Andritz Sprout-Bauer, Inc. v. Beazer East, Inc.

• Decision Date: 17 July 1998
• Docket Number: No. 4:CV-95-1182.,4:CV-95-1182.
• Citation: 12 F.Supp.2d 391
• Parties: ANDRITZ SPROUT-BAUER, INC., Plaintiff, v. BEAZER EAST, INC., and Bridon-American Corp., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

12 F.Supp.2d 391

ANDRITZ SPROUT-BAUER, INC., Plaintiff, v. BEAZER EAST, INC., and Bridon-American Corp., Defendants.

No. 4:CV-95-1182.

United States District Court, M.D. Pennsylvania.

July 17, 1998.

As Corrected July 22, 1998.

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Steven P. Caley, James P. McCabe, Kelley Drye & Warren L.L.P., New York City, for Plaintiff.

Hershel J. Richman, Christopher M. Roe, Eli R. Brill, Dechert Price & Rhoads, Philadelphia, PA, for Defendant.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND:

This action¹ arises out of efforts to recoup environmental contamination cleanup costs incurred in connection with a site owned by plaintiff Andritz Sprout-Bauer, Inc. (Andritz)² which is located in Muncy Borough and Muncy Creek Township, Lycoming County, Pennsylvania (the Muncy site). Andritz initially sought to recover cleanup costs incurred at the Muncy site from defendants Beazer East, Inc. (Beazer)³ and Bridon-American Corp. (Bridon). All claims asserted against Beazer have been settled. Only the claims asserted against Bridon remain in the case.

MUNCY, PENNSYLVANIA SITE

Notice of violation issued

On or about March 29, 1989, the Pennsylvania Department of Environmental Resources (now known as the Pennsylvania Department of Environmental Protection or PaDEP) issued a "Notice of Violation" (NOV) for the Muncy site. PaDEP charged Andritz with violating Pennsylvania environmental law, and ordered it to perform cleanup operations at the site, including the removal and disposition of contaminated soil and restoration of groundwater quality.

The NOV listed violations observed at or near portions of the premises designated Building 70 and directed, inter alia: that operations be conducted "to remove and properly dispose of all contaminated soils and restore groundwater quality to background conditions if pollution is found" in the area of suspected contamination. (Second amended complaint, ¶¶ 20)

Issuance of the notice prompted an inspection for the presence of suspected contaminants.⁴ In approximately March of 1990, contaminants above background levels were discovered in the vicinity of Building 70. This discovery prompted PaDEP to require further investigation to determine whether the contaminants found on-site had leached into the groundwater supply.

In a memorandum issued on or about November 20, 1990, PaDEP directed, inter alia, that remediation activities be conducted in the vicinity of Building 70. Andritz began groundwater remediation and sampling activities in or about December, 1990 and off-site migration investigation activities in or about May, 1991. These activities continued through 1991 and 1992. (Second amended complaint, ¶¶ 20-22)

Operations conducted and materials used at the Muncy site

The Muncy site consists of two non-contiguous parcels of land, designated Plants 1 and 2. Beazer owned Plant 1 from March 1, 1975 through August 4, 1986. Beazer acquired Plant 2 from Bridon in January, 1979. Beazer sold both plants to SWM Corp. on August 4, 1986. Andritz purchased the site on December 17, 1990. (Second amended complaint, ¶¶ 11-19)

During the period Bridon owned Plant 2 (January, 1975 to January, 1979), it operated a wire rope manufacturing operation at the site. Prior to Bridon's acquisition of Plant 2, it was owned by Jones & Laughlin, which also operated a wire rope manufacturing business at the Muncy site.

Andritz alleges that in connection with these operations, both Jones & Laughlin, and later, Bridon, owned and used underground storage tanks (USTs) adjacent to Buildings 201 and 204. It alleges that both corporations used chemical solvents and other classes of substances classified as "hazardous substances" under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. § 9601(14), and as hazardous and waste substances,⁵ governed by Pennsylvania environmental statutes, in connection with the wire rope manufacturing operations. (Second amended complaint, ¶¶ 44-45)

Andritz alleges that Beazer and its predecessor-in-interest, Sprout, Waldron & Company, Inc. (Sprout, Waldron) used the Muncy site for various industrial and manufacturing operations including the production of equipment for grain, pulp and paper mills, fabrication of sheet metal and dies, foundry operations, and research activities, which caused hazardous substances to be deposited and left at the site, substances which Andritz is now being required to remediate. (Second amended complaint, ¶¶ 11-19)

