Cytec Industries, Inc. v. B.F. Goodrich Co.

• Decision Date: 14 August 2002
• Docket Number: No. C2-00-1398.,C2-00-1398.
• Citation: 232 F.Supp.2d 821
• Parties: CYTEC INDUSTRIES, INC., Plaintiff, v. The B.F. GOODRICH CO., Defendant.
• Court: U.S. District Court — Southern District of Ohio

232 F.Supp.2d 821

CYTEC INDUSTRIES, INC., Plaintiff, v. The B.F. GOODRICH CO., Defendant.

No. C2-00-1398.

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

August 14, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert M. Robenalt, Schottenstein, Zox & Dunn, Columbus, OH, Gail H. Allyn, Morristown, NJ, for Plaintiff.

John Patrick Gartland, Vorys, Ssater, Seymour & Pease, Columbus, OH, for Defendant.

MEMORANDUM OPINION AND ORDER

GRAHAM, District Judge.

Cytec Industries, Inc. ("Cytec") brings this action arising under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by The Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9601 et seq., against The B.F. Goodrich Company ("Goodrich"). Cytec seeks to recover contribution from Goodrich, pursuant to 42 U.S.C. § 9613(f)(1), for costs it has incurred and continues to incur in the investigation and remediation of contamination of hazardous wastes at its facility in Marietta, Ohio. Cytec also seeks a declaratory judgment, pursuant to 28 U.S.C. § 2202 and 42 U.S.C. § 9613(g)(2), that Goodrich is liable for any future costs that Cytec may incur as a result of the ongoing environmental cleanup. This matter is before the court on the motion for summary judgment filed by Goodrich, in which it asserts that Cytec's claims are barred by the applicable statute of limitations. This motion is ripe for adjudication.

I. STANDARD OF REVIEW

Under Fed.R.Civ.P. 56(c), summary judgment is proper "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 a judgment as a matter of law." See LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993); Osborn v. Ashland County Bd. of Alcohol, Drug Addiction & Mental Health Servs., 979 F.2d 1131, 1133 (6th Cir.1992) (per curium). The party that moves for summary judgment has the burden of showing that there are no genuine issues of material fact in the case at issue, LaPointe, 8 F.3d at 378, which may be accomplished by pointing out to the court that the nonmoving party lacks evidence to support an essential element of its case. Barnhart v. Pickrel, Schaeffer & Ebeling Co., L.P.A., 12 F.3d 1382, 1389 (6th Cir. 1993). In response, the nonmoving party must present "significant probative evidence" to demonstrate that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., Inc., 8 F.3d 335, 339-40 (6th Cir. 1993). "[T]he 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 added). See generally Booker v. Brown & Williamson Tobacco Co., Inc., 879 F.2d 1304, 1310 (6th Cir.1989).

In reviewing a motion for summary judgment, "this Court must determine 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.'" Patton v. Bearden, 8 F.3d 343, 346 (6th Cir.1993)(quoting Anderson, 477 U.S. at 251-53, 106 S.Ct. 2505). The evidence, all facts, and any inferences that may permissibly be drawn from the facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). See also Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992). However, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252, 106 S.Ct. 2505. See also Gregory v. Hunt, 24 F.3d 781, 784 (6th Cir.1994). Finally, a district court considering a motion for summary judgment may not weigh evidence or make credibility determinations. Adams v. Metiva, 31 F.3d 375, 378 (6th Cir.1994).

II. PROCEDURAL AND FACTUAL BACKGROUND

A. Procedural Background

On April 5, 2002 the court granted Cytec's motion for partial summary judgment, finding Goodrich potentially liable for contribution, pursuant to 42 U.S.C. § 9613(f)(1), for a portion of the response costs that Cytec has incurred and may incur in the future for the environmental cleanup of its facility in Marietta, Ohio. See Memorandum Opinion and Order of April 5, 2002(Doc. 39).¹ For purposes of the present motion, the court will hereinafter refer to Cytec's facility as the "Marietta facility." Goodrich has filed a motion for reconsideration or, in the alternative, interlocutory appeal of the Order of April 5. Inasmuch as this Order results in a final judgment in favor of Goodrich, that motion is moot.

Briefly, in its Order of April 5, the court concluded that Goodrich could be held liable for contribution to Cytec for the hazardous waste that was disposed of at the Marietta facility by Goodrich's predecessor corporation from February 6, 1926 until July 1, 1946. The issue presently before the court is whether Cytec's claim for contribution is barred by the applicable statute of limitations.

