. v. Fakouri Elec. Eng’g, Inc., No. 4:04-CV-445-Y, 2006 WL 680513, at *5 (N.D.Tex. Mar.14, 2006) (“MGE does not dispute that it produced these bills during discovery; thus, its argument that the exhibit is not properly authenticated is meritless.”).

Production in discovery may not always be sufficient to authenticate a document. See Madison One Holdings, LLC v. Punch Int’l, NV, No. 4:06-cv-3560, 2009 WL 911984, at *10 (S.D.Tex. Mar.31, 2009) (sustaining an objection- to an exhibit submitted in support of the defendant’s motion for .summary judgment even though one of the plaintiffs may have produced the document during discovery because the defendants failed to provide the court with an affidavit or testimony from a witness with personal knowledge of the document’s authenticity). But the documents at issue here also qualify as ancient documents and Milwhite has not identified any basis for suspicion about their authenticity. The documents were in the hands of Mil-white and/or Halliburton, who were involved, or whose predecessors were involved, in activities at the Site during the time the documents were created. Halliburton’s attorney has submitted a declaration stating that the exhibits are true and correct copies. There is not reason to doubt the documents’ authenticity, the documents were “in a place where [they], if authentic, would likely be,” and the dates indicate that they are more than 20 years old.63 See Fed.R.Evid. 803(16) (providing an exception to hearsay rule for “[statements in a document in existence twenty years or more the authenticity of which is established”); Fed.R.Evid. 901(b)(8) (describing authentication of an ancient document, including that it “is in such a condi*895tion as to create no suspicion concerning its authenticity,” “was in a place where it, if authentic, would likely be,” and “has been in existence 20 years or more at the time it is offered.”). Exhibits 2-6, 8, 10, 12, and 14 to the McCall Declaration are properly authenticated and are within the ancient document exception to the hearsay rule. The exhibits are properly considered on summary judgment.

Exhibits 7, 9, 11, and 13 to the McCall Declaration are also within the ancient document exception to the hearsay rule. They are dated over 20 years ago. Their appearance and the events they discuss support the conclusion that these dates are the true dates of creation. There is no reason to suspect the authenticity of these exhibits. It is not surprising that Halliburton would have these documents in its possession, either by virtue of corporate and property transactions, or by virtue of document production in litigation. Halliburton’s counsel has declared that the submitted documents are true and correct copies. Exhibits 9, 11, and 13 all have litigation control numbers on the bottom indicating that they may have been produced in this litigation. The objections to Exhibits 7, 9, 11, and 13 to the McCall Declaration are overruled.

Milwhite argues that Exhibits 15-18, which include testimony and reports by Halliburton’s experts in the arbitration, are inadmissible hearsay. Yet in its own summary judgment motion, Milwhite relies on the testimony and reports of Halliburton’s experts from the arbitration. (Docket Entry No. 229 at 23-24).64 Moreover, Halliburton submitted declarations executed by Stephens and Low — in which they stated that they did not develop or offer opinions in the arbitration about allocating response costs to entities that were not parties to the arbitration — and Milwhite has not objected to those declarations. Halliburton submitted Exhibits 15-18 to the McCall Declaration for the same purpose, to show that Stephens and Low only allocated environmental harm and response costs between and among the parties to the arbitration.

It is not clear whether Milwhite objects to Exhibit 19 to the McCall Declaration, an excerpt from the allocation award from the arbitration. Milwhite states that “[i]n Exhibit 19, the excerpt from the arbitration allocation award dated September 10, 2007, even the arbitrators refused to allocate any alleged responsibility on the part of Milwhite,” and concludes that “[a]s such, these Exhibits constitute inadmissible hearsay and are of no probative value in this proceeding.” (Docket Entry No. 237 at 2). It is not clear whether Milwhite’s objection to “these Exhibits” refers to Exhibits 15-18 only, or if it also includes Exhibit 19. In any event, the excerpt from the arbitration award is appropriately considered. See Pickard v. Potter, No. Civ. A. 401CV0375BE, 2003 WL 21448593, at *2 (N.D.Tex. Mar.24, 2003) (overruling hearsay objection to arbitration award submitted in support of defendant’s motion for summary judgment, and noting that “[arbitration decisions are not necessarily excluded, absent some proof of untrustworthiness,” and that “[cjomplaints of the use of possible hearsay in the abstract are not sufficient grounds for exclusion”) (citations omitted).

*896In summary, Milwhite’s hearsay objections are conclusory, unsupported, and inconsistent with its own submission or reliance on the same evidence. The objections are overruled.

C. The Contribution Analysis

1. Milwhite’s Status as a Potentially Responsible Party Under Section 107(a) of CERCLA

Milwhite concedes for the purpose of its motion:

(a) that Plaintiffs and Milwhite were owners or operators of the Site as a “facility;” (b) that the costs incurred and to be incurred by Plaintiffs with respect to the Site were “necessary” and “consistent with the national contingency plan;” and, (c) that Milwhite does not assert any defense to liability under CERCLA § 107(b).

(Docket Entry No. 229 at 16). “In other words, Milwhite is willing to assume that it, Plaintiffs!,] and Georgia-Pacific are all potentially liable under Section 107(a).” (Id.). Like Georgia-Pacific, Milwhite focuses its arguments on equitable allocation under section 113(f) and the corresponding RATFA provision. With respect to the RATFA claims, Milwhite concedes for the purpose of its motion that:

(1) the Site is a “hazardous substance site” within the meaning of Sections 8-7-520(a) and (b); (2) the Halliburton Plaintiffs and TRE Management have standing under subsections (a) and (b); (3) Milwhite is a “person who is liable” for the Site within the meaning of subsections (a) and (b); and (4) [Milwhite] is not a party to the settlement giving Plaintiffs standing under subsection (b).