Andritz alleges, upon information and belief, that Beazer used the Muncy site 1) to operate a die cell facility, located in Building 70; 2) to operate foundry operations located in Building 89; 3) to maintain used USTs adjacent to Buildings 74, 70, 81, 71, 66 and at Plant 2; 4) to maintain a drum storage area adjacent to Building 97 and Building 102; 5) to maintain one or more oil drip or collection pits adjacent to Building 70; and 6) to maintain waste accumulation piles at or adjacent to building 89, all of which were responsible for depositing wastes and hazardous substances at the site. The substances deposited by these activities and uses allegedly include: "acetone, chloroethane, 1,1-dichlorethane...toluene, 1,1,1-trichloroethane and xylene" as well as various petroleum hydrocarbons and*or mineral oils. (Second amended complaint, ¶ 35)

Remediation and cleanup efforts and claims asserted

Andritz has submitted proposals for remediation measures to PaDEP to eliminate the hazards identified on-site. Cleanup efforts have begun and are still underway. (Second amended complaint, ¶¶ 23-25) Thus far, Andritz has incurred $6 million in investigation and cleanup costs. (Second amended complaint, ¶¶ 30-31).

In its second amended complaint, Andritz asserts claims under the following federal and state laws to recover past and future costs incurred in connection with the Muncy site: 1) sections 107(a) and 113(f)(1) of CERCLA, 42 U.S.C. §§ 9607 and 9613 (Counts I and II, respectively); 2) section 7002(a)(1)(B) of the Resource Conservation and Recovery Act (RCRA) for injunctive relief, reimbursement and*or contribution, 42 U.S.C. § 6972(a)(1)(B) (Count III); 3) sections 9001-9003 of RCRA, 42 U.S.C. §§ 6991a, 6991b and 6991c, for alleged liability as continuing owners of USTs at the Muncy site last used on or before November 8, 1984 and, therefore, for statutory purposes, still owned by Beazer, and for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, declaring Beazer "solely and entirely liable for all future costs necessary to respond to and abate the release and threatened release of substances from or occasioned by the USTs owned and operated by Beazer...at the Site that were discontinued from use prior to November 8, 1984.", (Count IV); 4) sections 507, 701 and 702, among others, of the Pennsylvania Hazardous Sites Cleanup Act (PaHSCA), Pa. Stat. Ann. tit. 35 §§ 6020.101-602.1305 (Count V); 5) section 1311, among others, of the Pennsylvania Storage Tank and Spill Prevention Act, (PaSTSPA), Pa. Stat. Ann. tit. 35 §§ 6021.101-6021.2104 (Count VI); 6) the Pennsylvania Clean Streams Law (PaCSL), Pa. Stat. Ann. tit. 35 §§ 691.1-691.1001 (Count VII); 7) a Pennsylvania common law claim for negligence per se based on the alleged violation of the PaCSL and PaSTSPA (Count VIII); 8) a claim in strict liability asserted under Pennsylvania common law based on the alleged storage of hazardous substances on Beazer property (Count IX); 9) a claim for contribution under the Pennsylvania Uniform Contribution Among Tort-feasors Act (PaUCTA), 42 Pa. Cons.Stat. Ann. §§ 8321-8327 (Count X); 10) a claim for contribution and indemnity (Count XI); 11) a claim for restitution (Count XII); and 12) a claim for declaratory judgment asserted under 28 U.S.C. §§ 2201 and 2202 on the grounds that Beazer, as the alleged "corporate" and "legal" successor in interest to Sprout, Waldron should be liable for "any and all responsibility of ... [Sprout, Waldron] for all costs which plaintiff has incurred and may incur in responding to the release or threatened release of hazardous substances and other materials at, on or near the Site." (Count XIII).

There are before the court for disposition four motions for summary judgment: one by Andritz (record document no. 137) and three by Bridon (record document nos. 141, 143 and 145).

Summary judgment standard

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c)

... [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is `entitled to judgment as a matter of law' because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.

Celotex v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The moving party bears the initial responsibility of stating the basis for its motions and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. He or she can discharge that burden by "showing ... that there is an absence of evidence to support the nonmoving party's case." Celotex...