NJ Turnpike Authority v. PPG Industries Inc., S.F. COMPANY

• Citation: 197 F.3d 96
• Decision Date: 22 November 1999
• Docket Number: No. 98-6309,ALLIED-SIGNA,S.F. COMPANY,OXY-DIAMOND,INC,98-6309
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Parties: (3rd Cir. 1999) NEW JERSEY TURNPIKE AUTHORITY, APPELLANT v. PPG INDUSTRIES, INC; NATURAL PRODUCTS REFINING COMPANY; F.;; MUTUAL CHEMICAL COMPANY OF AMERICA; OCCIDENTAL CHEMICAL CORPORATION; MAXUS ENERGY CORPORATION; OCCIDENTAL PETROLEUM CORPORATION;ALKALI CORPORATION; CHEMICAL LAND HOLDINGS, INC.; MARTIN DENNIS COMPANY; GEORGE M. BREWSTER & SONS, INC.; FELHABER CORPORATION; MOHAWK CONSTRUCTORS, INC.; MOHAWK CONSTRUCTORS II, INC.; REID CONTRACTING COMPANY, INC.; KLEVENS CORPORATION; HORN CONSTRUCTION COMPANY, INC.; NEW JERSEY MANUFACTURERS INSURANCE COMPANY; THE TRAVELERS INSURANCE COMPANY; UNITED STATES FIDELITY GUARANTY COMPANY; AMERICAN MUTUAL LIABILITY INSURANCE COMPANY; JOHN DOE GENERATORS; JOHN DOE OPERATORS; JOHN DOE OWNERS; JOHN DOE TRANSPORTERS; JOHN DOE AFFILIATES

Page 96

197 F.3d 96 (3rd Cir. 1999)

NEW JERSEY TURNPIKE AUTHORITY, APPELLANT v. PPG INDUSTRIES, INC; NATURAL PRODUCTS REFINING COMPANY; F.S.F. COMPANY; ALLIED-SIGNAL, INC; MUTUAL CHEMICAL COMPANY OF AMERICA; OCCIDENTAL CHEMICAL CORPORATION; MAXUS ENERGY CORPORATION; OCCIDENTAL PETROLEUM CORPORATION; OXY-DIAMOND ALKALI CORPORATION; CHEMICAL LAND HOLDINGS, INC.; MARTIN DENNIS COMPANY; GEORGE M. BREWSTER & SONS, INC.; FELHABER CORPORATION; MOHAWK CONSTRUCTORS, INC.; MOHAWK CONSTRUCTORS II, INC.; REID CONTRACTING COMPANY, INC.; KLEVENS CORPORATION; HORN CONSTRUCTION COMPANY, INC.; NEW JERSEY MANUFACTURERS INSURANCE COMPANY; THE TRAVELERS INSURANCE COMPANY; UNITED STATES FIDELITY GUARANTY COMPANY; AMERICAN MUTUAL LIABILITY INSURANCE COMPANY; JOHN DOE GENERATORS; JOHN DOE OPERATORS; JOHN DOE OWNERS; JOHN DOE TRANSPORTERS; JOHN DOE AFFILIATES

No. 98-6309

U.S. Court of Appeals, Third Circuit

Argued July 13, 1999

Decided November 22, 1999

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Docket No. 93-cv-02037) District Court Judge: Honorable John W. Bissell

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Ross A. Lewin, Esq. (argued) Jamieson, Moore, Peskin & Spicer, P.C., 300 Alexander Park Princeton, NJ 08543-5276

Warren B. Kasdan, Esq. Schwartz, Tobia, Stanziale, Rosensweig & Sedita, P.A. 22 Crestmont Road Montclair, NJ 07042 Attorneys for New Jersey Turnpike Authority

George E. McGrann, Esq. (argued) Sweeney, Metz, Fox, McGrann & Schermer, L.L.C., 11 Stanwix Street Pittsburgh, PA 15222 Joseph F. Lagrotteria, Esq. St. John & Wayne Two Penn Plaza East Newark, NJ 07105 Attorneys for Ppg Industries, Inc.

David W. Field, Esq. (argued) Lowenstein Sandler PC 65 Livingston Avenue Roseland, NJ 07068 Attorneys for Allied-Signal, Inc.

Thomas E. Starnes, Esq. (argued) Andrews & Kurth, L.L.P. 1701 Pennsylvania Ave., N.W. Suite 200 Washington, D.C. 20006

Lori A. Mills, Esq. William L. Warren, Esq. Drinker, Biddle, & Reath, L.L.P. 105 College Road East, P.O. Box 627 Princeton, NJ 08542-0627 Attorneys for Occidental Chemical Corporation and Maxus Corporation

Before: Becker, Chief Judge, Roth, and Rendell, Circuit Judges

OPINION OF THE COURT

Rendell, Circuit Judge.