(Id. at 18).

Halliburton does not contend that Mil-white is liable under section 107(a)(1) as an “owner or operator” of the Site. (Docket Entry No. 233 at 5). Instead, Halliburton contends that Milwhite is responsible for cleanup costs as a prior owner or operator under section 107(a)(2), and as an arranger under section 107(a)(3). (Id. at 5-6). Halliburton asserts that Milwhite has not disputed that it owned property at the Site when hazardous substances were disposed of there. (Id. at 6). Milwhite has admitted that it owned 40 acres at the Site between 1940 and 1943, and Halliburton argues that “mining, ore processing and mining waste disposal activities” were occurring at the Site beginning in 1940. (Id.). Halliburton argues that aerial photographs taken in 1940 show that the mining activities were occurring on property that Milwhite owned at the Site, pointing to Stephens’s declaration, which states that aerial photographs show mining activities in part of Section 10 as of October 8, 1940, and to deeds showing that this part of Section 10 was conveyed to Milwhite as of July 22, 1940. (Docket Entry No. 233 at 6 (citing id., Stephens Decl. at ¶ 8; id., McCall Deck, Ex. 8; id., McCall Deck, Ex. 12 at 3)).

Halliburton also asserts that even after Milwhite transferred fee-simple title to the 40 acres it owned at the Site and assigned its leasehold interests to NL, Milwhite still retained mineral rights in approximately 440 acres. (See id. at 6-7 (citing id., McCall Deck, Ex. 12)). Halliburton contends that Milwhite’s retention of the mineral rights in property at the Site from 1943 until at least I96065- — during which time substantial quantities of mine wastes were disposed of — also constitutes “property ownership” giving rise to statutory liability under section 107. (Docket Entry No. 233 at 7 (citing City of Grass Valley v. Newmont Mining Corp., No. 2:04-cv-*89700149-GEB-DAD, 2007 WL 4287603, at *4 (E.D.Cal. Dec.4, 2007) (holding that under California law, mineral rights ownership interests were sufficient to make a party an “owner” subject to liability under CERCLA))). Halliburton argues that it has presented evidence that Milwhite conducted mining activities on the properties it owned and leased at the Site, including drilling for barite, excavating and stockpiling barite ore, and constructing roads on property it owned at the Site using excavated material. (Id. (citing id., McCall Dec!., Ex. 10 (chart, dated January 1943, showing record of drilling by Milwhite under the Collie Lease); id., McCall Deck, Ex. 13 (correspondence regarding the Jernigan Lease))). Halliburton argues that these activities give rise to liability under section 107(a)(2).

Halliburton also argues that Milwhite is liable as an arranger under section 107(a)(3). (Id. at 7-8). Halliburton relies on the Milwhite/NL Contract, which was made “for the purpose of ‘minting], processing] and selling of] barytes’ from properties Milwhite owned and leased at the Site.” (Docket Entry No. 233 at 7 (citing id., McCall Deck, Ex. 12 at 4-5)). Halliburton argues that “[a] party is statutorily liable as an arranger under CERCLA section 107(a)(3), where the party retains an ownership interest in a product being processed at a facility, the generation of hazardous substances is inherent in the processing of the product, and hazardous substances actually are generated and disposed of at the facility as a result of processing of the product.” (Id. at 7). Halliburton asserts that “[i]t is undisputed that ... Milwhite retained an ownership interest in the finished barite mined and milled at the Site, that the generation of hazardous substances was inherent in the mining and milling of the barite ore to produce finished barite, and that hazardous substances were generated and disposed of at the Site as part of the mining and milling operations.” (Id. at 8 (citing id., McCall Deck, Ex. 12 at 5-6 (discussing royalties to be paid by NL to Milwhite for barite); id., McCall Deck, Ex. 14 (modifying NL’s royalty payments to Milwhite for stated period))).

As with Georgia-Pacifie’s motion, this court need not resolve whether Milwhite is liable under section 107(a) or which subsection of section 107(a) applies. Milwhite has conceded for the purpose of its motion that it is a statutorily liable party under section 107(a).66 (See Docket Entry No. 229 at 16). Milwhite seeks summary judgment that it is not liable under section 113(f) even assuming it is a statutorily *898liable party under section 107(a). The issue is whether an equitable allocation of response costs would result in allocating zero costs to Milwhite.

2. Equitable Allocation Under Section 113(f) of CERCLA

Like Georgia-Pacific, Milwhite contends that it should not be required to contribute to the response costs at the Site as a matter of equitable allocation. Milwhite asserts that comparative fault is the “touchstone” in the equitable allocation analysis. The Gore Factors do not support Milwhite’s arguments.

a. Cooperation with Authorities and Ability to Distinguish Contribution

The first Gore Factor, the parties’ ability to demonstrate that their contribution to a discharge, release, or disposal of a hazardous waste can be distinguished, is not particularly relevant to the equitable analysis here. The divisibility inquiry is part of the section 107(a) analysis, which is not the pertinent inquiry in evaluating Mil-white’s motion.

