subsidiary of defendant. In 1984, Shattuck closed the majority of its operations.
In the mid-1930's, NSC organized North Continent Mines ("NCM"). The business of NCM consisted principally of the mining and processing of ores containing vanadium and uranium. NCM carried out some of its operations in Colorado.
In the spring of 1941, plaintiff and NSC jointly filed a Plan of Reorganization (the "1941 Plan") under Section 11 of the Public Utility Holding Company Act of 1935. The principal features of the 1941 Plan were the transfer of the utility assets of NSC to plaintiff, the recapitalization of plaintiff, the settlement of all conflicting claims by interested parties, and the refunding of joint bonds issued by NSC and plaintiff. Non-utility assets (i.e. Old Shattuck and NCM) were transferred to NCU.
The Plan was approved by the Securities and Exchange Commission ("SEC") by order on November 13, 1941. The Illinois Commerce Commission ("ICC") also approved the 1941 Plan by order entered on November 5, 1941. After the reorganization, plaintiff operated the Waukegan coke plant and manufactured coke oven gas for its utility customers. On March 30, 1942, NSC liquidated.
In 1983, the Site was included on the National Priorities List because both radioactive and nonradioactive hazardous substances were found there. In 1992, the United States Environmental Protection Agency found that the S.W. Shattuck Chemical Company, Inc. ("Shattuck") was responsible for cleaning up the Site, and issued a CERCLA Section 106 Order (the "Order") compelling Shattuck to clean up the property. In a guarantee dated September 1, 1993, defendant guaranteed the performance of the Order by its wholly-owned subsidiary, Shattuck. For purposes of this action, defendant has also agreed to assume Shattucks liability.
John Faught ("Faught"), on behalf of Shattuck, sent plaintiff a letter dated January 31, 1994 (the "Faught Letter"), demanding reimbursement, indemnification, and contribution for Shattuck's CERCLA response costs at the Site. (Hereinafter "Shattuck" refers to Old Shattuck and Shattuck.) In the letter, Faught asserts that, pursuant to the 1941 Plan, plaintiff is liable for the clean-up costs as the successor corporation to NSC. NSC allegedly owned and/or operated the Bannock Street Site at the time when hazardous substances were disposed of on the Site. In the demand letter, Faught quotes full paragraphs from the 1941 Plan. The Faught Letter also explains that Shattuck is a wholly owned subsidiary of defendant Salomon, and that defendant has provided financial assurance for the remediation.
After receiving the demand letter, the parties met to discuss the issues raised in the Faught Letter, but failed to resolve the dispute. Plaintiff was told that if it did not agree to share in the clean-up costs it would be sued for contribution. On December 5, 1994, plaintiff filed the instant declaratory judgment action asking this court to declare whether plaintiff is liable to defendant under CERCLA for response costs incurred and to be incurred, or any other damages in connection with the Site.
Defendant filed motions before this court on February 2, 1995, requesting the court to: (1) decline to exercise jurisdiction over the case pursuant to 28 U.S.C. § 2201; (2) dismiss plaintiff's action pursuant to Fed.R.Civ.P. 12(b)(7) and 19, for failure to join an indispensable party (Shattuck); or, in the alternative, (3) transfer venue of this action to the District Court for the District of Colorado, pursuant to 28 U.S.C. § 1404(a). In its opinion dated August 22, 1995, the court denied defendant's motion to decline declaratory judgment jurisdiction, its motion to dismiss, and its motion to transfer.
The parties have filed the instant cross-motions for summary judgment. Plaintiff argues that it did not succeed to any Shattuck liabilities under the 1941 Plan because: (1) plaintiff did not expressly or implicitly assume NSC's liabilities (if any) for Shattuck under the 1941 Plan; (2) plaintiff did not succeed to NSC's liabilities (if any) for Shattuck as a matter of law; and in any event, (3) NSC is not liable as either an "operator" or an "arranger" for Shattuck's liabilities under CERCLA. Defendant responds that: (1) plaintiff is a direct successor to NSC's liabilities under the 1941 Plan; (2) even if the 1941 Plan was an asset purchase, plaintiff succeeded to NSC's liabilities as a matter of law; (3) NSC is liable under CERCLA as both an operator and an arranger.
A court should grant summary judgment if "there is no genuine issue of material fact and... the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden is on the moving party to identify portions of the pleadings, answers to interrogatories, and affidavits which demonstrate an absence of a genuine issue of material fact. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The burden then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(c). The simple assertion that a factual dispute exists is not enough to defeat a Rule 56(c) motion. To defeat a motion for summary judgment, the non-moving party must set forth specific facts, through affidavits or other materials, that demonstrate disputed material facts. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In deciding a motion for summary judgment, the court must read the facts in a light most favorable to the non-moving party. Id., 477 U.S. at 255.
II. Successor Liability Under CERCLA
In 1980, Congress enacted CERCLA to provide a comprehensive response to the wide-spread problem of hazardous waste disposal. American National Can Co. v. Kerr Glass Manufacturing Corp., 1990 U.S. Dist. LEXIS 10999, 1990 WL 125368, at *4 (Aug. 22, 1990 N.D. Ill.). The statute imposes the costs of environmental cleanup on the parties responsible for the contamination, shifting the burden away from the federal government and, consequently, away from federal taxpayers. Id. Potentially liable parties under CERCLA, 42 U.S.C. § 9613(f)(1), include:
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of the disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,