                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-2252


OLIN CORPORATION,

                Plaintiff - Appellee,

           v.

P.H. GLATFELTER COMPANY, a/k/a Glatfelter, d/b/a Glatfelter
Company,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:06-cv-00367-LHT)


Argued:   December 2, 2009                     Decided:    March 5, 2010


Before TRAXLER,     Chief   Judge,   and   SHEDD   and   DAVIS,   Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Adam Howard Charnes, KILPATRICK & STOCKTON, LLP,
Winston-Salem, North Carolina, for Appellant.    Craig C. Martin,
JENNER & BLOCK, Chicago, Illinois, for Appellee.        ON BRIEF:
Betsy Cooke, Stephen R. Berlin, KILPATRICK & STOCKTON, LLP,
Raleigh, North Carolina, for Appellant.      Philip S. Anderson,
LONG, PARKER, WARREN, ANDERSON & PAYNE, PA, Asheville, North
Carolina; Barry Levenstam, Amanda S. Amert, Melissa L. Dickey,
JENNER & BLOCK, Chicago, Illinois, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

      This appeal arises from a declaratory judgment/breach of

contract     action        with     respect        to   a     contractual       indemnity

provision. We affirm.

      Appellee      Olin     Corporation          (“Olin”)    purchased       the   Ecusta

Paper Mill in Pisgah Forest, North Carolina in 1949. Over the

years    thereafter,        Olin    disposed       of   waste      products    containing

mercury,     which     resulted       from        certain     of    its     manufacturing

processes,     both    on-site       and     in    wastewater        that    flowed     onto

nearby property. In 1973, the Environmental Protection Agency

pressed regulatory actions intended to require Olin to address

and/or reduce its discharge of mercury. In part as a result,

Olin ceased the extant manufacturing processes and substituted

purchased chemicals.

      In    1985,     senior       officers        of   Olin’s       Ecusta     Division,

including     Garza     Baldwin       (President),          Robert    Cunningham,       Jr.

(Chief Legal Officer and Vice President of Human Resources and

Public     Affairs),    and       Robert    Gussman     (Environmental         Director),

together with several investors, purchased the Ecusta Mill from

Olin, forming Ecusta Corporation. Olin acquired an interest in

the     newly-formed        entity     but        did   not        involve     itself    in

operations.         Baldwin,         Cunningham,            and      Gussman        assumed

substantially         the     same         leadership        positions        in    Ecusta

Corporation as they had held in the Ecusta Division of Olin. In

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1987, Appellant P.H. Glatfelter Company (“Glatfelter”) acquired

the Ecusta Corporation through a stock purchase transaction, in

which     Glatfelter        assumed    certain          of    Ecusta       Corporation’s

liabilities.        Baldwin      remained   involved          in    the    business       and

served      on    Glatfelter’s      Board       of   Directors.        Cunningham         and

Gussman     remained       involved   as    well,       and    served      in    the    same

capacities in which they served for Ecusta Division and Ecusta

Corporation.

      The        contractual      rights    and      obligations          of     Olin     and

Glatfelter are governed by a July 24, 1985, Purchase Agreement

(“the Agreement”). The Agreement provides that Glatfelter (as

successor-in-interest to Ecusta Corporation) must indemnify Olin

for      certain      environmental         liabilities            under        prescribed

circumstances.        As    constituent         parts    of    the     Agreement,         the

representations and warranties of Olin’s officers, and the so-

called      Environmental        Disclosure      Statement         (“EDS”)      underscore

Olin’s    obligations       in    divulging      the    existence         of    mercury    at

Ecusta Mill to Glatfelter. (The mill property has changed hands

several times in the last decade.)

        On or about January 23, 2006, the North Carolina Department

of Environment and Natural Resources (“NCDENR”) notified Olin

and Glatfelter (among others) that it planned to take action

concerning        Ecusta   Mill    under    the      Comprehensive         Environmental

Response, Compensation, and Liability Act, 42 U.S.C. § 9601, et

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seq. (“CERCLA”). The NCDENR notice identified five Recognized

Environmental        Concerns      (“RECs”)         at     Ecusta      Mill    that       would

require clean-up. Pursuant to the Agreement, Glatfelter agreed

to indemnify Olin with respect to four of the five RECs. It

refused to indemnify Olin for the costs related to remediation

of    mercury   contamination            released          from     the     Ecusta    Mill’s

Electro-Chemical Building.