The last Gore Factor, the degree of cooperation by the parties with federal, state, or local officials to prevent any harm to the public health or the environment, is also unhelpful. Milwhite contends that it was not asked by either the EPA or the ADEQ to incur response costs at the Site. (Docket Entry No. 229 at 23). Halliburton has not presented evidence to the contrary. As with Georgia-Pacific, whether Milwhite has cooperated with authorities in the Site cleanup is not helpful because there is no evidence that any of the environmental authorities ever asked Milwhite to become involved in the cleanup process. The lack of cooperation with authorities is not a strong factor in favor of allocating response costs to Milwhite.

b. Comparative Fault

i. The Parties’ Contentions

Like Georgia-Pacific, Milwhite argues that the pollution and cleanup directly resulted from mining conducted by others, specifically NL and Magcobar, the predecessors of Halliburton and TRE Management; that NL was fully aware of the environmental issues at the Site and failed to implement remedial plans; and that Milwhite did not participate in any mining and did not generate mining spoils or pollutants. (Docket Entry No. 229 at 22-23). Milwhite asserts that “[n]o fault whatsoever can be assigned to Milwhite for the pit lake or the mining spoils generated at the Site, under the Gore factors or otherwise.” (Id. at 23). Milwhite acknowledges that it was compensated by NL for the leases and that NL paid Milwhite a fixed per-ton royalty with respect to barite production on one tract. (Id.). But Milwhite argues that “[b]y their very nature, ... fixed lease and royalty payments are made on the premise that the royalty owner will not bear any expenses associated with mineral extraction or ever be involved in them.” (Id.).

In response, Halliburton submits evidence connecting Milwhite with mining activities at the Site during the relevant period. The evidence includes the following:

• The charter for Milwhite, stating that “[t]he purpose for which this corporation is formed is to transact a manufacturing, mining and refining business and especially the manufacturing, mining and refining of clay and clay products and the purchase and sale of goods, wares and merchandise used for such business .... ” (Docket Entry No. 233, McCall Deck, Ex. 2 at 3).
• The Jernigan Lease, dated December 20, 1938, which leased property at the Site to Roy G. Smith “for the purpose *899of prospecting, exploring by use of core drill or otherwise, to mine, operate, produce, store and remove therefrom, all barite and bauxite in and upon” the leased property, in exchange for royalty payments. (Id., McCall Decl., Ex. 3 at 1).
• The assignment of the Jernigan Lease from Smith to Milwhite, dated March 31, 1939. (Id., McCall Decl., Ex. 4).
• The Collie Lease, dated February 2, 1939, which leased property at the Site to Roy G. Smith “for prospecting and mining for Barite, exclusive of oil and gas from the date hereof for a period of 10 years, and so long thereafter as such mineral substances including Barite may be found therein in paying quantities ...,” in exchange for a royalty. (Id., McCall Decl., Ex. 5 at 1).
• The assignment, dated February 13, 1939, from Smith to Milwhite, of Smith’s interest in the Collie Lease. (Id., McCall Decl., Ex. 6).
• The Cooper Lease, dated November 7, 1939, which leased property at the Site to Roy G. Smith “for prospecting, mining and operating for all forms of Barite Ore and all other valuable mineral substances of every kind and character, for Five years ...,” in exchange for royalty payments.67 (Id., McCall Decl., Ex. 7 at 1). The lease provided that “Lessee shall pay for damages caused by his operations to growing crops on said land, but shall not be hable for any damages or injury caused by or resulting from the subsidence of the surface or soil, or for damage to surface of the leased premises by reason of any surface or subsurface mining operations.” (Docket Entry No. 233, McCall Decl., Ex. 7 at 2).
• The 1940 Warranty Deed, dated July 22, 1940, transferring 40 acres of property at the Site from Malvern Lumber to Milwhite. (Id., McCall Decl., Ex. 8).
• A December 23, 1958 letter discussing payment for the period from December 31, 1958 to December 31, 1959 for an Arkansas prospecting permit issued to Milwhite and assigned to NL. (Id., McCall Decl., Ex. 9).
• A chart showing a record of drilling by Milwhite under the Collie Lease, dated January 1943. (Id., McCall Decl., Ex. 10 at 1). This document also includes a chart showing test holes drilled by Milwhite under a “Tate Lease” in an area near the Site (the northeast 1/4 of the northwest 1/4 of Section 11) and indicating no barite. (Id., McCall Decl., Ex. 10 at 2).
• An August 19, 1946 letter discussing a newspaper article regarding the possibility of Milwhite opening a barite processing plant in Gurdon, Arkansas to process barite ore mined in Montgomery County.68 (Id., McCall Decl., Ex. 11 at 1).
*900• A Milwhite/NL Contract, dated August 2, 1943, in which Milwhite agreed to assign and convey all its rights and interests in certain mining leases, assignments and options by special warranty, and to convey the surface rights to 40 acres at the Site to NL. (Docket Entry No. 233, McCall Deck, Ex. 12 at 3). The stated purpose of the contract was for NL to “acquire deposits of, mine, process, and sell barytes.” (Id., McCall Deck, Ex. 12 at 4-5). The contract provides for NL to pay Milwhite a royalty per ton of finished oil well barytes, and sets a minimum royalty. (Id., McCall Deck, Ex. 12 at 5-6).
• A July 30, 1959 modification of the Milwhite/NL Contract, stating that there was not sufficient crude barytes ore to permit NL to meet the minimum amount of ground barytes required in the Milwhite/NL Contract, suspending for fifteen months the minimum royalty and tonnage provisions in the original contract, and providing for termination of the contract and all mining operations on leased premises by December 31, 1960. (Id., McCall Deck, Ex. 14).
• Correspondence about the Jernigan Lease, including:
(1) a letter agreement, dated February 26, 1943, from F.A. Frank at Milwhite to L.M. Mange, regarding royalty payments under the Jernigan Lease, and providing that Mil-white “will forward ... the amounts due you at the present time and, at the same time, give you authority to cash the royalty checks that have accumulated since last June”;
(2) a letter, dated October 30, 1943, from F.A. Frank at Milwhite to C.R. Forbes at the Baroid Sales Division, regarding a negative of a drawing on the Jernigan Pit and storage of Jernigan ore;
(3) a letter, dated November 1, 1943, from NL’s Baroid Sales Division to Milwhite, regarding stockpiling of dump material from the Jernigan Lease, and discussing royalties paid to Milwhite and the Jernigans;
(4) a letter, dated November 9, 1943, from Milwhite to NL’s Baroid Sales Division, discussing treatment of Jernigan ore from a Magcobar plant, and indicating concern with low percentages of recovery from the NL plant;
(5) an NL Baroid Sales Division memorandum, dated November 11, 1943, discussing payments to the Jernigans and Roy Smith on a crude ore basis under the Jernigan Lease acquired from Milwhite, and noting a possible need to make an agreement with Milwhite to pay on a crude ore basis rather than for finished Baroid;
(6) an NL Baroid Sales Division memorandum, dated November 19, 1943, discussing payment of minimum royalties to lessors under the Jernigan Lease, and mentioning remittance made by Milwhite to lessors;
(7) a letter, dated November 22, 1943, from NL Baroid Sales Division to L.M. Mange, regarding payment to lessors of royalties under the Jernigan Lease and referencing payment made by Milwhite to lessors;
(8) a letter, dated November 22, 1943, from NL Baroid Sales Division to Milwhite, explaining why NL’s recovery of barite was lower than Magcobar’s;
*901(9) a letter, dated November 29, 1943, from NL Baroid Sales Division to Milwhite, discussing a letter from Milwhite regarding “stockpiling of low grade material from the Jernigan pit”;
(10) a letter, dated December 4, 1943, from O.J. Benston (an NL Baroid employee) to Milwhite, discussing stockpile of Jernigan ore, and stating that it “is not one of the controversial stockpiles which are wholly south of the present pit” and that “[i]t will be quite some time before it will be necessary to move the latter ...and discussing possible milling of materials formerly used for road building;
(11) a letter, dated August 8, 1944, from O.J. Benston to Milwhite, stating that they “are now nearing the end of the old ore-waste piles and the old roadway,” and discussing royalties to the Jernigans, Roy Smith, and Milwhite for crude ore, ore-waste piles, and old roadway;
(12) a letter, dated August 9, 1944, from Milwhite to O.J. Benston, stating that Milwhite has not paid the Jernigans and Roy Smith royalties on the ore waste piles, and that Milwhite has “settled in full with the Jernigans and Roy G. Smith on the royalty for all material used in building the old road and they have no further interest in this ore”;
(13) an NL Baroid Sales Division memorandum, dated August 11, 1944, discussing “trouble between the Milwhite Company and the Jernigans concerning the Barytes ore used by the Milwhite Company in building roadways,” and discussing Milwhite’s payment to the Jernigans and whether NL has mined and removed ore used for road building;
(14) an NL memorandum, dated August 14, 1944, stating that “[t]he ore that has been used for road building purposes is currently being milled along with the ore-waste piles,” and that NL “expeet[ed] both the road material and the ore-waste piles [would] be cleaned up [that] month.”
(Docket Entry No. 233, McCall Deck, Ex. 13).
• A declaration by Stephens stating that photographs taken of certain property at the Site (which appears to have been owned or leased by Milwhite) showed mining activities on that property. (Id., Stephens Deck at ¶ 8; see also id., Stephens Deck, Exs. C-E (photographs taken of the Site in 1938,1940, and 1950)).