B. Factual Background

This section of the memorandum opinion and order will discuss only those facts germane to the response activities (environmental cleanup) of the Marietta facility. In May, 1986 the United States Environmental Protection Agency ("USEPA") began conducting a Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6901, et seq., Facility Assessment ("RFA") of the Marietta Facility. The RFA consisted of an initial preliminary review and resulted in the identification of twenty-eight Solid Waste Management Units ("SWMUs"), which are any discernible unit where solid wastes have been placed, for further evaluation. See Cytec's Memorandum Contra Goodrich's Motion for Summary Judgment [hereinafter "Memorandum Contra"], Exh. 5 (Affidavit of Gary M. Wroblewski) at ¶ 7.² The majority of the waste treatment, storage, or disposal activities at the Marietta facility generally occurred in the following 5 areas: (1) Pond 1; (2) Pond 2; (3) North Landfill (4) Central Landfill; and (5) South Landfill. See id. at ¶ 3.

In the 1980s, regulations promulgated under the RCRA prohibited the industry custom of disposing of hazardous wastes generated in chemical manufacturing plants in unlined disposal ponds, such as Ponds 1 and 2. Ponds 1 and 2 were part of the Marietta facility's wastewater system, in which Pond 1 was the primary treatment pond and Pond 2 was the secondary treatment pond. Thus, Cytec³ would be either have to fit the Ponds with liners or close the ponds. Cytec chose the latter option. Cytec's closure plan had to be approved by the Ohio Environmental Protection Agency ("OEPA") before it could be instituted.

Cytec submitted a single closure plan for Ponds 1 and 2 to the OEPA on May 23, 1988, which the OEPA rejected on November 10, 1988. According to Michael Nau, Cytec's Marietta Facility Environmental Manager, the original plan was rejected because the "plan as submitted did not go far enough in protecting the environment." Goodrich's Motion for Summary Judgment, Exh. A. ("Nau Dep.") at p. 98. After the initial closure plan was rejected, Cytec undertook an assessment of other possible closure options. See id. Cytec decided to treat the two ponds as separate entities and formulate separate closure plans for each. See id. at pp. 98-99. According to Nau, although it had not granted formal approval, the OEPA agreed to accommodate Cytec's request to proceed with separate closure plans for Ponds 1 and 2. See id. at pp. 135-36. According to Goodrich, the OEPA also provided tentative approval for the proposed remedies for both ponds. The remedy selected for Pond 2 was excavation and off-site disposal of water and sludge from the pond, and for Pond 1 the possible remedies included the disposal of Pond 1 sludge into a double-lined landfill constructed within Pond 2. See id. at pp. 137-38.

On September 3, 1992 the Director of the OEPA issued its "Final Findings & Orders" regarding the closure plans for Ponds 1 and 2. See Wroblewski Aff., Exh. D. In this order, the OEPA formally directed Cytec to submit two separate and distinct closure plans for Ponds 1 and 2. Although Cytec was required to submit separate closure plans for each pond, the OEPA subsequently determined that the ponds would be treated as a contiguous unit. See Reply in Support of Motion for Summary Judgment ("Reply"), Exh. 0.

Cytec submitted its closure plan for Pond 2 in November, 1992. See Wroblewski Aff. at ¶ 12. This plan was amended several times over the course of the following 5 years, and the OEPA did not grant final approval of the plan until August 27, 1997. See id. at ¶ 16. The completion of the closure of Pond 2 was approved by the OEPA on September 23, 1998. See id., & Exh. I. Cytec submitted a closure plan for Pond 1 in April, 1993, and the OEPA approved the plan in September, 1996. See Reply, Exh. R.

Although Cytec did not receive final approval for its Pond 2 closure plan until 1997, it actually began cleanup activities in 1992. See Wroblewski Aff. at ¶ 13; Exh. G at p. I-2. Cytec hired a company to remove the hazardous wastes, comprised mostly of a sludge-type material, and ship it off-site. See Nau Dep. at p. 182. Nau testified further that the construction of the sludge removal equipment at the Marietta facility began on August 3, 1992. See id. at pp. 182-83; & Exh. B.

According to Nau, Cytec's decision to begin removing the sludge from Pond 2 before approval of the closure plan was not dictated by the OEPA. Instead, Cytec wanted to begin removing the sludge...