USA v. CONAGRA GROCERY PRODUCTS COMPANY LLC
Filing
145
ORDER ON THE PLAINTIFFS MOTION FOR JUDGMENT ON THE PLEADINGS; ON THE PLAINTIFFS MOTION IN LIMINE TO EXCLUDE EXPERT TESTIMONY; AND ON THE PARTIES CROSS-MOTIONS FOR SUMMARY JUDGMENT denying 78 Motion for Judgment on the Pleadings; granting in part and denying in part 116 Motion for Summary Judgment; denying 118 Motion in Limine to exclude expert testimony; denying 122 Cross-Motion for Summary Judgment By JUDGE NANCY TORRESEN. (dfr)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
Plaintiff,
v.
CONAGRA GROCERY PRODUCTS
COMPANY, LLC,
Defendant.
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) Civil no. 2:11-cv-455-NT
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ORDER ON THE PLAINTIFF’S MOTION FOR JUDGMENT
ON THE PLEADINGS; ON THE PLAINTIFF’S MOTION
IN LIMINE TO EXCLUDE EXPERT TESTIMONY; AND ON
THE PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT
Before the Court are three motions by Plaintiff United States of America
(the “Government”): (1) its motion under Federal Rule of Civil Procedure 12(c) for
judgment on the pleadings (ECF No. 78), seeking to dismiss certain of Defendant
ConAgra Grocery Products Co., LLC’s (“ConAgra”) affirmative defenses; (2) its
motion in limine to exclude expert testimony of defense experts Douglas E.
Simmons, P.G., and Craig MacPhee, P.E. (ECF No. 118); and (3) its Rule 56 motion
for partial summary judgment on ConAgra’s liability (ECF No. 116) under the
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. §§ 9601-9675 (“CERCLA”). Also before the Court is ConAgra’s cross-motion
for summary judgment (ECF No. 122). For the reasons that follow, the
Government’s motion for judgment on the pleadings and motion to exclude expert
testimony are DENIED; the Government’s motion for partial summary judgment is
1
GRANTED in part and DENIED in part; and ConAgra’s cross-motion for
summary judgment is DENIED.
FACTUAL BACKGROUND1
This story of corporate successorship and of the handling of waste at a
tannery in South Paris, Maine begins with the A.C. Lawrence Leather Company
(“Old Lawrence”). Old Lawrence was a leather manufacturer that, as of 1952,
owned several tanneries in the United States. PSMF ¶ 37. In December of 1952,
Old Lawrence merged into Swift & Company, (“Swift”), and became a division of
Swift. PSMF ¶¶ 2, 38. Swift dealt in numerous industries and products, including
insurance and financial services, energy, chemical, and food products. PSMF ¶ 43.
In 1953, Swift purchased certain parcels of land in South Paris, Maine, including a
parcel which housed a leather tannery, and a parcel across the Little Androscoggin
River that contained settling lagoons. PSMF ¶ 1. The settling lagoons were located
on a seven-acre parcel of land, identified by the Government as Lot 7 on Paris,
Maine tax map R22 (the “Lagoons Site”). See PSMF ¶¶ 1, 33. The tannery parcel
and the settling lagoons were used by other tannery operations for some time prior
to Swift’s purchase. See DSMF ¶ 5. Old Lawrence built a new facility and, in
November of 1955, it held a ribbon-cutting ceremony and began operations at the
The Government and ConAgra have each set forth statements of material fact in support of
their cross-motions for summary judgment (each starting at paragraph 1), to which the other side
has responded. Appendix A to this order sets forth all statements of fact used in this order as well as
the opposing party’s response and, where statements are qualified or denied, the Court’s
determination regarding use of the statement. Throughout this opinion, the Court refers solely to the
statement of fact—for the Government, “PSMF,” and for Conagra, “DSMF”—intending thereby to
incorporate the statement itself, the opposing party’s response, replies, and determination by the
Court, all as set forth in Appendix A.
2
See Appendix B (area map).
1
2
South Paris tannery. PSMF ¶ 2, see also A Short History of the A.C. Lawrence
Leather Co., Inc., 34-35 (E.J. Schneider, R.F. Goodspeed, and L.K. Barber, eds.
1982) (ECF No. 116-7).
The South Paris tannery used a chrome process for tanning hides into
leather. PSMF ¶ 8. This process used chromium as well as a number of other
chemicals which were mixed with water to tan hides into leather products. PSMF
¶¶ 10-16. The tanning process remained pretty much the same throughout the
tannery’s operations. PSMF ¶ 7. The tannery disposed of its waste by means of a
flume to the Lagoons Site. PSMF ¶¶ 24-25. The waste, which was a watery mixture
of processing chemicals and matter from the hides themselves, PSMF ¶¶ 14-18,
flowed into the unlined settling lagoons and there it “dewatered”—i.e. solids settled
and the water evaporated. PSMF ¶ 25.3 Disposal in this manner created a strong
odor that bothered town residents, PSMF ¶ 27, and the tannery commissioned
several studies to examine how to minimize the problems associated with its waste.
PSMF ¶ 28. Periodically, Old Lawrence dredged dewatered sludge from the lagoons
to make room for more watered sludge. DSMF ¶ 20.
In addition to its sludge lagoons, Old Lawrence owned a parcel of
approximately 48 acres down river from the tannery, Lot 24 on Paris, Maine tax
map R2, which it used as a landfill (the “Landfill Site”). ConAgra wishes the Court
to consider several properties in the vicinity of the tannery as one undifferentiated
“site,” see Counterclaim (ECF No. 112), ¶¶ 10, 13, 24-26, and 35. ConAgra also
3
claims that the Paris Utilities District (“PUD”) used the Lagoons Site (Lot 7), as a
landfill for dewatered sludge. DSMF ¶¶ 10 and 14; see also Conagra’s Response to
PSMF ¶¶ 32 and 33.4 But contrary to ConAgra’s contention, none of the record
references support an inference that Lot 7 was used for anything other than
receiving the wet waste from the tannery.
In 1973, Swift transferred Old Lawrence, including the South Paris tannery
and Lagoons Site, to Estech, Inc. (“Estech”). PSMF ¶ 3. This transfer was part of a
plan of merger and reorganization in which: 1) Swift transferred its non-food lines
of business to a trio of companies dealing in energy, chemical, and financial
services; 2) the energy, chemical, and financial services companies transferred all of
Neither party specifically describes the dewatering process, but it is described in an EPA
interview memo (ECF No. 122-38) and in a June 4, 1992 Site Inspection Report by TRC Companies,
Inc. 6 (ECF No. 116-40).
4
The Government asserts that the “landfill” or “Landfill Site” is “Parcel 24” or “Lot 24” on the
tax map. Government’s Mot. for Summ. J. 19, n. 10 (ECF No. 116) and Government’s Reply in
Support of Summ. J. 11 (ECF No. 126). The record is not entirely clear on this point. There are
references to Lots 24 and 14 being lots where waste originating with the tannery was dumped. Most
sources indicate that the landfill associated with the tannery and later, PUD, was Lot 24. See EPA
Environmental Impact Statement at 28 (ECF No. 116-35) (appearing to describe Lot 24 as the site on
which PUD initially proposed to dump its waste) and June 4, 1992 Site Inspection Report, TRC
Companies, Inc. 6 (ECF No. 116-40) (appearing to describe Lot 24 as the site on which PUD dumped
waste via permit extensions while looking for an alternative site); see also the April 26, 1993 Consent
Decree and Order 2 (ECF No. 122-12) (identifying Lot 24 as the property upon which PUD had
obtained the right to deposit sludge “pursuant to a written agreement with Lawrence’s predecessor”).
But two iterations of PUD’s memorandum of understanding (“MOA”) with Estech identify
Lot 14 as the site for PUD’s sludge disposal. See July 3, 1973 MOA between Estech and PUD ¶ 8
(ECF No. 116-36), and March 5, 1976 MOA between Estech and PUD ¶ 21 (ECF No. 123-11). Also, a
“History of Site” of unidentified origin (ECF No. 122-36), which may be referring to these MOAs,
refers to the deposit of sludge by PUD “on a 24 acre parcel (Map R-2, #14).” This reference to “Lot 14”
may be a typo because the MOAs also describe this parcel as “premises west of the Canadian
National Railway”—but lot 14 as shown on the tax map is east of the railway, whereas lot 24 is west
of the railway. ConAgra also cites a March 26, 2007 phone conversation record (ECF No. 123-18)
(indicating landfills “are on Lots 11 and 24”), but the Government objects to the introduction of this
record as hearsay. The Court sustains the objection and therefore does not consider this record.
Ultimately, it does not matter whether the Landfill Site was Lot 24 or Lot 14, or even Lot 11.
None of the records indicate that the Landfill Site was Lot 7. The Court therefore distinguishes the
Landfill Site as a site separate and distinct from the Lagoons Site.
3
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their stock to Swift; and 3) Swift transferred all of the energy, chemical and
financial companies’ stock to a holding company, Esmark Inc. (“Esmark”). See
PSMF ¶¶ 44-47 and sources cited therein. Estech, as Esmark’s chemical subsidiary,
owned Old Lawrence’s leather manufacturing business. See PSMF ¶¶ 44-47 and
sources cited therein.
In the early 1970’s, the town, Swift, and later Estech and other local
businesses constructed a wastewater treatment plant, with assistance from state
and federal funds, to treat municipal waste as well as tannery waste in a single
facility. PSMF ¶ 29. The wastewater treatment plant (the “PUD Facility”) opened
in the summer of 1975. PSMF ¶ 30.
On March 5, 1976, Estech sold the tannery to a group of former tannery
employees (“New Lawrence”). PSMF ¶ 4.5 The parties disagree over the extent of
the liabilities assumed by New Lawrence. See DSMF ¶¶ 108-111. The parties also
disagree over when the tannery ceased using the settling lagoons. The Government
claims that in September of 1975, the PUD Facility began accepting the tannery’s
waste for treatment and the tannery ceased using the Lagoons Site. PSMF ¶ 30.
ConAgra asserts that New Lawrence continued to use the Lagoons Site up through
1977 or 1979. See DSMF ¶¶ 15-19; ConAgra’s response to PSMF ¶¶ 30-32. At some
point, the tannery did cease using the lagoons, and it ceased operations altogether
in 1985. PSMF ¶ 6.
New Lawrence incorporated in Massachusetts in 1975 under the name New Lawrence, Inc.,
and changed its corporate name to A.C. Lawrence Leather Co., Inc. on March 2, 1976. See
Government’s Statement of Additional Material Facts (“PASMF”) ¶ 4 and source cited therein.
PSAMF ¶ 4 is also available in Appendix A.
5
5
In the meantime, the PUD Facility came under scrutiny from Maine’s
Department of Environmental Protection (“MEDEP”) and from the EPA.6 MEDEP
disapproved of the Landfill Site (Lot 24), which PUD initially chose for disposal of
its treated waste, though it allowed disposal on this site to continue for some time
due to the lack of alternative disposal sites.7 The PUD Facility also exceeded its
federally-permitted discharge levels. See DSMF ¶¶ 29 and 53. In 1976, the EPA
carried out an environmental impact statement on behalf of the Government
regarding PUD’s sludge disposal. DSMF ¶ 113.
Eventually, PUD and New Lawrence found themselves in court, arguing over
whether New Lawrence owed PUD additional sums to share in the costs of its waste
treatment and whether PUD must indemnify New Lawrence with regard to its
dumping on New Lawrence’s property. See Paris Util. Dist. v. A.C. Lawrence
Leather Co., Inc., 665 F. Supp. 944 (D. Me. 1987). Ultimately, the Landfill Site (Lot
24) became the subject of a consent decree between MEDEP and PUD, filed with
the Maine Superior Court on April 26, 1993. DSMF ¶ 43. The consent decree
required PUD, among other things, to secure the Landfill Site, deposit $250,000
See August 2, 1984 letter from EPA water management division director to PUD (ECF No.
122-44) (cited in support of DSMF ¶ 53) (noting that PUD had frequently violated the limits of its
National Pollutant Discharge Elimination System permit, that the EPA and MEDEP inspected the
PUD Facility, and that the EPA would issue an administrative order if MEDEP and PUD could not
execute an administrative consent agreement).
6
See April 9, 1996 MEDEP Final Site Inspection 5 (ECF No. 116-41) (cited in support of PSMF
¶ 33) (noting that PUD was denied a permit by MEDEP for sludge disposal at what appears to be the
Landfill Site (Lot 24), but that sludge disposal was allowed to continue at this site after 1975 via
permit extensions granted by MEDEP and due to the lack of alternative disposal sites); April 26,
1993 Consent Decree and Order (ECF No. 122-12) (cited in support of DSMF ¶ 43) (reciting that
MEDEP denied PUD permission to use Lot 24 for sludge disposal because of inadequate soil
conditions but granted a series of conditional and temporary permissions to continue disposal on Lot
24 pending the outcome of litigation over an alternate sludge disposal site).
7
6
into escrow for environmental remediation of the site, and apply for a grant to
complete remediation and closure of the site. See April 26, 1993 Consent Decree and
Order 6-9 (ECF No. 122-12). The Landfill Site was not part of the 2006-2007
environmental remediation performed by the EPA for which the Government now
seeks costs. See PSMF ¶ 34.
In 2000, the Town of South Paris received a complaint regarding “green ooze”
on the bank of the Little Androscoggin River near the sludge lagoons. PSMF ¶ 70.
The Government conducted a preliminary assessment in September of 2003. PSMF
¶ 72. The parties disagree regarding the level of contamination the Government
found at the Lagoons Site and specifically whether the contamination was severe
enough to warrant the environmental remediation performed by the Government.
PSMF ¶¶ 71-72. In August of 2006, the Government commenced a removal action at
the Lagoons Site, and it completed its work in September of 2007. PSMF ¶¶ 75-77.
The Government entered into a series of agreements with ConAgra tolling the
statute of limitations under CERCLA, the last of which expired on November 30,
2011. PSMF ¶¶ 78-80.
PROCEDURAL BACKGROUND
On November 29, 2011, the Government filed a CERCLA complaint against
ConAgra seeking recovery for $5.67 million in costs the Government incurred in its
cleanup of hazardous waste at the Lagoons Site. The Government claims that
ConAgra is the successor-in-interest to Swift and Estech.
7
ConAgra interposed a number of affirmative defenses to liability, including
res judicata, issue preclusion, collateral estoppel, and the law of the case.
Affirmative Defenses ¶¶ 21-24 (ECF No. 8). These preclusion defenses are based on
ConAgra’s claim that “various Courts, including this Court” had “judicially
determined” that New Lawrence was solely responsible for contamination at the
site. Affirmative Defenses ¶ 21. The Government’s Rule 12(c) motion for judgment
on the pleadings addresses these defenses, which also form part of ConAgra’s
motion for summary judgment.
The Government’s motion for partial summary judgment aims to establish
ConAgra’s liability and deals with ConAgra’s remaining liability defenses.8
On April 12, 2012, the Magistrate Judge (Rich, J.) granted the Government’s motion to
bifurcate the case into two stages: (I) liability and (II) damages. Order on Mot. to Bifurcate (ECF No.
23). ConAgra’s affirmative defense paragraphs 2-5, 8, and 18, state defenses against damages, and
the Government does not seek to address these defenses during the liability stage of the litigation.
On July 31, 2012, the Magistrate Judge granted the Government’s motion to strike
ConAgra’s affirmative defense paragraphs 6, 7, 9, 12 through 15, 17, 19, 20, 25, 26, and 28. (ECF No.
35). The following chart summarizes the status of ConAgra’s affirmative defenses:
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No.
AD 1
AD 2
AD 3
AD 4
AD 5
AD 6
AD 7
AD 8
AD 9
AD 10
AD 11
AD 12
AD 13
AD 14
Disposition
Incorporates ConAgra’s answers to
the Government’s allegations
Damages defense; phase II.
Damages defense; phase II.
Damages defense; phase II.
Damages defense; phase II.
Stricken (ECF No. 35).
Stricken (ECF No. 35).
No.
AD 15
Disposition
Stricken (ECF No. 35).
AD 16
AD 17
AD 18
AD 19
AD 20
AD 21
Damages defense; phase II.
Stricken (ECF No. 35).
Subject of Government’s motion for
summary judgment
See AD 10
Stricken (ECF No. 35).
Stricken (ECF No. 35).
Stricken (ECF No. 35).
AD 22
AD 23
AD 24
See AD 10
Stricken (ECF No. 35).
Damages defense; phase II.
Stricken (ECF No. 35).
Stricken (ECF No. 35).
Subject of Government’s 12(c) motion
and ConAgra’s cross-motion for
summary judgment
See AD 21.
See AD 21.
See AD 21.
AD 25
AD 26
AD 27
AD 28
Stricken (ECF No. 35).
Stricken (ECF No. 35).
See AD 10
Stricken (ECF No. 35).
8
Affirmative Defenses ¶¶ 10, 11, 16 & 27. These defenses assert that ConAgra is not
a successor-in-interest to any owner or operator of the site at the time of disposal of
hazardous substances (this was pled both as a denial of allegations and as an
affirmative defense), that the Government’s claims are barred by the statute of
limitations, and that CERCLA’s statutory defenses are applicable to ConAgra.
Ancillary to its motion for summary judgment on liability, the Government
filed a motion in limine to exclude ConAgra’s experts’ opinion that none of the soils
removed by the Government were related to Old Lawrence’s operations. The Court
first addresses the Government’s motion for judgment on the pleadings, then the
Government’s motion in limine, and finally, the parties’ cross-motions for summary
judgment.
DISCUSSION
I.
The Government’s Motion for Judgment on the Pleadings
The Government moves for judgment on the pleadings regarding ConAgra’s
affirmative defenses of res judicata, issue preclusion, the law of the case, and
collateral estoppel, (Affirmative Defenses ¶¶ 21-24). These defenses are based on
ConAgra’s assertion that New Lawrence assumed all of the obligations and
liabilities of the A.C. Lawrence Leather Company when it purchased this company
from Estech in 1976, and that courts have already judicially determined that New
Lawrence, and not ConAgra, was the party responsible for the disposal of hazardous
substances at the site. Affirmative Defenses ¶ 21.
A. Legal Standard
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“A motion for judgment on the pleadings is treated like a Rule 12(b)(6)
motion to dismiss . . . .” Portugues-Santana v. Rekomdiv Int’l Inc., 725 F.3d 17, 25
(1st Cir. 2013) (citing Pérez–Acevedo v. Rivero–Cubano, 520 F.3d 26, 29 (1st Cir.
2008); Elena v. Municipality of San Juan, 677 F.3d 1, 5 (1st Cir. 2012)). The
standard on a 12(b)(6) motion to dismiss a claim is by now well-settled: the pleading
“‘must contain sufficient factual matter, accepted as true, to “state a claim to relief
that is plausible on its face,”’” Gianfrancesco v. Town of Wrentham, 712 F.3d 634,
638-39 (1st Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, (2007))). In this case the
Government’s motion is directed, not at the sufficiency of any claims, but at the
sufficiency of ConAgra’s affirmative defenses.
B. Application of Rule 12(c) to Affirmative Defenses
Federal courts across the country have been grappling with the question of
whether Iqbal and Twombly’s plausibility requirements apply to a defendant’s
assertion of affirmative defenses.9 See, e.g., Lane v. Page, 272 F.R.D. 581, 588-597
(D.N.M. 2011); Hansen v. Rhode Island’s Only 24 Hour Truck & Auto Plaza, Inc.,
287 F.R.D. 119, 122-23 (D. Mass. 2012). The First Circuit has not yet addressed this
ConAgra does provide some factual content as a basis for its preclusion defenses, identifying
a consent decree in one case and a federal district court order in another case that allegedly preclude
any re-litigation of the question of successor liability in this case. But the Government was not a
named party to either of the prior cases cited in Defendant’s answer, and ConAgra does not provide
any other factual basis within its answer and affirmative defenses for the assertion—necessary for
collateral estoppel—that the Government nevertheless had a fair opportunity to litigate the issues in
the earlier cases. Further complicating the picture, ConAgra does allege within its counterclaims,
which the Court has dismissed, that the Government was involved in negotiations that led to the
consent decree. Neither side has suggested how the Court should treat these additional allegations in
considering the Government’s 12(c) motion.
