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UNITED STATES v. ATLAS MINERALS & CHEMS.

March 5, 1993

UNITED STATES OF AMERICA
v.
ATLAS MINERALS AND CHEMICALS, INC., et al. v. R. EMORY MABRY, et al.


Cahn


The opinion of the court was delivered by: EDWARD N. CAHN

MEMORANDUM

CAHN, J. March 5, 1993

 Garnet Electroplating Corporation has moved for summary judgment pursuant to Fed. R. Civ. P. 56(c). For the reasons set forth below, the court will grant the motion.

 I. BACKGROUND

 This case arises from the contamination of the Dorney Road Landfill ("the landfill"). In 1986, the Environmental Protection Agency instituted a removal action under 42 U.S.C. § 9604(a)(1) *fn1" and began the cleanup. In 1991, the United States filed suit against ten defendants, seeking to recover cleanup costs under 42 U.S.C. § 9607(a). The United States alleges that the defendants generated large quantities of hazardous waste that were disposed of at the landfill. In 1992, the defendants filed a third party complaint, alleging that several dozen third party defendants also generated or transported hazardous waste that was disposed of at the landfill. The third party plaintiffs ("plaintiffs") seek contribution for removal costs and anticipated remediation expenses. *fn2" Garnet Electroplating Corporation is one of the third party defendants.

 Plaintiffs allege that from 1969 until 1972, Garnet Chemical Corporation contracted for hazardous waste disposal with Reeser's Hauling Service, which dumped the waste at the landfill.

 Plaintiffs further allege that Garnet Electroplating Corporation is the successor to Garnet Chemical Corporation, and is therefore liable under 42 U.S.C. § 9607(a)(3). *fn3"

 II. SUMMARY JUDGMENT

 When considering a motion for summary judgment, the court must draw all justifiable inferences in favor of the non-moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Additionally, the court may not make credibility determinations or weigh the evidence. Id. at 252. If the record thus construed could not lead the trier of fact to find for the non-moving party, judgment should be entered in favor of the moving party. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 III. CORPORATE ORIGINS OF GARNET ELECTROPLATING

 The following facts are undisputed. Garnet Chemical was incorporated in Delaware in 1933 and dissolved on November 6, 1985. On August 5, 1985, Garnet Chemical sold virtually all its assets to Robert Williams. Williams paid $ 350,000 in cash for equipment, inventory, accounts receivable, real property, and good will. Garnet Chemical retained several parcels of real estate. There is no evidence that Williams had any relationship with Garnet Chemical before he began negotiations to purchase its assets. Williams assigned his rights to Lehigh Valley Plating and Chemical, Inc., a Pennsylvania corporation of which he and his wife were sole shareholders. On November 8, 1985, pursuant to terms of the asset sale, Lehigh Valley Plating assumed the corporate name of Garnet Chemical. On July 21, 1986, Garnet Chemical changed its name to Garnet Electroplating.

 Before the sale, Garnet Chemical was in the chemical and electroplating business. After the sale, Garnet Electroplating ceased the production of chemicals and devoted its resources to electroplating exclusively. *fn4" However, Garnet Electroplating continued to do business at the same Allentown production facility, and held itself out as the continuation of Garnet Chemical. In fact, most of its employees were former Garnet Chemical employees. As of this date, however, Garnet Electroplating is no longer doing business at the Allentown plant.

 IV. SUCCESSOR LIABILITY UNDER CERCLA

 CERCLA is silent as to whether successor liability may be imposed on corporate defendants. The Third Circuit Court of Appeals has held that "Congress intended to impose successor liability on corporations which either have merged with or have consolidated with a corporation that is a responsible party under the Act." Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86, 92 (3d Cir. 1988), cert. denied, 488 U.S. 1029, 102 L. Ed. 2d 969, 109 S. Ct. 837 (1989). The Smith court did not decide whether successor liability applies under CERCLA when a corporation sells its assets rather ...


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