Ashland LLC v. Heyman ( 2024 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ASHLAND LLC, INTERNATIONAL )
SPECIALTY PRODUCTS INC., et al., )
)
Plaintiffs/Counterclaim )
Defendants, )
)
v. ) C.A. No. N15C-10-176 EMD CCLD
)
THE SAMUEL J. HEYMAN 1981 )
CONTINUING TRUST FOR LAZARUS )
S. HEYMAN, et al., )
)
Defendants/Counterclaim )
Plaintiffs. )
)
Submitted: April 15, 2024
Decided: May 30, 2024
Upon The Ashland Parties’ Motion for Reargument of the Court’s April 8, 2024 Letter Decision
on (1) Defendants/Counterclaim Plaintiffs’ Motion for Judgment in Light of the Delaware
Supreme Court’s Decision and (2) Plaintiffs’ Cross-motion for Summary
Judgment on Counts I and V
DENIED
On April 15, 2024, Ashland1 filed The Ashland Parties’ Motion for Reargument of the
Court’s April 8, 2024 Letter Decision on (1) Defendants/Counterclaim Plaintiffs’ Motion for
Judgment in Light of the Delaware Supreme Court’s Decision and (2) Plaintiffs’ Cross-motion
for Summary Judgment on Counts I and V (the “Motion”). Subsequently, the Heyman Parties
filed Defendants/Counterclaim Plaintiffs’ Opposition to the Ashland Parties’ Motion for
Reargument of the Court’s April 8, 2024 Decision (the “Opposition”). The Court has reviewed
the Motion and the Opposition and has determined that no hearing is necessary. For the reasons
set forth below, the Motion is DENIED.
1
Plaintiffs collectively will be called “Ashland,” and Defendants/Counterclaim Plaintiffs, the “Heyman Parties.”
1
I. LEGAL STANDARD
Superior Court Civil Rule 59(e) provides that a party may file a motion for reargument
“within 5 days after the filing of the Court’s Order or decision.”2 The standard for a Rule 59(e)
motion is well defined under Delaware law.3 A motion for reargument will be denied unless the
Court has overlooked precedent or legal principles that would have controlling effect, or
misapprehended the law or the facts such as would affect the outcome of the decision.4 Motions
for reargument should not be used merely to rehash the arguments already decided by the court.5
II. DISCUSSION
In the Motion, Ashland argues that the Court overlooked: (1) that New Jersey law
provides that ISRA is self-executing and, therefore, Losses arose from Sellers’ breach without
NJDEP enforcement of ISRA; (2) the SPA provides Ashland with indemnity for Sellers’ breach
of the ISRA provision; and (3) the Spill act is a statutory claim, not a claim under the SPA. The
Heyman Parties argue that Ashland’s alleged damages stem from NJDEP’s enforcement of the
remedial obligations under the ACO, and thus, warrants dismissal of the ISRA and Spill Act
claims.
The self-executing nature of ISRA does not lead to Ashland proposed conclusion that
Ashland may recover its alleged damages in the absence of NJDEP’s enforcement of ISRA.
Ashland relies on New Jersey caselaw relating to ISRA’s “self-executing” nature.6 As described
therein, ISRA “was intended to avoid the delay in perfecting cleanup inherent in the
2
Super. Ct. Civ. R. 59(e).
3
Kennedy v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).
4
Woodward v. Farm Family Cas. Ins. Co., 2001 WL 1456865, at *1 (Del. Super. Aug. 24, 2001).
5
Id.6
Matter of Cadgene Fam. P’ship, 286 N.J. Super. 270, 279, 669 A.2d 239, 244 (N.J. Super. App. Div. 1995); In re
Adoption of N.J.A.C. 7:26B, 128 N.J. 442, 448, 608 A.2d 288, 291 (1992) (citing to Superior Air Prod. Co. v. NL
Indus., Inc., 522 A.2d 1025, 1035 (N.J. Super. App. Div. 1987). The Environmental Cleanup Responsibility Act is
the predecessor of ISRA.