9
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question, and the parties have not argued this issue in their pleadings. 10 Because
the parties have not brought the issue squarely before the Court, the Court takes no
position on the necessity, generally speaking, for parties to plausibly plead facts
supporting their affirmative defenses. But in this particular case it would serve no
purpose to put ConAgra to the task of amending its answer to include factual
allegations already stated within its motion for summary judgment. 11 Accordingly,
the Court denies the Government’s motion for judgment on the pleadings and,
instead, reviews the merits of affirmative defense paragraphs 21-24 within the
context of the parties’ cross-motions for summary judgment.
II.
The Government’s Motion in Limine to Exclude Expert Evidence
The Government has moved to exclude from Phase I of this litigation the first
opinion in the expert report of Douglas E. Simmons, P.G. and Craig MacPhee, P.E.,
prepared for ConAgra (ECF No. 123-13) (the “AECOM Report”). The Court denies
the Government’s motion.
A. Legal Standard
At the Court’s request, ConAgra consolidated its response to the Government’s motion for
judgment on the pleadings with its own motion for summary judgment, which asserts in part that
the Government’s claims are barred by res judicata and collateral estoppel. This posture allowed
ConAgra to assert a more fulsome explication of its preclusion defenses, and may have occluded the
sufficiency-of-the-pleadings issue.
10
The Court expects that any order granting the Government’s motion for judgment on the
pleadings, which would be based on ConAgra’s failure to plausibly support the elements of collateral
estoppel within its statement of affirmative defenses, would provoke a motion by ConAgra to amend
its answer and affirmative defenses, which the Court would grant. The parties have already moved
beyond this point, having put together facts and arguments on summary judgment that embrace
ConAgra’s preclusion defenses.
11
11
Federal Rule of Evidence 702 assigns to this Court “‘the task of ensuring that
an expert’s testimony both rests on a reliable foundation and is relevant to the task
at hand.’” Smith v. Jenkins, 732 F.3d 51, 64 (1st Cir. 2013) (quoting Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993)).
B. Opinion 1 is Relevant to a Defense to Liability
As set forth in Section III below, there is more than one “liability” question at
issue on these cross-motions for summary judgment, including whether ConAgra is
liable under CERCLA as Old Lawrence’s corporate successor and whether the
Government’s response costs were solely caused by entities other than Old
Lawrence. As noted by the Magistrate Judge in an earlier decision (ECF No. 110),
Simmons’ and MacPhee’s first opinion is, on its face, relevant to the latter liability
question. Simmons’ and MacPhee’s first opinion states:
1. All the soils excavated by US EPA in the 2006-2007 removal action
in the area of the former sludge disposal trenches (also referred to as
“lagoons”) appear not to be related to the Old A.C. Lawrence Tannery
operations. Some of these soils appear to be related to the New A.C.
Lawrence Tannery and/or tannery operations that occurred prior to
1955 when the Old AC Lawrence assumed control of the tannery.
AECOM Report 2 (“Opinion 1”). The parties agree that ConAgra cannot be liable to
the Government if none of the contamination it removed was deposited between
1955 and March 5, 1976, which is what this opinion purports to say.
Opinion 1 is based on the EPA’s reports that it removed 34,133.32 tons of
chromium-contaminated soil from the lagoons, and Simmons’ and MacPhee’s
calculations that this represented approximately 1.56 years’ worth of tannery
12
sludge.12 Simmons and MacPhee reasoned that, since at least one source indicated
that Old Lawrence removed its sludge from the lagoons twice a year, and since at
least one source indicated that New Lawrence continued to use the sludge lagoons
until 1979, 100% of the removed, contaminated soil “may have been generated
during New A.C. Lawrence’s operation of the facility.” AECOM Report 2-3.
In order for Opinion 1 to be relevant to liability, two predicate facts must be
established: 1) that Old Lawrence was able to remove all of the sludge that it
dumped into the lagoons, and 2) that New Lawrence used the sludge lagoons for at
least 1.56 years past the March, 1976 sale. Both of these underlying issues are
disputed by the parties and the record citations reveal competing facts.13
While there may be weaknesses in Opinion 1, those weaknesses are best
exposed by “vigorous cross-examination” and “presentation of contrary evidence.”
Daubert, 509 U.S. at 596. Particularly where, as here, there will be no jury trial, the
Court’s gatekeeping role can be more relaxed. See United States v. Brown, 415 U.S.
1257, 1268 (11th Cir. 2005) (“There is less need for the gatekeeper to keep the gate
when the gatekeeper is keeping the gate only for himself.”).
For these reasons, the Court denies the Government’s motion in limine to
exclude Opinion 1 of the AECOM Report.
III.
The Parties’ Cross-Motions for Summary Judgment
Simmons and MacPhee actually calculated that one year’s worth of tannery sludge
represented “approximately 64%” of the volume of the contaminated soils removed. This equates to a
finding that the Government removed a total volume of sludge equivalent to 1.56 years’ worth of
tannery sludge. AECOM Rpt. 3.
12
13
See PSMF ¶¶ 30-31; DSMF ¶ 20.
13
The Government moves for partial summary judgment on the question of
ConAgra’s CERCLA liability. The parties agree that, to establish liability, the
Government must show:
(1) a “release” or a “threatened release” of a “hazardous substance”;
(2) from a “facility”;
(3) by a person that is among the four classes of covered persons under Section
107(a) of CERCLA; and
(4) that the release or threatened release caused the Government to incur
“response” costs.
See 42 U.S.C. § 9607(a); United States v. Mottolo, 695 F. Supp. 615, 622-23 (D.N.H.
1988), aff’d, 26 F.3d 266 (1st Cir. 1994). The four classes of covered persons are:
the owner or operator of a contaminated vessel or facility; the owner
and operator of a facility at the time it became contaminated; any
person who arranges for the transport or disposal of hazardous wastes;
and any person who accepts hazardous wastes for the purposes of
transport or disposal.
John S. Boyd Co., Inc. v. Boston Gas Co., 992 F.2d 401, 404 (1st Cir. 1993) (citing 42
U.S.C. § 9607(a)). “Courts have interpreted this statute to include successor
corporations . . . .” Id. (citations omitted.)
ConAgra does not dispute that, between 1955 and 1975, Old Lawrence
released hazardous substances from a facility within the meaning of CERCLA. But
it does dispute the Government’s assertion that ConAgra is liable under CERCLA
as Old Lawrence’s corporate successor. On this point, ConAgra makes two
arguments. First, it asserts that Old Lawrence’s corporate successor has already
14
been judicially determined to be New Lawrence and the Government is estopped
from now claiming that ConAgra is Old Lawrence’s successor. This is the thrust of
ConAgra’s preclusion defenses. Second, ConAgra asserts that the Government has
failed to establish the chain of corporate successorship from Old Lawrence to
ConAgra.
The parties also disagree as to whether Old Lawrence’s release of hazardous
substances caused the Government to incur costs of environmental remediation.
Here, ConAgra makes three arguments: (1) that the Government’s actions were
inconsistent with the National Contingency Plan (“NCP”),14 (2) that the
Government’s response costs were solely caused by entities other than Old
Lawrence, and (3) that even if some of the response costs were caused by Old
Lawrence, the imposition of joint and several liability on ConAgra is improper
because costs may be apportioned. Finally, ConAgra raises a statute of limitations
defense.
A. Legal Standard
Summary judgment is appropriate when there is no genuine dispute of
material fact and the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a). On cross-motions for summary judgment, the Court “view[s]
each motion separately and draw[s] all reasonable inferences in favor of the
respective non-moving party.” Roman Catholic Bishop of Springfield v. City of
The NCP, which CERCLA requires the Government to create, “provide[s] the organizational
structure and procedures for preparing for and responding to discharges of oil and releases of
hazardous substances, pollutants, and contaminants.” 40 CFR § 300.1.
14
15
Springfield, 724 F.3d 78, 89 (1st Cir. 2013). On cross-motions, the Court must
“decide ‘whether either of the parties deserves judgment as a matter of law on facts
that are not disputed.’” Fid. Co-op. Bank v. Nova Cas. Co., 726 F.3d 31, 36 (1st Cir.
2013) (quoting Barnes v. Fleet Nat’l Bank, N.A., 370 F.3d 164, 170 (1st Cir. 2004)
(citation and internal quotation marks omitted)).
B. Successor Liability Under CERCLA
Under CERCLA, liability under 42 U.S.C. § 9607(a) extends not only to the
potentially responsible parties, but also to the corporate successors of those parties.
Boyd, 992 F.2d at 404. The Court has clear guidance on several principles of
corporate liability under CERCLA. United States v. Bestfoods, 524 U.S. 51, 61-62
(1998), explains that a corporate parent—i.e. a company that owns all of the stock of
another corporation—is not subject to liability under CERCLA simply because its
subsidiary owns or operates a polluting facility. But a corporate parent may accrue
CERCLA liability to the extent it actually operates its subsidiary’s polluting
facility, Bestfoods, 524 U.S. at 66-68, or to the extent a traditional corporate veilpiercing analysis applies. Id. at 63.
The First Circuit has also made clear that a responsible party under 42
U.S.C. § 9607(a) that merges with another company brings its CERCLA liability
into the merged successor entity. Boyd, 992 F.2d at 404. Finally, “[i]f § 9607(a)
imposes liability on a party, then that party cannot escape liability by means of a
contract with another party.” Id. at 405 (citing 42 U.S.C. § 9607(e)(1)). While parties
16
can allocate responsibility among themselves by contract, “the government . . . can
pursue any responsible party it desires.” Id.
The parties agree that Old Lawrence operated the South Paris tannery
between September of 1955 and March 5, 1976, when New Lawrence purchased it.
Therefore, Old Lawrence is a potentially responsible party under 42 U.S.C. §
9607(a). The Government has established that Old Lawrence operated the tannery
as a division of Swift between 1955 and 1973, PSMF ¶¶ 2 and 3, and Old Lawrence
continued to operate the tannery as a division of Estech between 1973 and 1976.
PSMF ¶ 38. The parties agree that Estech sold its leather manufacturing division,
including the South Paris tannery, to New Lawrence on March 5, 1976, and that
New Lawrence operated the tannery until its closure in 1985. The parties part ways
from here, spawning two distinct issues. The first is whether, when Estech received
Old Lawrence in 1973, it also took responsibility for all of Old Lawrence’s pre-1973
environmental liabilities. The second is whether ConAgra is Estech’s successor.
1. Whether Estech is Liable for Contamination Occurring
from 1955-1973, When Old Lawrence was a Division of
Swift
In order to determine whether it is appropriate to impose successor liability,
courts apply state law “so long as it is not hostile to the federal interests animating
CERCLA.” United States v. Davis, 261 F.3d 1, 54 (1st Cir. 2001). The 1973 plan of
merger and reorganization involving Swift and Estech was executed and filed in
Delaware, making Delaware law applicable to the interpretation of its terms.
Delaware follows the rule that “when one company sells or otherwise transfers all of
its assets to another company, the buyer generally is not responsible for the seller’s
17
liabilities” except where: (1) the buyer assumes liability; (2) the “sale” is a de facto
merger or consolidation; (3) the “sale” is a mere continuation of the predecessor
under a different name; or (4) the sale involves fraud. Ross v. Desa Holdings Corp.,
C.A. No. 05C-05-013 MMJ, 2008 WL 4899226, *4 (Del. Sup. Ct., Sept. 30, 2008)
(citing Fehl v. S.W.C. Corp., 433 F. Supp. 939, 945 (D. Del. 1977); Elmer v. Tenneco
Resins, Inc., 698 F. Supp. 535, 540 (D. Del. 1988)).
The Government makes two arguments in favor of its claim that Estech
assumed Old Lawrence’s pre-1973 environmental liabilities: (1) that the transfer of
Old Lawrence to Estech from Swift was not an asset sale but, rather, a corporate
reorganization in which Swift’s liability was automatically transferred to Estech,
and (2) that even if the transfer of Old Lawrence from Swift to Estech was merely
an asset sale, Estech expressly assumed Old Lawrence’s liabilities as part of the
transfer. ConAgra, for its part, argues that the operative language in the 1973
merger and reorganization merely provides that Estech “will assume” liabilities
associated with Old Lawrence’s business, which “is a futuristic statement,” and that
“[i]t is unknown what liabilities, if any, were ultimately assumed or whether such
liabilities were in fact transferred . . . .” Def’s Reply in Support of Summ. J. 4 (ECF
No. 131) (emphasis in original).
The Government fails to cite any authority for its argument that Esmark or
Estech, as companies “formed” by Swift for purposes of its reorganization,
automatically assumed Old Lawrence’s environmental liabilities. Under Delaware
law, the transfer of assets into a new company generally does not transfer
18
liability.15 See Ross, 2008 WL 4899226 at *4. The only exception to this general rule
identified by the Government is the express assumption of liability.
The available evidence regarding the terms of the transfer from Swift to
Estech are those outlined in the 1973 agreement and plan of merger and
reorganization. The plan provides in pertinent part:
Each of [Esmark’s new subsidiaries, including Estech] will assume the
liabilities relating to the business or businesses acquired by it (through
ownership of the stock where stock of subsidiary companies is
acquired, and by the express assumption of such liabilities where
assets other than stock are acquired) but will not assume any of Swift’s
long-term debt or any other liabilities of Swift which are not associated
with such businesses . . . .
1973 Agreement and Plan of Merger and Reorganization, Art. 4.1 (ECF No. 116-15).
The Government claims that the language of this agreement constitutes an
express assumption by Estech of Old Lawrence’s CERCLA liabilities. Presumably,
this is because Old Lawrence’s CERCLA liabilities are “liabilities relating to the
business.” But CERCLA was enacted in 1980, seven years after Old Lawrence was
transferred to Estech. Thus, at the time of the transfer, Old Lawrence’s CERCLA
liability was an unrealized, perhaps uncontemplated, contingent liability.
In Boyd, the First Circuit faced the question of whether parties to a preCERCLA asset sale transferred as-yet-unrealized CERCLA liabilities to the
After Swift’s voluntary reorganization, which transferred a portion of Swift’s assets to other
entities, Swift remained an entity in possession of its food products line. For whatever reason, the
Government has not undertaken to bring Swift or its successor in interest into court to assume the
liability for pollution occurring between 1955 and 1973. See 42 U.S.C. § 9607(e)(1) (“No
indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer
from the owner or operator of any vessel or facility or from any person who may be liable for a
release or threat of release under this section, to any other person the liability imposed under this
section.”); Boyd, 992 F.2d at 405.
15
19
transferee. See Boyd, 992 F.2d at 406-07. Interpreting Massachusetts law, Boyd
held that:
[t]o transfer CERCLA liability, the Agreement must contain language
broad enough to allow us to say that the parties intended to transfer
either contingent environmental liability, or all liability. The
Agreement must recognize the possibility of future liability or dispense
[the transferor] of all liabilities in the form of a general release.
Id. at 407. The parties have not analyzed Boyd, much less provided the Court with
any Delaware law on point. Assuming that Delaware might decide the question of
assumption of contingent liability similarly to Massachusetts, the record is
insufficient to support a finding that Estech assumed Old Lawrence’s as-yetunrealized 1955-1973 CERCLA liability. Without further evidence, it is impossible
to say that the parties intended for Estech to assume such liabilities.16 See id.
Accordingly, the issue of ConAgra’s liability for pre-1973 pollution at the Lagoons
Site cannot be determined on summary judgment.
Even if Estech is not liable for the pre-1973 pollution at the Lagoons Site, it
is clearly a potentially responsible party based on its operation of Old Lawrence
The Government contends that a 2007 letter from ConAgra’s counsel stands as evidence, or
perhaps an admission, that Estech assumed Old Lawrence’s CERCLA liability in the 1973 asset
transfer. See Pl’s Mot. for Summ. J. 17 (ECF No. 116), PSMF ¶ 48 and Ex. UU thereto, July 3, 2007
letter from Thomas C. McGowan Esq. to Rona Gregory, Esq. (ECF No. 116-49). The letter states,
“[b]y express terms of the [1973] merger, this new Swift & Company held only food business assets
and retained no assets or liabilities relating to former chemical/industrial business.” Letter at 3
(emphases in original). In this letter, Mr. McGowan, who is ConAgra’s counsel, was writing as
counsel for Swift and Company. Setting aside any questions regarding conflict of interest, this
statement is not an admission because it is not clear that Mr. McGowan was authorized to speak on
ConAgra’s behalf when making it. See Fed. R. Evid. 801(d)(2). It is also not evidence that Estech
assumed Old Lawrence’s pre-1973 CERCLA liability. There is no foundation to assume that Mr.
McGowan has any personal knowledge of the intent of the parties at the time of the transfer.
Assuming Mr. McGowan was speaking on behalf of Swift or its successor, this is more properly
described as Swift’s or its successor’s position on the matter, and does not constitute evidence of what
actually occurred.
16
20
from 1973 to 1976. This brings the Court to the question of whether ConAgra can be
held liable under CERCLA as Estech’s corporate successor.
2. Whether ConAgra is Estech’s Successor
Estech had been Esmark’s wholly-owned subsidiary since Swift’s 1973
corporate reorganization. In 1976, Estech sold its A.C. Lawrence division in an
asset sale to New Lawrence. But Estech could not divest itself of its CERCLA
liability merely by selling Old Lawrence, nor could any contractual terms terminate
Estech’s liability. See Boyd, 992 F.2d at 405; 42 U.S.C. § 9607(e)(1). Once a
potentially responsible party, Estech remained a potentially responsible party.
Estech continued its corporate existence after the 1976 sale. In August of
1984, Esmark was acquired by Beatrice Companies, Inc. PSMF ¶¶ 52-54. In 1986,
Estech’s stock was transferred to Beatrice Companies, Inc., and in 1987, Beatrice
Companies, Inc. transferred Estech’s stock to BCI Divestiture, Inc. (“BCI”). PSMF
¶¶ 55-56. As of August 14, 1990, BCI was owned by Beatrice U.S. Food Corp., which
in turn was owned by Beatrice Company (not to be confused with the Beatrice
Companies, Inc., above). PSMF ¶ 58. Up to this point, Estech kept its own corporate
form, and the Government does not claim that, by acquiring Estech’s stock, Beatrice
Companies, Inc., BCI, Beatrice U.S. Food Corp., or Beatrice Company thereby
acquired Estech’s liabilities. See Bestfoods, 524 U.S. at 61-62.
In 1991, Estech merged into BCI, thereby transferring its liability to BCI.
PSMF ¶ 62. See Boyd, 992 F.2d at 406, see also 8 Del. C. § 259 (in a merger, the
surviving corporation assumes all liabilities of the constituent corporations). In a
21
series of mergers between 1991 and 1993, BCI then merged into Beatrice U.S. Food
Corp., which merged into Beatrice Company, and Beatrice Company merged into
Hunt-Wesson, Inc. PSMF ¶¶ 62-65. In 1999, Hunt-Wesson, Inc. changed its name to
ConAgra Grocery Products Company, and in 2000 ConAgra Grocery Products
Company merged into International Home Foods, Inc. and the two companies took
the name “ConAgra Grocery Products Company.” PSMF ¶¶ 66-68, DSMF ¶ 123. In
2005, ConAgra Grocery Products Company converted from a corporation to the
limited liability company that is the Defendant in this case. PSMF ¶ 69. With these
undisputed facts, the Government has demonstrated that CERCLA liability
attaches to ConAgra as Estech’s successor.
In a confusing and ultimately fruitless attempt to create the impression that
the Government’s chain of corporate succession contains broken links, ConAgra
compares the allegations in the Government’s complaint to the more precise,
detailed description of corporate succession contained in the Government’s
statements of fact, and attempts to impeach the statements of fact through the
slight variations between those statements and the allegations in the complaint.
ConAgra’s gambit fails in every instance.17
The Court pauses only to address ConAgra’s argument that the Government
must be held to the allegations in its complaint. See, e.g., Noveletsky v. Metropolitan
Life Ins. Co., No. 2:12-cv-21-NT, slip op. at 4 n. 2 (D. Me. Feb. 15, 2013) (“statement
in an opposing party’s pleading qualifies as an admission, rendering it admissible
17
See PSMF ¶¶ 4, 6, 35, 38, 39, 40, 41, 42, 45, 46, 49, 50, 51, 53, 54, 57, 63, 66, 68, and 69.
