Ashland LLC v. Heyman

lN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ASI-ILAND LLC, INTERNATIUNAL
SPECIALTY PRODUCTS lNC., ISP
ENVIRONMENTAL SERVICES INC., and
ISP CHEMCO LLC,
Plaintiffs,
v. C.A. No. N15C-10-176 EMD CCLD
THE SAMUEL J. HEYMAN 1981
CONTINUING TRUST FOR LAZARUS
S. HEYMAN, et al.,
\~_/\_/\\-/\.-/\\_/\_/\-./W\_/\./\_J'\J\_/\-_/
Defendants.
Submitted: Deccmber 15, 2016
Decided: March 31, 2017
Upon Plaintij_% ’ Motz``onfor Partial Summary Judgment on Coun! 1 of the Amended Complaz'nt
DENIED
Upon Defendants ’ Cross-Motionfor Parfial Summary Judgment
DENIED
Christopher Viceconte, Esquire, Gibbons P.C., Wilmington, Delawa:re, and Michael R.
Griff``lnger, Esquire, William S. Hati``leld, Esqu.ire, and Camille V. Otero, Esquire, Gibbons P.C.,
Newark, New Jersey. Attorneys for Ashland LLC, International Specialty Products, Inc., ISP
Envz'ronmental Services, Inc., and !SP Chemco LLC
Kevin G. Abrams, Esquire, John M. Seaman, Esquire, and April M. Ferraro, Esquire, Abrams &
Bayliss LLP, Wilmington, Delaware, and Andrew J. Rossman, Esquire, Jonathan B. Oblak,
Esquire, and Sylvia E. Simson, Esquire, Quinn Emanuel Urquhart & Sullivan, LLP, New York_,
New York. Attorneysfor The Samuel J. Heyman 1981 Contz'nuing Trustfor Lazarus S. Heyman,
et al.
DAVIS, .I.
This breach of contract case stemming from environmental liability allocation is assigned
to the Complex Comrnercial Litigation Division of this Court. Plaintiffs' Ashland LLC,
International Specialty Products, Inc. (“ISP”), ISP Enviromnental Services Inc. (“IES”), and ISP
' Plaintiffs collectively will be called Ashlancl unless specificity is required PlaintiffChemco is a subsidiary of
Plaintiff ISP. Plaintit``f IES is a subsidiary of Plaintiff Chcmco.
Chemco LLC (“Chemco”) filed this declaratoryjudgment and breach of contract case against
Heyman Defendants_The Heyman Seller Defendants, The Heyman Trust Defendants, and
Liodoo Proporty Holdings LLC (“LPH”).2
I. BACKGROUND FACTS
The disputed property (the “Linden Property”) is located at 4000 Road to Grasselli,
Linden, New .Iersey.3 The Linden Property has a chemical manufacturing history. From 1919 to
1991, non-parties GAF Corporation and GAF Chemicals Corporation (“GAF Chemicals”)
owned and operated the Linden Property.4 GAF Corporation and GAF Chemicals discovered
extensive contamination at the Linden Property during the 197()9,-805.5 Prior to the closing on
the Stock Purchase Agreement (the “SPA”), the Heyman Defendants had owned GAF
corporation and GAF chemicals Siooo the 19805."
On June 16, 1989, GAF Chemicals and the New Jersey Department of Environmental
Protection (“NJDEP”) entered into an Administrative Consent Order (the “ACO”) regarding
environmental contamination and cleanup at the Linden Property.7 The ACO made GAF
Chemicals and “its principals, directors, officers, agents, successors, [and] assignees . . .”
responsible for environmental remediation until the NJDEP gave GAF written notice it satisfied
the ACO.S GAF Chemicals agreed to “conduct a remedial investigation and feasibility study of
remedial action alternatives” and to “design and implement a remedial action alternative to
2 The Court is initially using the definitions used by the parties in various pleadings The Court will use the term
“the Heyman Defendants” collectively unless specificity is required-i.e., LPH or alike.
3 Plaintit``fs’ First Amended Complaint (“Pls.’ Compl.”) il 32.
4 Id. 11 33.
5 1a 11 34.
6 ld. 1[ 35.
7 ld. 1l 37. See also P|s.’ Compl. Ex. B. See also Defendants’ Answers/Counterclaims (“Countercls.”) 1[ 24.