Halliburton argues that this evidence shows that Milwhite participated in mining and disposal activities at the Site. Halliburton argues that Milwhite’s contract with NL covered mining, processing, and selling barite from Milwhite’s property at the Site, and that no evidence shows Mil-white took action to prevent the release of hazardous substances at the Site. (See Docket Entry No. 233 at 9, 13). Halliburton also asserts that even if Milwhite had not engaged in mining and disposal activities, it should still bear some response costs, citing cases Halliburton alleges allocated responsibility to PRPs who did not participate in the activities causing the environmental harm. (Id. at 9-10 (citing Weyerhaeuser Co. v. Koppers Co., 771 F.Supp. 1420 (D.Md.1991); United States v. R.W. Meyer, Inc., 932 F.2d 568 (6th Cir.1991))). Halliburton argues that no cases have found that an owner and/or arranger PRP should be allocated zero response costs because that PRP did not actively and directly participate in the disposal activities causing the environmental *902harm. (Id. at 10). Halliburton distinguishes the cases Milwhite cites, arguing that in allocating zero responsibility to PRPs, the courts found that “only a minute fraction, or trace amount, of the total volume of contaminants at the Site could be attributed to the party awarded a zero allocation.” (Id. at 10-11 (citing Kalamazoo River Study Group v. Rockwell Int’l Corp., 274 F.3d 1043 (6th Cir.2001); PMC, Inc. v. Sherwin-Williams Co., 151 F.3d 610, 616 (7th Cir.1998); United States v. Davis, 261 F.3d 1, 52 (1st Cir.2001); Acushnet Co. v. Mohasco Corp., 191 F.3d 69, 78 (1st Cir.1999))). Halliburton argues that here, “[approximately 4,000,000 cubic yards of the mine spoils generated at the Site — almost 22% of the total mine spoils generated at the Site — were removed from property in which Milwhite held a mineral rights interest and from which Milwhite arranged for the removal and disposal of hazardous substances.” (Id. at 11 (citing id., Low Decl. at ¶ 5)).69 Halliburton points to Low’s opinion that Milwhite should be allocated a meaningful share of response costs for the Site. (Docket Entry No. 233 at 14 (citing id., Low Decl. at ¶ 5)).