22
for purposes of summary judgment”). ConAgra uses this principle in two different
ways: (1) to assert that the Government cannot ultimately prove corporate
succession because the allegations in the complaint fail to establish every link in
the chain, and (2) to assert that the Government cannot contradict the allegations
in its complaint with its statements of fact. The first proposition is flatly wrong.
Rule 8 imposes notice pleading, and it was drafted specifically to do away with the
old rules of technical pleading wherein a “failure to incorporate an essential
allegation might lead to a speedy end of the litigation by way of demurrer or a
motion to dismiss.” Wright & Miller, Federal Practice and Procedure: Civil 3d §
1202.
While the second proposition is in some circumstances correct, ConAgra’s
attempt to weaponize every insignificant difference between the Government’s
complaint and its statements of fact does not comport with the purpose of the rules
of civil procedure: “to secure the just, speedy, and inexpensive determination of
every action.” Fed. R. Civ. P. 1. While it is not fair to allow a plaintiff, without prior
notice or amendment of their complaint, to contradict material parts of their stated
claims in an effort to defeat summary judgment, nothing in the rules suggests that
a party must be rigidly held to every detail of its pleadings at summary judgment.
This is especially so where the allegations relate to ConAgra’s corporate
successorship. These facts are equally if not more available to ConAgra.18
Conagra’s cases are distinguishable. In Stefanik v. Friendly Ice Cream Corp., 183 F.R.D. 52,
53-54 (D. Mass. 1998), the plaintiff first alleged that he was a Massachusetts resident, but later, in
an attempt to defeat summary judgment, averred that he was a resident of Florida. In Noveletsky,
the defendant asserted on summary judgment that the plaintiff had founded a steel erection
18
23
Whether the change is an illegitimate attempt to “kick over the chess board
in the face of a checkmate,” Stefanik, 183 F.R.D. at 54, is a judgment call that
requires the Court to exercise common sense. In this case, the Government’s
complaint, which alleges that ConAgra is liable for Estech’s polluting activities as a
corporate successor, is entirely consistent with the facts and argument the
Government has developed on summary judgment. ConAgra has no cause to
complain of surprise or inability to access the source materials necessary to
challenge the Government’s asserted facts. ConAgra has failed to effectively dispute
any of the links in the chain, and the undisputed facts establish ConAgra’s status as
Estech’s successor for purposes of CERCLA liability.
3. ConAgra’s Preclusion Defenses
ConAgra claims that when New Lawrence purchased the A.C. Lawrence
Leather Company from Estech on March 5, 1976, it “assumed all liabilities and
obligations of A.C. Lawrence Leather Company from Estech, Inc., excepting only
labor, employment contracts, or pension and profit sharing plans, and in addition,
the Parties signed an Assumption Agreement of even date.” Answer ¶ 28.
Further, and specifically as the basis of its preclusion defenses, ConAgra
asserts that “various Courts, including this Court” have “judicially determined” that
New Lawrence, and not ConAgra, was the owner and operator of the tannery and
the party responsible for the disposal of hazardous substances at the site.
Affirmative Defenses ¶ 21. The cited orders include a consent decree entered in the
company. This fact was asserted in the complaint, and was a matter within the plaintiff’s purview,
making it the sort of allegation to which a plaintiff can reasonably be held on summary judgment.
24
Kennebec County, Maine Superior Court in State of Maine v. A.C. Lawrence Leather
Company, Inc., Doc. No. cv-88-373 (Me. Super. Ct. April 26, 1993) (reprinted at ECF
No. 78-1), and an order in Paris Utility District v. A.C. Lawrence Leather Co., Inc.,
665 F. Supp. 944 (D. Me. 1987), aff’d, 861 F.2d 1 (1st Cir. 1988). Affirmative
Defenses ¶ 21.
Although ConAgra’s preclusion defenses are asserted under four titles, they
boil down to one theory: issue preclusion, otherwise known as collateral estoppel,
which is a form of res judicata.19 See Def’s Consolidated Opp’n to Summ. J. and
Cross-Mot. for Summ. J. 8 (ECF No. 122) (citing Miller v. Nichols, 592 F. Supp. 2d
191, 196-97 (D. Me. 2009)); see also Kurtz & Perry, P.A. v. Emerson, 8 A.3d 677, 68081 (Me. 2010) (collateral estoppel, also known as issue preclusion, is a component of
res judicata). Maine law applies when determining the preclusive effect of the
Superior Court consent decree, see Miller, 592 F. Supp. 2d at 196-97 (applying
Maine law), and federal law applies when determining the preclusive effect of the
federal court case, see Ramallo Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86, 89
(1st Cir. 2007).
a. The 1993 Consent Decree
ConAgra asserts that certain language in the Consent Decree establishes
that New Lawrence, not ConAgra, is Old Lawrence’s successor and that this
ConAgra appears to have abandoned its “law of the case” defense, which, although it
“resembles res judicata . . . is more limited in its application [in that] it relates only to questions of
law, and it operates only in subsequent proceedings in the same case.” Blance v. Alley, 404 A.2d 587,
589 (Me. 1979). ConAgra does not claim that the case now before the Court is the same case as either
State of Maine v. A.C. Lawrence Leather Company, Inc., Doc. No. cv-88-373 (Me. Super. Ct.) or Paris
Utility District v. A.C. Lawrence Leather Co., Inc., Civ. Nos. 86-0111 P, 86-0234 P (D. Me.).
19
25
determination is binding on the Government in the present case. Within its
preamble, the Consent Decree states:
WHEREAS, from 1953 through 1985, Defendant A.C. Lawrence
Leather Co., Inc. (“Lawrence”) owned and operated a cattle hide
tannery located in South Paris, Maine, and
...
WHEREAS, from 1953 through 1975, Lawrence deposited wastewater
and sludge containing chromium and other waste from its tannery on
part of a parcel of land owned by Lawrence and described as Parcel 24
on Map R-2 of “Property Maps, Paris, Maine 1966, revised to April,
1992” more particularly described in Exhibit A, attached (“Lawrence
site”), and
...
WHEREAS, in 1975 the Defendant Paris Utility District (“District”) . . .
with the encouragement of the Department of Environmental
Protection constructed a wastewater treatment facility, also known as
a publicly owned treatment works or “POTW”, for the purposes of
treating sanitary sewerage generated in South Paris, Maine and, in
addition, treating the industrial wastewater generated at Lawrence’s
tannery, and
...
WHEREAS, pursuant to a written agreement with Lawrence’s
predecessor, the District secured the right to deposit sludge from the
POTW on the Lawrence site . . .
April 26, 1993 Consent Decree and Order 1-2 (ECF No. 122-12). The Consent
Decree then explains that, although MEDEP disapproved of PUD’s dumping on the
Landfill Site, it allowed PUD to continue dumping on the site because of a lack of
alternatives, and PUD continued to use the site up through December 30, 1985,
when the tannery closed. Id. at 2-4. It recites that Lawrence had entered into a
proposed consent decree with regard to closure of the Landfill Site but failed to
comply with it, and concludes that, with the Consent Decree, MEDEP and PUD
26
wished to move forward (apparently without Lawrence) to “remedy any potential
environmental problems which are the subject of this litigation.” Id. at 5. The
Consent Decree then outlines actions PUD is required to take to secure and close
the site. Id. at 6-9. Finally, the Consent Decree notes that nothing within the
Decree may be construed as a release by PUD of claims it might have against
Lawrence or any other entity potentially responsible for pollution at the Landfill
Site. Id. at 9.
Under Maine law, collateral estoppel “‘prevents the relitigation of factual
issues already decided if the identical issue was determined by a prior final
judgment, and the party estopped had a fair opportunity and incentive to litigate
the issue in a prior proceeding.’” Portland Water Dist. v. Town of Standish, 940 A.2d
1097, 1100 (Me. 2008) (quoting Macomber v. MacQuinn-Tweedie, 834 A.2d 131,
138–39 (Me. 2003)). Because collateral estoppel is concerned with factual issues, it
applies even when the prior and present proceedings “offer different types of
remedies.” Id. But it arises “‘only if the identical issue necessarily was determined
by a prior final judgment.’” Macomber, 834 A.2d at 140 (quoting Button v. Peoples
Heritage Sav. Bank, 666 A.2d 120, 122 (Me. 1995)). A party asserting collateral
estoppel has the burden of demonstrating that the specific issue was actually
decided in the earlier proceeding. Macomber, 834 A.2d at 140.
The question of successor liability under CERCLA was not raised, much less
necessary to the resolution of any part of the Consent Decree. Rather, PUD, which
was independently responsible for contamination at the Landfill Site, sought to
27
satisfy its own obligations through a consent decree with MEDEP. The purpose of
the Consent Decree was to specify what actions PUD was required to take to
discharge its responsibility to the State for its dumping onto the Landfill Site. A.C.
Lawrence is mentioned only as part of the background description of how PUD
became involved with dumping onto the Landfill Site, and also to explain why
remediation of the site had been delayed. Tellingly, PUD reserved its rights as
against A.C. Lawrence or any other parties that might be responsible for
contamination at the Landfill Site.
Because the issue of CERCLA successor liability for Old Lawrence’s disposal
of hazardous substances was not at issue in the Consent Decree, it does not estop
the Government20 from asserting ConAgra’s successor liability in this case.
b. The 1987 Court Order
ConAgra similarly asserts that Paris Utility District v. A.C. Lawrence Leather
Company, Inc., 665 F. Supp. 944 (D. Me. 1987), determined that New Lawrence was
Old Lawrence’s successor and therefore also estops the Government from litigating
this issue.
Under federal law, collateral estoppel “‘means simply that when an issue of
ultimate fact has once been determined by a valid and final judgment, that issue
The Government also objects to the assertion that the Consent Decree is binding on it in any
respect, pointing out that it was not a party to the litigation or in privity with any party thereto. See
Beal v. Allstate Ins. Co., 989 A.2d 733, 740 (Me. 2010) (“[A] party asserting nonmutual collateral
estoppel . . . must establish that the party to be estopped was a party or in privity with a party in the
prior proceeding. . . . Privity exists when two parties have a commonality of ownership, control, and
interest in a proceeding.” (internal citations omitted)). The Court need not resolve this issue because
the preclusion argument fails on the first prong, i.e., whether the identical issue was determined in
the earlier case.
20
28
cannot again be litigated between the same parties in any future lawsuit.’” Ramallo
Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86, 89-90 (1st Cir. 2007) (quoting Ashe
v. Swenson, 397 U.S. 436, 443 (1970)). Federal courts have articulated a four-part
test:
A party seeking to invoke the doctrine of collateral estoppel must
establish that (1) the issue sought to be precluded in the later action is
the same as that involved in the earlier action; (2) the issue was
actually litigated; (3) the issue was determined by a valid and binding
final judgment; and (4) the determination of the issue was essential to
the judgment.
Ramallo, 490 F.3d at 90 (citing Keystone Shipping Co. v. New England Power Co.,
109 F.3d 46, 51 (1st Cir. 1997).
ConAgra’s claim that Old Lawrence’s successor was judicially determined in
this order rests on a reference to Estech as New Lawrence’s “predecessor” within
the order’s findings of fact. See PUD v. A.C. Lawrence, 665 F. Supp. at 946. ConAgra
argues that since the court found that Estech was New Lawrence’s predecessor,
then New Lawrence (not ConAgra) must be Estech’s successor. This argument fails.
The order addresses a contract dispute between PUD and New Lawrence. Nothing
in this order indicates that the Court was inquiring into the question of who
Estech’s successor was for purposes of establishing CERCLA liability. In referring
to Estech as New Lawrence’s predecessor, the Court was merely recounting the
generally acknowledged fact that Estech and PUD had entered into a contract
relating to the construction, funding, and operation of the PUD facility, and that
Estech’s rights and obligations under the contract were assumed by New Lawrence
29
when New Lawrence became the tannery’s owner. Accordingly, this order does not
estop the Government from asserting ConAgra’s successor liability.
C. Whether Estech’s Release of Hazardous Substances Caused the
Government to Incur Response Costs
Under the final element for establishing CERCLA liability, the Government
must demonstrate that a release or threatened release of hazardous substances
caused the Government to incur response costs. 42 U.S.C. § 9607(a)(4). ConAgra
makes three claims pertaining to this element. First, ConAgra argues that Old
Lawrence removed the sludge it dumped onto the Lagoons Site and that none of the
waste removed by the Government belonged to Old Lawrence. Second, ConAgra
argues that the dumping at the Lagoons Site did not cause the Government to incur
response costs because the Government’s costs were incurred in a manner
inconsistent with the National Contingency Plan (“NCP”). Third, ConAgra argues
that, even if some of the Government’s response costs were caused by a release or
threatened release of hazardous substances at the Lagoons Site, costs may be
apportioned, making the imposition of joint and several liability improper.
1. Whether the Government’s Response Costs Were
Caused Solely by Entities Other Than Old
Lawrence
ConAgra claims that Old Lawrence cleaned out all of its own waste after
dumping it onto the Lagoons Site, and thus it cannot be liable under CERCLA.
ConAgra includes this argument in a section of its memorandum dealing with
apportionment. Def’s Consolidated Opp’n to Summ. J. and Cross-Mot. for Summ. J.
23. ConAgra also argues in a section of its memorandum dealing with affirmative
30
defenses that it should be granted summary judgment on liability because it has
established under 42 USC 9607(b)(3) that the contamination was caused by
“multiple third parties.” Def’s Consolidated Opp’n to Summ. J. and Cross-Mot. for
Summ. J. 24.
ConAgra’s claim that Old Lawrence removed all of its sludge from the
Lagoons Site can be analyzed in several ways. First, it can be seen as a claim that
the Government has failed to meet its burden of establishing an essential element
of its claim, i.e, that the defendant’s waste caused the Government to incur
response costs. This is an uphill climb for Defendants since:
To satisfy the causal element, it is usually enough to show that a
defendant was a responsible party within the meaning of 9607(a); that
clean up efforts were undertaken because of the presence of one or
more hazardous substances identified in CERCLA; and that
reasonable costs were expended during the operation.
Acushnet Co. v. Mohasco Corp., 191 F.3d 69, 77 (1st Cir. 1999). Second, ConAgra’s
claim can be seen as an affirmative defense under 42 USC § 9607(b)(3) that the
damages were caused solely by the act or omission of a third party. Section 9607(b)
provides that:
There shall be no liability under subsection (a) of this section for a
person otherwise liable who can establish by a preponderance of the
evidence that the release . . . of a hazardous substance and the
damages resulting therefrom were caused solely by . . . (3) an act or
omission of a third party . . .
42 U.S.C. § 9607(b)(3). Finally, ConAgra’s argument can be analyzed as an
argument that the harm Old Lawrence caused was de minimis and therefore under
equitable powers granted to the Court under 42 USC 9613(f), the Court should find
31
that ConAgra is not liable. See Acushnet, 191 F.3d at 77-78 (“[A] defendant may
avoid joint and several liability” for CERCLA response costs “if it demonstrates that
its share of hazardous waste deposited at the site constitutes no more than
background amounts of such substances” but that this “rule is not based on
CERCLA’s causation requirement, but is logically derived from § 9613(f)’s express
authorization that a court take equity into account when fixing each defendant’s
fair share of response costs.”).
Because the record contains disputed facts as to whether Old Lawrence
removed all of its waste, summary judgment is inappropriate for either party under
any of these analyses.
2. Whether Consistency with the NCP Must be
Demonstrated to Establish Liability
Under 42 U.S.C. § 9607(a)(4)(A), the Government may recover “all costs of
removal or remedial action . . . not inconsistent with the national contingency plan.”
ConAgra argues that the Government’s efforts at the Lagoons Site, from its inept
investigation of the possible contamination, to an erroneous determination that soil
removal was necessary, to egregious cost-overruns, were entirely unnecessary and
inconsistent with the NCP. See DSMF ¶¶ 57-97.21 As a result, ConAgra claims that
the Government’s response costs cannot be said to be “caused” by a release or
threatened release, because they were caused solely by the Government’s own
unnecessary actions. See Acushnet, 191 F.3d at 77 n. 7 (“It might, of course make
sense to say that a defendant’s release did not ‘cause’ the incurrence of response
32
costs when the monies were expended for purposes wholly unrelated to responding
to environmental contamination.”).
The Court need not reach this issue because ConAgra appears to concede that
some of the steps taken by the Government (backfill of excavated site with
uncontaminated soil, grading site, repairing river bank, PSMF ¶ 75), were
appropriate. See DSMF ¶¶ 91-92 (capping the site, stabilizing the river bank,
covering the exposed area etc., would have been appropriate.) Thus, ConAgra’s
argument that there can be no liability where the Government fails to incur any
response costs consistent with the NCP is inapplicable to this case.
Even if a great deal of the Government’s expenditures were wasteful, it does
not defeat ConAgra’s liability, but merely serves to diminish ConAgra’s damages.
See, e.g., United States v. Atlas Minerals and Chem., Inc., 797 F. Supp. 411, 418-19
(E.D. Pa. 1992) (factors such as “the consistency of the government’s actions with
the NCP” cannot serve as a defense to liability but may be taken into account
during apportionment of damages, even to the exclusion of damages entirely);
Mottolo, 695 F. Supp. at 630 (analyzing the consistency of the government’s
response with the NCP as a question of damages, not liability). ConAgra will have
an opportunity during the damages phase of the litigation to demonstrate which of
the Government’s actions were unnecessary or inconsistent with the NCP, and
thereby to reduce its damages.
3. Whether Apportionment Must
Before Determining Liability
be
Considered
These statements of fact are not included within Appendix A because they are not relevant to
the determination of ConAgra’s liability. They may be found at ECF No. 122-1.
21
33
Apportionment refers to the common law concept, which has been adopted
into CERCLA, that “where environmental harms are divisible, a defendant may be
held responsible only for his proportional share of the response costs.” Acushnet, 191
F.3d at 77, see also Burlington N., 556 U.S. at 614 (“[A]pportionment is proper when
‘there is a reasonable basis for determining the contribution of each cause to a
single harm.’” (quoting Restatement (Second) of Torts § 433A(1)(b)). Apportionment
is not a liability question. ConAgra is free to demonstrate during the damages
phase of litigation that it is liable for only some divisible portion of the
Government’s reasonable costs of remediation.
B. The Statute of Limitations
Finally, ConAgra claims that partial summary judgment in the Government’s
favor is improper because there is a question whether the Government has filed its
claims against ConAgra within the statute of limitations. CERCLA requires the
Government to commence its cost recovery action within three years after the
completion of its removal action. 42 U.S.C. § 9613(g)(2). The Government has
demonstrated that it completed its removal action in September of 2007, that
beginning on August 25, 2010, it entered into a series of tolling agreements with
ConAgra, and that the last of these tolling agreements expired on November 30,
2011. The present case was filed on November 29, 2011, one day prior to the
expiration of the last tolling agreement between ConAgra and the Government.
ConAgra claims that these tolling agreements do not establish that the
Lagoons Site was the subject of the agreements. This argument verges on bad faith.
34
The titles and content of these agreements in combination with their timing
conclusively demonstrate that they relate to the Lagoons Site. Likewise, ConAgra’s
claim that the statute of limitations may have run long ago based on the conclusion
of unidentified “[p]rior EPA-directed actions at the overall facility,” Def’s
Consolidated Opp’n to Summ. J. and Cross-Mot. for Summ. J. 8 (ECF No. 122),
finds no support in the record or the law. Contamination at the Lagoons Site was
first discovered in 2000, and the Government undertook a year-long removal action
at this site in 2006-2007.
CONCLUSION
For the above-stated reasons, the Government’s motion for judgment on the
pleadings and its motion in limine to exclude expert testimony are DENIED but its
motion for partial summary judgment is GRANTED in part and DENIED in
part. ConAgra’s affirmative defense paragraphs 10, 11, 16, and 21-24 are stricken.
ConAgra’s cross-motion for summary judgment is DENIED.
SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this
day of March, 2014.
35
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
Plaintiff,
v.
CONAGRA GROCERY PRODUCTS
COMPANY, LLC,
Defendant.
)
)
)
)
) Civil no. 2:11-cv-455-NT
)
)
)
)
)
APPENDIX A1
GOVERNMENT’S STATEMENTS OF FACT
PSMF 1: In or around December 1953, Swift & Company purchased certain parcels
of land in South Paris, Maine, including a parcel on which it constructed a leather
tannery (“South Paris Tannery”) and a parcel across the Little Androscoggin River
that contained settling lagoons (“Lagoons Site”) used to collect tannery waste.
Admitted
PSMF 2: In or around November 1955, the A.C. Lawrence Leather Company
division of Swift & Company held a ribbon cutting ceremony at the South Paris
Tannery, after which it began operating the South Paris Tannery and began
disposing of tannery waste at the Lagoons Site.
Admitted
PSMF 3: In or around 1973, Swift & Company transferred its A.C. Lawrence
Leather Company division, including the South Paris Tannery and the Lagoons Site
parcel, to Estech, Inc.
CONAGRA’S RESPONSE: Qualified. Grocery2 admits Plaintiff’s Exs. N and O.
However, Grocery denies the balance of Plaintiff’s factual statement as follows:
The facts and responses contained in this appendix have been cut and pasted from the
parties’ pleadings and include all typos, grammatical and spelling errors as they originally occurred.
Record citations for the facts themselves are not included.
1
2
While the Defendant refers to itself herein as “Grocery,” the Court refers to the Defendant as
ConAgra.
1
All assets may not have been acquired. Plaintiff’s Ex. M refers to “All or
substantially all of the assets.” No bill of sale or similar transfer document has ever
been provided showing what assets, if any, were acquired. All liabilities were not
assumed. The quoted language above specifically discusses long term debt and
“other liabilities of Swift which are not associated with such business”. Further, the
quoted language provides that “(Esmark’s new subsidiaries) will assume the
liabilities.” The latter quote is a futuristic statement. It is unknown what liabilities,
if any, were ultimately assumed or whether such liabilities were transferred
“intact”.
Defendant has no documentation whereby whatever subsidiary(ies) Plaintiff claims
of Esmark, Inc. (pursuant to Plaintiff’s Ex. M) would assume any such liabilities.
There has been no documentation provided, or known to exist, whereby the
liabilities of A.C. Lawrence Leather Company would have been assumed.
COURT DETERMINATION. Qualification rejected, deemed admitted.
ConAgra claims that the Government lacks documentation that Swift transferred
all of Old Lawrence’s assets to Estech in 1973, but the 1973 plan contemplates the
transfer of all or substantially all of Old Lawrence’s assets, and ConAgra’s expert
(Jeff Thaler) acknowledges that Old Lawrence “continued as a division of Estech,
Inc.” after the 1973 merger and reorganization. (ECF No. 122-79). ConAgra’s
additional claims regarding liabilities are non-responsive.
PSMF 4: In or around March 5, 1976, Estech, Inc., sold a large portion of the
business, real property and assets of the A.C. Lawrence Leather Company division to
a group of the division’s management and employees, who separately incorporated
the company as A.C. Lawrence Leather Company, Inc. (“New Lawrence”)
CONAGRA’S RESPONSE: Denied. The March 5, 1976, Estech, Inc. sale was to
A.C. Lawrence Leather Co., Inc., a Massachusetts corporation (“New Lawrence”).
New Lawrence, pursuant to this Agreement (1976 Sale Agreement, Exhibit 1),
purchased all of the assets of A.C. Lawrence Leather Company “Old Lawrence”,
including all real, personal, mix, tangible and intangible assets including the A.C.
Lawrence Leather Company name and all other marks. In addition, New Lawrence
assumed all liabilities of “Old Lawrence” excepting only liabilities associated with
labor or employment contracts, or the pension or profit sharing plans.
COURT DETERMINATION: Denial rejected, deemed admitted. ConAgra
appears to find the distinction between “A.C. Lawrence Leather Company, Inc.” and
“A.C. Lawrence Leather Co., Inc.” material, but does not aver that these are two
different companies. The Court finds “Co.” indistinguishable from “Company” as its
common abbreviation.
To the extent ConAgra is disputing that New Lawrence was composed of
2
management and employees of Old Lawrence, they admitted as much in their
answer to ¶ 28 of the complaint (ECF No. 8).
ConAgra’s additional claims regarding liabilities are non-responsive.
PSMF 5: By the time of this sale, Swift & Company and Estech, Inc., had used the
Lagoons Site for about 20 years for the disposal of waste from the South Paris
Tannery, from approximately 1955 until 1975.
CONAGRA’S RESPONSE: Denied. Swift & Company and Estech, Inc. never
used the Lagoons Site. At all times, Old Lawrence personnel was running and in
charge of the South Paris Tannery operations. (Abate Dep. at 68:9-15, Exhibit 2.)
The supervisory personnel and employees that purchased Old Lawrence were the
individuals that were running the day-to-day operations at the South Paris facility,
not Estech, Inc. (Abate Dep. at 68:1-73:11, Exhibit 2.) The employees of Old
A.C. Lawrence, not Estech, Inc. or Swift & Company were running the facility,
including the determination of where to dispose of waste. (Abate Dep. at 69:3-15,
Exhibit 2.) Further, “waste” is not defined by Plaintiff, and to the extent Plaintiff
implies it to be hazardous waste, that portion is likewise denied.
COURT DETERMINATION: Denial rejected, deemed admitted. Old
Lawrence dissolved in 1953 after Swift became its sole owner, and thereafter
operated as a division of Swift until Swift conveyed this division to Estech in 1973.
See PSMF ¶¶ 38, 46 and 47. Because Old Lawrence did not have a separate
corporate existence from 1953-1976, it is fair to say that Swift and Estech operated
Old Lawrence including the tannery and sludge lagoons.
PSMF 6: New Lawrence continued to operate the South Paris Tannery until 1985,
when the South Paris Tannery shut down.
CONAGRA’S RESPONSE: Qualified. “New Lawrence” as defined by Plaintiff in
¶ 4 is incorrect. See response to ¶ 4 above.
COURT DETERMINATION: Qualification rejected, deemed admitted.
ConAgra’s qualification is immaterial per the Court’s determination of ConAgra’s
response to PSMF ¶ 4.
3
PSMF 7: From 1955 until 1976, the South Paris Tannery’s production of leather
was largely uninterrupted, and the process remained generally the same.
CONAGRA’S RESPONSE: Qualified. The South Paris Tannery’s production of
leather was largely uninterrupted, and the process remained generally the same
until 1985. (McIntyre Dep. at 118:22-119:15, Exhibit 3.)
COURT DETERMINATION: Qualification rejected, deemed admitted. The
cited record material does not support ConAgra’s claim that the process remained
the same until 1985.
PSMF 8: The South Paris Tannery processed raw cowhides into finished leather
using a chrome tanning process.
Admitted
PSMF 10: The chrome tanning process was performed by exposing a raw hide to
chromium or chromium salt, usually a basic chromium sulfate.
Admitted
PSMF 11: The South Paris Tannery ordered chemicals, including chromium, for
use in the tanning process.
Admitted
PSMF 12: Prior to use, the chromium was stored at the South Paris Tannery in a
large tank.
Admitted
PSMF 13: The South Paris Tannery received shipments of raw hides from hide
suppliers.
Admitted
PSMF 14: Each hide was trimmed, soaked, fleshed, placed in lime pits, and run
through a dehairing machine.
Admitted
PSMF 15: A batch of hides was then placed into one of multiple tanning wheels, into
which chromium and other chemicals were added.
4
Admitted
PSMF 16: Once the tanning process was complete, the tanning waste was allowed to
drain from the tanning wheel onto the floor.
Admitted
PSMF 17: The tanning waste from each tanning wheel contained approximately 74
lbs of chromium.
CONAGRA’S RESPONSE: Denied. This broad statement is not supported by the
record citation. Plaintiff’s Ex. J, a Pilot Study prepared for Plaintiff’s use, is dated
September 1969. Thus Grocery admits this statement only for the very limited time
referenced in the Pilot Study.
COURT DETERMINATION: Denial rejected, deemed admitted. ConAgra
admits PSMF ¶ 7, which states that the process remained generally the same
throughout the tannery’s operation. The estimated amount of chromium is
accepted.
PSMF 18: Each hide was then placed on one of multiple wringer machines, which
would squeeze remaining tanning waste and other liquids out of the hide and onto
the floor.
Admitted
PSMF 24: The tanning waste flowed through the trough or flume over a bridge, to
the opposite bank of the Little Androscoggin River.
Admitted
PSMF 25: The tanning waste then flowed into a series of unlined pits or lagoons.
Admitted
5
PSMF 27: Disposal in this manner created a noxious odor that bothered town
residents.
CONAGRA RESPONSE: Denied and objection. The referenced record citations
lack foundation, and in any event, only support a strong odor, not that such odors
were “noxious” i.e. harmful.
COURT DETERMINATION: Qualification accepted, fact modified;
objection overruled. There is no objection to foundation in the depositions
themselves, nor any cite to an agreement by the parties that all objections are
preserved without the need for objection.
PSMF 28: The South Paris Tannery commissioned several studies to examine how
to minimize the problems associated with its waste.
Admitted
PSMF 29: The town, Swift & Company, and later Estech, Inc., and other local
businesses constructed a wastewater treatment plant, with partial assistance from
state and federal funds, which was designed to treat chrome tannery wastes, food
processing wastes, domestic wastes, and storm water within a single facility.
CONAGRA’S RESPONSE: Denied. Per Plaintiff’s Ex. FF, the Trustees of the
Paris Utility District constructed the Pollution Control Facility. “The project was
funded by grants of $3,540,000.00 from the U.S. Environmental Protection Agency,
$470,000.00 from the State of Maine Department of Environmental Protection,
$1,758,000.00 from the A.C. Lawrence Leather Co., $50,000.00 from the A.L.
Stewart & Sons Co., and the remaining $1,000,000.00 from the Paris Utility
District.” There is no record support for the assertion that Estech, Inc. was involved
with the construction of the wastewater treatment plant.
COURT DETERMINATION: Denial rejected, deemed admitted. ConAgra
falsely asserts that there is no record support for Estech’s involvement in the
construction of the PUD facility. Pl’s Ex. HH (ECF 115-37) is a July, 1973
memorandum of agreement between Estech and the PUD that “set[s] forth the
basic rights and responsibilities of the [PUD] and [Estech] with respect to the
financing, construction, operation and maintenance of a joint treatment facility . . . ”
(emphasis added).
PSMF 30: The wastewater treatment plant, called Paris Utility District (PUD),
opened in the summer of 1975, and began accepting waste from the South Paris
Tannery in September 2, 1975.
CONAGRA’S RESPONSE: Denied. The waste lagoons continued to be used until
6
the tannery closed (1985). (Everett Dep. at 36:9-14, Exhibit 4.)
The following documents, as contained in EPA’s Administrative Record for the Site:
1. USEPA Region 1 Pollution Reports for the Site: August 9, 2006; September 7,
2006; September 19, 2006; October 12, 2006; November 29, 2006; and March 9,
2007. Wherein each states:
From approximately 1952 to 1977, the A.C. Lawrence tannery
(tannery) facility formerly located on the west bank of the Little
Androscoggin River, used a metal trough to transport their waste to settling
lagoons on the southeast bank of the Little Androscoggin River.
In the 1970s, the South Paris Publicly Owned Treatment Works
was constructed and began accepting waste from the tannery. In
1977, the lagoons ceased receiving waste and a soil cap was placed over the
sludge lagoons. The tannery closed in 1985.
(USEPA Pollution Reports, Exhibit 5.)
2. EPA’s July 26, 2006 Request for Removal Action at the A.C. Lawrence Site.
Wherein:
From approximately 1952 to 1977, the A.C. Lawrence tannery
(tannery) facility formerly located on the west bank of the Little
Androscoggin River, used a metal trough to transport their waste to settling
lagoons on the southeast bank of the Little Androscoggin River.
In the 1970s, the South Paris Publicly Owned Treatment Works
was constructed and began accepting waste from the tannery. In
1977, the lagoons ceased receiving waste and a soil cap was placed over the
sludge lagoons. The tannery closed in 1985.
(Request for Removal Action, Exhibit 6.)
3. “New Lawrence continued to contribute industrial waste to the lagoon site until
June of 1979.” (Hennessy Dep. at 75:12-76:9, Exhibit 7.)
4. USEPA Region 1 letter of June 7, 1979 from Lawrence F. Sheehan. (Sheehan
Letter June 7, 1979, Exhibit 8.)
5. USEPA letter of December 28, 1976 by Lawrence F. Sheehan, Jr., Chief
Engineering Section of the U.S. EPA to Lawrence F. Brown, Chairman, Board of
Trustees wherein Mr. Sheehan indicates that the Memorandum of Agreement
7
executed on March 5, 1976 by and between the Paris Utility District and Estech,
Inc. is “in accordance with the regulations applicable to the above referenced grant
offer.” (Sheehan Letter Dec. 18, 1976, Exhibit 9.)
6. Memorandum of Agreement dated March 5, 1976 by and between Paris Utility
District and Estech, Inc. That Agreement, states inter alia that the District has
determined that it will be for the public good and welfare to construct a treatment
system; that the Paris Utility District wishes to finance, construct, operate and
maintain the system for the collection and treatment of sewage; the Agreement
estimates the cost of construction to be $6,695,000.00; and the Agreement
contemplates potential financing for the Agreement. (1976 MOA, Exhibit 9.)
7. Even after 1979 when portions of the waste (i.e. were transported to the waste
water treatment plant the solids from the tannery were mechanically removed prior
to the remainder of the waste being sent to the Paris Utility District. These waste
solids (sludge) continued to be disposed of at the lagoon site. (Plaintiff’s Ex. WW).
8. In 1977 the lagoons ceased receiving waste and a soil cap was placed over the
sludge lagoons. (Arthur Johnson, EPA 30(b)(6) “Disposal” Dep. at 23:22-24:10,
Exhibit 10.)
9. Expert Report of Douglas Simmons and Craig MacPhee (AECOM Expert Report,
Exhibit 11.)
10. The three maps with the legend stating ponds continued in operation through at
least 1976. (USEPA Figure 3: Exhibit 12.)
11. EPA admits that there are at least three sources of sludge that went into the
lagoons, including operations after March of 1976. (McIntyre Dep. at 171:19-173:10,
Exhibit 3.)
12. The waste was still being disposed of in the lagoons at the Site in 1976.
(MacPhee Dep. at 8:3-9, Exhibit 13.)
13. The Site was used through 1977 and in certain instances until 1979. (Simmons
Dep. at 48:16-18, Exhibit 14.)
14. NUS Report on May 25, 1979, A.C. Lawrence transfers operations of disposal to
the Paris Utility District. (NUS Report, Exhibit 15; Simmons Dep. at 55:21-22,
Exhibit 14.)
15. The trenches continued to be used until 1979. (Simmons Dep. at 55:6-8., Exhibit
14.)
8
COURT DETERMINATION: Denial partially accepted and partially
rejected; deemed partially admitted and partially disputed.
ConAgra’s sources create a material issue of fact regarding whether the sludge
lagoons continued to be used through 1977 or through May 25, 1979, but do not
support its contention that the sludge lagoons continued in use through 1985. The
record “evidence” ConAgra cites in support of its claim that the sludge lagoons
continued to be used after September 1975 falls into three categories:
(1) Testimony and documents that do not support ConAgra’s position.
This is the category into which most of ConAgra’s record citations fall, including:
The Everett Deposition (ECF No. 123-6): The deposition excerpts presented
reveal that Everett was guessing when the sludge lagoons ceased being used
rather than offering a fact based on personal knowledge.
The Hennessy Deposition (ECF No. 123-9): ConAgra materially misquotes
the deposition by inserting the word “lagoons”; also, in the cited portion of
this deposition, Hennessy is asked to read a portion of a document, and is not
actually testifying to anything.
The June 7, 1979 Sheehan letter (ECF No. 123-10): ConAgra fails to explain
how this letter supports its claim that the lagoons continued to be used
through 1985. This letter concerns merely the approval for PUD’s
construction of additional temporary sludge storage facilities.
The December 28, 1976 Sheehan letter (ECF No. 123-11): This letter likewise
does not speak to use of the sludge lagoons.
The Simmons/MacPhee Expert Report (ECF No. 123-13): The expert report
does not contain any independent facts regarding continued use of the sludge
lagoons, but merely repeats information contained in EPA documents.
Esmark’s 1973 10-K report (ECF No. 116-51): This document says nothing
about the sludge lagoons, and predates the relevant time period regarding
use of the sludge lagoons (from September of 1975 through 1985).
The Johnson Deposition (ECF No. 123-12): In the cited portion of the
deposition, Johnson is asked to read a portion of a document. He does not
testify that “In 1977, the lagoons ceased receiving waste and a soil cap was
placed over the sludge lagoons.”
Aerial photos of the sludge lagoons (ECF No. 123-14): These photos do not
speak to the question whether the sludge lagoons continued in use after
September of 1975.
The Simmons Deposition (ECF No. 123-16): Douglas Simmons is one of
ConAgra’s experts, but the fact attributed to him, “The Site was used through
1977 and in certain instances until 1979” is not an opinion. It is not based on
his inspection of the site, data analysis, or other use of scientific, technical or
specialized knowledge, but is merely a repetition of information contained in
9
EPA documents.
(2) Noncontemporaneous Reports from the EPA or its Agents:
The EPA reports, which include a 2006 EPA request for removal action (ECF
No. 123-8) and several EPA pollution reports from 2006-2007 (ECF No. 1237), state, in their site descriptions, that the lagoons ceased receiving waste
and a soil cap was placed over the lagoons in 1977.
The Government points out that these statements were not based on first-hand
knowledge or a historical, contemporaneous source of information. The
Government’s historical, contemporaneous sources of information, including the
September 3, 1975 Finnegan Letter (ECF No. 115-39), the December 10, 1975
Hickman Letter (ECF No. 115-38), and a December, 1976 Civil Engineering article
about the construction of the PUD facility (ECF No. 115-26), indicate that the
tannery ceased using the sludge lagoons and began sending its waste to the PUD
facility in September 1975.
But the EPA’s own agent, McIntyre, confirmed in his deposition (ECF No. 123-5)
that he believed the EPA reports to be true and accurate. On the basis of these
reports, and his belief that they were true and accurate, McIntyre also admitted
that operations after March of 1976 contributed sludge to the Lagoons Site.
The NUS Report (ECF NO. 123-17), commissioned by the EPA, refers at page
4 to a source from MEDEP which reportedly stated that on “May 25, 1979,
A.C. Lawrence transfers operations of disposal to the Paris Utility District.”
The Government has not objected on hearsay grounds, and on its face this
statement supports an inference that New Lawrence continued to use the
sludge lagoons through 1979. The strength of this inference is undermined,
though not effaced, by the contradictory statement found on page 1 of the
report, that, “[i]n 1975, the operation of the disposal property [Lot 24] became
the responsibility of the Paris Utility District.”
Ultimately, the record references in this category are sufficient to create an issue of
fact regarding whether the sludge lagoons continued in use through 1977 or May
25, 1979.
(3) Miscellaneous sources also supporting Conagra’s position:
The MacPhee Deposition (ECF No. 123-15): In his deposition, MacPhee avers
that, based on a photograph of the sludge lagoons from 1976, it is his opinion
that the sludge lagoons were still in use at this time. The Government argues
that this opinion is unsupported, but there is no objection to foundation or to
MacPhee opining outside of the scope of his expert designation in the
10
deposition itself, nor any cite to an agreement by the parties that all
objections are preserved without the need for objection. Without a proper
basis to exclude this opinion, it creates a material issue of fact regarding
whether the sludge lagoons continued to be used in 1976.
