Dartron Corp. v. Uniroyal Chemical Co., Inc., 1:94-CV-119.

• Decision Date: 11 July 1995
• Docket Number: No. 1:94-CV-119.,1:94-CV-119.
• Citation: 893 F. Supp. 730
• Parties: DARTRON CORPORATION, Plaintiff, v. UNIROYAL CHEMICAL COMPANY, INC., Defendant.
• Court: U.S. District Court — Northern District of Ohio

893 F. Supp. 730

DARTRON CORPORATION, Plaintiff, v. UNIROYAL CHEMICAL COMPANY, INC., Defendant.

No. 1:94-CV-119.

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

July 11, 1995.

COPYRIGHT MATERIAL OMITTED

Michael L. Hardy, David Michael Dumas, Thompson, Hine & Flory, Cleveland, OH, for Dartron Corp.

Charles R. McElwee, John Michael Rumpf, Squire, Sanders & Dempsey, Cleveland, OH, for Uniroyal Chemical Co., Inc.

MEMORANDUM & ORDER

O'MALLEY, District Judge.

This action revolves around the environmental contamination of a piece of industrial property currently owned by plaintiff Dartron Corporation ("Dartron") and previously owned by Uniroyal Chemical Company, Inc. ("Uniroyal"). Dartron alleges that Uniroyal contaminated the property during its 25 years of ownership, and concealed this fact when it sold the property to Dartron in 1979. Dartron brings the following claims against Uniroyal: (1) liability for any response costs required to remediate the property under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. ("CERCLA"); (2) injunctive relief requiring Uniroyal to abate the hazardous conditions on the property, pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq. ("RCRA"); (3) breach of the property sale agreement between the parties; (4) breach of an express warranty contained in the agreement; (5) negligence; (6) strict liability for ultrahazardous activities; (7) private nuisance; (8) continuing nuisance; (9) continuing trespass; and (10) declaratory judgment of liability under CERCLA. Uniroyal has counterclaimed against Dartron, alleging that Dartron is liable to it for certain response costs it incurred pursuant to CERCLA.

Dartron has moved for summary judgment on its CERCLA claim, and also for summary judgment on Uniroyal's counterclaim (docket no. 31). Uniroyal has separately moved for summary judgment on several of Dartron's pendent state law claims (docket no. 36).

Because the Court finds that Dartron's motion is well-taken in part, summary judgment is GRANTED to Dartron on its CERCLA claim; however, summary judgment is DENIED to Dartron on Uniroyal's CERCLA counterclaim (docket no. 31). Because the Court finds that Uniroyal's motion is well-taken in part, Uniroyal's motion for summary judgment on Dartron's pendent state law claims (docket no. 36) is GRANTED IN PART AND DENIED IN PART; specifically, Uniroyal is granted summary judgment on part of Count V, all of Count VI, and part of Counts VII, VIII, and IX of the amended complaint. The basis for these rulings is set out below.

I.

The parties agree that the following material facts are not in dispute. In 1947, the Glenn L. Martin Company owned a 12 acre piece of property, located at 900 Fairport Nursery Road, in Fairport Harbor, Ohio ("Property"). Like today, the Property in 1947 was used for, and was surrounded by other properties used for, heavy industry. The Glenn L. Martin Company used the Property to manufacture polyvinyl chloride ("PVC"), a thermoplastic resin used in the production of adhesives and coatings.

In 1949, Uniroyal purchased the Property and continued the PVC manufacturing operations there until 1975.¹ From 1949 through 1961, Uniroyal manufactured its own vinyl chloride monomer ("VC") at the Property as a part of the PVC manufacturing process. After 1961, Uniroyal imported VC to the property via railcar.

Uniroyal's VC and PVC manufacturing processes generated various wastes and byproducts, including wastewater. Until 1971, Uniroyal handled its wastewater by transporting it through sewer lines from the manufacturing buildings to two unlined settling basins located on the Property. At the settling basins, any VC or PVC solids would settle out of the wastewater, and the remaining liquid would eventually flow through a ditch into the nearby Grand River. Uniroyal used outside contractors to perform the necessary occasional cleaning and maintenance of the two settling basins.² During these cleanings, the contractors would remove a sludge-like waste material from the basins. Some of this sludge would sometimes spill on the ground during cleaning. In 1971, Uniroyal built a wastewater treatment plant, and thereafter no longer transported its manufacturing effluent into the two settling basins.

