68th St. Site Work Grp. v. Airgas, Inc.

MEMORANDUM OPINION

Stephanie A. Gallagher, United States District Judge.

Presently pending before this Court is a motion for summary judgment, filed by Defendant Schumacher & Seiler, Inc. (“Defendant” or “S&S”). ECF 515. Plaintiff 68th Street Site Work Group (“Plaintiff”) filed its opposition. ECF 548. Defendant then filed its reply. ECF 597. No. hearing is necessary. See Loc. R. 105.6 (D. Md. 2021). For the reasons set forth below, Defendant's motion will be granted.

I. Factual Background

The 68th Street Dump Superfund Alternative Site (“68th Street Site” or “the Site”) is an aggregation of seven landfills in the Rosedale area of Baltimore County and the City of Baltimore, that hosted waste disposal activities of municipal, industrial, and commercial waste containing hazardous substances between the 1950s and early 1970s. ECF 1 ¶¶ 4, 6. The United States Environmental Protection Agency (“EPA”) and the State of Maryland commenced emergency response and removal actions at the Site in the 1980s. ECF 1 ¶ 12. Beginning in 1999, EPA issued General Notice Letters to various potentially responsible parties (“PRPs”). ECF 1 ¶ 13. After completion of multiple rounds of study and EPA's issuance of a final Record of Decision for remedial actions at the Site, this Court, in November 2017, entered a Consent Decree for Remedial

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Design/Remedial Action (“Consent Decree”) between EPA and the State of Maryland, on the one hand, and a group of “Settling Defendants” on the other. ECF 1 ¶ 16-22.

Plaintiff 68th Street Site Work Group, an unincorporated association of entities who were “Settling Defendants” and signatories to the Consent Decree, brought this lawsuit pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. § 9601 et seq. (“CERCLA”), seeking contribution from more than 150 Defendants for response costs incurred in connection with activities and payments required by the Consent Decree to address the release and/or threatened release of hazardous substances at the Site. ECF 1 ¶¶ 1, 24. The majority of those Defendants have been dismissed, whether voluntarily by Plaintiff, or by this Court's adjudication of motions. See, e.g., ECF 786 (dismissing claims against twenty-nine defendants without prejudice and granting summary judgment for two defendants). Plaintiff's allegations against Defendant S&S, specifically, remain pending and are laid out, in relevant part, below:

974. According to 68th Street Site records, Defendant Schumacher & Seiler, Inc. (“Schumacher &amp Seiler”) by contract, agreement or otherwise, arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment of waste containing hazardous substances at the 68th Street Site

975. Schumacher & Seiler is and/or was engaged in the business of wholesale and service of plumbing, heating ventilation and air conditioning equipment

976. Schumacher & Seiler's waste streams consisted of maintenance waste, metal finishing waste, building construction waste and general office waste, which contained the following hazardous substances: acetone, benzene, cadmium, chromium, copper, dichloroethylene, ethyl benzene, lead, manganese, methyl ethyl ketone, methylene chloride, nickel, perchloroethylene, silver, tin, toluene, trichloroethane, trichloroethylene, vinyl chloride, xylene, and zinc.

ECF 1 ¶¶ 974-76.

While Plaintiff, in its response to Defendant S&S's Motion for Summary Judgment, challenges many of the additional “Undisputed Facts” that S&S proffers, Plaintiff does not dispute that S&S filed for Chapter 11 bankruptcy protection “on or about June 26, 1992, ” and that an

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“Order Confirming the Amended Chapter 11 Plan was entered on December 17, 1992.” ECF 515-1 at 3 ¶¶ 4, 5.^[1] Neither does Plaintiff dispute the fact that “Pursuant to the provisions of the Plan, § 1141(d) of the United States Bankruptcy Code, and the discharge and release incorporated into the Confirmation Order, [S&S] has been granted a discharge . . . and has been released from any obligations that arose before the Effective Date.” ECF 515-1 at 3 ¶¶ 6, 7.^[2]