The March 5, 1976 memorandum of agreement (MOA) between PUD and
Estech (ECF No. 123-2): This memorandum of MOA sets forth the terms on
which PUD will construct and operate the wastewater treatment facility,
including obtaining funding and a landfill site from Estech, and speaks in
futuristic terms about construction of the facility and conveyance of the
landfill site, implying that the facility was not yet built or operating as of
March 1976. But this MOA also recites that it replaces a series of earlier
MOAs going back to 1970, and may simply have retained whatever language
appeared in the earlier MOAs in respect to future plans for building the
facility, altering only whatever language was necessary to amend the MOA.
The 1973 iteration of the MOA (ECF 115-37) shows that much of the same
language was in place, making it likely that the parties simply did not bother
to change future tense to past tense when tweaking the MOA in 1976.
Because the Court is required to make all inferences in favor of the nonmoving party, it must disregard this alternative explanation for purposes of
summary judgment.
PSMF 31: There is no evidence that the South Paris Tannery sent waste to the
sludge lagoons after the Paris Utility District began to accept its waste in September,
1975. Estech, Inc. planned to close the sludge lagoons and remove the flume over
which the tanning waste had flowed.
CONAGRA’S RESPONSE: See ConAgra’s response to PSMF 30, supra.
COURT DETERMINATION: Deemed partially admitted and partially in
dispute. See Court determination of PSMF ¶ 30.
PSMF 32: New Lawrence allowed the Paris Utility District to deposit some sludge
from the wastewater treatment process on a parcel of land it owned that was one-half
mile away from the Sludge Lagoons.
CONAGRA’S RESPONSE: Qualified and Objection. The parcel reference in the
citations is vague and ambiguous. Further, the “New Lawrence” described by
Plaintiff is inaccurate, please see response ¶ 4. The Paris Utility District was
allowed to deposit its chromium contaminated sludge from its waste water
treatment plant beginning sometime after 1977. These deposits occurred on the
Lagoon Site (Lot 7, Lot 11, Lot 11.1, Lot 14 and Lot 24). (1976 MOA, Exhibit
9; Phone Record March 2007, Exhibit 16.)
“The Paris Utility District used this Site to dispose of Sludge.” (Barry Dep. at
11
142:23-143:4, Exhibit 17.)
The Paris Utility District built two fenced landfills. One was the A.C. Lawrence
Lagoon Site. (McKeown Dep. at 219:4-10, Exhibit 18.)
COURT DETERMINATION: Objection overruled; qualification not
accepted, deemed admitted. ConAgra appears to be misquoting the Barry
deposition (ECF 123-19) and McKeown Deposition (ECF No. 123-20)), which do not
support ConAgra’s claim that PUD dumped on Lot 7, the Lagoons Site. In the
testimony referenced by ConAgra, Barry is commenting on a notation he had made:
“Court has given Paris Utility access, dash, oversight.” He states that in this
notation he is “referring to the site where sludges were disposed of after this site
was no longer used for sludge disposal.” The “this site” to which Barry refers
appears from the context to be the Lagoons Site. Thus, this record citation supports
a finding that PUD had access to and oversight of a dump site that was not the
Lagoons Site. In her deposition, McKeown is being asked to explain a notation of
hers, that there were two fenced landfills, and that “PUD built them and took waste
from the property.” McKeown states that the “property” to which she was
referring—the site from which PUD took waste—was the Lagoons Site, and that the
landfills to which she referred were on lots 11 and 24—i.e. not the Lagoons Site (Lot
7).
PSMF 33: There is no evidence to indicate that waste from the Paris Utility District
was placed on the Sludge Lagoons, Lot 7.
CONAGRA’S RESPONSE: Denied. Paris Utility District did place sludge on the
lagoon site, Lot 7. (AECOM Expert Report, Exhibit 11; McKeown Dep. at 219:4-10,
Exhibit 18; Barry Dep. at 142:23-143:4, Exhibit 17.)
COURT DETERMINATION: Denial rejected, deemed admitted. None of
ConAgra’s cited references support its claim that PUD dumped onto the Lagoons
Site (Lot 7). Regarding the McKeown and Barry depositions, see the Court’s
determination regarding PSMF ¶ 32. The AECOM Expert Report (ECF No. 123-13)
also contains no firsthand knowledge or opinions regarding whether PUD dumped
on Lot 7.
PSMF 34: The Lot 24 landfill was not part of the Removal Action performed by EPA
on the Lagoons Site for which the United States now seeks costs.
CONAGRA’S RESPONSE: Denied and Objection. Since the cost portion of this
lawsuit has been delayed until Phase II, Grocery has conducted no discovery
concerning how let alone where costs were incurred by the Plaintiff. This statement
is not fully supported by the current record.
12
COURT DETERMINATION: Denial rejected, deemed admitted; objection
overruled. The statement is fully supported by the record. The Government has
limited its claim to its costs of cleanup on Lot 7.
PSMF 35: Swift & Company incorporated in Illinois in 1885 under the name Swift
and Company.
CONAGRA’S RESPONSE: Denied and Objection. ¶ 18 of Plaintiff’s Complaint
alleges that Swift and Company incorporated in Illinois in 1885. Plaintiff is bound
by the averments of its pleadings and may not simply contradict them to avoid
summary judgment. (Stefanik v. Friendly Ice Cream Corp., 183 F.R.D. 52 (D. Mass.
1998), Exhibit 20.) Further, Swift & Company did not incorporate in Illinois in
1885. (Swift and Company Articles, Exhibit 19.)
COURT DETERMINATION: Denial rejected, deemed admitted; objection
overruled. ConAgra’s answer (ECF No. 8) admits complaint paragraph 18, which
states “Swift and Company incorporated in Illinois in 1885. In 1945, it changed its
name to Swift & Company.” ConAgra fails to explain how the restatement of this
fact in a slightly different form makes any material difference to this case.
PSMF 36: Swift and Company changed its name to Swift & Company in 1945.
Admitted
PSMF 37: By 1952, the A.C. Lawrence Leather Company owned several tanneries.
CONAGRA’S RESPONSE: Denied and Objection. Plaintiff has not produced
any deeds, testimony or documentation to support this statement of fact. Moody’s
(Plaintiff’s Ex. PP) states only “the following list of principal plants, owned in fee
(unless otherwise noted) by company and subsidiaries.” It does not distinguish nor
verify the owners of the properties. Further, the referenced Moody’s (Plaintiff’s Ex.
PP) is the report for Swift & Company, not A.C. Lawrence Leather Company.
COURT DETERMINATION: Denial rejected, deemed admitted; objection
overruled. Old Lawrence’s ownership of several tanneries by 1952 is amply
supported by the excerpts cited by the Government from A Short History of the A.C.
Lawrence Leather Co., Inc. (E.J. Schneider, R.F. Goodspeed, and L.K. Barber, eds.
1982) (ECF No. 115-8).
13
PSMF 38: By 1953, A.C. Lawrence Leather Company was a division of Swift &
Company. This division was not separately incorporated.
CONAGRA RESPONSE: Denied. Plaintiff’s Ex. PP states that A.C. Lawrence
Leather Co. was merged into Swift & Company in December of 1952. Yet, Plaintiff’s
Complaint at ¶19 states the A.C. Lawrence Leather Company merged into Swift &
Company in December 1952. Further, Plaintiff’s Ex. L states that on December 30,
1953 A.C. Lawrence Leather Company was dissolved and a liquidating trustee was
appointed.
COURT DETERMINATION: Denial rejected, deemed admitted. ConAgra
finds fault with the discrepancy between “A.C. Lawrence Leather Co.” and “A.C.
Lawrence Leather Company.” This is a distinction without a difference. ConAgra
also points out that Old Lawrence dissolved at the end of 1953, but this supports
the Government’s contention that Old Lawrence was thereafter operating as a
division of Swift without a separate corporate existence. Also, ConAgra’s own
corporate genealogy (ECF No. 116-46) asserts that Old Lawrence merged into Swift
and operated as a division of Swift in December 1952.
PSMF 39: On January 10, 1969, an entity named Delaware Swift & Company
incorporated in Delaware.
CONAGRA’S RESPONSE: Denied and Objection. Plaintiff alleges in ¶ 20 of its
Complaint that: “On or about January 10, 1969, another company called Swift &
Company incorporated in Delaware.” Plaintiff is bound by the averments of its
pleadings and may not simply contradict them to avoid summary judgment.
(Stefanik v. Friendly Ice Cream Corp., 183 F.R.D. 52, 54 (D. Mass. 1998), Exhibit
20; Delaware Swift & Company Incorporation, Exhibit 21.)
COURT DETERMINATION: Denial rejected, deemed admitted; objection
overruled. In its responses to the Government’s requests for admission, ¶ 8 (ECF
No. 116-47) ConAgra admitted that “On January 10, 1969, an entity named
Delaware Swift & Company incorporated in Delaware.”
PSMF 40: On February 28, 1969, Swift & Company consented to the use of its name
by Delaware Swift & Company.
CONAGRA’S RESPONSE: Denied and Objection. Swift & Company consented
solely to the qualification of Delaware Swift & Company in the State of California.
That consent was signed on February 28, 1969, Plaintiff’s Ex. TT. Plaintiff alleges
in ¶ 20 of its Complaint that: “The Illinois Swift & Company allowed Delaware
Swift & Company to use its name.” Plaintiff is bound by the averments of its
pleadings and may not simply contradict them to avoid summary judgment.
(Stefanik v. Friendly Ice Cream Corp., 183 F.R.D. 52 (D. Mass. 1998), Exhibit 20.)
14
COURT DETERMINATION: Denial rejected, deemed admitted; objection
overruled. This should be uncontroversial. The Government cites a spreadsheet
created by ConAgra (ECF No. 115-47) and a letter authored by counsel for Swift,
Thomas C. McGowen (who also happens to be ConAgra’s counsel) (ECF No. 115-50),
asserting exactly this fact. Pl’s Ex. TT (ECF No. 116-48) does not indicate that
Swift’s consent was limited to the State of California.
PSMF 41: On March 14, 1969, the original Swift & Company merged into Delaware
Swift & Company, and the name of the surviving corporation was Swift & Company.
CONAGRA’S RESPONSE: Denied and Objection. Grocery cannot discern from
this statement what actual entity is intended by Plaintiff’s use of the term
“original” Swift & Company. On March 14, 1969, an entity, Swift & Company, did
merge with Delaware Swift & Company. However, Plaintiff’s statement of this fact
is contrary to the allegation in paragraph ¶ 21 of Plaintiff’s Complaint, wherein it is
alleged: “In March 1969 the Illinois Swift & Company merged into the Delaware
Swift & Company.” Plaintiff is bound by the averments of its pleadings and may not
simply contradict them to avoid summary judgment. (Stefanik v. Friendly Ice
Cream Corp., 183 F.R.D. 52, 54 (D. Mass. 1998), Exhibit 20.)
COURT DETERMINATION: Denial rejected, deemed admitted. ConAgra
objects to the Government’s differing nomenclature for the “original” Swift & Co.,
which the Government sometimes refers to as the “Illinois Swift & Co.” In the
context of the Government’s pleadings, it is clear that these are the same entity.
PSMF 42: Thereafter, until 1973, the A.C. Lawrence Leather Company operated as
a division (not a separately incorporated subsidiary) of this surviving Swift &
Company.
CONAGRA’S RESPONSE: Denied and Objection. Grocery cannot discern the
beginning time frame which Plaintiff is alleging, as a fact, with its statement
“thereafter”. Likewise, Grocery cannot discern whom the “surviving Swift &
Company” is intended, based on the discrepancy between Plaintiff’s Complaint and
its Statement of Facts as set forth in paragraphs 39, 40, and 41 above.
COURT DETERMINATION: Denial rejected, deemed admitted. It is clear
from the context (PSMF ¶¶ 38 and 41) that the Government’s “thereafter” refers to
from 1953 and that the “surviving Swift & Company” was the Swift that, on March
14, 1969, arose out of the merger of the original and Delaware Swifts.
15
PSMF 43: In the early 1970s, Swift & Company engaged in four lines of business:
foods, insurance and business services, chemicals and industrial products, and
energy.
CONAGRA’S RESPONSE: Qualified. The referenced Plaintiff Ex. WW, more
accurately states:
During fiscal 1973 Esmark, Inc. (and Swift & Company prior to
April 30, 1973) engaged in four lines of business: foods, insurance and
business services, chemicals and industrial products, and energy.
COURT DETERMINATION: Denial rejected, deemed admitted. The
Government’s original statement is not incorrect or misleading.
PSMF 44: In December 1972, Esmark, Inc. was incorporated in Delaware. In
January 1973, Esmark, Inc., Swift & Company, Estech, Inc., and certain other
companies entered into an Agreement and Plan of Merger and Reorganization,
which became effective in April 1973.
CONAGRA’S RESPONSE: Qualified and Objection. Esmark, Inc. did not
acquire the assets of Swift & Company and its subsidiaries pursuant to the
Agreement and Plan of Merger and Reorganization. Plaintiff’s Ex. M. Contrary to
L.R. 56(b) this Statement of Material Fact asserts more than one fact.
COURT DETERMINATION: Qualification rejected, deemed admitted;
objection overruled. This paragraph contains three separate statements, in
contravention of L.R. 56(b)—but, there are citations to each part, so this does not
materially affect ConAgra’s ability to respond. ConAgra’s qualification is nonresponsive.
PSMF 45: Pursuant to the Agreement and Plan of Merger and Reorganization,
another company named Delaware Swift & Company merged into Swift &
Company, and the surviving company, named Swift & Company, transferred all of
its non-food assets into newly created subsidiaries of Esmark.
CONAGRA’S RESPONSE: Denied. “Esmark” as stated by Plaintiff herein,
cannot be a viable corporate entity because it is lacking the statutorily required
corporate “designation” such as “Inc.”, “Corp.”, etc. Further, “Esmark” is not a party
to Plaintiff’s Ex. M.
COURT DETERMINATION: Denial rejected, deemed admitted. Taken in
context, see PSMF ¶ 44, the Government supplies the needed corporate designation
for Esmark: “Inc.” The 1973 Agreement and Plan of Merger and Reorganization
does indeed list “Esmark, Inc.” in the first paragraph of the preamble as a party to
16
that agreement.
PSMF 46: Pursuant to the Agreement and Plan of Merger and Reorganization,
Swift & Company transferred its A.C. Lawrence Leather Company division to
Estech, Inc., one of the newly-created subsidiaries of Esmark.
CONAGRA’S RESPONSE: Denied. “Esmark” as stated by Plaintiff herein,
cannot be a viable corporate entity because it is lacking the statutorily required
corporate “designation” such as “Inc.”, “Corp.”, etc. Further, “Esmark” is not a party
to Plaintiff’s Ex. M.
COURT DETERMINATION: Denial rejected, deemed admitted. See Court
Determination of PSMF ¶ 45.
PSMF 47: Pursuant to the Agreement and Plan of Merger and Reorganization, all
assets and liabilities associated with the A.C. Lawrence Leather Company division
were transferred intact to Estech, Inc. Specifically, Article 4 of the Agreement and
Plan of Merger and Reorganization that governed the corporate reorganization
stated:
Each of [Esmark’s new subsidiaries] will assume the liabilities
relating to the business or businesses acquired by it (through
ownership of stock where stock of subsidiary companies is
acquired and by the express assumption of such liabilities where
assets other than stock are acquired) but will not assume any of
Swift’s long-term debt or any other liabilities of Swift which are
not associated with such businesses.
(Emphasis added.)
CONAGRA’S RESPONSE: Denied. All assets may not have been acquired.
Plaintiff’s Ex. M refers to “All or substantially all of the assets.” No bill of sale or
similar transfer document has ever been provided showing what assets, if any, were
acquired/Transferred.
All liabilities were not assumed. The quoted language above specifically states that
there was no assumption of long term debt and “other liabilities of Swift which are
not associated with such business”. The quoted language provides that (Esmark’s
new subsidiaries) will assume the liabilities.” Further the latter quote is a futuristic
statement. It is unknown what liabilities, if any, were ultimately assumed or if such
liabilities were transferred “intact”.
Plaintiff failed to provide any documentation or testimony whereby, whatever
subsidiary(ies) Plaintiff claims of Esmark, Inc. (pursuant to Plaintiff’s Ex. M) would
17
assume any such liabilities. Likewise, there has been no documentation or
testimony provided, or known by Grocery to exist, whereby the liabilities of A.C.
Lawrence Leather Company would have been assumed by one of these subsidiaries.
COURT DETERMINATION: The language of the contract is deemed admitted.
As to the acquisition of assets, see Court Determination regarding PSMF ¶ 3. The
language of the Plan of Merger and Reorganization regarding liabilities speaks for
itself.
PSMF 48: In 2007, ConAgra’s attorney submitted a letter to the Environmental
Protection Agency (“EPA”) in response to EPA’s Notice of Potential Liability to Swift
& Company.
CONAGRA’S RESPONSE: Denied. Counsel for Swift and Company (pursuant to
agreement) responded to the notice letter. Plaintiff’s Ex. UU at ACL_EPA054422.
COURT DETERMINATION: Denial partially accepted, deemed qualified,
fact modified. The fact should read that the 2007 letter was written by Swift and
Company’s attorney.
PSMF 49: Throughout Estech’s ownership of the South Paris Tannery and the
Sludge Lagoons, the A.C. Lawrence Leather Company remained a division (not a
separately incorporated subsidiary) of Estech and continued operations at the South
Paris Tannery.
CONAGRA’S RESPONSE: Denied. “Estech”, as stated by Plaintiff herein, cannot
be a viable corporate entity because it is lacking the statutorily required corporate
“designation” such as “Inc.”, “Corp.”, etc. Further, A.C. Lawrence Leather Company
was in fact incorporated in 1897. (A.C. Lawrence Leather Company Incorp., Exhibit
22.). Further, “Estech” never owned the subject property.
COURT DETERMINATION: Denial rejected, deemed admitted. See Court
Determination of PSMF ¶ 45.
PSMF 50: On March 5, 1976, pursuant to an Agreement of Purchase and Sale,
Estech, Inc. sold a portion of the business, property, and assets of its A.C. Lawrence
Leather Company division to New Lawrence.
CONAGRA’S RESPONSE: Qualified. Per Plaintiff’s ¶ 4 of this Statement of
Undisputed Material Facts, Plaintiff has erroneously designated “New Lawrence”
as A.C. Lawrence Leather Company, Inc. The March 1976 Agreement was by and
between Estech, Inc. and A.C. Lawrence Leather Co., Inc. Plaintiff’s Ex. XX.
Further, in ¶ 28 of Plaintiff’s Complaint, Plaintiff alleges that “On or
about March 5, 1976, Estech, Inc., sold certain real property and assets of its A.C.
18
Lawrence Leather Company division.” Plaintiff is bound by the averments of its
pleadings and may not simply contradict them to avoid summary judgment.
(Stefanik v. Friendly Ice Cream Corp., 183 F.R.D. 52 (D. Mass. 1998), Exhibit 20.) In
return for the purchase of all the assets, New Lawrence assumed all liabilities and
obligations of A.C. Lawrence Leather Company from Estech, Inc. excepting only
labor, employment contracts or pension and profit sharing plans and in addition
these same parties entered into an assumption agreement of even date.
FOOTNOTE 1: Grocery maintains that, consistent with the March 5, 1976
Agreement (Plaintiff’s Ex. XX), the Assumption Agreement (Assumption
Agreement, Exhibit 23; Abate Dept. at 67:17-22, Exhibit 2.) of even date, and the
expert report of Jeffrey A. Thaler (Thaler Expert Report, Exhibit 24.), all debts,
liabilities, obligations and commitments were assumed and undertaken by “New
Lawrence”.
These agreements make it clear that “New Lawrence” assumed all debts, liabilities,
obligations and commitments (whether fixed, contingent, accrued or otherwise) of
Estech, Inc. in respect of “Old Lawrence” “except for liabilities” defined in excluded
liabilities in this Agreement” those excluded liabilities are set forth in ten
subparagraphs of page 12 and 13 of the Agreement and none of those pertain in any
way to the South Paris, Maine, tannery operations and environmental discharges
that are referenced in Plaintiff’s Complaint.
