concurring and
dissenting:
I concur in the majority’s construction of the Act, subject to the reservations and observations which follow. I concur in remanding the case to the trial court, but I would direct that court to make the factual determination whether the petroleum which is being released originates from the Top Stop property, as DEQ contends, or whether it originates from an upgradient source and simply migrates through the Top Stop property to the pond below, as Wind River asserts. I think it is improper for this court to make that factual determination in the first instance. That determination escaped being made by the trial court because of the court’s construction of the Act that Wind River could not be liable because there was no evidence that since it purchased the property in January 1988, it had done anything to contribute to the contamination. We have disagreed with that interpretation of the Act, but that now leaves the above factual determination to be made.
. DEQ, relying on two studies made for it, maintains that petroleum is escaping from the Top Stop property. Wind River does not dispute that fact but asserts that the petroleum might originate from an upgradient source and that it simply migrates through its property to a lower point off its property. It is my view that liability under the Act is not imposed on a landowner through whose property petroleum simply migrates from a higher source and whose property makes no contribution to the contamination as it passes through.' Such property would not be a “facility” under section 19 — 6—302(5)(a)(ii), which defines “facility” as “any site or area where a hazardous material or substance has been deposited, stored, disposed of, or placed, or otherwise come to be located.” Petroleum migrating from a higher source through a landowner’s property to a lower point off the property but whose property makes no contribution to the contamination would not be a “facility” because the petroleum is not “deposited, stored, disposed of, or placed, or otherwise come to be located” on the property-
Wind River should be given the opportunity on remand to prove that it is just such an innocent landowner and to rebut and impeach the reports and studies relied upon by DEQ. We recently observed in Lamb v. B & B Amusements Corp., 869 P.2d 926, 928 (Utah 1993):
Affidavits and depositions submitted in support of and in opposition to a motion for summary judgment may be used only to determine whether a material issue of fact exists, not to determine whether one party’s case is less persuasive than another’s or is not likely to succeed on the merits.
In short, Wind River is entitled to an eviden-tiary hearing and should not be deprived of that right by our making a factual determination on an issue which the trial court did not confront and rule on.
Additionally, I wish to express a caveat to a statement made in the majority opinion: *877“Thus, having located a single responsible party, DEQ need not pursue others.” I believe that it is the intent of the Act that DEQ should bring its action against and seek reimbursement from all parties whose land in any way contributes to the contaminated release. While it is true that the failure to name all responsible parties is not a defense to the action, it would place a heavy financial burden on a landowner to be singled out and made to bear the burden of ascertaining who else may be hable. I would not want to leave the impression that DEQ could blindly bring its action for reimbursement against a single responsible party and ignore others, leaving it to the defendant to prove the liability of others. In the instant ease, it does not appear that DEQ has done that since its studies and reports indicate that the contamination originates on the Top Stop property and no' other land contributes to the contamination.
STEWART, Associate C.J., concurs in the concurring and dissenting opinion of HOWE, J.