8 See Pls.’ Compl. Ex. B. at pp. 18, 22.
2
remedy any and all pollution at the site, emanating from the site, or which has emanated from the
site.”9
On OCtober 17, 1990_, GAF Chemicals announced that it was ceasing production at the
Linden Property as of April 1, l991.l0 That same date, NJDEP’s Division of Hazardous Waste
Management-Bureau of Environmental Evaluation and Cleanup Responsibility Assessment sent
GAF Chemicals Corporation an “ECRA initial notice General lnt``ormation Submission” to begin
ECRA compliance.]l The NJDEP assigned ECRA Case Number 90877 to the Linden
lz'roperty.12 On February 7, 1991, the NJDEP tasked the Division of Hazardous Waste
Management~Responsible Party Cleanup Element to oversee GAF Chemical’s cleanup of the
Linden Property.13 Further, the NJDEP advised GAF Chemicals as follows:
[P]lease be advised that this decision does not relieve GAF Chemicals
Corporation of any of its responsibilities under the Environmental Cleanup
Responsibility Act. Be further advised that if GAF Chemicals Corporation fails
to implement the existing Administrative Consent Order to the satisfaction of the
Department, GAF Chemicals Corporation shall also be considered in violation of
ECRA.
At such time as GAF Chemicals Corporation completes all requirements of the
existing Administrative Consent Order to the satisfaction of the Department,
ECRA shall issue a Full Compliance Letter stating that GAF Chemicals
Corporation’s implementation of the existing Administrative Consent Order has
also fulfilled all GAF Chemicals Corporation’s requirements under ECRA.l4
9 Countercls. 1[ 24.
m Transrnittal Af``fidavit of William S. Hatiield in Support of P|aintiffs’/Counterclaim Det``endants’ Partial Motion for
Sumrnary Judgment (“Hatfield Aff.”) Ex D.
" See id. Ex. E. ECRA or Environmental Cleanup Responsibility Act was the predecessor to the lndustrial Site
Recovery Act (“ISRA”). See Baykeeper v. NL Industries, Inc., 660 F.3d 686, 689 (3d. Cir. 201 l) (“ln 1988,
[Defendant] undertook an environmental investigation of the site pursuant to New .Iersey’s Environmental Cleanup
Responsibility Act, which has since been renamed the lndustrial Site Recovery Act.”). ISRA is found at N.J. Stat.
Ann. §§i}:lK-G et seq.
'2 Hornoid Afr. Ex. F.
‘~" 1a Ex. H.
“ lot
On May 8, 1991, the Heyman Defendants incorporated ISP as a subsidiary of GAF
Chemicals and incorporated IES as lSP’s subsidiary15 GAF Chemicals then transferred
ownership of the Linden Property to IES.m IES and GAF Chemicals entered into an Assumption
Agreement, with IES becoming the entity responsible for the ACO.17 IES assumed “all liabilities
and obligations relating to the manufacture and sale of specialty chemicals at Linden, NJ, known
and unknown, contingent or otherwise, including liabilities for the remediation of the Linden
[Property].”18 ln 1996, the Heyman Defendants spun off ISP (and IES) from GAF Chemicals.'9
In 2002, the Heyman Defendants developed a Remedial Action and Work Plan (RAWP)
to fulfill its clean-up obligations under the AC().20 On April 17, 2003, the NJDEP approved the
RAWP. Specifically, the NJDEP stated that “The Deportment approves the proposed remedial
actions ”21 The NJDEP, on April 17, 2003, clearly believed that the ACO or ISRA mandates
had not yet been completed at the Linden Property. On August 4, 2005, the NJDEP
“determin[ed] that no further action is necessary for the remediation of the [on-site soil] so long
as [IES] did not withhold any information from the Department.”22
In September 2005, the NJDEP mandated that GAF Chemicals/ISP “provide a well
detailed and time efficient schedule for the performance of an off-site investigation and
contaminant delineation, as well as an ecological risk assessment.”23 NJDEP reiterated GAF
15 Pls.1 Amended Compl. 1111 38-39; Counterclaims at ‘ll 26.
16 Pls.’ Amended Compl. 1{ 40. Counterclaims at 1[ 26.
" Counterclaims at 1| 26.
"‘ !d. 11 27.
19 Pls.‘ Amended Compl. ll 42.
20 nation Arr. EX_ o.
21 Id. Ex. N (emphasis in original).
22 Affidavit of Celeste Levine, Esq. in support of Opposition to Plaintiff-Counterclaim Defendant Ashland lnc.’s
Motion for Partial Summary .|udgrnent on Countl of the Amended Complaint and incorporated Cross-Motion for
§ummaq Judgment (“Levine Aff.”) Ex. I.