Thus Grocery, rather than reiterate this “qualification” for each following applicable
paragraphs of its Response will simply footnote each response where this
“qualification” is necessary to alert the Court, that Grocery is not waiving or
admitting that Grocery believes, admits, or otherwise acquiesces that any
liabilities, specifically CERCLA, and or liability for this Site were transferred,
assumed, merged or otherwise acquired by Grocery in admitting certain filings
occurred in this response.
COURT DETERMINATION: Qualifications rejected, deemed admitted.
Regarding the first qualification, see Court Determination regarding PSMF ¶ 4.
Regarding ConAgra’s assertion that the complaint conflicts with this statement,
there is no material difference between paragraph 28 of Plaintiff’s Complaint, “On
or about March 5, 1976, Estech, Inc., sold certain real property and assets of its
A.C. Lawrence Leather Company division,” and the instant statement of fact.
Regarding fn. 1: ConAgra’s assertion that Estech divested itself of its CERCLA
liability in the sale to New Lawrence is contrary to law. See 42 U.S.C. § 9607(e)(1)
(“No indemnification, hold harmless, or similar agreement or conveyance shall be
effective to transfer from the owner or operator of any vessel or facility or from any
19
person who may be liable for a release or threat of release under this section, to any
other person the liability imposed under this section.”); Boyd, 992 F.2d at 405.
PSMF 51: As part of the March 1976 sale, Estech, Inc. sold the real property
encompassing the South Paris Tannery and the lagoons at the Lagoons Site to New
Lawrence.
CONAGRA’S RESPONSE: Qualified.[SEE FN 1 of ConAgra’s response to PSMF
¶ 50] Per Plaintiff’s ¶ 4 of its Statement of Undisputed Material Facts, Plaintiff has
erroneously designated “New Lawrence” as A.C. Lawrence Leather Company, Inc.
Further, Plaintiff’s Ex. XX was by and between Estech, Inc. and A.C. Lawrence
Leather Co., Inc.
COURT DETERMINATION: Denial rejected, deemed admitted. See Court
Determination regarding Conagra’s response to PSMF ¶ 4.
PSMF 52: In 1981, Estech, Inc., which had incorporated in Delaware on December
12, 1972, changed its name to Estech Investments, Inc.
Admitted
PSMF 53: Since the 1973 Agreement and Plan of Merger and Reorganization,
Estech had been owned by Esmark, Inc.
CONAGRA’S RESPONSE: Denied. Grocery does not know nor can it ascertain
the end date based on Plaintiff’s statement of “Since the 1973…” “Estech”, as stated
by Plaintiff herein, cannot be a viable corporate entity because it is lacking the
statutorily required corporate “designation” such as “Inc.”, “Corp.”, etc. Further,
”Estech” is not a party to the referenced 1973 Agreement.
COURT DETERMINATION: Denial rejected, deemed admitted. The
Government is not required to assert an end date, but in any event, the date is
described in PSMF ¶ 55. Regarding the use of “Estech” without its corporate “Inc.”
designation, the context (PSMF ¶ 52), supplies the needed corporate designation.
PSMF 54: In August 1984, Beatrice Companies, Inc. acquired Esmark.
CONAGRA’S RESPONSE: Denied. “Esmark”, as stated by Plaintiff herein,
cannot be a viable corporate entity because it is lacking the statutorily required
corporate “designation” such as “Inc.”, “Corp.”, etc. Further, “Esmark” is not the
entity listed in Plaintiff’s Ex. WW.
COURT DETERMINATION: Denial rejected, deemed admitted. See Court
Determination regarding PSMF ¶ 45. ConAgra admits this fact in its answer to ¶
20
30 of the Complaint.
PSMF 55: In 1986, all of the stock of Estech Investments, Inc. was transferred to
Beatrice Companies, Inc.
Admitted
PSMF 56: On or about February 27, 1987, Beatrice Companies, Inc. transferred the
stock of Estech Investments, Inc. to a company called BCI Divestiture, Inc.
Admitted
PSMF 57: Sometime before February 28, 1989, BCI Holdings Corp. changed its
name to Beatrice Company.
CONAGRA’S RESPONSE: Denied. Grocery is not aware of any entity ever
incorporated entitled “BCI Holdings Corp.” Plaintiff’s Ex. ZZ.
COURT DETERMINATION: Denial rejected, deemed admitted. Pl’s Ex. ZZ
(ECF No. 116-54), which is the 1989 annual 10-K report for Beatrice Company,
notes: “‘Beatrice’ refers to Beatrice Company, formerly BCI Holdings Corporation, a
Delaware corporation formed in 1985.”
ConAgra appears to contest the discrepancy between the names “BCI Holdings
Corporation” and “BCI Holdings Corp.” but does not explain why this distinction
makes any difference.
PSMF 58: As of August 14, 1990, BCI Divestiture, Inc. (Estech Investment, Inc.’s
parent company) was owned by Beatrice U.S. Food Corp., which was owned by
Beatrice Company.
Admitted
PSMF 59: On June 7, 1990, ConAgra, Inc., entered into an agreement to purchase
Beatrice Company for approximately $1.3 billion.
Admitted
PSMF 60: On August 14, 1990, Beatrice Company merged into a company named
CAGSUB, Inc. (a subsidiary of ConAgra, Inc.), with the surviving corporation
changing its name to Beatrice Company, and ConAgra, Inc. acquired Beatrice
Company.
CONAGRA’S RESPONSE: Qualified. [SEE FN 1 of ConAgra’s response to PSMF
21
¶ 50]. The “shareholders equity component” of Beatrice Company’s balance sheet
could not have been combined with the balance sheet of CAGSUB, Inc. [SEE ALSO
FN 2 below.]
FOOTNOTE 2: There are three components to every balance sheet: assets,
liabilities and shareholder/owner equity. In mergers, the latter does not transfer
nor is it combined. Thus, rather than reiterate this qualification throughout the
balance of its responses, Grocery will use this footnote to deny that the
shareholder/owner equity components of the balance sheets of merged entities were
combined as a result of the mergers referenced by Plaintiff.
COURT DETERMINATION: Qualifications rejected, deemed admitted.
Regarding fn. 1, see Court Determination regarding to PSMF ¶ 50.
Regarding fn. 2, ConAgra instructs the Court, without record citations or citation to
legal authority, that the “shareholder equity” portion of the balance sheets of
merged entities do not merge. This unsubstantiated assertion is not accepted.
PSMF 62: Shortly thereafter, on May 24, 1991, Estech Investments, Inc. merged into
BCI Divestiture, Inc.
CONAGRA’S RESPONSE: Qualified. [SEE FN 1 of ConAgra’s response to PSMF
¶ 50, and FN 2 of ConAgra’s response to PSMF ¶ 60.] Grocery cannot ascertain
what the time frame the Plaintiff is attempting to state by the term “Shortly
thereafter.” Further, Estech Investments, Inc. merged into BCI Divestiture, Inc. on
July 29, 1991. (Certificate of Merger July 1991, Exhibit 25.)
COURT DETERMINATION: Qualifications rejected, deemed admitted. See
Court Determination with respect to PSMF ¶¶ 50 (fn. 1) and 60 (fn. 2). It is clear
from the context “shortly thereafter” refers to shortly after Beatrice Company
merged into CAGSUB, Inc. on August 14, 1990. See PSMF ¶ 60. The certificate of
merger (ECF No. 123-27) was filed with Delaware’s secretary of state on July 29,
1991, but the merger actually occurred on May 24, 1991. Certificate of Merger at 1
and 3.
PSMF 63: On February 24, 1992, BCI Divestiture merged into Beatrice U.S. Food
Corp.
CONAGRA’S RESPONSE: Denied. [SEE FN 2 of ConAgra’s response to PSMF ¶
60]. “BCI Divestiture” as stated by Plaintiff herein, cannot be a viable corporate
entity because it is lacking the statutorily required corporate “designation” such as
“Inc.”, “Corp.”, etc. (Certificate of Ownership Feb. 1992, Exhibit 26.) Further, “BCI
Divestiture” did not merge into Beatrice U.S. Food Corp.
22
COURT DETERMINATION: Denial rejected, deemed admitted. It is clear
from the context that the “BCI Divestiture” to which the Government refers is BCI
Divestiture, Inc. See PSMF ¶ 62. ConAgra admits that this company merged into
Beatrice U.S. Food Corp. See ConAgra’s March 11, 2011 response to the
Government’s Supplemental Request for Information 7 (ECF No. 116-53).
PSMF 64: On or about September 24, 1993, Beatrice U.S. Food Corp. merged into
Beatrice Company.
CONAGRA’S RESPONSE: Qualified. [SEE FN 2 of ConAgra’s response to PSMF
¶ 60.]
COURT DETERMINATION: Qualification rejected, deemed admitted. See
Court Determination regarding ConAgra’s response to PSMF ¶ 60, fn. 2.
PSMF 65: On September 24, 1993, Beatrice Company merged into Hunt-Wesson,
Inc.
CONAGRA’S RESPONSE: Qualified. [SEE FN 2 of ConAgra’s response to PSMF
¶ 60.]
COURT DETERMINATION: Qualification rejected, deemed admitted. See
Court Determination regarding ConAgra’s response to PSMF ¶ 60, fn. 2.
PSMF 66: On July 19, 1999, Hunt-Wesson, Inc. changed its name to ConAgra
Grocery Products Company.
CONAGRA’S RESPONSE: Denied and Objection. Plaintiff alleges in ¶ 38 of its
Complaint: “On or about July 19, 1999, Hunt-Wesson, Inc., changed its name to
ConAgra Grocery Products Company, Inc.” Plaintiff is bound by the averments of its
pleadings and may not simply contradict them to avoid summary judgment.
(Stefanik v. Friendly Ice Cream Corp., 183 F.R.D. 52, 54 (D. Mass. 1998), Exhibit
20; Certificate of Amendment July 1999, Exhibit 27.)
COURT DETERMINATION: Denial rejected, deemed admitted; objection
overruled. The only differences between the complaint and PSMF ¶ 66 are the
removal from PSMF ¶ 66 of the words “or about” and “Inc.” The removal of “or
about” is not inconsistent, merely more precise. While ConAgra seems to find the
difference between “ConAgra Grocery Products Company” and “ConAgra Grocery
Products Company, Inc.” significant, it does not actually argue that these are two
different entities and that the Government has identified the wrong one.
PSMF 67: On or about December 31, 2000, ConAgra Grocery Products Company
merged into International Home Foods, Inc.
23
Admitted
PSMF 68: International Home Foods changed its name to ConAgra Grocery
Products Company after the December 31, 2000 merger.
CONAGRA’S RESPONSE: Denied. “International Home Foods”, as stated by
Plaintiff herein, cannot be a viable corporate entity because it is lacking the
statutorily required corporate “designation” such as “Inc.”, “Corp.”, etc. (Certificate
of Merger Dec. 2000, Exhibit 28.) Further, “International Home Foods” did not
change its name to ConAgra Grocery Products Company.
COURT DETERMINATION: Denial rejected, deemed admitted. The context
clearly indicates that the “International Home Foods” to which the Government
refers is “International Home Foods, Inc.” See PSMF ¶ 67. ConAgra admitted that
International Home Foods, Inc. changed its name to ConAgra Grocery Products
Company after the December 2000 merger at paragraphs 4 and 5 of its December
12, 2013 admissions (ECF No. 116-47).
PSMF 69: On or about May 29, 2005, ConAgra Grocery Products Company
converted to a limited liability company and changed its name from ConAgra
Grocery Products Company to ConAgra Grocery Products Company, LLC.
CONAGRA’S RESPONSE: Denied and Objection. This Statement of Fact is
contrary to ¶ 39 of Plaintiff’s Complaint wherein Plaintiff alleges: “On or before
November 22, 2005, ConAgra Grocery Products Company, Inc., was converted to a
limited liability company with the name ConAgra Grocery Products Company,
LLC.” Plaintiff is bound by the averments of its pleadings and may not simply
contradict them to avoid summary judgment. (Stefanik v. Friendly Ice Cream Corp.,
183 F.R.D. 52 (D. Mass. 1998), Exhibit 20.)
COURT DETERMINATION: Denial rejected, deemed admitted; objection
overruled. ConAgra admits this fact at ¶ 6 of its December 12, 2013 admissions
(ECF No. 116-47), but tries to reject it on summary judgment because the date now
cited by the Government (to which ConAgra admitted) is not the same date the
Government recites in its complaint.
PSMF 70: In 2000, the Town of South Paris received a complaint regarding the
presence of “green ooze” on the bank of the Little Androscoggin River at the location
of the sludge lagoons.
CONAGRA’S RESPONSE: Qualified. The exhibits/sources cited do not place the
“green ooze” at the location of the sludge lagoons.
COURT DETERMINATION: Qualification partially accepted, fact modified.
24
The March 27, 2013 McKeown Declaration at ¶ 9 (ECF No. 116-59) avers that the
complaint regarded green ooze “near the Lagoons Site” (emphasis added.)
PSMF 71: In 2002 and 2003, Maine Department of Environmental Protection
(“MEDEP”) conducted sampling at the Site that confirmed a widespread layer of
contaminated sludge located approximately 2 to 3 feet below ground surface (bgs).
Approximately 26 surface and subsurface soil samples and groundwater samples
were collected by MEDEP. Groundwater samples were collected from on-site
monitoring wells. Analytical results indicated that the maximum concentration of
chromium in soil was 209,000 parts per million (ppm).
CONAGRA’S RESPONSE: Denied and Objection. Contrary to L.R. 56(b) this
Statement of Fact contains more than one fact. Moreover, these factual statements
are not correct.
The MEDEP did not perform 26 subsurface soil samples, and no detailed
groundwater study was performed. “The State had tested for chromium and they
ranged, the average was about 50,000 parts per million, and the maximum
detections were, I believe, 130,000 parts per million and that
was from the limited amount of bore holes they put on the site. I think it was about
15 to 20.” (Barry Dep. at 37:19-38:13, Exhibit 17.)
“No one performed a detailed groundwater study during the investigation.” (Barry
Dep. at 74:20-21, Exhibit 17.)
The limited sampling that was conducted did not reveal widespread contamination.
“Groundwater was not a threat.” (McIntyre Dep. at 49:5-12, Exhibit 3.)
“Q: To your knowledge at this site, was any sediment ever removed? A: Not to my
knowledge. I was –- that was after I was reassigned from the project.” (Barry Dep.
at 55:16-19, Exhibit 17,)
COURT DETERMINATION: Objection overruled. Both sides have on occasion
included more than one fact per statement. Denial accepted, fact in dispute.
ConAgra raises issues of fact with regard to the amount of contamination at the
site, as well as the amount of testing performed by the Government. But PSMF ¶ 71
is not material to liability, except to show that there was some contamination,
which it does.
PSMF 72: In September of 2003, a Preliminary Assessment was conducted at the
Site. EPA's contractor Weston Solutions, Inc. and EPA, along with MEDEP,
conducted sampling along the riverbank of the Site, confirming widespread
chromium contamination. Chromium levels ranged from 13 ppm to 48,000 ppm and
with chromium levels exceeding 5,000 ppm in a majority of the samples. Chromium
25
was also detected in the river sediment at levels up to 200 ppm.
CONAGRA’S RESPONSE: Qualified. Chromium contamination did not rise to
EPA action levels for residential areas. “A: EPA’s level at the time for residential
was 100,000 parts per million. Q: Just so I am understanding this, residential was
100,000 parts per million and you were finding a maximum of 50,000. A: Along
the river bank. (Barry Dep, at 57:3-16, Exhibit 17.)
COURT DETERMINATION: Qualification accepted, admitted as qualified.
PSMF 73: On May 17 through May 19, 2006, EPA's New England Regional
Laboratory (NERL) advanced 31 soil borings to determine the depth of
contamination in the former sludge lagoons at the Lagoons Site.
Admitted
PSMF 75: From August 2006 through September of 2007, EPA and its contractors
conducted a variety of removal action activities for the Site that generally included:
a. Grubbing and clearing the Site.
b. Setting up an office trailer, decontamination zone, soil staging areas, and
equipment.
c. Excavation and segregation of uncontaminated soil used to cap the former
sludge lagoons from the contaminated soil.
d. Excavation and staging of contaminated soil and sludge from the former
lagoons and riverbank.
e. Shipment of approximately 34,000 tons of contaminated soil to an offsite
location for proper disposal.
f. Backfill of excavated area with uncontaminated soil from the site as well
as offsite fill material.
g. Grading the site and repairing the riverbank.
CONAGRA’S RESPONSE: Qualified and Objection. This statement is beyond
the scope of Phase I. Nevertheless, Grocery admits generally the referenced work
was performed. However, Grocery denies that the release(s) alleged against Grocery
were the cause of these removal activities. Further, Grocery denies the referenced
work was consistent with the National Contingency Plan.
COURT DETERMINATION: Qualification accepted, objection sustained in
part. Other than to establish that the Government undertook a removal action, this
information is not material to liability.
PSMF 76: After excavation of the contaminated soil was complete, the Lagoons Site
was backfilled with uncontaminated soil.
Admitted
26
PSMF 77: EPA demobilized from the Lagoons Site in September 2007.
Admitted
PSMF 78: On August 25, 2010, Plaintiff and Defendant entered into a tolling
agreement, which established a period (the “Tolling Period”) from August 31, 2010 to
February 28, 2011, which shall not be included in computing the running of the
statute of limitations potentially applicable to Plaintiff’s claims against Defendant,
pursuant to Sections 107 and 113 of the Comprehensive Environmental Response,
Compensation, and Liability Act (“CERCLA”), 42 U.S.C. §§ 9607, 9613, in the abovecaptioned action.
Admitted
PSMF 79: January 19, 2011, Plaintiff and Defendant entered into an amended
tolling agreement, which extended the Tolling Period until May 31, 2011.
Admitted
PSMF 80: April 20, 2011, Plaintiff and Defendant entered into a second amended
tolling agreement, which extended the Tolling Period until November 30, 2011.
Admitted
CONAGRA’S STATEMENTS OF FACT
DSMF 5: Paris Tannery; Ward Brothers Tannery; and A.C. Lawrence Leather Co.,
Inc. (“New Lawrence”) were all owners and operators of the tannery and utilized the
waste lagoons at the Site.
GOVERNMENT’S RESPONSE: Qualified.
The United States admits that Paris Tannery and Ward Brothers Tannery are
entities that may have owned and operated the South Paris Tannery and/or the
sludge lagoons at some time prior to Swift & Company’s opening of the A.C.
Lawrence Leather Company division at the South Paris Tannery in 1955.
Further, the United States admits that A.C. Lawrence Leather Co., Inc. owned and
operated the South Paris Tannery after it bought the South Paris Tannery from
Estech, Inc. in March 1976.
27
However, the United States denies that A.C. Lawrence Leather Co., Inc. operated
or utilized the sludge lagoons during its ownership of the South Paris Tannery.
Plaintiff’s Statement of Facts in Support of its Motion for Summary Judgment
(“Plaintiff’s MSJ SOF”), ECF No. 116-1, at ¶ 30, 31. The evidence establishes that
the sludge lagoons ceased operating when Paris Utility District opened and began
accepting waste from the South Paris Tannery in September of 1975. Id.
The United States objects to this alleged fact on the basis of relevance, as
explained herein General Objections ¶¶ 1, 2, 3. These documents describe only the
Paris Utility District (“PUD”)’s use of property owned by A.C. Lawrence Leather
Co., Inc. for the disposal of PUD’s sludge. The site referenced in those documents is
the Landfill Site, not the Lagoons Site at issue in this litigation. In addition,
whether other entities owned or operated the South Paris Tannery and sludge
lagoons prior to Swift & Company or after Estech, Inc. is not relevant to the
Liability Phase of this litigation.
COURT DETERMINATION: Objection overruled, denial accepted, fact
disputed. This fact is relevant to establish background information in this case,
but its contention that New Lawrence used the sludge lagoons is disputed.
DSMF 10: The PUD built two fenced landfills, one of those was this A.C. Lawrence
Lagoon Site.
GOVERNMENT’S RESPONSE: Denied. This factual allegation is not supported
by the record material to which Defendant cites. The cited portion of Ms.
