FIP Realty Co., Ltd. v. Ingersoll-Rand PLC
| Decision Date | 01 March 2021 |
| Docket Number | Case No. 2:19-cv-03291 |
| Citation | 522 F.Supp.3d 335 |
| Parties | FIP REALTY CO., LTD., Plaintiff, v. INGERSOLL-RAND PLC et al., Defendants. |
| Court | U.S. District Court — Southern District of Ohio |
Erin M. McDevitt-Frantz, Gregory John DeGulis, McMahon DeGulis LLP, Cleveland, OH, for Plaintiff.
Steven C. Coffaro, Jill A. Weller, Melissa Schaub Matthews, Sarah V. Geiger, Keating, Muething & Klekamp PLL, Cincinnati, OH, for Defendants.
Currently before the Court is a Motion for Summary Judgment by Defendants Ingersoll-Rand PLC, Ingersoll-Rand Company, and Trane U.S., Inc. f/k/a American Standard, Inc. (collectively, "Defendants") (ECF No. 27). This matter is fully briefed and ripe for review. For the following reasons, this Court GRANTS IN PART and DENIES IN PART Defendants’ Motion for Summary Judgment.
This action concerns the alleged release and disposal of hazardous substances by Defendants at the eastern portion of the Federal Industrial Park owned by Plaintiff FIP Realty Co., Ltd. ("FIP Realty" or "FIP") in Columbus, Ohio ("FIP Site" or "Site"). FIP Realty seeks to recover from Defendants the costs of environmental investigation and remediation that it performed at the FIP Site between 2010 and 2016. FIP Realty has asserted four claims for relief against Defendants: (1) cost recovery under Section 107(a)(4) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") (Count One) (the "Section 107 Cost Recovery Claim"); (2) contribution under Section 113(f)(3)(B) of CERCLA (Count Two) (the "Section 113 Contribution Claim"); (3) a declaratory judgment concerning Defendants’ liability for future response costs under Section 113(g)(2) of CERCLA (Count Three) (the "Claim for Declaratory Judgment"); and (4) cost recovery under the Ohio Voluntary Action Program ("VAP") statute, Ohio Rev. Code § 3746.23(C) (Count Four) (the "Ohio VAP Claim").
The FIP Site, which consists of five parcels, was developed for industrial use beginning in the early 1900s. According to FIP Realty, since the Site's original development, raw materials and hazardous waste products have been used, generated, released, and disposed of by former owners and operators at the Site. (ECF No. 28 at 2).
The largest parcel on the Site has been used by Ingersoll-Rand's predecessors, American Blower Corp. ("American Blower") and American Standard, Inc. ("American Standard"), since 1936. (Id. at 2–3). From 1936 to 1957, American Blower used the Site to operate a facility that manufactured fans and blowers, and it allegedly released volatile organic compounds ("VOCs"), such as trichloroethylene ("TCE") and vinyl chloride, in connection with its manufacturing operations. (Id. at 3). In 1957, American Blower became a division of American Standard and continued operating an air conditioning and heating manufacturing facility at the Site. (Id. ). FIP Realty alleges that American Standard also caused the release and disposal of hazardous substances, including TCE. (Id. ). In 1970, Federal Paper Board Company, Inc. and its subsidiary, Federal Glass Company, assumed control over and began operating at the FIP Site. (Pandey Dep. 177:8–13; 178:2–6; 178:11–18). Recent sampling at the Site confirms that the Site's soil and groundwater is contaminated with TCE and its degradation productions. (Decl. Gregory J. DeGulis, ECF No. 28-12, Ex. L).
FIP Realty Co. acquired the FIP Site in 1999, and its affiliate, FIP Realty (the Plaintiff), acquired the property out of receivership in 2010. (ECF No. 27 at 3). FIP Realty retained several consulting firms to investigate the Site's conditions. (ECF No. 28 at 4). In 2010, FIP Realty hired Pandey Environmental LLC ("Pandey Environmental") to guide FIP through the process of participating in the Ohio Voluntary Action Program ("VAP"), pursuant to Ohio Rev. Code § 3746 and Ohio Admin. Code § 3745-300. The Ohio Environmental Protection Agency ("Ohio EPA") regulates the VAP, which allows a property owner to investigate and remediate voluntarily a site impacted by hazardous substances, thus protecting itself from future environmental suits. Atul Pandey ("Mr. Pandey") served as the Certified Professional under the VAP and worked closely with both FIP and the Ohio EPA during the VAP investigation and remediation for the FIP Site. (Pandey Dep. 13:20–14:14; 25:10–16, ECF No. 28-3).