``* nation Arr. Ex. 1_
Chemicals/lSP’s obligation “to submit a (sie) ecological investigation and response schedule” in
ton 2007.24
ln 2006, Chemco executed an Administrative Consent Order Amendment (the “Amended
Aco”) with the NJDEP?~" The Amended rico did nor replace are Aco. losrood, too Amended
ACO supplemented and became a part of the ACG.26 The Amended ACO expressly provided
that IES would continue to comply with the terms of the ACO.27
On luly l, 2011, the NJDEP issued a no further action letter to IES regarding on-site
ground water.211
The Sale and C£osr'ng
In 2011, Ashland acquired lSP, lES, and Chemco from the Heyman Defendants for $3.2
billion.29 This was done through the SPA, dated as of May 31, 2011 between the Heyman
Defendants (as the “Seller Parties”) and Ashland (as the “Buyer”).30 On June 3, 2011, prior to
the actual closing on the SPA, the Heyman Defendants drafted a memo regarding ISRA’s
applicability to the sale.31 The Heyman Defendants’ memo set out their rationale for why ISRA
did not apply, including the land’s vacant status and the NJDEP’s granting the soil and
groundwater no further action letters.32
24 1a sir J.
25 Pls.1 Compl. 1145. See also Pls.’ Compl. Ex. C.1l 4. See also Countercls. at 11 30.
26 Pls.‘ Compl. Ex. C at 11 9 (“This ACO Amendment is intended to supplement the existing 1989 ACO. The
provisions of this ACO Amendment shall become part of the 1989 ACO. The 1989 ACO, as amended, shall remain
in full force and effect and [IES] shall continue to comply with the 1989 ACO.”). See also id. at ‘[[ 15 (“By the
execution of this ACO Amendment, NJDEP does not release any person from any liabilities or obligations such
person may have pursuant to any other applicable authority, nor does NJDEP waive any of its rights or remedies
ursuant thereto."). See also Pls.’ Compl. 1111 4849.
7
!d.
2“ Lovino Afr. Ex. J.
29 Pls.‘ Compl. 11 51. see also counterols. ar 11 4a
so
Id.
11 Levine Aff. Ex. N.
32 Id'.
The SPA set out the parties’ respective obligations regarding the Linden Property. SPA
Section 2(e) to Schedule 5.19 of the SPA33 states:
In connection with the Linden Transfer, the Seller Parties shall assume all
Liabilities to the extent related to or arising from or existing at the Linden
Property, including Liabilities arising under or relating to (i) Environmental Laws,
provided that such Liabilities shall not include any off-site migration or disposal
of Hazardous Materials from the Linden Property prior to the Closing, any claims
or damages associated with any off-site migration or disposal of Hazardous
Material from the Linden Property prior to the Closing, and for the avoidance of
doubt, any off-site contamination of soils, groundwater or sediments, any third
party superfund sites including the Newark Bay Complex, any natural resources
damages or exposure claims relating to operations or discharges prior to
Closing,. . .or (v) the Linden Transfer (including any Liabilities to the extent
arising by virtue of the delivery of a limited warranty deed, but excluding any
Liabilities arising out of or relating to fraudulent conveyance or similar liability),
in each case, other than as set forth in the proviso in clause (i) above, whether
arising before, on or after the Closing Date (the “Linden Exeluded Liabilities”).34
SPA Section 2(f) also discusses the Linden Property transaction_specitically the
5135
“Linden Transfer _and states:
In connection with the Linden Transfer, the Seller Parties shall be responsible, at
their sole cost and expense, for compliance, if applicable, with any requirements
of the Industrial Site Recovery Act (“ISRA”) and, if ISRA applies to the Linden
Transfer, Seller Parties shall (i) within five (5) Business Days after execution of
this Agreement, make any required filings or notifications (such as a General
Information Notice, as defined under ISRA) to the [NJDEP], and (ii) use
reasonable best efforts to, prior to closing, make all other filings, undertake all
other measures, including where required undertaking any site investigation or
Remedial Action required by ISRA. In addition, the [SPA] Seller Parties shall use
reasonable best efforts to amend any consent decree or other binding agreement
with any Govemmental Entity relating to the Linden Excluded Liabilities, and to
replace or substitute any related financial assurance (including any bond or letter
of credit), to include the name of the Linden Transferee following the Linden
Transfer and, if permitted by NJDEP, to remove the name of ISP or any of the
Companies therefrom315
33 Any further reference to SPA Sections 2 and 4 of Schedule 5.19 of the SPA will omit reference to Schedule 5. 19
and will be as “SPA Section 2_” or SPA Section 4_.”
34 See Counterclaims Ex. 18 at 14.
:: nrc “Linrico Transfcr” is conoco in sPA section 2(o). scc Pls.’ Compl. Ex. A, p. 14.
See id.