McKeown’s deposition does not establish that one of the fenced landfills referenced
in Ms. Hennessy’s March, 26 2007 Phone Record was the Lagoons Site, nor does it
support the inference that the Lagoons Site was built by PUD. To the contrary,
based on the deposition transcript, Ms. McKeown appears to have interpreted the
reference to “prop.” in Ms. Hennessy’s March 26, 2007 Phone Record to mean
“property,” which Ms. McKeown understood to be the Lagoons Site. Nowhere did
Ms. McKeown agree or testify that either of the two “fenced landfills” was the
Lagoons Site or that the PUD “built” the Landfill Site. Indeed, when asked
generally whether she found the notes to be “true and accurate to the best of your
memory,” Ms. McKeown responded “I can’t answer that. . . . I don’t know if its []
accurate.” Plaintiff’s MSJ, Ex. MMM, McKeown Dep. at 218: 2-24, 219:1-22.
The United States objects to this alleged fact because it is supported by
inadmissible hearsay, as explained herein in Plaintiff’s General Objection ¶ 7. The
meaning of the March 26, 2007 Phone Record on which Defendant relies is unclear.
The notes are in shorthand and in incomplete sentences. Defense Counsel had
ample opportunity to show the March 26, 2007 Phone Record to their author, Ms.
Hennessy, during her deposition, but he did not show them to her, nor did he seek
28
information about their meaning. It is only Ms. Hennessy who could have testified
with first-hand knowledge about the meaning and intent of the March 26, 2007
Phone Record.
In addition, the United States objects to this alleged fact because it creates
confusion between the Lagoons Site, at issue in this case, and the Landfill Site, as
explained herein in Plaintiff’s General Objection ¶ 3.
COURT DETERMINATION: Denial accepted, fact rejected. See Court
determination regarding PSMF ¶ 32.
DSMF 14: Even after 1977 when portions of the waste were sent to PUD the solids
from the Tannery were mechanically removed by the Tannery plant as part of New
Lawrence’s pretreatment requirement, prior to the remainder (mostly liquid) of the
waste being sent to the PUD. These waste solids (sludge) continued to be disposed of
at the lagoon site until 1979. (Civil Engineering Article, Exhibit 32.)
GOVERNMENT’S RESPONSE: Contrary to L.R. 56(b), this alleged fact asserts
more than one factual allegation. As such, the United States asserts the following
qualifications, admissions and denials:
Denied. The record material to which Defendant cites does not support the factual
assertion made. As explained herein in the Plaintiff’s Opposition to Defendant’s
Statement of Fact 13, Defendant’s Exhibit 32, the only source on which it relies to
support this alleged fact, is dated December 1976. Thus, the record citation could
not and does not support the allegation that efforts were made to remove solids
from the tannery waste at any time after 1976.
In addition, the United States denies that solids were disposed of at the Lagoons
Site until 1979. Although, the United States admits that the South Paris Tannery
made efforts to remove solids from the waste stream going to the PUD prior to the
publication of Defendant’s Exhibit 32 in 1976, the Defendant has not cited to any
record material that indicates that those solids were disposed of at the Lagoons Site
at any time. To the contrary, the record indicates that any such solids removed were
placed on the Landfill Site. Plaintiff’s MSJ, Ex. PPP, Abate Dep. at 43:9-25, 44:1.
Moreover, the Lagoons Site was no longer in use after the South Paris Tannery
connected to the PUD in September of 1975. Plaintiff’s MSJ SOF, ECF No. 116-1, at
¶¶ 30-31.
The United States objects to this alleged fact on the basis of relevance. The alleged
fact creates confusion between Lagoons Site, at issue in this case, and the Landfill
Site, as explained herein in Plaintiff’s General Objection ¶ 3. Further, the United
States objects to this alleged fact because it is inconsistent with Defendant’s
allegations that the sludge lagoons ceased receiving waste in 1977 and 1985. See
29
Defendant’s MSJ SOF, ECF No. 122-1 at ¶¶ 15, 16, 18.
COURT DETERMINATION: Denial accepted, fact rejected. The December
1976 Civil Engineering article (ECF No. 116-25) does not indicate where solids
removed by New Lawrence were dumped.
DSMF 15: The Site was used through 1977 and in certain instances until 1979.
(Simmons Dep. at 48:16-18 Exhibit 33.)
GOVERNMENT’S RESPONSE: Denied. The record material to which Defendant
cites does not support the factual assertion made. The cited testimony of
Defendant’s expert Simmons merely states “I think it is unclear what the last date
is, that both 1977 and 1979 appear in EPA documents.” In addition, Simmons’
testimony is not based on his review of documents that are contemporaneous with
the closure, which state that the South Paris Tannery ceased using the sludge
lagoons in 1975. Plaintiff’s MSJ, Ex. NNN, May 30, 2013 McKeown Declaration, at
¶ 6-8.
The United States objects to this alleged fact on the basis of relevance, as explained
herein in Plaintiff’s General Objection ¶ 2 and on the basis of reliability as
explained in Plaintiff’s Motion In Limine to Exclude Testimony of Douglas Simmons
and Craig MacPhee (ECF No. 118), and its supporting Reply brief filed herewith. In
addition, the United States objects to this alleged fact because it is supported only
by the opinion of a witness who has not yet been qualified to testify as an expert in
this case, as further explained herein in Plaintiff’s General Objections ¶ 6.
COURT DETERMINATION: Denial accepted, fact rejected. Douglas
Simmons, one of Conagra’s experts, merely repeats information contained in EPA
documents in his deposition (ECF No. 122-35). Simmons is not an independent
source of this information.
DSMF 16: New Lawrence continued to contribute industrial waste to the lagoon site
until June 1st of 1979. (Hennessy Dep. at 75: 12-24; 76:1-9 Exhibit 8; Johnson, III
30(b)(6) “Consent Decree” Dep. at 43:20-22, 50:7-10, Exhibit 35; History of Site,
Exhibit 34.)
GOVERNMENT’S RESPONSE: Denied. The record material to which Defendant
cites does not support the factual assertion made. For example, the cited portions of
Ms. Hennessy’s deposition reflect that Ms. Hennessy was instructed to read directly
from a document, which appears to be a portion of Defendant’s Exhibit 34.
Importantly, she was not asked to opine on whether the statement that she was
asked to read is accurate. To the contrary, she explicitly stated that she did not
know where “industrial” waste went prior to June 1, 1979. Plaintiff’s MSJ, Ex.
QQQ, Hennessy Dep. at 75:6-9.
30
Defendant’s Exhibit 34 does not support the fact alleged. That document is untitled
and undated; however, based on the dates and context, including references to
Ryerson Hill, which was considered as an alternative to the Landfill Site for the
disposal of PUD’s waste, it appears that the “site” it references is the Landfill Site,
not the sludge lagoons. Even if it were a narrative of the Lagoons Site, it contains
no statement that any closure occurred on June 1, 1979. Instead, it states that,
although BEP ordered the [Landfill] Site closed to sludge disposal by June 1, 1979,
the PUD continued to operate the Site through December 30, 1985. Defendant’s
MSJ SOF, Ex. 34, ECF 122-36, at ACL_EPA032216.
Neither does the cited testimony of Mr. Johnson support the fact alleged. The cited
portions of Mr. Johnson’s deposition reflect only that Mr. Johnson was asked by
Defense Counsel to read from documents presented to him during his deposition.
The first document from which Mr. Johnson was asked to read is a 1989 report
prepared in furtherance of the PA/SI EPA performed at the Landfill Site. Plaintiff’s
MSJ, Ex. RRR, NUS PA, at ACL_EPA227734-38. Likewise, the second document
from which Mr. Johnson was asked to read, Defendant’s Exhibit 34, does not
support the fact alleged, as described herein. Furthermore, Mr. Johnson was not
asked to opine on the truth of the statements contained in those documents.
The United States objects to this alleged fact on the basis of relevance, as explained
herein in Plaintiff’s General Objection ¶ 2. Whether the Lagoons Site was used
through 1979 is an inquiry that is not relevant to the Liability Phase of this
litigation. Further, the United States objects to this alleged fact because it is
inconsistent with Defendant’s allegation that the sludge lagoons ceased receiving
waste in 1977 and 1985. Defendant’s MSJ SOF, ECF No. 122-1 at ¶¶ 15, 18.
COURT DETERMINATION: Denial accepted, fact rejected. In the cited
portion of Tina Hennessy’s deposition (ECF No. 122-10), Hennessy is asked to read
a portion of a document. She does not testify that New Lawrence continued to use
the Lagoons Site through June 1, 1979.
Likewise, in the cited portion of Arthur Johnson III’s deposition (ECF No. 122-37),
Johnson is asked to read a portion of a document. He does not testify that New
Lawrence continued to use the Lagoons Site through June 1, 1979.
The History of Site (ECF No. 122-36) nowhere discusses use of the Lagoons Site. It
discusses another lot, “a 24 acre parcel (Map R-2, # 14)”, which, according to this
document, MEDEP ordered to be closed on August 1, 1978, but which PUD
continued to use from June 1, 1979 through December 30, 1985.
DSMF 17: The Site was used through 1977 and in certain instances the waste
lagoons continued to be used until when New Lawrence transferred all operations of
31
its waste disposal to PUD. (Simmons Dep. at 48:16-18; 55:6-8; 55:21-22, Exhibit 33;
Civil Engineering Article, Exhibit 32.)
GOVERNMENT’S RESPONSE: Contrary to L.R. 56(b), this alleged fact asserts
more than one factual allegation. As such, the United States asserts the following
qualifications, admissions and denials:
Qualified. The United States denies that the sludge lagoons at the Lagoons Site
were used for disposal of Tannery waste through 1977. Any such allegations are
unsupported by the record citation for the reasons discussed herein in the Plaintiff’s
Opposition to Defendant’s SOF ¶¶ 15 and 16, in Plaintiff’s Motion In Limine to
Exclude Testimony of Douglas Simmons and Craig MacPhee (ECF No. 118), and its
supporting Reply brief filed herewith. The United States admits that the sludge
lagoons were used by the South Paris Tannery until PUD began to accept the South
Paris Tannery’s waste in September of 1975. Plaintiff’s MSJ SOF, ECF No. 116-1,
at ¶¶ 30-31. In addition, the United States objects to this alleged fact on the basis of
relevance, as explained herein in Plaintiff’s General Objection ¶ 2, and on the basis
of reliability, as explained in Plaintiff’s Motion In Limine to Exclude Testimony of
Douglas Simmons and Craig MacPhee (ECF No. 118), and its supporting Reply brief
filed herewith.
COURT DETERMINATION: Denial accepted, fact rejected. For the reasons
discussed in the Court’s Determination regarding DSMF ¶ 15, Simmons’s testimony
is not evidence of the statement proposed.
ConAgra does not pinpoint any part of the December 1976 Civil Engineering Article
(ECF No. 115-26) in support of its statement. The article, under subheading
“Problems overcome” indicates that PUD was activated in September 1975 and
began receiving waste from the tannery at that time. It does not mention the sludge
lagoons nor can their continued use for any amount of time after PUD was activated
be inferred from this article.
DSMF 18: The waste lagoons continued to be in use until the tannery closed.
(Everett Dep. at 36: 9-14, Exhibit 2.)
GOVERNMENT’S RESPONSE: Denied. The record material to which Defendant
cites does not support the factual assertion made. The cited testimony of Mr.
Everett demonstrates that Mr. Everett has no personal knowledge of the date on
which the South Paris Tannery closed or the date on which the South Paris Tannery
stopped using the sludge lagoons. This lack of personal knowledge is evidenced by
the fact that Mr. Everett’s answer to the question of when the pits closed is
qualified by the term “I guess” and “As far as I know” and by the fact that, when
asked how he knew when the pits closed, he responded logically that they “didn’t
have no reason to use them afterwards.” Plaintiff’s MSJ, Ex. JJJ, Everett Dep. at
32
36:9-11, 42:1-7. In addition, Mr. Everett did not remember the date on which the
South Paris Tannery closed and when asked about that fact he stated, “I can’t
remember exactly because I wasn’t here. I think I was in Michigan working.” Id. As
a contractor, Mr. Everett’s experience at the South Paris Tannery was limited to a
maximum of approximately 6-7 weeks during the 1960s. Id. at 41:11-25, 42:1-25.
Mr. Everett was not employed by the South Paris Tannery at the time it closed and
had “no idea” whether the tannery began sending its waste to the PUD at any point.
Id. at 36:1-25.
In addition, the United States objects to this alleged fact on the basis of relevance,
as explained herein in Plaintiff’s General Objection ¶ 2. The specific dates on which
sludge lagoons ceased accepting waste from the South Paris Tannery is an inquiry
that is not relevant to the Liability Phase of this litigation. Further, the United
States objects to this alleged facts because it is inconsistent with Defendant’s
allegations that the sludge lagoons ceased receiving waste in 1977 and 1979.
Defendant’s MSJ SOF, ECF No. 122-1 at ¶¶ 15, 16.
COURT DETERMINATION: Denial accepted, fact rejected. The deposition
excerpts presented (ECF Nos. 122-4 and 128-4) reveal that Everett was guessing
when the sludge lagoons ceased being used rather than offering a fact based on
personal knowledge. His testimony does not provide an evidentiary foundation for
the statement proposed.
DSMF 19: A History of the Site prepared by Maine DEP provides: “The PUD
continued to operate the Site with Lawrence’s knowledge and consent, with
Lawrence’s contribution of industrial waste from 6/1/79 through 12/30/85.”
(History of Site, Exhibit 34.)
GOVERNMENT’S RESPONSE: Denied. The record material to which Defendant
cites does not support the assertion that the Lagoons Site continued to operate from
June 1, 1979 through December 30, 1985. As discussed above in the United States’
Objection to Defendant’s SOF ¶ 16, Defendant’s Exhibit 34 is relevant to the
Landfill Site only and does not relate to the Lagoons Site that is the subject of this
litigation. This is evidenced by the fact that Defendant’s Exhibit 34 references “the
disposal of sludges from the operation of [the PUD] at the subject Site,” the “written
agreement between PUD and A.C. Lawrence” under which PUD deposited sludge on
A.C. Lawrence’s property, and the possibility of depositing PUD’s sludge on the
Ryerson Hill Site, which was considered as an alternative to the Landfill Site for
the disposal of PUD’s waste. The United States objects to this alleged fact because it
creates confusion between Lagoons Site, at issue in this case, and the Landfill Site,
as explained herein in Plaintiff’s General Objection ¶ 3.
COURT DETERMINATION: Denial accepted, fact rejected. The “site”
referenced in the quoted statement refers to “a 24 acre parcel (Map R-2, # 14)
33
presently owned by A.C. Lawrence.” History of Site (ECF No. 122-36). This is not
the Lagoons Lot, which is an approximate seven-acre parcel identified as Lot 7 on
the Paris, Maine property tax map R-2.
DSMF 20: Since the waste lagoons had limited capacity, the sludge/solids in those
waste lagoons had to be removed twice a year by Old Lawrence. P.E. Dunn was hired
by Old Lawrence to clean the sludge/solids out the waste lagoons (14 pits total) on
the Site twice a year. These are the same waste lagoons that comprised the Site.
(Everett Dep. at 28:4-9, Exhibit 2; Barry Dep. at 139:7-11, Exhibit 11; Hennessy Dep.
at 84:9-12, Exhibit 8; AECOM Expert Report, Exhibit 17; Interview Memo, Exhibit
36.)
GOVERNMENT’S RESPONSE: Contrary to L.R. 56(b), this alleged fact asserts
more than one factual allegation. As such, the United States asserts the following
qualifications, admissions and denials:
Denied. The United States denies that there is information in the record to
support the allegation that sludge was removed from the sludge lagoons at the
Lagoons Site twice a year. The only document cited to support this alleged fact are
notes of an unsworn interview of two unidentified former employees of P.E. Dunn,
and Ms. Hennessy’s deposition, which cites to that interview.
The additional citations offered by Defendant provide no further support. The cited
portion of Mr. Everett’s deposition states only that he had seen a contractor digging
the pits out, but he did not know where the material went or when he saw that
occur. Defendant’s MSJ SOF, Ex. 2, ECF No. 122-4, Everett Dep. at 28:4-9.
Likewise, the cited portion of Mr. Barry’s testimony stands only for the proposition
that he was told during an unsworn interview with a PUD employee that sludge in
the sludge lagoons was periodically excavated. The AECOM report relays
inadmissible hearsay regarding an alleged twice-annual excavation and does not
offer a contemporaneous source of verification that is independent from the
documents already cited herein. None of these documents or testimony states that
any such digging or excavation removed 100% of the sludge waste from the Lagoons
Site or removed any other particular volume of sludge waste.
The United States objects to this alleged fact on the basis of relevance, as
explained herein in Plaintiff’s General Objection ¶ 2. Details regarding the
excavation of sludge from the sludge lagoons are not relevant to the Liability Phase
of this litigation, because none of it supports the opinion or conclusion that no
disposal occurred during the ownership or operation of the Lagoons Site by Swift &
Company or Estech, Inc., as explained in Plaintiff’s Motion In Limine to Exclude
Testimony of Douglas Simmons and Craig MacPhee (ECF No. 118), and its
supporting Reply brief filed June 3, 2013. In addition, as explained herein in
Plaintiff’s General Objection ¶ 7, the United States objects to the use of Defendant’s
34
Exhibit 36, an unsworn interview, as the statements in these notes constitute
inadmissible hearsay and should not be considered by the Court. If the Defendant
wished to offer the testimony of a P.E. Dunn employee regarding the extent,
frequency or duration of any excavation, it could have sought third-party discovery
from P.E. Dunn or its employees or noticed the deposition of the
interviewee. Further, the United States objects to this alleged fact because it is
based on the opinion of two witnesses who have not yet been qualified to testify as
experts in this case, as explained herein in Plaintiff’s General Objection ¶ 6, and
whose opinions are unreliable for the reasons set forth in Plaintiff’s Motion In
Limine to Exclude Testimony of Douglas Simmons and Craig MacPhee (ECF No.
118), and its supporting Reply brief filed herewith.
COURT DETERMINATION: Denial accepted, objection sustained in part
and overruled in part, fact as modified in dispute. The EPA Interview Memo
(ECF No. 122-38) is inadmissible hearsay, but its use may be proper within the
AECOM Report (ECF No. 123-13). The memo records a conversation with a former
P.E. Dunn employee. The interviewee’s name is redacted, but it is clear that he
drove a truck for P.E. Dunn and participated in the removal of dewatered sludge
from the sludge lagoons during the late 1960’s and early 1970’s. According to this
person, the sludge was removed from the lagoons and placed on the Landfill Site
twice a year. The account of an individual with personal knowledge of Old
Lawrence’s practices are facts “reasonably relied upon” by experts. See Fed. R. Evid.
703.
The AECOM Report does not state that “P.E. Dunn was hired by Old Lawrence to
clean the sludge/solids out the waste lagoons (14 pits total) on the Site twice a year,”
and this part of the asserted fact is stricken.
For the reasons stated in the Court Determination of PSMF ¶ 30, the Hennessy and
Everett depositions fail to support the proposed fact. But the Government did not
object to that portion of Barry’s deposition (ECF. No. 122-13) in which he testified
that John Barlow relayed to him that solids from the filled-up sludge lagoons would
be transported to a different site for disposal, and this testimony also supports the
proposed fact.
DSMF 29: In December of 1978, Plaintiff wrote PUD concerning the poor quality of
PUD’s discharge to the River and PUD’s consistent failure to meet its discharge
limits into the River, including chromium. (Sheehan Letter Dec. 21, 1978, Exhibit
39.)
GOVERNMENT’S RESPONSE: Contrary to L.R. 56(b), this alleged fact asserts
more than one factual allegation. As such, the United States asserts the following
qualifications, admissions and denials:
35
Admitted. The United States admits that Mr. Sheehan, of EPA’s Municipal
Facilities Branch, wrote to PUD on December 21, 1978 regarding PUD’s failure to
meet its license requirements.
Denied. The United States denies that there was a consistent failure to meet
chromium discharge limits. The record material to which Defendant cites in support
of that alleged fact does not mention chromium, nor does it support the allegation
that PUD consistently failed to meet chromium discharge limits.
