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AVX Corp. v. Corning Inc.

United States District Court, E.D. North Carolina, Western Division

September 26, 2019

AVX CORPORATION, Plaintiff,
v.
CORNING INCORPORATED; COMPONENTS, INCORPORATED; CORNING INTERNATIONAL CORPORATION; CORNING SAS; CORNING LIMITED; and CORNING GMBH, Defendants.

          ORDER

          LOUISE W. FLANAGAN UNITED STATES DISTRICT JUDGE.

         This matter is before the court on the following motions:

         1) Plaintiff’s motion for summary judgment as to defendants’ counterclaims (DE 178).

         2) Defendants’ motion for summary judgment as to plaintiff’s twelfth and thirteenth claims for relief (DE 200).

         3) Plaintiff’s motion for summary judgment as to its claims for violations of the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), Unfair and Deceptive Trade Practices Act (“UDTPA”), and for negligent misrepresentation (DE 203).

         4) Motion for summary judgment by defendants Components, Incorporated; Corning International Corporation; Corning SAS; Corning Limited; and Corning Gmbh, on all claims remaining against them (DE 212).

         5) Plaintiff’s motion to exclude and to strike expert evidence, and for sanctions (DE 215).

         6) Defendants’ motions to exclude and to strike expert evidence (DE 217, 221, 224).

         7) Defendants’ motions to strike declarations and portions of statement of facts and appendix (DE 241, 258).

         8) Plaintiff’s motion to strike, to compel, and for sanctions (DE 246).

         These motions have been briefed fully, and in this posture the issues raised are ripe for ruling.

         STATEMENT OF THE CASE

         Plaintiff commenced this action on October 15, 2015, asserting claims for costs and damages, as well as declaratory and injunctive relief, associated with alleged environmental contamination on its property, formerly owned by defendant Corning Incorporated (“Corning”) between 1962 and 1987. Plaintiff purchased the Property in 1987 as part of a multi-party “Agreement of Purchase and Sale” (hereinafter “Purchase Agreement”), executed by defendant Corning and several entities affiliated with Corning who are also defendants in this matter (hereinafter, the “secondary defendants”).[1]

         Plaintiff filed its operative complaint, [2] on October 13, 2017. Upon the court’s dismissal of part of plaintiff’s claims, [3] the following claims therein remain for adjudication:

         1) CERCLA, 42 U.S.C. § 9607(a), for recovery of response costs (claim one);

         2) CERCLA, 42 U.S.C. § 9613(f), for contribution (claim two);

         3) Breach of contract (claim three);

         4) Federal law declaratory relief as to CERCLA liability (claims four and five);

         5) State law declaratory relief (claim eleven);

         6) UDTPA (in part) (claim twelve); and

         7) Negligent misrepresentation (in part) (claim thirteen).

         Defendants filed an answer and six counterclaims, on October 27, 2017, contending that plaintiff is responsible for additional environmental contamination on the Property, as follows:

         1) CERCLA cost recovery, contribution, and declaratory relief, claims under 42 U.S.C. §§ 9607(a)(1), 9613(f) and (g)(2) (first, second, and fourth counterclaims);

         2) Breach of contract / indemnification (third counterclaim);

         3) Federal law and state law declaratory relief (fifth and sixth counterclaims).

         Plaintiff filed the instant motion for summary judgment (DE 178) as to defendants’ counterclaims on October 10, 2018, relying upon a statement of facts and appendix, with exhibits, including the following categories of documents: 1) excerpts of depositions of current and former employees of plaintiff and defendant Corning, as well as consultants and contractors; 2) correspondence between the State of North Carolina (the “state”)[4] and defendant Corning and its consultants; 3) environmental investigation, inspection, testing, and remediation reports; 4) contracts and agreements between the parties; and 5) inventory forms, reports, and chemical product Material Safety Data Sheets (“MSDS”).

         In opposition thereto, defendants rely upon a responsive statement of facts and appendix, with exhibits including in part additional excerpts from the same evidence or categories of evidence on which plaintiff relies, in addition to 1) additional correspondence between plaintiff and a product manufacturer; 2) correspondence between plaintiff and potential purchasers of the Property and consultants; 3) excerpts of expert reports and depositions of experts, as well as declarations of experts, a corporate employee, and counsel. In reply, plaintiff relies upon a supplemental statement of facts and appendix, including a list of plant employees and additional deposition excerpts.