6
The parties also determined to use reasonable best efforts to comply with ISRA. Section
5.3(a) of the SPA states:
Each of Buyer and the Seller Parties shall use their reasonable best efforts to
consummate the Transactions and to obtain as reasonably promptly as practicable
the Seller Required Approvals, the Buyer Required Approvals and all
authorizations, consents, orders and approvals, notices and filings of or to all
Government Entities that may be or may become reasonably necessary, proper or
advisable under this Agreement or any Ancillary Agreement and applicable Laws
to consummate and make effective the Transactions Each of Buyer and the Seller
Parties shall cooperate with the reasonable requests of each other in seeking to
make or obtain as promptly as reasonably as practicable all such authorizations,
consents, orders, approvals, notices and filings. Neither Buyer nor the Seller
Parties shall take or cause to be taken any action that they are aware or should
reasonably be aware would have the effect of impairing, impeding or materially
delaying the receipt or making of any such required authorizations, consents,
orders, approvals or filings. Without limiting the foregoing, the Seller Parties, at
their sole cost and expense, (i) if and to the extent applicable to any of the
Transactions, shall be responsible for compliance with requirements of the
Industrial Site Recovery Act ("lSRA") and (ii) if and to the extent required by
ISRA with respect to any such Transaction, shall either obtain from or file with
the New Jersey Department of Environmental Protection ("NJDEP") and provide
copies to the Buyer, prior to the Closing Date, (v) aNo Further Action Letter (as
defined in lSRA), (x) a Negative Declaration (as defined in ISRA), (y) an
approved Remedial Action Workplan or Remediation Agreement (as such terms
are defined in ISRA), or (Z) any other written acknowledgment from NJDEP of an
applicable waiver, exemption or authorization under ISRA.37
The parties also agreed to limit the survivability of certain claims. Section 7.1 states, in
pertinent part:
All covenants and agreements that by their terms apply or are to be performed in
whole or in party after the Closing will survive for the period provided in such
covenants and agreements, if any, or until fully performed All covenants and
agreements that by their terms apply or are to be performed in their entirety on or
prior to the Closing shall terminate at the Closing[.] Notwithstanding the
foregoing, any representation, warranty, covenant or agreement that would
otherwise terminate in accordance with this Section 7.1 will continue to survive if
a wnn§§i notice shall have been timely given on or prior to such termination
date[.]
31 Scc chinc Arr. Ex. x at oo-sr.
31 1a at asst
The Heyman Defendants wanted to retain the Linden Property. On August 23, 2011,
immediately after the SPA closed, IES conveyed the Linden Property back to the Heyman
Defendants for one dollar via a Contribution Agreement.39 Paragraph 2 of the Contribution
Agreement mirrors Section 2(e) of the SPA.40 Under the Contribution Agreement, LPH became
responsible for:
All liabilities to the extent related to or arising from or existing at the Linden
Property, including Liabilities arising under or relating to (a) Environmental Laws
(provided that such Liabilities shall not include any off-site migration or disposal
of Hazardous Materials from the Linden Property prior to the Closing, any claims
or damages associated with any off-site migration or disposal of l-Iazardous
Material from the Linden Property prior to the Closing, and for the avoidance of
doubt, any off-site contamination of soils, groundwater or sediments, any third
party superlimd sites including the Newark Bay Complex, any natural resources
damages or exposure claims relating to operations or discharges prior to
Closing).41
The Heyman Defendants ’ Post-closing Activity
On July 18, 2011, prior to closing, IES notified NJDEP of the pending Linden Property
transfer, and advised NJDEP that IES (or any ISP affiliate) would not be associated with the
Linden Property after August 25, 201 1.'12 The letter did not advise NJDEP that LPH was
required to become an ordered party on the ACO or that the Heyman Defendants would be
making a request to have IES removed as a party to the ACO.43
LPH did replace/substitute the outstanding letter of credit.44 LPH made payments to New
Jersey to comply with portions of the AC~O.‘15 And, LPH applied for Remedial Action Permits
39 Pls.‘ Compl. 11 60. See also Countercls. '|l 50.
110 Countercls. 11 51.
“1 Pls.‘ Compl. '|l 58.
42 1a 11 62. scc also Pls.‘ Compl. Ex. D.
43 1a 1[ 63.
