Hobart Corp. v. Waste Mgmt. of Ohio, Inc.

• Decision Date: 14 July 2014
• Docket Number: No. 13-3276,No. 13-3273,13-3273,13-3276
• Parties: HOBART CORPORATION; KELSEY-HAYES COMPANY; NCR CORPORATION, Plaintiffs-Appellants, v. WASTE MANAGEMENT OF OHIO, INC. et al. (13-3273) and COCA-COLA ENTERPRISES, INC. et al. (13-3276), Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

HOBART CORPORATION; KELSEY-HAYES COMPANY;

NCR CORPORATION, Plaintiffs-Appellants, v. WASTE MANAGEMENT OF OHIO, INC. et al. (13-3273) andCOCA-COLA ENTERPRISES, INC. et al. (13-3276), Defendants-Appellees.

No. 13-3273

No. 13-3276

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 26, 2014

Decided and Filed: July 14, 2014

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 14a0152p.06

Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

Nos.: 3:10-cv-00195; 3:12-cv-00213

Walter H. Rice, District Judge.

Before: MOORE and KETHLEDGE, Circuit Judges; TARNOW, District Judge.^*

COUNSEL

ARGUED: Nicholas A. DiMascio, UNITED STATES DEPARTMENT OF JUSTICE, Denver, Colorado, for Amicus Curiae. Larry Silver, LANGSAM STEVENS, SILVER & HOLLAENDER LLP, Philadelphia, Pennsylvania, for Appellants. Glenn A. Harris, BALLARD SPAHR LLP, Cherry Hill, New Jersey, for Appellees. ON BRIEF: Nicholas A. DiMascio, UNITED STATES DEPARTMENT OF JUSTICE, Denver, Colorado, for Amicus Curiae. Larry Silver, LANGSAM STEVENS, SILVER & HOLLAENDER LLP, Philadelphia, Pennsylvania, James A. Dyer, David C. Ahlstrom, SEBALY SHILLITO + DYER LLP, Dayton, Ohio for Appellants. Glenn A. Harris, BALLARD SPAHR LLP, Cherry Hill, New Jersey, William E. Coughlin, Susan R. Strom, Ronald M. McMillan, CALFEE, HALTER & GRISWOLD LLP,Cleveland, Ohio, Robert H. Eddy, Erik J. Wineland, GALLAGHER SHARP, Toledo, Ohio, Stephen Haughey, FROST BROWN TODD LLC, Cincinnati, Ohio, Leah J. Knowlton, BALLARD SPAHR LLP, Atlanta, Georgia, Robert Sherwood, GOLDENBERG SCHNEIDER, L.P.A., Cincinnati, Ohio for Appellees in 13-3276. Frank L. Merrill, Drew H. Campbell, Anthony M. Sharett, BRICKER & ECKLER LLP, Columbus, Ohio, William D. Wick, WACTOR & WICK LLP, Oakland, California, William H. Harbeck, QUARLES & BRADY LLP, Milwaukee, Wisconsin, Jack A. Van Kley, VAN KLEY & WALKER, LLC, Columbus, Ohio, Vicki J. Wright, KRIEG DE VAULT LLP, Indianapolis, Indiana, Steven M. Sherman, KRIEG DE VAULT LLP, Carmel, Indiana, Martin H. Lewis, TUCKER ELLIS LLP, Columbus, Ohio, for Appellees in 13-3273.

OPINION

KAREN NELSON MOORE, Circuit Judge. This case involves the apportionment of liability between various entities that allegedly created an environmental hazard at a landfill in Ohio. In 2006, Plaintiffs-Appellants, Hobart Corporation, Kelsey-Hayes Company, and NCR Corporation (collectively, "Appellants"), entered into a settlement agreement with the United States Environmental Protection Agency ("EPA"), agreeing to pay for a study of the site and to reimburse the government's response costs in exchange for a partial resolution of Appellants' liability. Nearly four years later, Appellants filed the first of two actions under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 94 Stat. 2767, the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 100 Stat. 1613 (both of which are codified at 42 U.S.C. §§ 9601-9675), and Ohio common law, seeking to recover their costs or gain contribution from other entities responsible for the contamination. In this first case ("Hobart I"), Appellants sued Waste Management of Ohio, Inc. ("Waste Management"), Bimac Corporation, Bridgestone Firestone, Inc. ("Bridgestone"), Dayton Power & Light Company ("DP&L"), Cargill, Inc. ("Cargill"), Monsanto Company ("Monsanto"), Valley Asphalt Corporation ("Valley Asphalt"), IRG Dayton I, LLC ("IRG Dayton"), and other unknown entities. Appellants alleged three relevant causes of action: a cost-recovery action under CERCLA § 107(a)(4)(B), 42 U.S.C. § 9607(a)(4)(B); a contribution action under CERCLA § 113(f)(3)(B), 42 U.S.C. § 9613(f)(3)(B); and an unjust-enrichment action under Ohio common law. In 2012, Appellants brought another case ("Hobart II"), alleging the same three causes of action, against DAP Products, Inc. ("DAP"), Coca-ColaEnterprises, Inc. ("Coca-Cola"), The Sherwin-Williams Company ("Sherwin-Williams"), and GlaxoSmithKline LLC ("GSK") (collectively, with the defendants in Hobart I, "Appellees").