         Defendants filed the instant motion for summary judgment (DE 200) as to plaintiff’s twelfth and thirteenth claims (UDTPA and negligent misrepresentation) on February 7, 2019, relying upon a statement of facts and appendix, with exhibits, including additional excerpts from the same evidence or categories of evidence filed in conjunction with the preceding summary judgment motion, in addition to: 1) correspondence between the state and plaintiff; 2) state regulations and guidelines; 3) declarations of defendant Corning’s consultant, counsel, and former employee. In response, plaintiff relies upon a statement of facts and a third supplemental appendix containing additional deposition excerpts and email correspondence between defendant Corning’s counsel, consultants, employees, and plaintiff’s counsel and employees. Defendants replied in support of the motion.

         The secondary defendants filed their motion for summary judgment (DE 212) on February 7, 2019, seeking dismissal of all remaining claims against them, relying upon a statement of facts and appendix, with exhibits, including additional excerpts from the same evidence or categories of evidence filed in conjunction with the preceding summary judgment motions, in addition to: 1) deeds pertaining to the Property; and 2) excerpts of defendant Corning’s plant documents, filings, and correspondence from period of its ownership of the property. In opposition, plaintiff relies upon an opposing statement of facts and appendix, referencing exhibits previously filed, as well as additional deposition excerpts. Defendants replied in support of the motion.

         Plaintiff filed the instant motion for summary judgment (DE 203) in favor of its own claims for CERCLA relief, negligent misrepresentation, and UDTPA, relying upon a statement of facts and appendix, with exhibits, including additional excerpts from the same evidence or categories of evidence filed in conjunction with the preceding summary judgment motions, in addition to: 1) supplemental and rebuttal expert reports; 2) plaintiff’s responses to defendants’ discovery requests. In opposition, defendants rely upon a statement of facts and appendix, with exhibits including additional excerpts from the same evidence or categories of evidence filed in conjunction with the preceding summary judgment motions, in addition to Wake County Public Schools correspondence. In reply, plaintiff relies upon a fourth supplemental opposing statement of facts and appendix, referencing exhibits previously filed, as well as additional deposition excerpts and declaration of counsel.

         Also on February 7, 2019, the parties filed motions to exclude and to strike expert testimony and evidence. In plaintiff’s motion, it seeks to exclude expert testimony of defendants’ designated experts, Sylvia Mancini (“Mancini”) and David Duncklee (“Duncklee”), and it seeks sanctions striking all evidence and expert reports pertaining to Compound Specific Isotope Analysis (“CSIA”) and defendants’ counterclaims. In support of the motion, plaintiff relies upon 1) expert witness materials related to CSIA; 2) discovery responses, objections, and correspondence between counsel; 3) declaration of plaintiff’s environmental consultants, including Christopher Bonessi (“Bonessi”). In opposition, defendants rely upon two declarations of counsel, attaching exhibits related to 1) CSIA lab reports and expert analysis conducted by defendants; and 2) correspondence between the parties, counsel, and the court, regarding CSIA testing.

         In defendants’ motions, they seek to exclude portions of expert testimony and to strike portions of reports of Thomas Hutto (“Hutto”); R. Paul Philp (“Philp”); and Richard Royer (“Royer”). In support thereof, defendants rely upon excerpts of expert depositions and reports, as well as a declaration of defendants’ environmental consultant. In opposition, plaintiff relies upon additional expert background materials and deposition excerpts, as well state regulatory guidance.

         Defendants also filed the instant motion to strike declaration of Bonessi on March 7, 2019, relying upon additional expert witness exhibits. In opposition, plaintiff relies upon excerpts of expert witness materials, discovery materials, and correspondence between counsel. In conjunction with its opposition, plaintiff filed the instant motion to strike declarations, to compel, and for sanctions, on March 21, 2019, seeking to strike rebuttal expert declarations and attorney declarations filed by defendants. Defendants responded in opposition to plaintiff’s March 21, 2019, motion to strike, and plaintiff replied in support.