In reply, Milwhite does not deny that it misrepresented Halliburton’s discovery response. Milwhite stated in its brief accompanying its motion that Halliburton had admitted that Milwhite did not conduct mining activities at the Site, and Halliburton challenged that description in its opposition. Milwhite’s response is to argue that every exhibit attached to the McCall Declaration is inadmissible. (See Docket Entry No. 237 at 2). Milwhite’s evidentiary objections are overruled.

In the alternative, Milwhite argues that courts have approved allocations of zero response costs even to PRPs who released pollutants. (Id. at 3). Milwhite argues that “[b]ecause the statute gives the Court broad discretion to decide which equitable factor or factors should govern allocation, a legitimate decision to focus on a key equitable factor like fault can make disputed fact issues immaterial and make summary judgment entirely appropriate.” (Id. (citing United States v. Atlantic Research Corp., 551 U.S. 128, 127 S.Ct. 2331, 2337-38, 168 L.Ed.2d 28 (2007); United States v. Colo. & E. R.R. Co., 50 F.3d 1530, 1536 (10th Cir.1995); Envtl. Tranport. Sys., Inc. v. ENSCO, Inc., 969 F.2d 503, 509 (7th Cir.1992))).

ii. Analysis

Although courts have allocated zero responsibility to a PRP in some circumstances, those circumstances are not present on this record. Halliburton has presented evidence that Milwhite was involved in the mining activities at the Site. Milwhite was assigned the lessee’s rights under the Jernigan Lease, which leased property at the Site for prospecting, exploring, mining, operating, producing, storing, and removing barite and bauxite from property at the Site. (See Docket Entry No. 233, McCall Decl., Ex. 3 at 1 (Jernigan Lease); id., McCall Deck, Ex. 4 (assignment of Jernigan Lease to Milwhite)). The Jernigan Lease was assigned to Mil-white by March 31, 1939. (Id., McCall Deck, Ex. 4). Milwhite did not convey its interest in that lease to NL until at least August 2, 1943. (See id., McCall Deck, Ex. 12). The Jernigan Lease gave the lessee the right to prospect, explore, mine, operate, produce, store and remove barite and bauxite on the east 1/2 of the southeast 1/4 of Section 10. (Id., McCall Deck, *903Ex. 3 at 1). The Stephens Declaration states that “mining activities were occurring at [the Site] in the Southeast 1/4 of the Southeast 1/4 of Section 10 ... as of October 8, 1940.” (Id., Stephens Decl. at ¶ 8). Milwhite’s charter states that the company was created to transact a manufacturing, mining, and refining business. (Docket Entry No. 233, McCall Decl., Ex. 2 at 3). In February 1943, Milwhite signed a letter agreement clarifying royalties to be paid to the Jernigans under the Jernigan Lease for materials such as “material removed from the mine crushed and washed at Hot Springs and shipped to destination,” and also noting that it would forward amounts already due to the Jernigans. (Id., McCall Decl., Ex. 13 at 1-2).

“All reasonable inferences are drawn in favor of the nonmovant.” See CQ, Inc. v. TXU Mining Co., L.P., 565 F.3d 268, 273 (5th Cir.2009) (citing Robinson v. Orient Marine Co. Ltd., 505 F.3d 364, 366 (5th Cir.2007)). It is reasonable to infer that as the lessee under a lease allowing for mining on property at the Site, Milwhite— which was formed for the purpose of transacting a manufacturing, mining, and refining business — did conduct mining activities that occurred on the property it leased.70 This weighs against allocating zero response costs to Milwhite.

In addition, under the 1939 Collie Lease, which was assigned to Milwhite on February 13, 1939, Milwhite was the lessee to the southwest 1/4 of the southwest 1/4 of Section 11, to prospect and mine for barite. (See Docket Entry No. 228, Ex. D at 1). Halliburton has presented a chart showing drilling Milwhite conducted under the Collie Lease as of January 1943. (Docket Entry No. 233, Ex. 10 at 1). The fact that Milwhite conducted drilling at property at the Site under the Collie Lease also weighs against allocating it zero responsibility.

In addition to using property at the Site as a lessee, Milwhite also owned property at the Site when mining activities occurred. Milwhite received from Malvern Lumber by warranty deed on July 22, 1940, the land located in the southeast 1/4 of the southeast 1/4 of Section 10. (See id., McCall Deck, Ex. 8 at 1). Milwhite retained that property until November 9, 1943, when it transferred the property to NL. (See id., McCall Deck, Ex. 8 at 2). Stephens states in his declaration that “mining activities were occurring at [the Site] in the Southeast 1/4 of the Southeast 1/4 of Section 10 ... as of October 8, 1940,” (id., Stephens Deck at ¶ 8; see also id., Stephens Deck, Ex. C (showing no activity in the southeast 1/4 of the southeast 1/4 of Section 10 on July 4, 1938); id., Stephens Deck, Ex. D (showing changes to land in the southeast 1/4 of the southeast 1/4 of Section 10 as of October 8, 1940)). This evidence supports a finding that mining and/or waste disposal occurred on property that Milwhite owned at the Site before Milwhite transferred the property to NL.

