Cytec Industries, Inc. v. B.F. Goodrich Co., C2-00-1398.

• Decision Date: 05 April 2002
• Docket Number: No. C2-00-1398.,C2-00-1398.
• Citation: 196 F.Supp.2d 644
• Parties: CYTEC INDUSTRIES, INC., Plaintiff, v. The B.F. GOODRICH CO., Defendant.
• Court: U.S. District Court — Southern District of Ohio

196 F.Supp.2d 644

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

No. C2-00-1398.

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

April 5, 2002.

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Robert M. Robenalt, Schottenstein, Zox & Dunn, Columbus, OH, Gail H. Allyn, Pitney, Hardin, Kipp & Szuch, LLP, Morristown, NJ, for Plaintiff.

John Patrick Gartland, Vorys, Sater, Seymour & Pease, Columbus, OH, Jamie M. Haberichter, Gardner, Carton & Douglas, Chicago, IL, 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 incurred in the investigation and remediation of contamination of hazardous waste 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.¹ This matter is before the court on Cytec's motion for partial summary judgment on the issue of Goodrich's potential liability under CERCLA. The court heard oral argument on Cytec's motion on March 20, 2002. 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." 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. See LaPointe, 8 F.3d at 378. 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). A district court considering a motion for summary judgment may not weigh evidence or make credibility determinations. See Adams v. Metiva, 31 F.3d 375, 378 (6th Cir.1994).

II. FACTUAL BACKGROUND

A. Corporate Ownership

Cytec is a corporation organized and existing under the laws of Delaware, with its principal place of business in New Jersey. Goodrich is a New York corporation that conducts business in Richfield, Ohio. Cytec currently owns an industrial facility located in Marietta, Ohio [hereinafter "Marietta facility" or "facility"] that is the subject of this litigation. To date, Cytec has expended approximately $20 to $25 million in environmental investigation and cleanup costs for the Marietta facility. In its motion, Cytec argues that Goodrich is liable under CERCLA for the portion of costs attributable to the cleanup of hazardous waste that may have been discarded at the Marietta facility from February 6, 1926 until July 1, 1946. To better understand Cytec's claim, an in-depth review of the corporate ownership of the Marietta facility is warranted.

The Marietta Dyestuffs Company ("Dyestuffs") operated the Marietta facility from February 6, 1926 until July 1, 1946, albeit under different names. During this time, Dyestuffs manufactured dyes and various chemicals. It is Cytec's contention that during the course of Dyestuffs's operation of the Marietta facility, it released the facility's waste, including hazardous waste, into two "waste" ponds and two solid waste areas on the grounds of the facility.

American Home Products Corporation ("AHP") acquired Dyestuffs in September, 1944, thereafter holding it as a wholly owned subsidiary of AHP. In January, 1945 Dyestuffs changed its name to Marietta-Harmon Chemicals, Inc. ("Marietta-Harmon"). Approximately one month later, Marietta-Harmon merged with Harmon Color Works, Inc., which was also owned by AHP, and which had two manufacturing facilities in New Jersey. After the merger, the Marietta facility was operated as the "Marietta Division of Marietta-Harmon."

In July, 1946 AHP sold the Marietta Division of Marietta Harmon, including the Marietta facility, to American Cyanamid Company ("Cyanamid"). Cyanamid purchased the property, assets, and business of the Marietta Division of Marietta-Harmon, but this sale did not include the purchase or acquisition of Marietta-Harmon stock, which was owned solely by AHP. After selling the Marietta Division to Cyanamid, Marietta-Harmon changed its name to Harmon Color Works, Inc. ("Harmon Color").²

Four years later, in 1950, Goodrich purchased 100% of the stock of Harmon Color from AHP. As a result of this purchase, Harmon Color, with its two manufacturing facilities in New Jersey, became a wholly owned subsidiary of Goodrich. On February 29, 1952 Goodrich liquidated and cancelled all of Harmon Color's stock, and Harmon Color distributed its existing assets, subject to its liabilities, to Goodrich. See Motion for Partial Summary Judgment, Appendix ("App."), Tab H. at pp. GR283-GR284. Beginning on March 1, 1952 Goodrich began operating the business formerly known as Harmon Color, including the two New Jersey facilities, as a division of Goodrich known as: "Harmon Color Works, a Division of the B.F. Goodrich Company." See id. at GR285. Harmon Color was not dissolved as a corporation under Ohio law until September 22, 1952, almost seven months after Goodrich acquired all of its assets. See Memorandum Contra, App. Tab G at p. CYT 2125.

Thereafter, in 1959, Goodrich sold the assets of the Harmon Color Works division to Allied Chemical Corporation ("Allied"). Goodrich acknowledges that Allied did not assume any liabilities relating to the Marietta facility as a result of this sale.

Again, Cyanamid purchased the Marietta facility from AHP on July 1, 1946, and it continued to manufacture dyes and other chemicals at the facility. In 1993, Cyanamid "spun-off" its chemicals business into a new independent corporate entity—Cytec. Cyanamid transferred ownership of the Marietta facility to Cytec, and Cytec expressly assumed all environmental liabilities associated with Cyanamid's ownership and operation of the facility from July 1, 1946 through December 17, 1993.

B. Hazardous Waste and Environmental Cleanup

As stated, Cytec is currently in the process, and has been for at least the last ten years, of an environmental investigation and cleanup at the Marietta facility. Both the Ohio Environmental Protection Agency ("Ohio EPA") and the United States Environmental Protection Agency have required Cytec to undertake hazardous waste management activities, including formulating plans for closing hazardous waste impoundments on the grounds of the facility, as well as the actual removal of hazardous waste from the site. To date, Cytec has incurred costs of approximately $20 to $25 million as a result of these activities, and it expects to incur additional costs in the future. Cytec first became aware of the possibility that it may have to conduct an environmental cleanup of the Marietta facility's grounds in 1992 or 1993. Beginning in 1999, Cytec began to engage in interim removal of certain hazardous waste at the facility. Cytec did not provide notice to Goodrich until November, 2000.

In its motion, Cytec describes the various chemicals produced at the Marietta facility and the process by which waste was disposed of from February 6, 1926 until July 1, 1946. See Motion for Partial Summary Judgment at pp. 3-12. In support of this summary, Cytec cites the deposition and affidavit testimony of two former employees of the Marietta facility, Robert Dyar and Robert Garrett. Mr. Dyar worked as a chemist, in various positions, at the Marietta facility from 1939 until at least 1946; by way of review, during this time period, the facility would have first been operated as Dyestuffs and later as the Marietta Division of Marietta-Harmon. See id. Appendix ("App."), Tab 3 ("Dyar Aff.") at ¶¶ 3-4. Mr. Garrett worked as a general laborer and later as a laboratory assistant at Dyestuffs from June, 1941 until September, 1942; and after spending three years in the Army, he returned to the facility in September or October, 1945 and worked for Marietta Harmon until at least July, 1946. See id. App., Tab 4 ("Garrett Aff.") at ¶¶ 2-3, 11, 19-21.

Goodrich does...