         On April 8, 2019, defendants filed the instant motion to strike plaintiff’s third supplemental statement of undisputed facts and appendix thereto and second declaration of Bonessi, which plaintiff filed in support of its summary judgment motion. Plaintiff responded in opposition, and defendants replied.

         Plaintiff filed a notice on May 10, 2019, attaching a state notice of violation sent to defendant Corning. With leave, defendants filed a response to the notice and plaintiff replied.

         STATEMENT OF THE FACTS

         The undisputed facts may be summarized as follows. From around 1962 to 1987, defendant Corning, then known as Corning Glass Works, owned and operated a manufacturing facility (the “plant”) at the property located at 3900 Electronics Drive in Raleigh, North Carolina (the “Property”). (Defs’ Resp. Stmt. (DE 195) ¶ 1).[5] Defendant Corning “used TCE at the Property during a period of its ownership of the Property.” (Id. ¶ 2). During this time, “contamination to soil and groundwater occurred in the vicinity of a dry well approximately 200 feet south” of the plant. (Id.).

         According to a 1986 “Material Safety Data Sheet” (“MSDS”) in plant files, TCE is also known as “Trichloroethylene, ” or “1, 1, 2-Trichloroethylene, ” among other trade names or chemical synonyms. (DE 182 at 246).[6] According to this MSDS, it is a “colorless, heavy, mobile liquid with a mild chloroform-like odor.” (Id.). Also according to this MSDS, TCE has several characteristics of “toxicity” including “mutagenic, ” “reproductive effects, ” “positive animal carcinogen, ” and “indefinite human carcinogen, ” as well as “skin irritant and a central nervous system depressant.” (Id. at 247-248).

         On September 5, 1987, plaintiff, which is a Delaware corporation with principal place of business in South Carolina, entered into the Purchase Agreement, which provides terms for the sale of certain properties and assets of defendant Corning and the secondary defendants, including the Property, to plaintiff. (Purchase Agreement, p.1 & § 2.1 (DE 181 at 318, 323-324)).[7] The Purchase Agreement includes the following provision regarding “Liabilities to be Retained, ” stating, in pertinent part as follows:

         The Corning Parties[8] shall retain, and shall be responsible for paying and satisfying the following liabilities and obligations (the ‘Retained Liabilities’):

***
(d) In connection with the operation of the Corning Electronics Business and the Assets, [9] all liabilities for violations of environmental laws . . . applicable to such operation, which violations existed, or are based upon conditions that existed, prior to the Closing Date[10] and to the extent such violations are not attributable to or otherwise adversely affected by either of the Purchasers’ actions.

(Id. § 3.3 (DE 181 at 332-333). The Purchase Agreement also provides for “Indemnification” by defendant Corning to plaintiff “from and against any and all claims, liabilities, losses, damages, costs and expenses, including reasonable counsel fees . . . arising out of, or relating to . . . any Retained Liabilities.” (Id. § 12.1 (DE 181 at 360)).

         In 1987, “during due diligence to acquire the Property then being operated by Corning, [plaintiff] sent an environmental consultant, Mary Elizabeth Ford (‘Ford’), to conduct an environmental audit.” (Defs Resp. Stmt. (DE 195) ¶ 24). “Ford was employed as an in-house environmental consultant by Nixon Hargrave[, ] [plaintiff’s] New York law firm.” (Id. ¶ 25). In a November 5, 1987, “Office Memorandum, ” (the “Ford Memo”), Ford summarized results of a “soil vapor survey” conducted by another consulting firm, “H&A, ” including the following observations:

