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

923 F.Supp.2d 1086

HOBART CORPORATION, et al., Plaintiffs,

v.WASTE MANAGEMENT OF OHIO, INC., et al., Defendants.

Hobart Corporation, et al., Plaintiffs,

v.Coca–Cola Enterprises, Inc., et al., Defendants.

Case Nos. 3:10–cv–195, 3:12–cv–213.

United States District Court,

S.D. Ohio,

Western Division.

Feb. 8, 2013.

James Alan Dyer, David C. Ahlstrom, Sebaly Shillito & Dyer, Dayton, OH, David E. Romine, Larry Silver, Langsam Stevens & Silver LLP, Philadelphia, PA, for Plaintiffs.

William H. Harbeck, Quarles & Brady LLP, Milwaukee, WI, John Paul Brody, Kegler Brown Hill & Ritter, Jack Allen Van Kley, Anthony M. Sharett, Drew H. Campbell, Frank Leslie Merrill, Bricker & Eckler, LLP, Columbus, OH, David T. Moss, Hanna Campbell & Powell, Akron, OH, William Wick, Wactor and Wick, LLP, Oakland, CA, Mark D. Erzen, Mark D. Erzen, P.C., Chicago, IL, Christopher Allen Walker, Robert E. Signom II, Dayton, OH, Steven Morris Sherman, Vicki J. Wright, Krieg Devault LLP, Indianapolis, IN, Martin Harry Lewis, Tucker Ellis & West LLP, Cleveland, OH, Steve N. Siegel, Dinsmore & Shohl LLP, Cincinnati, OH, Defendants.

DECISION AND ENTRY SUSTAINING DEFENDANT DAYTON POWER & LIGHT'S MOTION FOR SUMMARY JUDGMENT (DOC. # 121 IN CASE NO. 3:10–CV–195); SUSTAINING DEFENDANT CARGILL, INC.'S MOTION FOR SUMMARY JUDGMENT (DOC. # 139 IN CASE NO. 3:10–CV–195); SUSTAINING DEFENDANTS' MOTION TO DISMISS (DOC. # 12 IN CASE NO. 3:12–CV–213); OVERRULING PLAINTIFFS' MOTION FOR LEAVE TO FILE THIRD AMENDED COMPLAINT (DOC. # 124 IN CASE NO. 3:10–CV–195); DISMISSING AS MOOT ALL COUNTERCLAIMS AND CROSSCLAIMS FILED IN CASE NO. 3:10–CV–195; OVERRULING AS MOOT DEFENDANT'S OBJECTION TO MAGISTRATE JUDGE OVINGTON'S MARCH 23, 2012, DECISION AND ENTRY ON PLAINTIFFS' MOTION TO COMPEL AND DEFENDANT'S MOTION TO QUASH (DOC. # 109 IN CASE NO. 3:10–CV–195); OVERRULING AS MOOT DEFENDANTS' MOTION TO STAY DISCOVERY (DOC. # 122 IN CASE NO. 3:10–CV–195), AND OVERRULING AS MOOT PLAINTIFFS' MOTION TO MODIFY SCHEDULING ORDER (DOC. # 127 IN CASE NO. 3:10–CV–195); JUDGMENT TO ENTER IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFFS IN CASES 3:10–CV–195 AND 3:12–CV–213; TERMINATION ENTRY

WALTER H. RICE, District Judge.

In each of the above-captioned cases, Plaintiffs Hobart Corporation, Kelsey–Hayes Company and NCR Corporation seek to recover certain costs incurred in connection with a remedial investigation and feasibility study related to environmental hazards at the South Dayton Dump and Landfill Site.

This matter is currently before the Court on several pending dispositive motions: (1) Defendant Dayton Power & Light Company's motion for summary judgment (Doc. # 121 in Case No. 3:10–cv–195); (2) Defendant Cargill, Inc.'s motion for summary judgment (Doc. # 139 in Case No. 3:10–cv–195); and (3) Defendants' motion to dismiss (Doc. # 12 in Case No. 3:12–cv–213).

The following non-dispositive matters are also pending: (1) Defendant Dayton Power & Light Company's objections to Magistrate Judge Ovington's March 23, 2012, Decision and Entry granting Plaintiffs' motion to compel discovery and denying Defendant's motion to quash subpoena (Doc. # 109 in Case No. 3:10–cv–195); (2) Defendant Dayton Power & Light Company's motion to stay discovery (Doc. # 122 in Case No. 3:10–cv–195); and (3) Plaintiffs' motion to modify the scheduling order (Doc. # 127 in Case No. 3:10–cv–195).

For the reasons set forth below, the Court SUSTAINS Defendants' dispositive motions, DISMISSES all pending counterclaims and cross-claims, and OVERRULES the remaining matters AS MOOT.

I. Background and Procedural History

The South Dayton Dump and Landfill Site (the “Site”), located in Moraine, Ohio, is contaminated with several hazardous substances. The United States Environmental Protection Agency (“EPA”) has proposed listing the Site on the National Priorities List. Pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9601–9675, Plaintiffs were identified as potentially responsible parties (“PRPs”) because they either generated the hazardous substances found at the Site, owned or operated the Site or facility when hazardous substances were disposed of there, or arranged for disposal or transport for disposal of hazardous substances at the Site. See generally42 U.S.C. §§ 9604, 9607, and 9622.

