7/15/2023 0 Comments Hexio level 37![]() These violations indicate that the POTW Wastewater Facility is underdesigned and as a result, sustained operation of the POTW Wastewater Facility at its maximum design capacity will result in failure to comply with the relevant NPDES permits. Since acquiring the Business, Hexion has received notices from Columbus County that the POTW Wastewater Facility has had persistent ammonia and biological oxygen demand violations since it began operation. OakBark was responsible for the design ofthe POTW Wastewater Facility. ![]() A publicly owned treatment works wastewater facility ("POTW Wastewater Facility" as defined in the Agreement) supports the operation of the Business. Hexion contends in its amended complaint that: 10. 1 Hexion's first claim relates to the treatment ofthe plant's wastewater, which is a byproduct of the plant's chemical manufacturing process. Hexion's amended complaint describes three specific breaches. OnJanuary 19,2010, Hexion (with OakBarks's consent and this court's approval) filed an amended complaint. On October 2, 2009, this court entered a scheduling order. OakBark refused indemnification, and Hexion filed this action on July 1, 2009, alleging breach of warranty. On March 12, 2009, Hexion demanded indemnification pursuant to section 11.2 of the APA. 2 After the sale, Hexion encountered various problems in the plant. or any other certificate, document, writing or instrument delivered by pursuant to. ![]() The purpose of the escrow account was to provide indemnification to Hexion for any damages suffered as a result of, inter "any breach of any representation or warranty made by in. The sale was consummated with a detailed asset purchase agreement, in which OakBark agreed to place $3 million ofthe purchase money in an escrow account for a period of3 years. After the sale, OakBark retained assets and operations on the site, leaving OakBark and Hexion to coexist at the plant. ![]() At the plant, OakBark and the preceding owner, Wright Chemical Corporation, produced various chemicals, including formaldehyde, hexamine, and ketone. On November 21,2006, Hexion agreed to purchase most of the assets and operations at OakBark's chemical manufacturing plant located in Columbus County, North Carolina (hereinafter "plant"). Hexion and OakBark are competitors in the chemical manufacturing industry. When considering crossmotions for summary judgment, a court evaluates each motion using the standard set forth above. The court views the evidence and the inferences drawn therefrom in the light most favorable to the nonmoving party. A genuine dispute about a material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. After the moving party has met this burden, the nonmoving party "must come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. The moving party bears the initial burden ofdemonstrating the absence ofa genuine issue of material fact. Summary j udgment is proper when ''the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. As explained below, the court grants OakBark's motion for summary judgment and denies Hexion's motion for partial summary judgment. On October 22 and 25,2010, Hexion and OakBark replied. On October 12,2010, Hexionand OakBark filed responses. OakBark seeks summary j udgment on Hexion's warranty claims j, and Hexion seeks partial summary judgment as to liability on the warranty claims. On September 20, 2010, the parties filed crossmotions for summary udgment. Hexion seeks approximately $2.7 million in damages. ("plaintiff" or "Hexion") sued OakBark Corporation ("defendant" or "OakBark") alleging breach of warranty concerning a 2006 asset purchase agreement ("AP ") in which Hexion purchased most ofthe assets and operations ofOakA Bark's chemical manufacturing plant in Columbus County, North Carolina Hexion contends that OakBark breached certain warranties in the APA concerning (1) wastewater treatment (2) the level of combustible dust at the plant and (3) one of the plant's ammonia storage tanks. ORDER ) ) ) ) On July 1,2009, Hexion Speciality Chemicals, Inc. 82 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTII CAROLINA SOUTHERN DIVISION No.7:09CVI05D HEXION SPECIALTY CHEMICALS, INC., ) ) Plaintiff, ) ) ) OAKBARK CORPORATION, Defendant.
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