[1] During testing in the vicinity of the dry well near the chemical storage building, [11] a significant amount of contamination was detected. While a number of compounds were observed, the most significant appear to be chlorinated solvents. One of the compound peaks had a retention time (which is the way a compound’s identity is determined) very similar to trichloroethene [sic] (‘TCE’) although, it is possible that it may be freon or both TCE and [f]reon. Levels near the dry well taken from the surface were generally in the range of 800 ppb to 1, 000 ppb (1 ppm).
[2] The ‘dry well’ was later pulled out of the ground by a backhoe. The dry well consisted of a concrete pipe approximately 8 inches in diameter and about 4 feet long. The area around and beneath the dry well were also excavated. Based upon this excavation, there is no indication that there ever had been any ‘floor’ to the dry well. The soil immediately below the dry well had a red clayey appearance, although it also had gravel and other material in it so it was not purely clay. The removed soils had a very strong odor, easily detected from one hundred feet away. A soil vapor probe hole was placed in the bottom of the excavation (hence the sampling depth was approximately 6-8 feet below ground level. The soil vapor reading indicated approximately 80-100 parts per million (80, 000-100, 000 ppb) of one or more chlorinated solvents.
[3] Upon learning that one of the higher concentration compounds “looked” very similar to TCE, I questioned plant personnel further and learned that TCE had been used in a small vapor degreaser operation from approximately 1965 to 1972. I spoke with Clark Wormer, shift foreman for the resistor line (where two small TCE vapor degreasers were located) during this timeframe. He had no recollection of how often the degreasers were used, how often they were cleaned out, or what was done to the material that was removed from the degreaser. In all the other samples we did on the property, however, we saw no other indications of any significant TCE contamination.
[4] Since the area that appeared to [the] ‘upgradient’ of the dry well had higher surficial readings than the area ‘downgradient’ of the dry well, I questioned plant personnel further as to possible explanations. I learned that, some time ago, ‘empty’ drums were stored on a concrete pad on the east side of the chemical storage building until they were sent off-site for disposal. Since the ‘triangular’ fingerprint of contamination in this area extends back to the pad and the building, it is a safe assumption that at least some of the contamination we detected was due to runoff from this concrete pad and former drum storage area, as well as from the former dry well.
[5] While we were able to generally determine the surficial area impacted, the deeper soils apparently have higher levels of contamination than do the shallower soils and thus the overall size of the impacted area may be much larger than the triangular pattern identified during the soil gas survey. Likewise it is impossible at the juncture to gauge how deep the contamination goes or whether (and in what levels) it has reached the underlying ground water (judged to be approximately 20 feet or deeper beneath ground surface near the former drywell).

(DE 182 at 229-235).

         On November 10, 1987, on or near the time of closing on the sale of the Property, plaintiff and defendant Corning entered into a letter agreement (“Letter Agreement”) “to confirm and amplify the respective rights and obligations of [defendant] Corning and [plaintiff] under the [Purchase Agreement, ” including in reference to “the possibility that certain sites located on the [Property] as identified” on a “Schedule A” thereto, in pertinent part “[t]he area in the vicinity of a certain dry well near a chemical storage building on the [Property].” (DE 181 at 380, 383). Therein, defendant Corning “agrees to effect all remedial measures required by law or regulation with respect to” circumstances described in the Letter Agreement, and provides additional terms for indemnification in conjunction with § 12.7 of the Purchase Agreement. (Id. at 381).

         In a November 1987 pollution incident reporting form, the state noted that “[a]n injection well (concrete sump) tied to floor drains in virgin solvent storage shed was discovered during an environmental audit; preliminary soil sample analysis indicates high concentrations of chlorinated hydrocarbons.” (DE 181 at 452). It also noted that as of November 16, 1987, “concrete casing has been removed [from the dry well] and soil gas survey has been initiated; will begin soil removal and investigation.” (Id. at 454). It also included a site map of the incident area. (Id. at 455; see Order Appendix 1). In a November 25, 1987, letter to defendant Corning, the state requested that defendant Corning “initiate steps to mitigate this incident . . . includ[ing] determining the vertical and areal extent of any soil and groundwater contamination.” (DE 181 at 61).