In 2006, Plaintiffs and the EPA entered into an “Administrative Settlement Agreement and Order on Consent for Remedial Investigation/Feasibility Study” (“ASAOC”). This settlement agreement became effective on August 15, 2006.

A. ASAOC

Pursuant to the ASAOC, Plaintiffs agreed to conduct a remedial investigation and feasibility study (“RI/FS”) for the Site. Stated objectives included the determination of the nature and extent of contamination and any current or potential threats to the public health, welfare, or the environment, the identification and evaluation of remedial alternatives, and the recovery of response and oversight costs incurred by the EPA with respect to the ASAOC. Ex. A to Compl., ¶ 9.

In exchange, the EPA agreed not to sue or take administrative action against Plaintiffs for the “Work” that was the subject of the ASAOC or for “Future Response Costs.” Ex. A to Compl., ¶ 82.¹ The parties agreed that the “Settlement Agreement constitute[d] an administrative settlement for purposes of Section 113(f)(2) of CERCLA, 42 U.S.C. § 9613(f)(2),” and that Plaintiffs were therefore entitled to protection from contribution actions for matters addressed therein. They also agreed that the Settlement Agreement constituted “an administrative settlement for purposes of Section 113(f)(3)(B) of CERCLA, 42 U.S.C. § 9113(f)(3)(B),” pursuant to which Plaintiffs “have, as of the Effective Date, resolved their liability to the United States for the Work, and Future Response Costs.” The ASAOC did not prevent the parties from asserting claims for indemnification, contribution, or cost recovery against others who were not parties to it. Ex. A to Compl., ¶ 96.

B. Hobart I (Case No. 3:10–cv–195)

On May 24, 2010, Plaintiffs filed suit against numerous other PRPs, including Waste Management of Ohio, Inc. (“Waste Management”), The Bimac Corporation, Bridgestone Americas Tire Operations, LLC (“Bridgestone”), Cargill, Inc., The Dayton Power & Light Company (“DP & L”), Monsanto Company, Valley Asphalt Corporation, and IRG Dayton I, LLC (“IRG”). Plaintiffs asserted four causes of action related to the RI/FS: (1) cost recovery under CERCLA § 107(a); (2) contribution under CERCLA § 113(f)(3)(B); (3) unjust enrichment; and (4) declaratory judgment.

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants DP & L, Bridgestone, and IRG filed motions to dismiss for failure to state a claim upon which relief can be granted. On February 10, 2011, 840 F.Supp.2d 1013 (S.D.Ohio 2011) the Court issued a Decision and Entry ruling on those motions. Doc. # 71. The Court dismissed in part the § 107(a) cost recovery claim asserted in Count 1. To the extent Plaintiffs alleged that Defendants disposed of hazardous substances directly at the Site, the allegations were sufficient to state a claim under § 107(a); however, to the extent Plaintiffs alleged that Defendants released hazardous substances on property adjacent to the Site and allowed those substances to migrate through the groundwater to contaminate the Site, Plaintiffs had failed to state a claim upon which relief could be granted.

The Court dismissed Count 2 in its entirety, finding that Plaintiffs' contribution claims under § 113(f) of CERCLA were not filed within the applicable three-year statute of limitations and were therefore time-barred. The Court also dismissed Count 3 in its entirety, holding that because Plaintiffs had a legal duty to pay remediation costs, they were precluded from pursuing a claim for unjust enrichment. As to Count 4, which sought declaratory judgment concerning the parties' rights and responsibilities under CERCLA for the response costs incurred by Plaintiffs, the Court sustained the motion to dismiss to the same extent it had sustained the motion to dismiss the substantive claims under §§ 107(a) and 113(f).

On March 23, 2012, 2012 WL 996525 Magistrate Judge Ovington issued a Decision and Entry granting Plaintiffs' motion to compel discovery, and denying Defendant DP & L's motion to quash a subpoena and to exclude the use of information derived from ex parte communications by Plaintiffs' counsel with a DP & L employee. Doc. # 107. DP & L filed an objection to the Magistrate Judge's order, Doc. # 109, and the Magistrate Judge stayed the Decision and Entry pending resolution of that objection, Doc. # 115.

On June 21, 2012, Defendant DP & L filed a motion for summary judgment on the remaining portion of Plaintiffs' § 107(a) claim and related request for declaratory judgment. Doc. # 121. Defendants Waste Management, Bridgestone, and Cargill joined in that motion. Docs. # 125, 126, 140. Defendants argue that §§ 107(a) and 113(f) of CERCLA are mutually exclusive, and that, because Plaintiffs entered into an administrative settlement under § 113(f)(3)(B) of CERCLA, resolving some of their liability to the United States, Plaintiffs were limited to a § 113(f) contribution claim. Defendants maintain that Plaintiffs are barred, as a matter of law, from pursuing a cost recovery claim under § 107(a).²

DP & L also moved to stay discovery pending a decision on the motion for summary judgment, Doc. #122, and Plaintiffs moved to modify the scheduling order, Doc. #127. On June 29, 2012, Plaintiffs moved for leave to file a third amended complaint, seeking to add newly-discovered defendants, a theory of owner/operator liability against DP & L, and allegations concerning Waste Management's successor liability. Doc. # 124.

On August 13, 2012, Defendant Cargill filed a separate motion for summary judgment based, in part, on the same grounds previously asserted by the other Defendants. Doc. # 139. These motions are all fully briefed...