44 See id at 1111 62, 64. See also Countercls. ll 60.
15 Countercls. ll 60.
(“RAPS”) for soil and groundwater at the Linden Property.46 On February 17, 2012, NJDEP
issued RAPs for soil and groundwater at the Linden Property to LPH only.47
On July 3, 2012, LPH’s environmental compliance manager requested from NJDEP a full
satisfaction compliance letter.48 On December 23, 2013, NJDEP denied LPH’s hill compliance
request.49 NJDEP‘s letter specifically required an investigation, ecological risk assessment, and
remediation of off-site contamination50
On lanuary 21 , 2014, LPH again requested a full satisfaction letter from NJDEP.51 LPH
mentioned that IES transferred the Linden Property to LPH, and LPH had taken over on-site
responsibilities52 LPH also provided that IES was responsible for any off-site remediation
pursuant to the ACO.53 On April 9, 2014, LPH again wrote to the NJDEP. LPH stated that it
agreed to assume on-site liabilities, while Ashland assumed off-site liabilities pursuant to the
AC().§‘1 Further, LPH provided that it believed that all on-site remediation was complete.55
On December 18, 2014, the NJDEP responded to LPH. The NJDEP informed LPH that:
(i) LPA’s liabilities Were not limited to on-site remediation liabilities, and (ii) LPH, as the
property owner, was obligated to complete a remedial investigation pursuant to the Spill Act and
N.J.s.A. 53:1013-1.3.56
On luly 23, 2015, the Office of the Attorney General of New lersey (the “AG Office”)
advised LPH that its $7,744,000 remediation source established in 201 l was solely “a
“° 1a
47 1a 11 oi.
48 1a 1165. sec also tc'. Ex. 26.
49 1a sr 2a
50 ld-
replacement of the [remediation funding source] originally required by the ACO for remediation
of the entire site, including remediation of offsite contamination.”57 The AG Office stated that
the NJDEP was authorized to draw upon the S7,744,000 remediation source to complete
remediation of the off-site migration liabilities511 Concurrently, the NJDEP sent Ashland and
GAF (and its successors) a Demand for Stipulated Penalties for the parties’ collective failure to
comply with the ACO.59 To date, the NJDEP has not sent out a full compliance letter.
The Litigation
Ashland commenced this action on OCtober 20, 2015, and filed its First Amended
Complaint (the “Complaint”) on December 3, 2015. The Complaint alleges five causes of action
relating to purported obligations of the Heyman Defendants in connection with SPA Schedule
5.19 and purported responsibility for the investigation, remediation, and cleanup costs regarding
environmental contamination of the Arthur Kill, an off-site location. Count l of the Complaint is
a Declaratory Judgrnent - Breach of Contract claim asserted by Ashland against the Heyman
Defendants for, among other things, the purported breach of Section 2(f) of Schedule 5.19 of the
SPA. Among other things, Count l alleges that the Heyman Defendants’ failure to amend the
ACO to include the name of LPH and remove ISP and its subsidiaries therefrom is in breach of
Section 2(f).
On lanuary 6, 2016, the Heyman Defendants filed their Answer to the Complaint and
Counterclaims. The Counterclaims assert six causes of action related to the same off-site
liabilities associated with the LPH Property. Counts ll and IlI of the Counterclaims are Breach
of Contract and Declaratory Jndgment _ Breach of Contract claims asserted by the SPA Seller
10
Successor Parties and RFH against Ashland in light of Ashland’s purported breach of Section
2(e) of Schedule 5.19 of the SPA.
On July ll, 2016, Ashland filed its Opening Brief in Support of Plaintiffs’ Motion for
Partial Summary Judgment on Count l of the Amended Complaint Pursuant to Rule 56(c),
Seeking a Declaratory Judgment that the Heyman Defendants Have Breached the Stock Purchase
Agreement and are Obligated to: (i) Replace Any Financial Assurance Under the ACO; (ii) add
LPH to the ACO as an Ordered Party; (iii) Remove lSP and Its Subsidiaries from the ACO; and
(iv) Comply with the Requirements of the Industrial Site Recovery Act (the “MSJ Motion”).
Ashland argues that no discovery is needed for the Court to declare the Heyman Defendants have
breached their Section 2(f) obligations
On August 12, 2016, the Heyman Defendants filed their Opposition to
Plaintiff/Counterclaim Defendant Ashland lnc.’s Motion for Partial Summary Judgment on
Count l of the Amended Complaint and Incorporated Cross-lvlotion for Partial Summary
ludgment (the “MSJ Cross-Motion”). The Heyman Defendants contend two things. First,
Ashland is not entitled to summary judgment because Sections 2(e) and 2(f) of the SPA clearly
allocate the parties’ clean-up obligations Alternatively, the Heyman Defendants have used
“reasonable best efforts” to comply with Sections 2(e) and 2(f), creating a factual issue. Second,
the Heyman Defendants argue that the Heyman Defendants, and not Ashland, are entitled to
summary judgment on Ashland’s ISRA claim. The Heyman Defendants contend that Ashland
waived or is estopped from arguing its lSRA claim or, alternatively, is time-barred.