         In a December 7, 1987, report, H&A summarized results of its “soil vapor investigation, ” noting that “[s]ampling was conducted by advancing a small diameter probe 2 to 3 ft. below the ground surface . . . to obtain a small volume of soil vapor.” (DE 196 at 7). “Sampling at increasing distances from the drywell/chemical storage building down the drainage swale to the south showed consistently decreasing levels of . . . TCE.” (DE 196 at 8). In addition, H&A noted, “[o]f the several other areas on the site tested none appeared to show significantly elevated concentrations of volatile organic compounds, ” such as TCE. (Id.). The report included a list of sample readings, as well as a map showing the location of samples taken. (Id. at 10-11; see Order Appendix 3). A Nixon, Hargrave “Report on the Preacquisition Environmental Audits” noted that “other than [this] soil gas survey limited to areas having some indications of contamination, no soil or water testing was conducted.” (Nixon, Hargrave, Devans & Doyle, Report of Pre-acquisition Audit (DE 182 at 283)).

         A March 2, 1989, Law Environmental, Inc., report submitted to defendant Corning provided initial “data and information for hydrogeological characterization” for the Property. (DE 181 at 31). It provides information on three “ground-water monitoring wells” that were constructed in January 1989 “to monitor for industrial solvents in ground-water, ” with a map showing the locations of the monitoring wells denominated “MW-1, ” which is upgradient of both the chemical storage building and the dry well, and “MW-2” and “MW-3”, which are “downgradient.” (DE 181 at 36, 41, 42, 56; see Order Appendix 4). It also provides information on levels of TCE detected at each of the monitoring wells, including “MW-1.” (DE 181 at 37-38, 42, 46-48, 50-52, 56).

         A June 14, 1989, Law Environmental, Inc., report submitted to defendant Corning stated that 537.8 tons of “contaminated soil” were removed from the vicinity of the former dry well between May 8, 1989, and May 16, 1989, and that “soils remain that exceed [state] concentration levels for volatile organics.” (DE 201-2). The state suggested in August 3, 1989, letter to defendant Corning that concerns remained “that the residual levels of contamination may provide a continuing release to the groundwater, ” and “[t]his may require Corning to provide an impermeable cap to reduce migration and a groundwater recovery system.” (DE 201-3 at 2).

         In accordance with a “Remedial Action Plan, ” dated September 25, 1991, defendant Corning began remediation of groundwater at the Property in 1992, operating a “pump and treat system” continuously from that date through November, 2008, with a suspension from July 1996 to January 1997. (DE 201-4 at 6; 201-4 at 27). In 1993 defendant Corning leased from plaintiff for $1 per year a portion of the property (the “Outparcel”) to enable it to install and operate the pump and treat system. (DE 206 at 35-37, 77; see Order Appendix 5 (showing Outparcel as “Site Boundary”). On June 11, 2012, AMEC submitted a report to defendant Corning stating that “Corning/AVX opted to stop operation of the full time pump and treat groundwater remediation system in anticipation of entering the [REC] Program.” (DE 201-4 at 27).

         On June 28, 2012, AMEC submitted a “Data Gap and Remediation Strategy” report to defendant Corning (hereinafter, the “Data Gap Report”) that contained the following conclusions about the need for further assessment of contamination:

[1] Based on the data obtained, additional assessment is required to delineate the vertical and lateral extent of the [subject contaminants] in the [specified groundwater] zones, as well as to determine the horizontal limit of impact in the shallow saprolite aquifer. In addition, it needs to be determined if the [subject contaminants] have migrated off the property and if the concentrations of [subject contaminants] present a vapor intrusion threat to the residential properties to the east. . . . Additional surface water testing is necessary off-site to determine concentrations in the surface water in the residential areas.
[2] The soil data collected as part of this data gap evaluation demonstrated that minor concentrations of [subject contaminants] remain in the former excavation area. . . .
[3] A vertical downward groundwater flow gradient was measured in deep saprolite to [specified groundwater] wells and deeper into bedrock. This indicates that contamination is being transported deeper. The vertical extent of the [subject contaminants] impact has not been defined. Horizontal groundwater movement in shallow and deep saprolite zones indicate groundwater to surface water pathways are present and that off-site groundwater impact is highly possible with vapor intrusion issues yet to be evaluated that could impact off-site residents. . . .
[4] The remediation strategy and cost evaluation was based on the incomplete vertical and horizontal definition of the groundwater plume. Soil remediation was determined to not be a major factor in selection of a remediation technology for the site, unless additional source areas are found at a later date. . . .
[5] The groundwater site pump and treat system should be operated in a limited capacity to further detain plume movement off site until a permanent treatment solution is implemented, or until it is known that no off-site impacts to human health are present (i.e., via surface water exposure, vapor intrusion, etc.).
[6] The site should be moved into the [REC] program to complete [remedial investigation] activities and begin remedial activities. The [remedial investigation] activities should be completed to confirm there is no threat to nearby residences either due to the intrusion of vapors, or exposure to impacted surface water. Prior to implementation of any remediation strategy, the extent of impact must be defined in groundwater. . . .

