in place which addressed surface water discharges, the sanitary sewer system and the wastewater treatment system (Hauser aff. ex. B).
USG has submitted other evidence demonstrating that AMC violated certain RCRA operating requirements prior to the merger. From the complaint of the USEPA (Bardo aff. ex. B), it is clear that these violations provided a basis for EPA Order I and constituted a portion of the penalty assessed in connection with that order,
(reply at 21). However, again, there is the problem that some of the dates given as dates of violation are pre-merger and some are post-merger. USG seems not to address the problem, just claiming that all costs associated with Order I are recoverable. This may ultimately prove to be the case, but on this motion, and without much development from USG, we cannot say as a matter of law that all of the penalties assessed in Order I for noncompliance with operating standards are due to pre-merger noncompliance.
We therefore grant summary judgment as to those expenses incurred as a result of defendants' pre-merger noncompliance with operating standards.
Failure to Comply with RCRA Corrective Action Requirements
On March 13, 1990, the USEPA instituted another proceeding against AMC, pursuant to Section 3008(h) of RCRA, 42 U.S.C. subsection 6928(h), as a result of the USEPA's concern that a release of hazardous waste had occurred at the Westlake facility.
Section 3004(u) of RCRA, 42 U.S.C. § 6924(u), provides
that facilities shall be required to take corrective action for all releases of hazardous waste or constituents from any solid waste management unit at a treatment, storage, or disposal facility seeking a permit under this subtitle, regardless of the time at which waste was placed in such unit.
USG argues that defendants had knowledge of releases and failed to accurately respond to inquiries from both the OEPA and the USEPA. See Plfs' memo at 26-7; Frescka aff. exs. H & K.
In responding to the OEPA and USEPA inquiries, defendants informed them that they considered the facility closed because the closure plan had been submitted to the OEPA on November 15, 1982 and because their engineer had certified it closed. See Frescka aff. ex. I. As discussed above, the facility was not closed in accordance with EPA regulations.
In any event, we deny summary judgment on this claim. USG claims that there "can be little question that, had AMC disclosed the information it had regarding hazardous releases, that the USEPA would have initiated the same type of corrective action proceeding against pre-merger AMC as it did later against USG" (reply at 32-33). Almost certainly this is true, but the motion as to this claim suffers from the same deficiency as the other claims relating to Order II above - we cannot say as a matter of law that USG complied with the notice provisions as to these claims.
USG also claims that defendants were not in compliance with section 103(c) of CERCLA, 42 U.S.C. § 9601 et seq., requiring hazardous waste facilities to file a notification of hazardous waste site with the USEPA and notify them of any known, suspected or likely releases of hazardous waste. USG maintains that the May 26, 1981, section 103(c) notification was deficient.
It is unclear what damages USG is claiming as a result of the alleged CERCLA violations. Our best reading of the claim is, however, that it is another branch of the claim that omissions and misrepresentations by defendants delayed USEPA from finding out about certain problems until after the merger. As above, we deny summary judgment on this claim, because it relates to damages resulting from Order II.
Ohio Law Violations
USG seeks a determination of liability as to violations of Ohio law as well, which, USG maintains, is parallel to USEPA regulations. USG argues that there is no requirement under the indemnity agreement that a governmental entity make a finding of a violation of an environmental law before defendants' duty to indemnify USG arises. According to USG, it "is sufficient that USG has proven violations of the Ohio statutes and regulations, and eventual damages arising from that activity which has resulted from EPA Orders I and II" (reply at 34).
We decline to determine whether there were violations of Ohio environmental laws. While it is true that USG can theoretically get indemnification for pre-merger Ohio environmental law violations, we cannot say that because there may have been state law violations that somehow these contributed to the cost incurred in Orders I and II. And USG does not develop this area enough. Moreover, if as USG maintains, Ohio law parallels USEPA law, then as to recovery under the indemnity agreement, a finding of noncompliance with Ohio law does not add anything to the equation that federal law does not already provide. Therefore, we deny summary judgment with respect to Ohio law violations.
We grant summary judgment as to those expenses incurred as a result of defendants' pre-merger noncompliance with RCRA groundwater monitoring requirements and as to those expenses incurred as a result of defendants' pre-merger noncompliance with operating standards. We deny, for now, summary judgment for claims related to Order II. We deny summary judgment with respect to CERCLA violations and Ohio law violations.
JAMES B. MORAN,
Chief Judge, U.S. District Court
October 26, 1992.