In 1975, Uniroyal ceased manufacturing PVC at the Property altogether. In 1979, Uniroyal sold the Property to Dartron pursuant to a sales agreement ("Agreement").³ The Agreement contained a provision stating that the Property was to be sold "`As-is,' ... provided, however, that Uniroyal shall not leave any hazardous or toxic material on or under the Property." Agreement at ¶ 3(e). After purchasing the Property, Dartron began to operate a ferrous scrap metal recycling business. Dartron never produced or used VC or PVC at the Property. Although Uniroyal sold the Property to Dartron in 1979, Uniroyal continues to own other pieces of industrial real estate contiguous to the Property, referred to below as the "Adjacent Properties."

In 1990, Dartron retained Woodward-Clyde Consultants ("WCC"), an environmental consulting firm, to inspect the Property for the presence of asbestos. In conjunction with the asbestos inspection, Dartron also asked WCC to perform a limited environmental assessment of the Property. During the course of its assessment, WCC located an abundance of friable asbestos in the buildings on the Property, and also determined that the likelihood of the presence of other hazardous substances in and on the Property was high.

Dartron followed up on WCC's report by hiring G.E.M. Testing & Engineering Labs ("GEM") in 1991 to perform a more complete environmental assessment of the Property. GEM's assessment indicated that the soil at the Property contained significant concentrations of, among other things, arsenic, barium, chromium, lead, vinyl chloride, methyl ethyl ketone, dichlorobenzene, dichloroethane, and trichloroethane. GEM's assessment also indicated that groundwater at the Property contained significant concentrations of dichloroethane, vinyl chloride, and carbon tetrachloride. All of these materials, as well as asbestos, are "hazardous substances" under CERCLA, 42 U.S.C. § 9601(14), and the applicable federal regulations.

Dartron informed Uniroyal of the results of GEM's site assessment and demanded that Uniroyal clean up the property and provide other compensation. Uniroyal requested permission to have its own consultant, Burlington Environmental ("Burlington"), test the Property for hazardous substances; Dartron agreed. Although Burlington's assessment yielded somewhat different results, it verified the presence of many of the hazardous substances at the Property, and in fact uncovered the presence of another hazardous substance, mercury. Uniroyal, however, has refused to remediate the environmental contamination or compensate Dartron. Uniroyal's refusal is apparently based in part on its belief that Dartron may have caused some of the contamination itself: in its counterclaim, Uniroyal alleges that "upon information and belief, Dartron's handling and processing of the scrap material and equipment also involves the use of other materials which constitute or contain CERCLA `hazardous substances.'" Counterclaim at ¶ 7. Dartron denies this allegation, and Uniroyal has presented no evidence — either contained in Burlington's environmental assessment or otherwise—supporting this allegation. Uniroyal also contends that the old owner of the Property, the Glenn L. Martin Company, may have caused the environmental contamination; again, however, no party has presented any evidence on this question. This lawsuit is brought to determine who must pay for the cleanup of the Property, and whether any other damages are appropriate.⁴

II.

Federal Rule of Civil Procedure 56(c) governs summary judgment motions and provides:

The judgment sought 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 a judgment as a matter of law....

Rule 56(e) specifies the materials properly submitted in connection with a motion for summary judgment:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.... The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. 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 denial 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.

However, the movant is not required to file affidavits or other similar materials negating a claim on which its opponent bears the burden of proof, so long as the movant relies upon the absence of the essential element in the pleadings, depositions, answers to interrogatories, and admissions on file. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

In reviewing summary judgment motions, this Court must view the evidence in a light most favorable to the non-moving party to determine whether a genuine issue of material fact exists. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); White v. Turfway Park Racing Assn., Inc., 909 F.2d 941, 943-44 (6th Cir. 1990). A fact is "material" only if its resolution will affect the outcome of the...