(DE 181 at 488-489). Around that time, “[t]he decision was made to not enter the [REC] Program and to repair and reactivate the remediation system, ” which was reactivated in March 2013. (DE 201-4 at 49). Also in 2013, plaintiff ceased manufacturing operations at the plant and closed the plant. (Himberger Dep. 7).[12]

         On September 12, 2013, the state sent defendant Corning a “Notice of Regulatory Requirements for Contaminant Assessment and Cleanup, ” which stated:

To comply with the requirements of State law, a Site Cleanup Questionnaire . . . must be completed and returned to this office. The information you provide will be reviewed along with other information to prioritize the site, so please make certain that the information you provide is complete and accurate.

(Defs’ App’x (DE 206) 689-690). It further stated:

[P]ersons who move forward to assess and remediate contamination, without being compelled to do so through formal legal action filed against them, are called ‘volunteers.’ To participate in the voluntary cleanup program, you will be required to enter into an administrative agreement with [the state]. The voluntary cleanup will proceed through the [REC Program] or under direct oversight by the [state agency].

(Id. at 690). It then described the REC program as follows:

The [state] has a privatized oversight arm of the voluntary cleanup program known as the Registered Environmental Consultant (‘REC’) program. Based on the responses provided on the questionnaire (degree of hazard and public interest in the site), the [state] will determine whether a staff person or an REC will perform the oversight and approval of your assessment and cleanup action. Please note that having one or more of the conditions identified on the questionnaire does not necessarily preclude the site for qualifying for an REC-directed cleanup action.

(Id. at 690-691).

         In response to this state directive, defendant Corning sent the state a “Site Cleanup Questionnaire Response” (hereinafter the “REC Program Questionnaire Response”), which contained the following responses to seven questions posed:

[1] “Are site surface soils known to be contaminated? - NO”
[2] “Is site sediment or surface water known to be contaminated? - NO”
[3] “Are hazardous vapors, air emissions or contaminated dust migrating into occupied residential, commercial or industrial areas? If yes, or unknown, please explain on separate page. – NO”
[4] “Have hazardous substances known to have migrated off property at concentrations in excess of [state] unrestricted-use remediation goals? If yes, or unknown, please explain on a separate page. – NO”
[5] “Has the local community expressed concerns about contamination at the site? – NO”
[6] “Based on current information, are there any sensitive environments located on the property? If yes, or unknown, please explain on a separate page. – NO”
[6] “Based on current information, has contamination from the site migrated into any sensitive environments? If yes, or unknown, please explain on a separate page. – NO”

(Pl’s Stmt. of Facts (DE 234) ¶ 26; see Defs’ App’x (DE 206) 702-704)).

         On or about March 10, 2014, the state sent Corning a “Notice of REC Program Eligibility, ” which stated, in part:

Thank you for submitting the Site Cleanup Questionnaire (Questionnaire) for the above subject site (Site) and the follow-up Report of 4th Quarter Groundwater Monitoring 2013 prepared by AMEC Environment & Infrastructure, Inc. The Inactive Hazardous Sites Branch (Branch) has completed review of the Questionnaire and determined that the Site can be cleaned up through the Registered Environmental Consultant (REC) Program without direct oversight by Branch Staff. Only the sites with the highest risks receive direct oversight by state staff.

(Pl’s Stmt. of Facts (DE 234) ¶ 43; Defs’ App’x (DE 206) 735-36). On October 8, 2015, defendant Corning entered into a REC Program Administrative Agreement with the state. (Pl’s Stmt. of Facts (DE 234) ¶ 44; Defs’ App’x (DE 207) 1156-73).