II. Legal Standard for Rule 56 Motion for Summary Judgment

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the burden of showing that there is no genuine dispute of material fact. See Casey v. Geek Squad, 823 F.Supp.2d 334, 348 (D. Md. 2011) (citing Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir. 1987)). If the moving party establishes that there is no evidence to support an element of the non-moving party's case, the burden then shifts to the non-moving party to proffer specific facts to show a genuine issue exists for trial. Id. The non-moving party must provide enough admissible evidence to “carry the burden of proof in [its] claim at trial.” Id. at 349 (quoting Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1315-16 (4th Cir. 1993)). The mere existence of a scintilla of evidence in support of the non-moving party's position will be insufficient; there must be evidence on which the jury could reasonably find in its favor. Id. at 348 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986)). Moreover, a genuine issue of material fact cannot rest on “mere

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speculation, or building one inference upon another.” Id. at 349 (quoting Miskin v. Baxter Healthcare Corp., 107 F.Supp.2d 669, 671 (D. Md. 1999)).

Additionally, summary judgment shall be warranted if the non-moving party fails to provide evidence that establishes an essential element of the case. Id. at 352. The non-moving party “must produce competent evidence on each element of [its] claim.” Id. at 348-49 (quoting Miskin, 107 F.Supp.2d at 671). If the non-moving party fails to do so, “there can be no genuine issue as to any material fact, ” because the failure to prove an essential element of the case “necessarily renders all other facts immaterial.” Id. at 352 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Coleman v. United States, 369 Fed.Appx. 459, 461 (4th Cir. 2010)). In ruling on a motion for summary judgment, a court must view all of the facts, including reasonable inferences to be drawn from them, “in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

III. Analysis

In its motion, Defendant S&S argues that as a result of its bankruptcy - filed and confirmed in 1992, with a Final Decree being issued in May 1996 - any CERCLA claims serving as the basis for Plaintiff's contribution claim were discharged, and S&S is not liable. ECF 515.

Plaintiff, in its response, argues that Plaintiff itself did not begin incurring response costs until 2006, more than a decade after S&S's bankruptcy, and thus its claim could not have been discharged by the bankruptcy.^[3] ECF 548 at 7. However, because Plaintiff's claim is one for

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contribution, it depends on Plaintiff and S&S both being liable to the United States and the State of Maryland. See In re Reading, 115 F.3d 1111, 1124 (3d Cir. 1997) (“In permitting a party to seek contribution from ‘any other person who is liable or potentially liable' under § 107(a), it is inherent in the concept of contribution that the persons commonly liable be liable to the same entity.” (quoting 42 U.S.C. § 9613(f))); id (“Reading's liability to Conrail depends on Reading's liability to the United States. To be liable for contribution, Reading must be liable to the United States under § 107(a).”). Thus, here, if the federal and state governments' joint claim was discharged through S&S's bankruptcy, Plaintiff's contribution action, based on S&S's common liability with Plaintiff to those parties, fails as a matter of law. See Id. at 1123 (“Because . . . the United States's claim was discharged by Reading's bankruptcy, Conrail's contribution action, based on Reading's common liability with Conrail to the United States, cannot proceed.”); see also Signature Combs, Inc. v. United States, 253 F.Supp.2d 1028, 1032 (W.D. Tenn. 2003) (discussing In re Reading's discussion of contribution/common derivation of liability, and finding it persuasive: “Plaintiffs in the case sub judice may only bring their CERCLA § 113(f) contribution claims against MDL if both Plaintiffs' and MDL's liability are derivative of the claims of the United States.”). Whether a defendant's potential CERCLA liability to the United States was discharged by its bankruptcy depends on when the United States's claim arose. Under Chapter 11 of the Bankruptcy Code, a debtor is discharged from all claims that arose before confirmation of at 389 n.10. Plaintiff's primary argument - that it couldn't have had a claim prior to bankruptcy because it did not...