The parties here have filed other dispositive motions. The Heyman Defendants filed their
Defendants/Counterclaim Plaintiffs’ l\/lotion for Partial ludgment on the Pleadings (the “MJP
Motion”). Ashland opposed the MJP Motion. ln addition, Ashland filed its Plaintiffs’ Motion to
11
Dismiss Certain of Defendants’ Counterclaims (the “MTD l\/lotion”), which the Heyman
Defendants opposed. Many of the issues raised in the MSJ Motion and the MSJ Cross-l\/lotion
are also raised in the MJP Motion and the MTD Motion. The Court would note the most
overlapping of issues is among the MJF Motion, the MSJ Motion and the MSJ Cross-Motion.
On October 4, 2016, the Court held an “omnibus” hearing on the lvlJP Motion, the MTD
Motion, the MSJ Motion and the MSJ Cross-Motion. At the close of the hearing, the Court took
all of the various motions under advisement The parties submitted post-trial briefing and sur-
replies in November, completing the process on December 15, 2016. The Court issued an
opinion denying the MJP Motion (the “MJP Opinion”) on March 29, 2017. On March 30, 2017,
the Court issued an opinion granting, in part, and denying, in part, the MTD Motion. This is the
Court’S decision on the MSJ Motion and the MSJ Cross-Motion. For the reasons set forth below
and in the MJP Opinion, the Court will deny the MSJ Motion and the MSJ Cross-Motion.
II. STAN])ARD OF REVIEW_MOTION FOR SUMMARY .]UDGMENT
Summary judgment is granted only if the moving party establishes that there are no
genuine issues of material fact in dispute and judgment may be granted as a matter of law.60 All
facts are viewed in a light most favorable to the non-moving party.61 Summary judgment may
not be granted if the record indicates that a material fact is in dispute, or if there is a need to
clarify the application of law to the specific circumstances62 When the facts permit a reasonable
person to draw only one inference, the question becomes one for decision as a matter of law.63 lf
the non-moving party bears the burden of proof at trial, yet “fails to make a showing sufficient to
611 Super. Ct. Civ. R. 56(c).
61 stratton v_ ocrrcs, 602 A.zd 56, 53_59 (Dcl. 1991).
62 sopcr. ct. Civ. R. 56(c).
63 Wocron v. Kt'gcr, 226 A.2d 238, 239 (Dcl. 1967).
12
establish the existence of an element essential to that party’s case,” then summary judgment may
be granted against that party.64
A. AsnLANn’s CoNTENTloNS
In the MSJ Motion, Ashland contends that the Court should grant summary judgment on
Count I because the Heyman Defendants have breached several obligations under the SPA.
Ashland argues that the Heyman Defendants agreed to (1) use reasonable best efforts to amend
the ACO to replace or substitute financial assurance to cover cleanup costs; (2) add LPH to the
ACO; and (3) remove ISP and its subsidiaries from the ACO. Further, Ashland claims that the
Heyman Defendants agreed to comply with ISRA. Ashland contends that no discovery is needed
because the Heyman Defendants’ liability is clear.
ln response to the MSJ Cross-Motion, Ashland argues that they did not know it would
have an ISRA claim until the NJDEP notified them in 2015 that the sale of the Linden Property
purportedly violated ISRA. Ashland filed suit three months after learning of this.
B. THE HEvMAN DEFENDANTS’ CoNTENTroNs
In opposing the MSJ Motion, the Heymand Defendants contend discovery has not closed
yet, so Ashland’s motion is premature Further, the Heyman Defendants argue that the facts (to
date) demonstrate that they exercised reasonable best efforts to comply with SPA Section 2(f).
The Heyman Defendants claim that this creates a genuine issue of material fact. ln the MSJ
Cross-Motion, the Heyman Defendants contend that Ashland’s ISRA claim must be dismissed as
matter of law for several reasons First, the Ashland Defendants were obligated to undertake
lSRA-related tasks “prior to” closing only to the extent ISRA was even applicable to the transfer.
The Ashland Defendants contend they put Ashland on actual notice that the Heyman Defendants
were not subject to lSRA months prior to closing. So, the Heyman Defendants posit that there is
64 Cclotcr Ccrp. v. Cotrcrr, 477 u.s. 317, 322 (1986).
13
no ISRA-eligible claim. The Heyman Defendants further contend that, even if an ISRA claim
began in 2011, then that initiated applicable time periods under which Ashland could bring a
breach of action claim--i.e., Ashland’s claim would be subject to Delaware’s three-year statute
of limitations.65 Having failed to do that, the Heyman Defendants argue Ashland’s claims must
be dismissed
III. DISCUSSION
A. GENUINE IssuEs oF MATERIAL FACT PREVENT sUMMARY JUI)GMENT oN
ASHLAND’s CouNr I
As discussed in the MIP Opinion, there is a genuine issue of material fact about how SPA
Section Z(e) and SPA Section Z(D must be read in connection with all other sections of the SPA.