2
determination of liability through litigation.”7 ISRA “impos[es] a self-executing duty to
remediate without the necessity and delay of a determination as to liability for the
contamination.”8 Furthermore, “the availability of other legal authority for [the NJDEP]’s
direction of a site cleanup under the Spill Act or otherwise is simply an alternative means of
remediation.”9
Ashland concedes that the nearly $4 million in remedial costs that it has incurred arise
under the ACO.10 Ashland contends, however, that those same costs arise under ISRA. Thus,
Ashland believes it is entitled to recover for those same costs under ISRA and/or the Spill Act
even though the ACO allocates off-site, pre-closing remediation costs to Ashland, and it is
through the ACO that the NJDEP has enforced those obligations.
Ashland reiterates its reasoning that ISRA is “self-executing.” But Ashland does not go
into detail as to the effect of NJDEP’s decision to direct cleanup efforts under the ACO, as
opposed to other legal authority NJDEP has available at its discretion. Ashland’s conclusory
invocation of ISRA’s “self-executing” nature does not address the reality that Ashland undertook
the off-site remediation of the Linden Site due to NJDEP’s enforcement action under the ACO.
Ashland cannot now recover for those costs on the basis of a statute upon which the NJDEP
never enforced against either party.
Thus, the question is not whether Ashland may recover for alleged damages in the
absence of NJDEP’s enforcement of ISRA; but rather, whether Ashland may recover for alleged
7
Superior Air Prod. Co. 522 A.2d at 1035.
8
Id.9
Id.10
Letter on Behalf of the Ashland Parties in Response to the Court’s February 19, 2024 Letter (D.I. No. 1151) (“Up
through June 4, 2021, the Ashland Parties have incurred remedial costs totaling $4,026,385.57 to
investigate/remediate contamination at and emanating from the LPH Site. Under New Jersey law, ISRA and the
Spill Act required the exact same off-site remediation in 2011 that NJDEP required to be addressed under the ACO
in 2015, so the compliance costs are not distinct.”) (emphasis added); See Letter to The Honorable Eric M. Davis
from William M. Lafferty, Esq. in response to the Court's February 19, 2024 Letter, Exhibit 5.
3
damages that may hypothetically arise under a statute which the NJDEP elected not to enforce
but that covered the same compliance costs that arose under an alternative source of authority
that NJDEP did elect to enforce. Ashland points to no caselaw mirroring the factual dynamics of
this action nor gives additional support than its conclusory invocation of ISRA’s “self-executing”
nature to re-allocate off-site remediation costs to the Heyman Parties. Because the NJDEP has
elected to direct its remedial efforts under the ACO, and not ISRA, Ashland’s ISRA claim is not
ripe for resolution.
Ashland identifies SPA Section 7.2(b) as a potential indemnity right for any potential
breach of the ISRA provision. Ashland’s interpretation is plausible. SPA Section 7.9 provides
in relevant part that:
…the rights and remedies under this Article VII, [and] Schedule 5.19 . . . are
exclusive and in lieu of any and all other rights and remedies that the Seller Parties
and Buyer may have under this Agreement or otherwise against each other with
respect to any breach of any representation or warranty or any failure to perform
any covenant or agreement set forth in this Agreement.11
SPA Section 7.2(b) provides Ashland with indemnity for “any breach of any covenant or
agreement of the Seller Parties.”
SPA Schedule 5.19, however, provides Ashland with an indemnification right for Losses
other than those that arise out of the Linden Excluded Liabilities.12 Accordingly, Ashland has no
indemnification right under Schedule 5.19 for losses related to Linden property off-site
liabilities.13
Whether the general right of indemnity under SPA Section 7.2(b) prevails over the more
limited indemnity rights provided under Schedule 5.19 is an open question. The credits Ashland
11
See § 7.9 of the SPA.
12
See Section 4(a) of Schedule 5.19 of the SPA.
13
Samuel J. Heyman 1981 Continuing Tr. for Lazarus S. Heyman v. Ashland LLC, 284 A.3d 714, 718 (Del. 2022).
4
for identifying a potential alternative indemnity right. Regardless, the Court’s decision does not
change based on the availability of an indemnification right or other remedy, because Ashland’s
ISRA claim is not ripe for resolution for the reasons already discussed above.
