United States v. Conagra Grocery Products Co. (4 F. Supp. 3d 243, 2014)

United States District Court for the District of Maine 2014-03-12

Banks and Banking The Public Health and Welfare

Citations

Full opinion text

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

NANCY TORRESEN, District Judge.

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 ConA-gra’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 GRANTED in part and DENIED in part; and ConA-gra’s cross-motion for summary judgment is DENIED.

FACTUAL BACKGROUND

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 ¶48. 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 R2 (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 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 “dewa-tered” — i.e. solids settled and the water evaporated. PSMF ¶ 25. 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 dewa-tered 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 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. 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. (“Es-tech”). 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 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. 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.

In the meantime, the PUD Facility came under scrutiny from Maine’s Department of Environmental Protection (“MEDEP”) and from the EPA. 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. 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 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 ConA-gra 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 Es-tech.

ConAgra interposed a number of affirmative defenses to liability, including res judicata, issue preclusion, collateral estop-pel, and the law of the case. Affirmative Defenses ¶¶ 21-24 (ECF No. 8). These preclusion defenses are based on ConA-gra’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 Con-Agra’s liability and deals with ConAgra’s remaining liability defenses. 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

“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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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. 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 question, and the parties have not argued this issue in their pleadings. 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. 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 Li-mine 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

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, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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 ConA-gra 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 Mac-Phee’s first opinion states:

1. All the soils excavated by U.S. 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 sludge. 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.

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, 113 S.Ct. 2786. 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 F.3d 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

The Government moves for partial summary judgment on the question of ConA-gra’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 261 (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 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 successor-ship 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”), (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 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 CERC-LA

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, 118 S.Ct. 1876, 141 L.Ed.2d 43 (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, 118 S.Ct. 1876, or to the extent a traditional corporate veil-piercing analysis applies. Id. at 63, 118 S.Ct. 1876.

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 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 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 Es-tech “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 liability. 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 uncon-templated, contingent liability.

In Boyd, the First Circuit faced the question of whether parties to a pre-CERCLA asset sale transferred as-yet-unrealized CERCLA liabilities to the 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-yet-unrealized 1955-1973 CERCLA liability. Without further evidence, it is impossible to say that the parties intended for Estech to assume such liabilities. 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 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, Es-tech’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, 118 S.Ct. 1876.

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 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.

The Court pauses only to address ConA-gra’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, 2013 WL 2945058 (D.Me. Feb. 15, 2013) (“statement in an opposing party’s pleading qualifies as an admission, rendering it admissible 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 Sd § 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.

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 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. See Defs 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, 680-81 (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 Superi- or 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 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 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 pri- or 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 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 Government 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 cannot again be litigated between the same parties in any future lawsuit.’ ” Ramallo Bros. Printing, Inc. v. El Dio, Inc., 490 F.3d 86, 89-90 (1st Cir.2007) (quoting Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 25 L.Ed.2d 469 (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 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 defenses that it should be granted summary judgment on liability because it has established under 42 U.S.C. § 9607(b)(3) that the contamination was caused by “multiple third parties.” Defs 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 U.S.C. § 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 hable 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, ConA-gra’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 U.S.C. 9613(f), the Court should find 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. 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 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 be Considered Before Determining Liability

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, 129 S.Ct. 1870 (“[Apportionment 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(l)(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 ConA-gra 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. 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 “[pjrior EPA-directed actions at the overall facility,” Defs 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. ConA-gra’s cross-motion for summary judgment is DENIED.

SO ORDERED.

APPENDIX A

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 Androscog-gin 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. Grocery admits Plaintiffs Exs. N and O. However, Grocery denies the balance of Plaintiffs factual statement as follows:

All assets may not have been acquired. Plaintiffs 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 Plaintiffs 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. ConA-gra 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 AC. Lawrence Leather Company division to a group of the division’s management and employees, who separately incorporated the company as AC. 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 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-today 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. ConA-gra’s qualification is immaterial per the Court’s determination of ConAgra’s response to PSMF ¶ 4.

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 ConA-gra’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.

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 7k lbs of chromium.

CONAGRA’S RESPONSE: Denied. This broad statement is not supported by the record citation. Plaintiffs Ex. J, a Pilot Study prepared for Plaintiffs 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 Andros-coggin River.

Admitted

PSMF 25: The tanning waste then flowed into a series of unlined pits or lagoons.

Admitted

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 RESPONS