Even after Milwhite transferred the leases and property it owned at the Site to NL in 1943, Milwhite retained the right to receive royalties for barite production under the transferred leases.71 (Docket En*904try No. 233, McCall Decl., Ex. 12 at 5). Halliburton has presented evidence that after Milwhite transferred certain rights in leases and property at the Site to NL, mining occurred on at least some of the property covered by the leases for which Milwhite was to receive royalties under the Milwhite/NL Contract. (See id., McCall Decl., Ex. 12 at 1 (Milwhite/NL Contract discussing Milwhite’s ownership of certain *905leases, including the Jernigan Lease, which covered the east 1/2 of the southeast 1/4 of Section 10); id., McCall Decl., Ex. 12 at 5 (Milwhite/NL Contract obligating NL to pay royalties to Milwhite for barite mined under the leases described in paragraph I of the contract); id., Stephens Decl., Ex. E (showing mining activity in the southeast 1/4 of the southeast 1/4 of Section 10 on May 19, 1950); see also id., McCall Decl., Ex. 13 at 3-14 (correspondence regarding NL activity under the Jernigan Lease)). And even after Mil-white transferred certain rights to NL in August 1943, Milwhite continued to be involved in overseeing mining activities on the property.72

The record also contains evidence that Milwhite received substantial royalty payments for transferring its rights under the leases to NL. The July 30, 1959 modification of the Milwhite/NL Contract, which states that there was not sufficient crude barytes to permit NL to meet the minimum amount of ground barytes required under that contract, supports an inference that NL had been conducting mining activities at the Site and paying royalties to Milwhite from the time the Milwhite/NL Contract became effective. (Docket Entry No. 233, McCall Deck, Ex. 14 at 1 (discussing obligation under the Milwhite/NL Contract for NL to pay Milwhite a royalty per ton on a minimum of 30,000 tons of ground barytes per year, and stating that “[i]t is now believed that there will not be remaining on said leased premises as of October 1, 1959, the starting date of the next contract year, sufficient crude barytes to permit [NL] to manufacture 30,000 tons of ground barytes during the next contract year ... ”)). The correspondence presented by Halliburton also shows that Milwhite received royalties from NL’s mining activities at the Site. (See id., McCall Deck, Ex. 13 at 7, 14). Halliburton has presented Low’s declaration stating that approximately 3,889,659 cubic yards of mine spoils (almost 22% of the total mine spoils generated at the Site) were removed from prop*906erty in which Milwhite retained a mineral-rights interest, and that Milwhite “may have received approximately $1.7 million in royalties as payment for the barite ore mined from this property.” (Id., Low Decl. at ¶ 5). The facts that mining activity occurred on property that Milwhite leased or owned at the Site during the period in which Milwhite was either the lessee or the owner, and that Milwhite received royalties for transferring its property rights, weigh against allocating zero response costs to Milwhite.

The evidence in the present record shows that Milwhite was significantly more than a passive owner of property on which contamination occurred. The evidence gives rise to factual disputes as to whether Milwhite conducted mining and waste-disposal activities on property it leased and owned at the Site. There are also factual disputes about the extent of Milwhite’s involvement in the mining and disposal activities at the Site after it transferred most of its interests to NL in 1943, and the amount of royalties Milwhite received for allowing use of Site property for excavation, mining, and storage of barite.

The evidence does not show that, as a matter of law, Milwhite is a blameless PEP. Nor does the evidence establish that Milwhite’s activities — either in conducting mining activities and waste disposal or in overseeing such activities on property it owned or leased and transferred in exchange for royalties — only contributed de minimis amounts of contamination to the Site. As a result, Milwhite’s activities are not analogous to the activities of PRPs allocated zero response costs because those PRPs contributed minimal amounts of pollution. And even if the evidence showed that Milwhite did not itself participate in the mining activities but allowed NL to conduct mining activities in exchange for substantial royalties, that would be sufficient to deny a summary judgment motion seeking an allocation of zero response costs to Milwhite. The cases allocating zero responsibility involve PRPs that contributed so little to the pollution as to make allocating liability for response costs inequitable. Those cases did not involve PRPs that received royalties in exchange for transferring property interests to allow others to conduct the polluting activities. Based on the evidence in the record, there is a much stronger basis for allocating at least some of the response costs to Milwhite than in the cases it cites.73 The comparative fault analysis does not result in an allocation of zero responsibility to Milwhite.

c. The Lessee’s Duty to Clean Up Leased Premises

Like Georgia-Pacific, Milwhite has argued that it should be allocated zero responsibility because under Arkansas law, the lessee is obligated to clean up pollution on the leased property when the lease terminates. (Docket Entry No. 229 at 23). Halliburton makes the same arguments it raised in response to Georgia-Paeifie’s similar motion, that the lessee’s implied duty in an oil and gas lease to clean up when the lease ends does not apply to mining operations, and that any such duty does not apply here because the express terms of the lease agreements contemplated the permanent alteration of the land surface through mining activities. (Docket Entry No. 233 at 12). Halliburton also contends that even if NL had an obligation as a lessee to clean up the leased premises, that obligation would not absolve Milwhite of its legal and equitable obligations under CERCLA and RATFA with respect to the properties it leased or its obligations to contribute to the costs of cleaning up property that it owned at the Site. (See id.).

*907The relevant leases are the Jernigan Lease, the Collie Lease, and the Cooper Lease, all of which Smith assigned to Mil-white. Under Milwhite’s theory, as lessee, it arguably had to clean up the Site at the end of the leases. Presumably Milwhite is arguing that under the Milwhite/NL Contract, NL became the lessee under these leases and therefore had the clean-up obligation. Under the Milwhite/NL Contract, Milwhite assigned and conveyed these leases by special warranty, and NL obligated “itself to perform all of the conditions, covenants, and obligations imposed upon the lessee or assignee by the [leases conveyed].” (Docket Entry No. 233, McCall Deck, Ex. 12 at 4).