Pursuant to the VAP, FIP and Pandey Environmental completed Phase I and Phase II investigation and remediation work at the FIP Site, and Mr. Pandey sent a No Further Action Letter ("NFA Letter") to the VAP District Coordinator at the Ohio EPA on July 22, 2016. (ECF No. 28 at 4).1 On July 25, 2016, the Ohio EPA received FIP's NFA Letter. (Decl. of Steve C. Coffaro, ECF No. 27-3). Mr. Pandey later submitted addenda to the NFA Letter, on both October 17, 2016 and November 10, 2016.
On December 19, 2016, the Director of Ohio EPA issued to FIP in response to its NFA Letter the Director's Final Findings and Orders and Covenant Not to Sue ("Final Orders and Covenant" or "Final Orders"). (ECF No. 28-8, Ex. H). The Final Orders and Covenant are a formal Ohio EPA Order, constituting a "final" action of the Director and triggering a 30-day period for an administrative appeal to the Environmental Review Appeals Commission ("ERAC"), pursuant to Ohio Rev. Code § 3745.04. (ECF No. 28 at 6). FIP Realty then filed its Complaint in this action on July 29, 2019, seeking to recover the costs it incurred in voluntarily remediating the FIP Site. (Compl., ECF No. 1).
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; Berryman v. SuperValu Holdings, Inc. , 669 F.3d 714, 716–17 (6th Cir. 2012). The Court's purpose in considering a summary judgment motion is not "to weigh the evidence and determine the truth of the matter" but to "determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine issue for trial exists if the Court finds a jury could return a verdict, based on "sufficient evidence," in favor of the nonmoving party; evidence that is "merely colorable" or "not significantly probative," however, is not enough to defeat summary judgment. Id. at 249–50, 106 S.Ct. 2505.
The party seeking summary judgment shoulders the initial burden of presenting the Court with law and argument in support of its motion as well as identifying the relevant portions of " ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56 ). If this initial burden is satisfied, the burden then shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e) ; see also Cox v. Ky. Dep't of Transp. , 53 F.3d 146, 150 (6th Cir. 1995) ().
In considering the factual allegations and evidence presented in a motion for summary judgment, the Court "views factual evidence in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor." Barrett v. Whirlpool Corp. , 556 F.3d 502, 511 (6th Cir. 2009). Self-serving affidavits alone, however, are not enough to create an issue of fact sufficient to survive summary judgment. Johnson v. Washington Cnty. Career Ctr. , 982 F. Supp. 2d 779, 788 (S.D. Ohio 2013) (Marbley, J.). "The mere existence of a scintilla of evidence to support [the non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Copeland v. Machulis , 57 F.3d 476, 479 (6th Cir. 1995) ; see also Anderson , 477 U.S. at 251, 106 S.Ct. 2505.
Summary judgment on statute of limitations grounds is appropriate if the limitations period has run and if there is no genuine issue of material fact as to when the plaintiff's cause of action accrued. Campbell v. Grand Trunk Western R. Co. , 238 F.3d 772, 775 (6th Cir. 2001) (citing Fries v. Chicago & Northwestern Transp. Co. , 909 F.2d 1092, 1094 (7th Cir. 1990) ). The statute of limitations is an affirmative defense, so the defendant carries of the burden of showing that the statute of limitations has run. Id.
Defendants seek summary judgment on each of FIP's claims, advancing two categories of arguments. First, Defendants argue that each of FIP's four claims is either time-barred or unavailable due to statutory constraints. Alternatively, Defendants argue that FIP has not put forth sufficient evidence to prove that Defendants were responsible for the release of any hazardous substances at the FIP Site. The Court considers each of these arguments in turn below.
Defendants seek summary judgment on each of FIP Realty's claims due to lack of viability. Specifically, they allege that Counts One, Three, and Four are time-barred and that Count Two does not satisfy required statutory conditions.
As a preliminary matter, CERCLA establishes two types of claims to recover costs related to remediating hazardous waste. A cost recovery action is available under Section 107 and allows an innocent party (sometimes the Government itself) to recover the costs of cleanup from an owner or operator, past operator, transporter, or arranger. See Acushnet Co. v. Mohasco Corp. , 191 F.3d 69, 74 (1st Cir. 1999). A party that is found liable under Section 107 may in turn bring an...
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