As to its Spill Act claim, Ashland argues that it has asserted a claim against LPH’s
independent liability that arose when it took title to the Linden Site after the closing. The Spill
Act provides that: “any person who has discharged a hazardous substance, or is in any way
responsible for any hazardous substance, shall be strictly liable, jointly and severally, without
regard for fault, for all clean up and removal costs no matter by whom occurred.”14 The Spill
Act also imposes liability on owners of property acquired after September 1993 who knew of a
discharge of the property that occurred prior to their ownership.15 Liability may arise even if
operations on a property have ceased.16
In Russo v. Alfred Vail Mut. Ass’n, the Superior Court of New Jersey Appellate Division
affirmed a lower court decision that respected parties’ privately allocated risk of loss for liability
under the Spill Act.17 In Russo, members of a housing association and their insurance carrier
sued the housing association for costs incurred by the members in removing a storage tank for
heating oil from the members’ unit.18 Notwithstanding the obligations imposed by the Spill Act
on the housing association as the owner of the property,19 the trial court found that a membership
certificate placed responsibility of the tank on the members of the property unit. The appellate
14
N.J.S.A. 58:10–23.11g(c)(1).
15
N.J. Stat. Ann. § 58:10-23.11g(c)(3) (The Spill Act also imposes liability on “any person who owns real property
acquired on or after September 14, 1993 on which there has been a discharge prior to the person's acquisition of that
property and who knew or should have known that a hazardous substance had been discharged at the real property,
shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by
whom incurred.”).
16
Marsh v. New Jersey Dept. of Environmental Protection, 703 A.2d 927 (N.J. 1997) (holding a landowner liable
for gasoline leakage even though the gas stations ceased to exist prior to the landowner's obtaining the property).
17
2006 WL 1096345, at *1 (N.J. Super. App. Div. Apr. 27, 2006).
18
Id.19
Id at *2 (citing N.J.S.A 58:10-23.11 to -23.11z.)
5
court affirmed the trial court ruling, holding that “there is no basis in the Spill Act or the public
policies on which it rests, for reassigning the remediation liability allocated” by the members and
association themselves.20
The SPA and the Contribution Agreement, when read together, allocate remediation
liabilities of LPH.21 As in Russo, the Court finds no basis to disturb the allocation of liabilities
under SPA Section 2(e). To the extent the Spill Act imposes any remediation obligations on
LPH, the Court finds that such obligations must be construed in accordance with the SPA and
Contribution Agreement. Thus, the Court will not change its decision to dismiss Ashland’s Spill
Act claim to the extent it seeks to re-allocate liabilities the parties privately allocated under the
SPA and Contribution Agreement.22
III. CONCLUSION
For the reasons set forth above, the Motion is DENIED.
Dated: May 30, 2024
Wilmington, Delaware
/s/ Eric M. Davis
Eric M. Davis, Judge
cc: File&ServeXpress
20
Id.; see also Est. of Maglione v. Gulf Oil Corp., 2007 WL 527940, at *4 (N.J. Super. App. Div. Feb. 22, 2007)
(release barred plaintiff’s environmental contamination claims, including Spill Act claims); see also Montville Twp.
v. Woodmont Builders, LLC, 2009 WL 3253911, at *6 (D.N.J. Oct. 7, 2009) (settlement barred plaintiff’s Spill Act
claims), aff’d, 436 F. App’x 87 (3d Cir. 2011).
21
See Ashland LLC v. Samuel J. Heyman 1981 Continuing Tr. for Heyman, 2017 WL 1224506, at *6-7 (Del. Super.
Mar. 30, 2017).
22
Ashland’s argument that the NJDEP has never enforced the Spill Act against LPH also fails. Ashland presented
this argument in its summary judgment briefing, and upon review of the record, the Court did not find that the
NJDEP ever enforced a Spill Act claim against LPH. See The Ashland Parties’ Answering Brief In Opposition To
The Heymans’ Motion For Judgment In Light Of The Delaware Supreme Court’s Decision And Cross-Motion For
Summary Judgment On Count I And Count V at 3, 28, 39 (D.I. No. 1130); The Ashland Parties' Reply Brief In
Further Support of Their Cross-Motion for Summary Judgment on Count I and Count V (D.I. 1142) at 18.
Regarding Ashland’s Spill Act claim for post-closing discharges, the Court did not dismiss Ashland’s Spill Act
claim based on post-closing discharges, as both parties appeared to agree that the claim survived the Supreme Court
Decision. See Defendants-Counterclaim Plaintiffs' Opening Brief in Support of Their Motion for Judgment in Light
of the Delaware Supreme Court's Decision at 1 (“Only Ashland’s Spill Act claim based on post-closing discharges–
–if Ashland pursues it––survives the Supreme Court’s decision.”).
6