         In or about March 2016, plaintiff demolished the plant building, but not the concrete slab underlying the building. (See Duncklee Decl. ¶ 3 (DE 199 at 263)). On June 2, 2016, the state noted in letter to plaintiff that the United States Environmental Protection Agency (“EPA”) had informed the state of plaintiff’s anticipated “demolition and redevelopment activities” at the Property. (DE 198 at 229). The letter encouraged plaintiff “to perform a thorough environmental assessment prior to conducting any future demolition or redevelopment activities at the [Property] to determine current site conditions.” (Id.). The letter stated that a “thorough assessment of the [Property] is critical . . . to ensure that . . . activities conducted on [the Property] do not cause any contaminants to migrate off-property or to areas of the [Property] not previously impacted.” (Id.). The letter also recommended that plaintiff “consider undertaking a voluntary cleanup action to address any contaminated areas not currently being addressed by [defendant] Corning” under the REC Program. (Id.).

         In a June 2, 2016, email, the EPA questioned whether “[e]xposing source areas (if there are any) under the slab could potentially cause impacts to the stream and/or change the TCE plume in the groundwater?” (DE 198 at 231). In a June 22, 2016 email, the EPA noted that “[t]he reports that [plaintiff] provided do[] not demonstrate that the sub-slab area of the building has been thoroughly assessed, ” and it reiterated “concern for potential source areas of chlorinated solvents that may exist under the slab.” (DE 198 at 234). It further “strongly encourage[d]” plaintiff to enter the REC program, and it cautioned against “removal of the slab prior to a thorough assessment . . . as it could exasperate [sic] a problem.” (Id.).

         In July 2016, plaintiff’s consultant, Arcadis, concluded that it “believes that removal of the slab before assessment of the sub-slab soil is both a technically sound and preferred approach.” (DE 182 at 331). Plaintiff removed the concrete slab for the main floor and basement in October and November 2016. (DE 198 at 257). According to Arcadis, soil samples taken after slab removal detected “TCE, primarily in the western half of the basement area.” (Id. 259). Plaintiff also excavated soil in the area where a “blue-green substance was identified below the concrete slab on the western side of the main floor.” (Id. at 257). The removal of slab and excavation of soil left a exposed basin that filled with rainwater during April 2017. (DE 198 at 291).

         On November 9, 2017, the state issued an enforcement order that determined that defendant Corning’s REC Program Questionnaire Response included several misrepresentations. Where the response indicated that “surface water was not known to be contaminated, ” this was not true because Registered Site Manager (“RSM”), Daniel Shields, was aware of “documented surface water contamination.” (DE 182 at 15). Where, the response answered “no” to the question “Have hazardous substances known to have migrated off property . . . ?” this was not true because the RSM was aware of “documented . . . groundwater quality exceedances” at the property and such “groundwater was flowing toward the property boundary.” (DE 182 at 16).

         In October 2018, defendant Corning’s REC Program engineer, Wood Environmental & Infrastructure Solutions, Inc. (“Wood”), prepared a remedial investigation report pertaining to a 9.63-acre portion of the Property that is subject of the REC Program Administrative Agreement (the “AA-Site”). According to the Wood report “[a]lthough the AA-Site conditions are well defined and understood, extensive data . . . document that other source areas of volatile organic compounds (VOCs) and other [contaminants of concern] are present in the soil and groundwater under and about the footprint of the former [plant] located to the north of the AA-Site.” (DE 199 at 11). It also noted that “without [the state’s] assistance to require [plaintiff] to address its upgradient source areas beneath the [former plant], Corning will not be able to fully remediate subsurface [contaminants of concern] impacts at the AA-Site.” (Id.).

         On May 10, 2019, the state issued a notice of violation to defendant Corning based upon the statements in the REC Program Questionnaire Response as detailed in prior enforcement orders, stating: “Corning made false statement(s), representations or certifications in violation” of REC Program rules. (DE 263-1 at 1-2).

         Additional facts pertinent to each of the claims are set forth in the analysis below.

         COURT’S DISCUSSION

         A. Standard of Review

         Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         Once the moving party has met its burden, the non-moving party must then “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (internal quotation omitted). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (holding that a factual dispute is “material” only if it might ...


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