Even if Milwhite had an implied duty under the leases to clean up the leased properties, and that implied duty transferred to NL under the Milwhite/NL Contract, it is not clear that the case Milwhite cites-Bonds v. Sanchez-O’Brien Oil & Gas Co., 289 Ark. 582, 715 S.W.2d 444 (1986)— supports an equitable allocation of zero responsibility to Milwhite. As discussed in connection with Georgia-Pacific’s motion, Bonds rested on the premise that in an oil and gas lease, the lessee is limited to a use of the surface land that is reasonable to conduct the drilling permitted under the lease. It is more difficult to find an implied duty to clean up the surface under the Georgia-Pacific or Milwhite leases because they clearly contemplated surface damage and permitted a broader set of activities than merely drilling for underground minerals. Under the Jernigan Lease, for example, the lease was for:

the purposes of prospecting, exploring by use of core drill or otherwise, to mine, operate, produce, store and remove therefrom, all barite and bauxite in and upon the ... described property with the right of moving, either during or after the terms thereof, all and any improvements placed or created on the premises, ..., together with the rights of ingress and egress at all times, to produce, save, take care of, manufacture, treat and transport said barite [and Bauxite]74....

(Docket Entry No. 233, McCall Deck, Ex. 3 at 1). The Jernigan Lease also provided that the lessee would not be liable for “any damage to the land occasioned by its mining operations conducted in the usual and customary manner.” (Id., McCall Deck, Ex. 3 at 4). It does not appear that NL assumed an implied duty to clean up the surfaces by obtaining rights under the Jernigan Lease.

The Collie Lease was entered into for the purposes of “prospecting and mining for Barite, exclusive of oil and gas.” This lease provided:

the exclusive right and license to prospect and mine said land for Barite or other minerals [sic] substances therein mentioned, and thereon exclusive of oil and gas; The right to erect such buildings and machinery on said lands and preparing for market and disposing of ores mined with the right to remove same at any time during the life of this lease or within ninety days after its termination; Also right of way for roadways and railways and right to use land for stores, shops and dwelling.

(Docket Entry No. 233, McCall Deck, Ex. 5 at 1). Although the Collie Lease did not contain the same “hold harmless” language as the Jernigan Lease, the activities permitted were more extensive than drilling for underground minerals. The Collie Lease provided the lessee with the right, but not the obligation, to remove certain items placed on the land. It is not clear that the lessee had an implied duty to clean up the premises.

Similarly, the Cooper Lease provided: *908the exclusive right and license to prospect and mine[ ] said land for all forms of Barite Ore and all other valuable mineral substances, together with the right and license to prepare for market on said premises and remove and sell all forms of Barite Ore and all other valuable mineral substances mined or produced thereon, with the right to construct buildings and other structures, including power plants, stations, pipelines, tracks, fences, roadways and all other things essential to the production of said Barite Ore and all other valuable mineral substances thereon, and to make excavations, opening, stockpiles, dumps, ditches, drains, ponds and other improvements upon said premises, including the use of water in said mining operations, and to place such machinery and equipment thereon as Lessee may deem necessary for efficiently prospecting and mining said lands and for preparing for market and disposing of all Barite Ore and all other valuable mineral substances of every kind or character mined or produced thereon, with the right to Lessee to remove all property placed thereon at any time during or within one year after the date of termination of this lease.

(Id., McCall Deck, Ex. 7 at 1). Far from having an implied duty to clean up the leased premises, the Cooper Lease appears to have given the lessee the right to use the land for ditches and dumps. The lessee had the option, but not the obligation, to remove property placed on the leased premises. The Cooper Lease required the lessee “to fill, fence, or properly cover all prospect holes larger than six inches square, after samples are taken in prospecting,” but provided that the lessee would “not be liable for damages or injury caused by or resulting from the subsidence of the surface or soil, or for damage to surface of the leased premises by reason of any surface or subsurface mining operations.” (Id., McCall Deck, Ex. 7 at 2).

The relevant leases do not easily accommodate an implied duty on the lessee to clean up the surface. Even if an implied duty could be imposed on NL, that would not absolve Milwhite of all responsibility because there is at least some evidence that Milwhite conducted mining activities under the leases before assigning its rights to NL. There is also evidence that Mil-white conducted mining activities on property that it owned (not leased) at the Site before transferring that property to NL. The implied duty under Arkansas law to clean up the surface after termination of an oil and gas lease is not a strong equitable factor favoring allocating zero responsibility to Milwhite in this case.

d. Halliburton’s Arguments in the Arbitration

Milwhite points to the expert testimony from Stephens that Halliburton presented in the arbitration, that allocation should be based on the relative volume of spoils and tailings generated. (Docket Entry No. 229 at 23-24 (citing Docket Entry No. 189, Ex. 51 at 11-12)). During the arbitration hearing, in response to a question from the Tremont Parties’ counsel as to whether Georgia-Pacific would be allocated zero responsibility under Stephens’s allocation theory, Stephens responded: “[Ajssuming Georgia-Pacific didn’t have anything to do with the Site involving vegetation or any other activity out there, they probably wouldn’t be given an allocation share in a model such as I have developed.” (Docket Entry No. 189, Ex. 55 at 1098). Milwhite also points out that in the arbitration, Halliburton argued for allocation based on volume of mining waste generated. (See Docket Entry No. 229 at 24 (citing Docket Entry No. 189, Ex. 54 at 1-2; id., Ex. 56 at 2)). Halliburton responds that the arbitration was limited to allocation of re*909sponse costs to parties to the arbitration. (See Docket Entry No. 233 at 11).