Further, the United States objects to this alleged fact on the basis of relevance, as
explained herein in Plaintiff’s General Objections ¶ 1. Whether PUD discharged
chromium to the River is not relevant to the question of whether disposal occurred
on the sludge lagoons at the time the Lagoons Site was owned or operated by Swift
& Company or Estech, Inc.
COURT DETERMINATION: Denial accepted, fact modified; objection
overruled. The Government asserts that this statement is irrelevant, but ConAgra
claims this is evidence of the Government’s involvement with PUD. The cited letter
does not mention chromium levels and thus the last two words of DSMF ¶ 29 are
stricken.
DSMF 43: On April 26, 1993, the State of Maine, Board of Environmental
Protection (“Maine BEP”) and PUD, with the written approval of New Lawrence,
stipulated and agreed to the terms of Consent Decree (“Consent Decree”). On April
26, 1993, the Superior Court for the State of Maine entered that Consent Decree and
Order in a matter entitled State of Maine and Board of Environmental Protection,
Plaintiffs v. A.C. Lawrence Leather Co., Inc. and Paris Utility District, Defendants.
(“New Lawrence”) at No. CV-88-373. The Consent Decree found in part:
WHEREAS, from 1953 through 1985, Defendant A.C.
Lawrence Leather Co., Inc. (New Lawrence) owned and
operated a cattle hide tannery located in South Paris, Maine;
and
WHEREAS, pursuant to the operation of said tannery,
Lawrence (New Lawrence) produced and discharged to the
Little Androscoggin industrial waste water; and
WHEREAS, from 1953 to 1975, Lawrence (New Lawrence)
deposited waste water and sludge containing chromium and
other waste from its tannery on part of a parcel of land owned
by Lawrence and described as parcel 24…
***
36
WHEREAS, pursuant to a written agreement with Lawrence’s
predecessor, the District secured the right to deposit sludge
from the POTW on the Lawrence site…
(our emphasis) (1993 Consent Decree, Exhibit 10.)
GOVERNMENT’S RESPONSE: Qualified. The United States admits that the
State of Maine and the Board of Environmental Protection entered into a Consent
Decree and Order with PUD in 1993 regarding the PUD’s disposal of waste water
and sludge on a parcel of land owned by A.C. Lawrence Leather Co., Inc. and
described as Lot 24. The United States further admits that the quoted text is
accurate, with the exception of the inaccurate abbreviations added to the Consent
Decree language by the Defendant. However, the United States denies that New
Lawrence, as defined by Defendant, owned or operated the South Paris Tannery
from 1953 through 1985. The Consent Decree uses “Lawrence” as shorthand for
A.C. Lawrence Leather Co., Inc., the company that owned the South Paris Tannery
at the time of the Consent Decree. However, Defendant has inserted an
abbreviation to reflect “New Lawrence.” The distinction between Lawrence, the
abbreviation used by the parties to the Consent Decree and the Court to mean,
generally, the entity that historically operated the tannery and owned the Landfill
Site, and New Lawrence, the term used by Defendant as shorthand for A.C.
Lawrence Leather Co., Inc., is of great significance. In fact, A.C. Lawrence Leather
Co. Inc. was only incorporated in on October 7, 1975 just prior to its acquisition of
the South Paris Tannery from Estech, Inc. Plaintiff’s MSJ, Ex. VVV, MA Secretary
Filing, at 1. Therefore, it could not have owned and operated the South Paris
Tannery from 1953 through 1985. It appears that the Consent Decree’s drafters
may have unintentionally attributed the entire history of the South Paris Tannery’s
operation to A.C. Lawrence Leather Co., Inc., or, in Defendant’s terms, “New
Lawrence,” rather than separately noting that the South Paris Tannery operated as
the A.C. Lawrence Leather Company division prior to 1976. This error likely
occurred because the difference between the A.C. Lawrence Leather Company
division and A.C. Lawrence Leather Co., Inc. was not an issue of any importance to
the resolution of the Consent Decree. Furthermore, the United States objects to this
alleged fact on the basis of relevance, as explained herein in Plaintiff’s General
Objections ¶¶ 1, 2.
COURT DETERMINATION: Qualification accepted. The Court will consider
the actual consent decree.
DSMF 53: Prior to entry of the Consent Decree, Plaintiff notified PUD: “we are
aware that Maine BEP and PUD are negotiating an Administrative Consent
Agreement and the Maine BEP has sent a proposed agreement to the District. We
(Plaintiff) have reviewed a copy of this proposed agreement and conclude that it will
37
satisfy our requirement that an appropriate enforcement action be taken against the
District to eliminate its permit violations. Unless the Maine BEP and the District
can enter into an administrative consent order by August 17, EPA (Plaintiff) will
have to proceed with its own administrative order. EPA (Plaintiff) will notify the
District of the terms of its administrative order if a Consent Agreement with Maine
BEP is not concluded.”
GOVERNMENT’S RESPONSE: Qualified. The United States admits that the
quoted language accurately reflects the text of Defendant’s Exhibit 42, a letter sent
from David A. Fierra, Director of EPA, Region I’s Water Management Division, to
the Paris Utilities District Board of Trustees on August 2, 1984, with the exception
of parenthetical information, which has been added by Defendant, and the
substitution of BEP in place of DEP. This letter relates to an administrative consent
order to be entered into regarding PUD’s NPDES permit violations, as evidenced by
the reference to NPDES Permit No. ME0100951 within the subject line of
Defendant’s Exhibit 42, and as discussed in the Plaintiff’s Opposition to Defendant’s
Statement of Fact 32, this letter relates to an administrative consent order. This
letter does not relate to the Consent Decree entered between the Paris Utilities
District and the State of Maine in 1993 regarding the Landfill Site. Any language
within Defendant’s Exhibit 42 regarding EPA’s receipt and review of a proposed
agreement relates only to PUD’s compliance with its discharge limits under the
Clean Water Act and does not relate to the 1993 Consent Decree regarding the
Landfill Site.
The United States objects to this alleged fact on the basis of relevance. Plaintiff’s
communications with PUD regarding PUD’s NPDES permit violations is not
relevant to this litigation, as explained herein in Plaintiff’s General Objection ¶ 1.
Furthermore, as noted herein in Plaintiff’s General Objection ¶ 5, the United States
objects to the Defendant’s substitution of BEP in place of DEP. The document cited
by Defendant to support this Statement of Fact references negotiations between
DEP and PUD, not BEP and PUD.
COURT DETERMINATION: Qualification accepted, fact modified;
objection overruled. Although the Government points out that this letter, written
on August 2, 1984, relates to NPDES permit violations and not to the eventual 1993
consent decree, it is relevant to the extent it shows the relationship between the
Government and MEDEP. This is relevant to the issue of whether the 1993 consent
decree has any preclusive effect on the issues in this case.
DSMF 91: Instead of digging up the soil at the Site and hauling it to a landfill, one
solution for the Site would have been to just stabilize the river bank and cover the
exposed area.
DSMF 92: To prevent human exposure to soil at the Site, Plaintiff could have simply
38
built a fence. To prevent human exposure to groundwater, a deed restriction could
have been filed against the property.
DSMF 108: On March 5, 1976, Estech, Inc. sold to A.C. Lawrence Leather Co., Inc.
(New Lawrence) whereby New Lawrence purchased every asset located at the South
Paris Tannery in South Paris, Maine, and assumed all debts, liabilities, obligations
and commitments, whether fixed, contingent, accrued or otherwise of Estech, Inc.
GOVERNMENT RESPONSE: Qualified. The United States admits that in or
around March 5, 1976, Estech, Inc. sold a portion of the business, real property and
assets of the A.C. Lawrence Leather Company division to a group of the division’s
management and employees, who separately incorporated the company as New
Lawrence. Plaintiff’s MSJ SOF, ECF No. 116-1, at ¶¶ 4, 50, 51. The United States
denies that New Lawrence assumed assume all debts, liabilities, obligations and
commitments of Estech, Inc. The 1976 Agreement between Estech, Inc. and A.C.
Lawrence Leather Co., Inc. provides that A.C. Lawrence Leather Co., Inc. will
assume certain liabilities and obligations and then states “[b]uyer shall be under no
obligation to assume any other obligation, liability or indebtedness of ACL.”
Defendant MSJ SOF, Ex. 75, ECF No. 122-77, at p. 11. Estech, Inc., also agreed to
indemnify A.C. Lawrence Leather Co., Inc. for any “loss or damage” suffered by A.C.
Lawrence Leather Co., Inc. as a result of any assertion against it by any
government agency for liabilities that A.C. Lawrence Leather Co., Inc. did not
expressly assume and were accrued by Estech, Inc., prior to the closing of the sale.
See id. Contrary to what Defendant asserts, A.C. Lawrence Leather Co., Inc. took on
a limited number of liabilities and the remaining universe of liabilities, including
CERLCA liability, was excluded. Id.
Further, the United States objects to this alleged fact on the basis of relevance.
However, the United States objects to this alleged fact on the basis of relevance.
Whether there may be other entities that are also liable to the United States for
response costs at the Site is not relevant to the Liability Phase of this litigation, as
explained in Plaintiff’s General Objection ¶ 2.
COURT DETERMINATION: Objection sustained. This statement is not
relevant to liability.
DSMF 109: On March 5, 1976, Estech, Inc. and New Lawrence also entered into an
Assumption Agreement (“Assumption”). New Lawrence assumed all debts, liabilities,
obligations and commitments, whether fixed, contingent, accrued or otherwise, of
Estech, Inc. which occurred in the ordinary course of its business, excepting only,
liabilities defined as “Excluded Liabilities.” None of the “Excluded Liabilities”
referenced in the Assumption in any way pertain to the South Paris Tannery, its
operations, its environmental issues, its environmental discharges, waste or sludge
disposal, or CERCLA liability.
39
GOVERNMENT RESPONSE: Qualified. The United States admits that on
March 5, 1976, Estech, Inc. and New Lawrence, as defined by Defendant, entered
into an Assumption Agreement. The United States denies that New Lawrence
assumed all debts, liabilities, obligations and commitments, whether fixed,
contingent, accrued or otherwise, of Estech, Inc. which occurred in the ordinary
course of its business, excepting only, liabilities defined as “Excluded Liabilities.”
The liabilities assumed by New Lawrence are specifically enumerated, with
reference to the 1976 Sale Agreement. Defendant’s Exhibit 77, ECF No. 122-80, at
1. The United States denies that there is material in the record to support the
factual allegation that none of the “Excluded Liabilities” pertain to the South Paris
Tannery, its operations, its environmental issues, its environmental discharges,
waste or sludge disposal, or CERCLA liability. As further explained herein in
Plaintiff’s Opposition to Defendant’s Statement of Fact 108, A.C. Lawrence Leather
Co., Inc. assumed a limited number of liabilities, and the remaining universe of
liabilities, including CERLCA liability, remained with Estech, Inc.
Further, the United States objects to this alleged fact on the basis of relevance.
Whether there may be other entities that are also liable to the United States for
response costs at the Site is not relevant to the Liability Phase of this litigation, as
explained in Plaintiff’s General Objection ¶ 2.
COURT DETERMINATION: Objection sustained. This statement is not
relevant to liability.
DSMF 110: An integral part of the purchase of Old Lawrence, by New Lawrence was
a Memorandum of Agreement (“MOA”) entered into between PUD and Estech, Inc.
also on March 5, 1976. The MOA set forth rights and responsibilities of the parties
with respect to the financing, construction, operation and maintenance of a
treatment facility. The MOA provides, in pertinent part, that PUD will finance,
construct, operate and maintain such facility a cost, estimated in March of 1976, to
be approximately $6,695,000. The PUD believed in early 1976 that it would be
eligible to receive federal and state financing equivalent to 85% of the total cost
and that PUD would promptly make application for those funds. When construction
was complete, PUD agreed to treat all sewage and waste generated by Old Lawrence.
The MOA provided that Estech, Inc. would allow PUD to deposit chromium laced
waste sludge from its to be constructed treatment facility on A.C. Lawrence property.
In return, PUD would indemnify, save and hold Estech, Inc. harmless from and
against any and all liabilities and claims arising out of the sludge disposal activities
conducted by PUD on Estech, Inc.’s premises.
GOVERNMENT’S RESPONSE: Contrary to L.R. 56(b), this Statement of
Material Fact asserts more than one fact. As such, the United States asserts the
following qualifications, admissions and denials:
40
Denied. The United States denies that the 1976 Memorandum of Agreement (“1976
MOA”) between PUD and Estech, Inc., was an integral part of the purchase of
certain assets of Estech, Inc.’s A.C. Lawrence Leather Company division by A.C.
Lawrence Leather Co. Inc.
Qualified. The United States admits that the 1976 MOA recited the rights and
responsibilities of the PUD and Estech, Inc., with respect to the financing,
construction, operation and maintenance of the PUD treatment facility. The United
States denies that such rights and responsibilities were set forth for the first time
in the 1976 MOA. The rights and responsibilities of PUD and Estech, Inc., with
respect to the financing, construction, operation and maintenance of the PUD
treatment facility were also set forth in a July 3, 1973 Agreement between Estech,
Inc. and PUD. Plaintiff’s MSJ, Ex. FFFF, July 3, 1973 Memorandum of Agreement,
ACL_PUD000157. The 1976 MOA was an amendment to the 1973 Agreement
between PUD and Estech, Inc. Plaintiff’s MSJ, Ex. GGGG, Letter from Hickman to
Barber, at ACL_PUD001705. The 1973 Agreement was an amendment to prior
Agreements between PUD and Swift & Company, dated December 3, 1970, and
October 13, 1972. Defendant’s Exhibit 78, ECF No. 122-81, at ACL_EPA053276.
Qualified. The United States admits that the 1976 MOA provides in pertinent
part that PUD will finance, construct, operate and maintain such facility. However,
the United States denies that the cost estimate of approximately $6,695,000 was
made in March of 1976. That estimation was dated March of 1975. Defendant’s
Exhibit 78, ECF No. 122-81, at ACL_EOA053264-267. Additionally, previous
estimates were made in April of 1970, July of 1972 and January of 1973. Plaintiff’s
MSJ, Ex. FFFF, July 3, 1973 Memorandum of Agreement, ACL_PUD000157-158.
Admitted. The United States admits that the PUD believed in early 1976 that it
would be or already was eligible to receive federal and state financing equivalent to
85% of the total cost. PUD submitted an EPA/State Grant application for Joint
Wastewater Treatment Facility in January 1973. Plaintiff’s MSJ, Ex. EE, ECF No.
116-1.
Qualified. The United States admits that, upon the completion of construction,
PUD agreed to treat sewage and waste generated by A.C. Lawrence Leather
Company division, and later, A.C. Lawrence Leather Co., Inc., not to exceed 1.25
M.G.D.
Qualified. The United States admits that, in accordance with the 1973 Agreement
and 1976 MOA, PUD was permitted to deposit waste sludge generated by PUD on
the Landfill Site. Plaintiff’s MSJ SOF, ECF No. 116-1, at ¶ 32; Defendant’s Exhibit
78, ECF No. 122-81, at ACL_EPA053277.
41
Qualified. The United States admits that, in accordance with the 1976 MOA, PUD
agreed to indemnify, save and hold Estech, Inc. harmless from and against any and
all liabilities and claims arising out of the sludge disposal activities conducted by
PUD on the Landfill Site. Defendant’s Exhibit 78, ECF No. 122-81, at
ACL_EPA053277. The United States denies that this purported indemnity
arrangement applied to the Lagoons Site. Further, the United States objects to
this alleged fact on the basis of relevance, as explained in Plaintiff’s General
Objection ¶ 1. These facts are not relevant to this litigation.
COURT DETERMINATION: Objection sustained. This statement is not
relevant to liability.
DSMF 111: Exhibit III to the “Assumption” was a notice to creditors which provides
in part:
that Estech, Inc. has sold a large portion of Old Lawrence, headquartered in
Peabody, Massachusetts, to a corporation owned by senior management of Old
Lawrence on March 5, 1976, and that New Lawrence has assumed all of the
debts, including your accounts with Old Lawrence.
GOVERNMENT’S RESPONSE: Qualified. The United States admits that a
document labeled “Exhibit III” appears to be an undated and unsigned notice to
customers of the South Paris Tannery, which provides in pertinent part that
Estech, Inc…. has sold a large portion of its division known as A.C.
Lawrence Leather Company…to a corporation owned by senior
management of the A.C. Lawrence division of March 5, 1976. That firm,
which shall be known as A.C. Lawrence Leather Co., Inc., has assumed all
of the debts, including your account, of Estech, Inc.’s A.C. Lawrence Leather
Company division as part of that acquisition.
Defendant’s Exhibit 77, ECF No. 122-80, at CHP000529.
The United States denies, however, that there is any information to indicate that
this document was an exhibit to the March 5, 1976 Assumption Agreement between
A.C. Lawrence Leather Co., Inc. and Estech, Inc. Further, the United States
objects to this alleged fact on the basis of relevance, as explained in Plaintiff’s
General Objection ¶ 1. These facts are not relevant to this litigation.
COURT DETERMINATION: Objection sustained. This statement is not
relevant to liability.
DSMF 113: On November 17, 1976, Plaintiff wrote to PUD that the Environmental
Protection Agency (Plaintiff) is carrying out an environmental impact statement on
42
sludge disposal alternatives for the South Paris Maine Wastewater Treatment
Facility (PUD). The Plaintiff was planning a public workshop to present its findings
and seeks the District’s (PUD) opinion “in selecting disposal alternatives for detained
study during the next phase of analysis.” (our emphasis) (Stickney Letter, Exhibit
80.)
GOVERNMENT’S RESPONSE: Admitted. However, the United States objects
to this alleged fact on the basis of relevance. That the EPA sought public
involvement in selecting sludge disposal alternatives for PUD is not relevant to this
litigation, as explained herein in Plaintiff’s General Objection ¶ 1.
COURT DETERMINATION: Objection overruled. Fact admitted for purposes
of establishing background relevant to ConAgra’s preclusion claims.
DSMF 123: ConAgra Grocery Products Company, LLC was originally established as
a Delaware corporation on June 21, 2000 with the name CAG Acquisition SUB, Inc.
The company’s name was changed to International Home Foods, Inc. on August 24,
2000, and then further changed to ConAgra Grocery Products Company on December
31, 2000. The company converted from a Delaware corporation to a Delaware limited
liability company on May 29, 2005.
GOVERNMENT’S RESPONSE: Admitted and Objection. The United States
admits that Defendant has accurately quoted from its Exhibit 83, but objects to
this fact on the basis that it is not relevant to the claims or defenses in this matter,
as explained herein in Plaintiff’s General Objection ¶ 1. The United States has set
forth the relevant steps connecting Estech, Inc. and Defendant in its Motion for
Summary Judgment.
COURT DETERMINATION: Objection overruled. This statement useful to
establishing ConAgra’s corporate history.
GOVERNMENT’S ADDITIONAL FACTS
PASMF 4: A.C. Lawrence Leather Co. Inc. was incorporated on October 7, 1975 just
prior to its acquisition of the South Paris Tannery from Estech, Inc. Plaintiff’s MSJ,
Ex. VVV, MA Secretary Filing, at 1.
CONAGRA’S RESPONSE: Denied. “A.C. Lawrence Leather Co. Inc.” was never
incorporated. (Plaintiff’s MSJ Ex. VVV) On October 7, 1975, New Lawrence, Inc.
was incorporated.
COURT DETERMINATION: Denial rejected, but fact restated to conform
precisely to the cited record. The cited record (ECF No. 128-16), the authenticity
43
of which ConAgra does not dispute, indicates that New Lawrence incorporated in
Massachusetts in 1975 under the name New Lawrence, Inc., and changed its
corporate name to A.C. Lawrence Leather Co., Inc. on March 2, 1976.
44
APPENDIX B MAP
This map depicts a portion of the Paris, Maine property tax maps, with color and text
boxes added by the defendant in U.S. v. Conagra Grocery Products, Co., LLC, Case
No. 2:11-cv-455-NT (D. Me.). It is incorporated into the Court's order on the parties'
cross-motions for summary judgment solely to aid the reader in visualizing the
approximate locations of the lots and businesses referenced in this case. It does not
have any determinative or preclusive effect on matters to be decided in this case.
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