This is true even with the expanded record on summary judgment
Therefore, to the extent Ashland seeks summary judgment on the Heyman Defendants’
duty to comply with Sl-"A Section 2(f), the MSJ Motion is denied There are some facts showing
that the Heyman Defendants may have complied with SPA Section 2(t). For example, the
correspondence between NJDEP and the Heyman Defendants show that the Heyman Defendants
took some remedial/investigative work with respect to the ACO and the Linden Property.
Moreover, the Heyman Defendants did provide a replacement/substitute financial assurance (the
$7,744,000 letter of credit). The Court does note that, to date, the Heyman Defendants have
provided no facts that support the conclusion that “reasonable best efforts” were undertaken to
have ISP removed and LPH added to the ACO. The parties are engaging in discovery and this
discovery should demonstrate whether there is a genuine issue of material of fact. The parties
will be able to seek additional relief under Civil Rule 56 at the close of discovery as the deadline
for dispositive motions (August 14, 2017) has not yet expired.
651013€1_€.§3106.
14
In the MJP Opinion, the Court provided:
The Court finds that there are ambiguities regarding the Heyman Defendants’
duties and liabilities pursuant to SPA Section 2(f). Read in isolation, the Heyman
Defendants’ interpretation is plausible.66
The Court can consider a somewhat different record under Civil Rule 56 than it can
under Civil Rule lZ(c). As the record is developing,67 Ashland’s explanation of how the SPA,
including SPA Sections 2(e) and SPA Section Z(f), works seems the stronger interpretation of the
parties’ obligations as to off-site migration liability with respect to ISRA and the ACO. As with
the “reasonable best efforts issue,” the parties may be able to develop the record in discovery so
as to demonstrate that no genuine issues of matter fact exist on whether the SPA is ambiguous on
this point. Moreover, additional discovery will likely flesh out whether the Heyman Defendants
made any attempt to have LPH put on the ACO and ISP removed from the ACO.
B. GENUINE IssUEs oF MATER|AL FACT REMAIN REGARDING ISRA
The parties’ other main dispute here is whether the Heyman Defendants complied with
SPA Section 2(f)’s ISRA mandate. As discussed above, SPA Section 2(f) requires the Heyman
Defendants to (a) comply with ISRA and (b), if ISRA applied, to notify the NJDEP regarding the
transfer. The Heyman Defendants argue that ISRA did not apply to the transaction Therefore,
the Heyman Defendants had no duty to inform the NJDEP of the transfer. Alternatively, the
Heyman Defendants argue that they told Ashland that ISRA did not apply prior to the sale and
Ashland agreed with this. Because Ashland never objected, the Heyman Defendants contend
that the SPA extinguished Ashland’s right to pursue its ISRA claim.
66 MJP Opinion at p. l |.
67 See, e.g., MJP Opinion at 12, LPH’s interaction with NJDEP and the AG Office, the Contribution Agreement.
15
ISRA68 requires the investigation and remediation of contamination whenever a covered
property closes operations or transfers ownership69 lSRA’s cleanup obligations pertain to nfl
areas to which a discharge originating at the industrial establishment is migrating or has
migrated.m Closing operations includes the “cessation of operations resulting in at least a 90
percent reduction in the total value of`` the product output from the entire industrial
establishment.?] The Linden Property ceased operations in 1991. Further, transferring
ownerships means: any transaction or proceeding through which an industrial establishment
undergoes a change in ownership.72 Two changes of ownership occurred_the Heyman
Defendants’ selling ISP to Ashland, and then Ashland’s selling the newly-formed LPH back to
the Heyman Defendants
ISRA appears to apply here. When the Linden Property ceased operations, the NJDEP’s
Division of Hazardous Waste Management-Bureau of Environmental Evaluation and Cleanup
Responsibility Assessment sent GAF Chemicals Corporation an “ECRA [predecessor to ISRA]
initial notice lGeneral lnformation Submission” to begin ECRA compliance The NJDEP warned
GAF Chemicals that only when a Full Compliance letter was sent would it consider GAF
Chemicals to be compliant under ECRA. That warning continued through the sale and transfer of
the Linden Property, No party has received a Full Compliance letter.