In both cases, the district court dismissed Appellants' § 113(f)(3)(B) contribution claims as untimely and dismissed the unjust-enrichment claims for failing to state a valid cause of action under Ohio law. In Hobart I, the district court allowed limited discovery on the § 107(a)(4)(B) claims but, ultimately, granted summary judgment to the Hobart I defendants, finding that CERCLA and controlling caselaw prohibit a party that has entered a liability-resolving settlement agreement with the government from prosecuting such an action. The district court, in the same order, dismissed the cost-recovery action in Hobart II for the same reasons. Appellants now bring this consolidated appeal. We AFFIRM the district court's dismissals and its grant of summary judgment to Appellees.

I. BACKGROUND

A. CERCLA Primer

"Congress enacted CERCLA in 1980 to 'promote the timely cleanup of hazardous waste sites' and to ensure that the costs of such cleanup efforts were borne by those responsible for the contamination.'" CTS Corp. v. Waldburger, 573 U.S. ---, 134 S. Ct. 2175, 2180 (2014) (quoting Burlington N. & Santa Fe R. Co. v. United States, 556 U.S. 599, 602 (2009)). To that end, CERCLA imposes liability upon four types of parties:

(1) the owner and operator of a vessel or a facility,

(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,

(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances . . . at any facility . . . , and

(4) any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance . . . .

CERCLA § 107(a)(1)-(4); 42 U.S.C. § 9607(a)(1)-(4).

The statute also creates a complicated network of cost-shifting provisions, which apply depending upon who pays what and why. If the federal government identifies a contaminated site, it has several options. The government may clean up the site itself under CERCLA § 104, 42 U.S.C. § 9604; the government may compel a "Potentially Responsible Party" ("PRP") to clean up the site through an action under CERCLA § 106, 42 U.S.C. § 9606; or the government may enter into an agreement with a PRP under CERCLA § 122, 42 U.S.C. § 9622, that requires the PRP to clean up the site. See Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 161 (2004); RSR Corp. v. Commercial Metals Co., 496 F.3d 552, 554-55 (6th Cir. 2007). If the government removes the waste and remediates the site, it may recover its response costs from PRPs under § 107(a)(4); if a private party actually incurs response costs rehabilitating the site, it may partially recover those response costs under § 107(a)(4)(B).¹ United States v. Atl. Research Corp., 551 U.S. 128, 131 (2007). In turn, any party sued under §§ 106 or 107, by the government or a private party, may seek contribution² from other PRPs under § 113(f)(1), so that the recovery costs can be distributed in an equitable fashion. Cooper Indus., 543 U.S. at 165-66.

Another option for the government is to clean up the site itself and enter into a settlement agreement with PRPs to cover the government's response costs. See § 122(a), (g), (h). In this scenario, "[a] person who has resolved its liability to the United States . . . for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any [PRP] who is not a party to [the] settlement." § 113(f)(3)(B). In exchange for resolving its liability, the settling PRP "shall not be liable for claims for contribution regarding matters addressed in the settlement." § 113(f)(2).

While there are multiple avenues for the government and PRPs to apportion the costs of contamination and clean up, CERCLA contains several specific statutes of limitations as to the timing of lawsuits. Cost-recovery actions under § 107(a)(4) must be brought within three years "after completion of the removal action" or "for a remedial action, within [six] years after initiation of physical on-site construction." § 113(g)(2). Actions for contribution under § 113(f), however, must be filed within three years of "(A) the date of judgment in any action under [CERCLA] for recovery of such costs or damages, or (B) the date of an administrative order under [§ 122(g)] (relating to de minimis settlements) or [§ 122(h)] (relating to cost recovery settlements) or entry of a judicially approved settlement with respect to such costs or damages." § 113(g)(3); see also RSR Corp., 496 F.3d at 556-58 (discussing limitations periods).

B. Facts

Since 1941, various parties have allegedly been disposing of waste at the South Dayton Dump and Landfill Site ("the Site"). R. 69 at 2, 5 (2d Am. Compl. at ¶¶ 2, 22) (Page ID #758, 761).³ Between July 1973 and July 1976, hazardous substances—including arsenic, barium, mercury, and polynuclear aromatic hydrocarbons—were deposited at and around the Site. Id. at 2 ¶ 3, 5 ¶ 22 (Page ID #758, 761).

In the early 2000s, the EPA discovered that the soil and groundwater "had concentrations [of these substances] above background levels or maximum contaminant levels as established by the EPA." Id. at 8 ¶ 39 (Page ID #764). In 2002, the EPA proposed listing the Site on the National Priorities List under CERCLA § 105, 42 U.S.C. § 9605. Id. at 2 ¶ 3 (Page ID #758). The EPA withdrew this proposal for some reason and, then, proposed listing the Site again in 2004. Id. According to the Second Amended Complaint, the Site remains a proposed listing. Id.

The EPA identified several PRPs,...