Respondents are neither owners nor operators.
They are environmental consultants. The facts as presented in the unanswered complaint and in affidavits submitted with Respondents' motion to dismiss indicate that Respondent Middleton was present at the site in July 1997 when he observed dirt from soil borings made in the vicinity of a 3000 gallon underground storage tank by another independent environmental consulting firm. Mr. Middleton's affidavit further states that based on observation of the color and smell, it appeared to him that the soil was potentially contaminated. Mr. Middleton adds that he did not perform any lab tests on the dirt, and that in the absence of testing, he could not have actual knowledge of contamination, or knowledge of a spill, leak or discharge of petroleum. A brief filed on behalf of Respondents states that Mr. Middleton was acting as a favor at the request of a friend when he went to the site to observe the performance of a contractor hired to conduct soil borings at the site.