      Thereafter,      Olin       sued    Glatfelter         in     the     United    States

District     Court    for   the     Western         District      of      North    Carolina.

After several preliminary matters had been attended to by the

court and the completion of discovery, Olin moved for summary

judgment.

      The district court issued a carefully-reasoned memorandum

opinion in which it granted summary judgment to Olin. Olin Corp.

v.    P.H.   Glatfelter       Co.,       No.       1:06CV367,        2008     WL     4596262,

(W.D.N.C.    Oct.     14,   2008).       The       court    first      determined,        inter

alia, that, as to Olin’s request for a declaratory judgment, the

EDS    specifically         and     unambiguously             “refer[red]”           to     the

“disposition” of mercury. Id. at *6-8.                      Moreover, “the Agreement

with its accompanying EDS obligated [Glatfelter] to indemnify

Olin for the costs of cleanup described in RECs 1 and 5.”                                   Id.

at    *8-10.    Second,         the      district           court      determined          that

Glatfelter’s           counterclaims                 for          fraud,           negligent



                                               5
misrepresentation, and unfair and deceptive trade practices were

time-barred.       Id. at *10-11.

     Glatfelter noted its timely appeal to this court. We review

the district court's grant of summary judgment de novo.                             Meson

v. GATX Tech. Servs. Corp., 507 F.3d 803, 806 (4th Cir. 2007)

(citation omitted). Summary judgment is proper only where “there

is no genuine issue as to any material fact” and the moving

party    is   “entitled      to   judgment     as    a     matter    of    law.”        Id.

(citation omitted).

     By   its      terms,   the    Agreement     would      “be    governed       by,   and

construed     in    accordance     with,   the      laws    of     the    State   of    New

York.”    (J.A. 688). We discern no error by the district court in

its summary judgment order.

     First,        “[i]t    is    the   primary      rule     of    construction         of

contracts . . . that when the terms of a written contract are

clear and unambiguous, the intent of the parties must be found

therein.”     Mazzola v. County of Suffolk, 533 N.Y.S.2d 297, 297

(N.Y. App. Div. 1988) (internal quotation marks and citation

omitted).     “The words and phrases used in an agreement must be

given their plain meaning so as to define the rights of the

parties.”       Id. (citation omitted).              Here, the terms “referred

to” and “disposition” have plain and unambiguous meanings, and

the disposition of mercury is referred to throughout the EDS.



                                           6
       Second, under New York's policy of strict interpretation of

indemnification          clauses,     a     court      must     examine           whether

Glatfelter’s intention to indemnify “can be clearly implied from

the    language    and     purpose    of    the     entire    agreement       and       the

surrounding facts and circumstances.” Hooper Assocs., Ltd. v.

AGS Computers, Inc., 74 N.Y.2d 487, 491-92 (1989). That test is

satisfied here. For example, Baldwin, Cunningham, and Gussman

were     aware     of     issues     regarding        Ecusta        Mill’s        mercury

contamination. Accordingly, their subsequent employers, Ecusta

Corporation and then Glatfelter, of which they were high-ranking

officers, are charged with such knowledge and thus also were

aware that the EDS “referred to” the disposition of mercury.

J.A.   2642-43.     Accordingly,      Glatfelter       was     on    notice       of    the

mercury disposal.         Cf. United States v. Hooker Chems. & Plastics

Corp.,    850    F.Supp.    993,     1059       (W.D.N.Y.    1994)    (noting          that

“[e]ven for latent defects, the seller’s duty terminated when a

new owner discovered or should reasonably have discovered and

had a reasonable opportunity to abate the condition”).

       Third,     under     North     Carolina       law,      Glatfelter’s            tort

counterclaims are time-barred because it reasonably should have

been aware of the disposition of the mercury years before it

decided   to     bring    its   claims.     See,    e.g.,     Sullivan       v.   Mebane

Packaging Group, Inc., 158 N.C. App. 19, 28 (2003) (noting that

we have held that knowledge of information should be imputed to

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investors   who   possess      documents   apprising   them     of   the   risks

associated with the investments).

     In   sum,    upon   our    careful    consideration   of    the   record,

briefs, oral argument by the parties, and applicable law, we

affirm on the basis of the opinion of the district court. Olin

Corp. v. P.H. Glatfelter Co., No. 1:06CV367, 2008 WL 4596262,

(W.D.N.C. Oct. 14, 2008).

                                                                       AFFIRMED




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