At & T Global Information v. Union Tank Car Co.

• Decision Date: 02 November 1998
• Docket Number: No. C2-94-876.,C2-94-876.
• Citation: 29 F.Supp.2d 857
• Court: U.S. District Court — Southern District of Ohio
• Parties: AT & T GLOBAL INFORMATION SOLUTIONS COMPANY, et al., Plaintiffs, v. UNION TANK CAR COMPANY, et al., Defendants.

29 F.Supp.2d 857

AT & T GLOBAL INFORMATION SOLUTIONS COMPANY, et al., Plaintiffs, v. UNION TANK CAR COMPANY, et al., Defendants.

No. C2-94-876.

United States District Court, S.D. Ohio, Eastern Division.

November 2, 1998.

COPYRIGHT MATERIAL OMITTED

John T. Sunderland, Thompson Hine & Flory, Columbus, Ohio, for plaintiffs; Ben L. Pfefferle, III, Lisa A. Lomax, of counsel.

Craig H. Zimmerman, McDermott, Will & Emery, Chicago, Illinois, Paul J. Hause, Arter & Hadden, Columbus, Ohio, for defendant, Vermont American Co.

MEMORANDUM AND ORDER

HOLSCHUH, District Judge.

This case is before the Court on cross motions for summary judgment. Plaintiffs, AT & T Global Information Solutions Company, AT & T, Goodyear Tire, and Steel Ceilings, Inc., filed a motion for partial summary judgment against defendant, Vermont American Corporation ("Vermont American") on the issue of liability. (Record at 263.) Vermont American responded to plaintiffs' motion. (Record at 291.) Plaintiffs replied to Vermont American's response. (Record at 297.) Similarly, Vermont American filed a motion for summary judgment against plaintiffs. (Record at 270.) Plaintiffs responded to Vermont American's motion (Record at 292), and Vermont American replied to plaintiffs' response. (Record at 304.) Having been fully briefed, these motions are ripe for decision; because they address the same issues, the motions will be decided together.

BACKGROUND

This action arose out of the clean-up of chemical solvent waste on real property owned by defendant, Granville Solvents, Inc. ("GSI"), and located on Palmer Lane in Granville, Ohio. GSI operated as a petroleum-based bulk product storage, distribution, and recycling facility from 1958 until 1980. In 1980, GSI became a waste solvent reclamation site. In this capacity, GSI stored chemical solvent waste in underground tanks and drums. In 1986, the Ohio Environmental Protection Agency ("Ohio EPA") obtained an order from the Licking County Common Pleas Court requiring GSI to cease its operations as a waste solvent reclamation site. On June 18, 1990, the Ohio EPA undertook to remove tanks and drums of chemical solvent waste at the GSI site. The removal was completed on October 11, 1991. It is alleged that some of the drums and tanks removed by the Ohio EPA were in a rusted and deteriorated condition, which had allowed the waste to leak into the surrounding soil and groundwater.

Located adjacent to GSI is the Village of Granville's drinking water treatment plant ("plant"). In late 1993, the Ohio EPA discovered that groundwater, which was allegedly contaminated from the leaking waste at GSI, was being drawn into the drinking water supply. Having been advised of the Ohio EPA's discovery, the U.S. Environmental Protection Agency ("EPA") acquired GSI's business records in an effort to determine who had arranged for treatment or disposal of waste at GSI. From the records, the EPA was able to generate a list of potentially responsible parties ("PRPs"). The EPA then notified the parties of their PRP status and demanded that, each PRP disclose the extent of their involvement with GSI. Plaintiffs were among those determined to be PRPs.

On September 7, 1994, plaintiffs entered into an Administrative Order of Consent ("Consent Order") with the EPA as contemplated by the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq., as amended ("CERCLA.")¹. The Consent Order required plaintiffs to engage in certain response actions at the GSI site. However, several PRPs did not join in the Consent Order. Therefore, on or about September 9, 1994, plaintiffs filed their original complaint under CERCLA. Through this action, plaintiffs sought to impose joint and several liability on those PRPs who refused to join in the Consent Order so as to recover all response costs plaintiffs incurred, and will incur, as a result of actual or threatened release of hazardous substances at the GSI site.² However, a March 18, 1996 Order of this Court, limited plaintiffs' potential recovery to contribution under CERCLA § 9613(f). (Record at 192.)

On September 15, 1995, plaintiffs filed an amended complaint naming Vermont American as a defendant in the action along with Vermont American's subsidiary, Larsan Manufacturing Company ("Larsan").³ Plaintiffs amended the complaint on the belief that Larsan allegedly sent waste to GSI, and therefore, Larsan was a PRP who did not join in the Consent Order. Plaintiffs also named Vermont American as a defendant in order to seek contribution from it, as a parent corporation, for Larsan's share of the costs to clean up GSI.

STANDARD OF REVIEW

Fed.R.Civ.P. 56(c) provides:

[Summary judgment] ... shall be rendered forthwith 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.

"[T]his standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original); Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984).

Summary judgment will not lie if the dispute about a material fact is genuine; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The purpose of the procedure is not to resolve factual issues, but to determine if there are genuine issues of fact to be tried. Lashlee v. Sumner, 570 F.2d 107, 111 (6th Cir.1978). Therefore, summary judgment will be granted "only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is ... [and where] no genuine issue remains for trial, ... [for] the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Poller v. Columbia Broadcasting Sys., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962) (quoting Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944)); accord County of Oakland v. City of Berkley, 742 F.2d 289, 297 (6th Cir.1984).

In making this inquiry, the standard to be applied by the Court mirrors the standard for what was formerly referred to as a directed verdict. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 250, 106 S.Ct. 2505.

"The primary difference between the two motions is procedural; summary judgment motions are usually made before trial and decided on documentary evidence, while directed verdict motions are made at trial and decided on the evidence that has been admitted." Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 745, n. 11, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983). In essence, though, the inquiry under each is the same: whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.

Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. Accordingly, although summary judgment should be cautiously invoked, it is an integral part of the Federal Rules, which are designed "to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 1).

In a motion for summary judgment the moving party bears the "burden of showing the absence of a genuine issue as to any material fact, and for these purposes, the [evidence submitted] must be viewed in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970) (footnote omitted); accord Adams v. Union Carbide Corp., 737 F.2d 1453, 1455-56 (6th Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984). Inferences to be drawn from the underlying facts contained in such materials must also be considered in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Watkins v. Northwestern Ohio Tractor Pullers Ass'n, 630 F.2d 1155, 1158 (6th Cir.1980). Additionally, "unexplained gaps" in materials submitted by the moving party, if pertinent to material issues of fact, justify denial of a motion for summary judgment. Adickes, 398 U.S. at 157-60, 90 S.Ct. 1598.

If the moving party meets its burden and adequate time for discovery has been provided, summary judgment is appropriate if the opposing party 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. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. The existence of a mere scintilla of evidence in support of the opposing party's position is insufficient; there must be evidence on which the jury could reasonably find for the opposing party. Anderson, 477 U.S. at 252, 106 S.Ct. 2505.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

Fed.R.Civ.P. 56(e).

DISCUSSION

I. Elements of CERCLA liability

In order to prevail in a private cost recovery or contribution⁴ action brought under CERCLA:

a plaintiff must establish that (1) the site on which the hazardous substances are contained is a...