Like Georgia-Pacific, Milwhite was not a party to the arbitration. As discussed in connection with Georgia-Pacific’s motion, the experts in the arbitration did not express opinions on allocating liability to nonparties. The statements made by the experts in the arbitration do not favor allocating zero responsibility to Milwhite. The fact that Halliburton argued in the arbitration that allocation ought to be based on volume of mining waste generated between the Tremont Parties and Halliburton — -each of which was accused by the other of being the successor to the NL division that conducted mining at the Site — does not make it inequitable to allocate some portion of the response costs to Milwhite.

Milwhite has not shown its entitlement to summary judgment allocating it zero response costs under section 113(f)(1). Milwhite’s share of responsibility may be smaller than other entities that were more directly responsible for larger amounts of mining at the Site. But there is record evidence that Milwhite was involved in the mining activities at the Site that caused contamination, and that Milwhite transferred the right to conduct mining activities at the Site to NL in exchange for substantial royalties. Milwhite’s motion for partial summary judgment requesting that it be allocated zero responsibility based on equitable considerations is denied.

D. Halliburton’s Unjust Enrichment Claim

Milwhite also seeks summary judgment denying Halliburton’s unjust enrichment claim. Like Georgia-Pacific, Milwhite argues that responsibility for response costs are the subject of written leases between NL and Milwhite.75 (Docket Entry No. 229 at 25 (citing Varner v. Peterson Farms, 371 F.3d 1011, 1018 (8th Cir.2004))). Milwhite points out that its leases were only in place for a short period, long before Halliburton incurred any response costs at the Site. (Id.) Milwhite argues that it has not and will not receive anything of value as a result of Halliburton’s response at the Site. (Id.). Halliburton argues that “ ‘[t]he mere fact that there is a contract between the parties does not prevent the grant of restitution in an appropriate case.’ ” (Docket Entry No. 233 at 15 (quoting Friends of Children, Inc. v. Marcus, 46 Ark. App. 57, 876 S.W.2d 603, 605 (1994))). Halliburton asserts that the leases and their assignment to NL did not and could not address allocating responsibility between Milwhite and NL for environmental costs incurred years later. (Id.). Halliburton argues that because there was no agreement between the parties regarding allocation of costs for future CERCLA and RATFA claims, there is no “valid, legal, and binding contract” that would preclude an unjust enrichment claim. (Id.). Halliburton also argues that Milwhite has received value because Halliburton has paid response costs for which Milwhite bears some responsibility. (Id. at 15-16).

Like Georgia-Pacific, Milwhite relies on Varner v. Peterson Farms, 371 F.3d 1011 (8th Cir.2004). Varner does not resolve the unjust enrichment claim here, for the reasons discussed in connection with Georgia-Pacific’s motion. In Varner, the bank and poultry-producer defendants had valid contracts with the plaintiffs, and the plaintiffs argued that these defendants were unjustly enriched by the contracts themselves. Having failed to plead that the contracts were illegal, the court concluded *910that the plaintiff had failed to state a claim for unjust enrichment because the defendants’ actions were taken pursuant to the contracts. In this case, in contrast, Halliburton is not claiming that Milwhite was unjustly enriched by actions taken pursuant to the contract between Milwhite and NL. Instead, Halliburton contends that Milwhite has been unjustly enriched by Halliburton’s payment of cleanup costs at the Site, for which Milwhite owes some responsibility. The contract governing Milwhite’s transfer of certain property rights to NL does not preclude Halliburton’s unjust enrichment claim.76

Like Georgia-Pacific, Milwhite argues that it received nothing of value that could support an unjust enrichment claim. Like Georgia-Pacific, to the extent that Mil-white is responsible for cleanup costs at the Site under CERCLA or RATFA, it benefits from Halliburton’s payment of those costs. See Day v. Case Credit Corp., 427 F.3d 1148, 1154 (8th Cir.2005) (“The party claiming unjust enrichment must prove another’s receipt of ‘something of value to which he is not entitled and which he should restore.’ ”) (quoting Smith v. Whitener, 42 Ark. App. 225, 856 S.W.2d 328, 329 (1993)). Milwhite has conceded for purposes of its motion that it is a PRP under CERCLA’s statutory liability scheme, and, as discussed earlier, Milwhite is not entitled to summary judgment of zero responsibility. As a result, Milwhite is also not entitled to judgment that it has not been unjustly enriched by Halliburton’s payment of cleanup costs. Milwhite’s motion for summary judgment on Halliburton’s unjust enrichment claim is denied.77

E. Halliburton’s Request for Additional Discovery

Halliburton has requested that if this court determines that summary judgment *911would be appropriate on the present record, that this court deny or continue Mil-white’s motion to permit Halliburton to conduct additional discovery. (Docket Entry No. 233 at 16). Milwhite has not specifically responded to Halliburton’s request for additional discovery. Because this court has determined that Milwhite is not entitled to summary judgment of zero responsibility on the present record, a continuance under Federal Rule of Civil Procedure 56(f) is not necessary.

V. Conclusion

Georgia-Paeific’s motion for partial summary judgment, (Docket Entry No. 189), and Milwhite’s motion for partial summary judgment, (Docket Entry No. 228), are denied. Halliburton’s motion for leave to file supplemental evidence in opposition to Georgia-Pacific’s motion, (Docket Entry No. 332), is denied. Milwhite’s motion to supplement its motion for partial summary judgment, (Docket Entry No. 363), is granted. A scheduling conference is set for September 18, 2009, at 10:00 a.m., to set deadlines for the work needed to resolve this case.

Halliburton Energy Services, Inc. v. NL Industries
648 F. Supp. 2d 840

Case Details

Name
Halliburton Energy Services, Inc. v. NL Industries
Decision Date
Aug 18, 2009
Citations

648 F. Supp. 2d 840

Jurisdiction
United States
Court
United States District Court for the Southern District of Texas

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