Further, the Heyman Defendants seem to misconstrue the NJDEP’s classification of the
Linden Property. The Heyman Defendants argue that the Linden Property’s facility code was
63 N.J. stat Arm. §§ 13:1K-6 a seq
69 1a § 13:11<-9.
70 Id. § 13:1 K-S (defining “remedial action” to inciude “actions taken at an industrial establishment or off-site of an
industrial establishment“ if contamination has migrated from the site in question.”).
n Id. (defining closing operations).
72 Id. Altematively, ISRA defines a “change in ownership” as “the sale or transfer of the business of an industrial
establishment or any of its real property; or the sale or transfer of stock in a corporation, resulting in a change in the
person holding the controlling interest in the direct owner or operator or indirect owner of an industrial
establishment.” See id.
16
9999; therefore, it was not subject to ISRA liability.73 The Linden Property’s facility code7 as
late as 2007 , was 2841, not 9999.74 As such, it does not appear that the NJDEP “agreed,” as the
Heyman Defendants argue, with the Heyman Defendants regarding the Linden Property’s
classification
The Heyman Defendants contend the SPA’s survival clause extinguished Ashland’s
lSRA claim. Alternatively, the Heyman Defendants argue that Delaware’s three-year statute of
limitations75 bars the claim_the SPA closed in 2011, and Ashland filed this complaint in 2015.
The Heyman Defendants argue that they told Ashland ISRA did not apply to the transaction and,
therefore, Ashland should have lodged its complaint prior to the SPA’s closing. Ashland did not,
and has now waived its right to bring this ISRA claim.
Ashland argues that it had no way of knowing that ISRA applied to the transaction until it
received files from the NJDEP pursuant to an Open Records Request. Specifically, Ashland
received a chart showing the Linden Property’s history.?6 Ashland argues that this confirms that
the NJDEP knew in 2013 that ISRA still applied, There is a chart that seems to provide that
NJDEP believed the GAF/ISP spin off and Ashland’s acquisition were in violation of ISRA."
As such, the statute of limitations arguably did not begin to run until Ashland received this
information in 2015; Ashland filed suit three months later.
73 See .r``d. (defining “lndustria| establishment" as "‘any place of business engaged in operations which involve the
generation, manufacture, refining, transportation treatment, storage, handling or disposal of``hazardous substances
or hazardous wastes on-site, above or below ground, having a Standard industrial Classitication number within 22
39 inclusive, 416-49 inclusive1 5l or 76 as designated in the Standard Industrial Classifications Manual prepared by
the Oliice of Management and Budget in the Executive Oi``lice of`` the President of the United States.“). See also
Levine Aff. Ex. N.
74 See Levine Aff. Ex. N. (“GPA claims SlC Code of 2841 when facility reports SIC Code of 9999”),
7510 Der. C. § 3106.
16 See trained Arr. Ex. P.
17 See id.
17
Section 8106 provides that no action “shall be brought after the expiration of 3 years
|``rom the accruing ol`` the cause of such action.”.'8 The statute o|`` limitations clock begins running
once the breach occurs. Ignorance of thc cause of`` action will not toll the statutc. absent
concealment or l``raud. or unless the injury is inherently unknowable and the claimant is
blamelesst ignorant of thc wrongful act and thc injury complained of.?“ ln the latter
circumstance the statute ol``limitalions begins to run upon the discovery ol`` l``aets “constituting the
basis ofthe cause of action or the existence of facts sufficient to put a person of ordinary
intelligence and prudence on inquiry which. il``pursued, would lead to the discovery" ol`` such
facts.x"
The Court believes that, on the record to date, waiver or statute of limitations may
prevent Ashland from proving its lSRA claim. At this time, however, Ashland has created a
genuine issue of material fact such that the Court will deny the Cross-Motion.31
IV. CONCLUSION
F or the reasons set forth herein and in the MJP Opinion, the Court DENlES the MSJ
Motion and the MSJ Cross-Motion. The Court is denying these motions without prejudice to the
parties raising the issues again after the record has been more fully developed
IT IS SO ORDERED. \
/\U/
``c_M.’§avis, Judge
" curiam 1'. mmt-awrh¢m.i-a.-m»per.\-. LLc', 354 A.zd 833. 842(0¢1. 2004). see ana 10 out t'. § 8106.
``”``" Careman, 354 A.:zd ar 842.
so ,d_
s' For example, Ashland may not have been put on proper notice due to information provided by the Heyman
Defendants in connection with the closing on the SPA. Moreover, NJDEP dealt mostly with LPH alter the closing
on the SPA. Ash|and may not have gotten notice fi'om NJDEP regarding LPH’s on-site liability v. off-site migration
liability position until 2014.
18