In this CERCLA and Spill Act case, the appellant, the New Jersey Turnpike Authority ("Turnpike") seeks to hold the appellees liable for contribution for the contamination of a number of sites along the Turnpike with chromate ore processing residue, or COPR, under standard theories of liability and under an alternative liability theory. We conclude that the Turnpike has not produced sufficient evidence to survive appellees' summary judgment motion under either CERCLA or the Spill Act or under an alternative liability theory, and will affirm the District Court's order on this basis.

I. Factual and Procedural Background

This case is the latest of a series of legal actions attempting to affix liability against these appellees for COPR contamination in New Jersey in both the state and federal courts. The instant litigation centers around seven different sites along the New Jersey Turnpike that the Turnpike alleges have been contaminated with COPR. In this action, the Turnpike relies largely upon prior investigations and actions of other parties, and the records made in connection with those cases, to prove liability of appellees for contribution for the sites in question.

The New Jersey Department of Environmental Protection ("NJDEP") has denoted these areas as site numbers, 7, 20, 21, 56, 131, 192, and 201.¹ According to the Turnpike, these seven sites, among others, received COPR, directly or indirectly, from appellees from the early 1950s to the mid 1970s. A. at 46a-47a.

The three appellees, Allied-Signal ("Allied"), PPG Industries ("PPG"), and Occidental and Maxus Corporation ("Occidental") involved in this appeal, or their corporate predecessors, were processors of chromium ore. A. at 30a, 34a. From the early 1900s until 1976, Allied, PPG, and Occidental were the only companies in New Jersey processing chromium. A. at 499a, 501a. Outside of their plants, the next closest chromate chemical production facility was in Glens Falls, New York. A. at 500a, 1057a. Allied, PPG, and Occidental sold or gave the COPR produced at their plants to contractors for construction fill or other uses. A. at 962a, 903a, 923-38a, 1241a, 894a, 957a-960a, 897a, 922a, 981a. Neither the appellees nor the Turnpike has kept records of COPR disposal or purchase. A. at 903a, 1069a, 681a, 713a.

The NJDEP began investigating possible chromium contamination at sites in New Jersey in the 1980s.² In 1988, the NJDEP issued a "Directive" to Allied-Signal, PPG, and Occidental. The NJDEP stated that the Directive was issued for the following purposes:

in order to notify [Allied, PPG, and Occidental] that the Department, pursuant to the provisions of the [Spill Act] has determined that it is necessary to remove or arrange for the removal of certain hazardous substances, and in order to notify [Allied, PPG, and Occidental] that the Department believes them to be responsible for the discharge of such hazardous substances. A. at 499a.

The Directive put appellees on notice of 118 contaminated sites, including four of the sites at issue here, Sites 7, 20, and 21 in Jersey City, and Site 56 in Kearny. A. at 507-12a. The Directive assigned collective responsibility for these sites to Allied, PPG, and Occidental, because it could not identify which company had discharged chromate waste at these and other sites. A. at 502a. In 1990, Occidental entered into an administrative consent order with the NJDEP relating to 26 chrome-contaminated sites in Kearny, including Turnpike sites 56 and 131. 339a-364a. Occidental agreed, via this administrative consent order, to propose and implement remedial measures at all of the Kearny sites listed. A. at 343a-347a.³ This order did not include an admission of liability or fault by Occidental for the sites. A. at 343a, 362a, 495a. Occidental has spent more than $700,000 on investigation and remedial measures at the Kearny sites, and over $47 million at the non-Turnpike Kearny sites. A. at 1138a-41a. PPG has also signed an administrative consent order whereby it has been investigating and remediating over 55 sites in Hudson County. A. at 626-68a.

The NJDEP issued another Directive in 1989 that set forth the following as its "findings": 1) Allied had reported that it could not account for the Disposition of all its chromate chemical waste, but that it had been used as fill at offsite locations and had been stored at one of its production sites and then used as fill in construction projects; 2) Occidental employees had reported that chromate chemical waste had been used as fill in wetlands areas or in construction projects and roadway construction; and 3) during the late 50s and early 60s, PPG allowed approximately 40 tons per day of chromate chemical production waste to be taken free of charge from the PPG site. A. at 524-26a. The Directive also cited the testimony of PPG employees in prior cases that its waste was used as fill in Jersey City, and was sold and used for fill in construction and industrial sites. A. at 527a. Other NJDEP Directives were issued that discussed how waste from the PPG and Allied plants were used as fill, and these Directives also observed that both Allied and PPG had entered into administrative consent orders with the NJDEP to determine remedial plans without admitting liability. A. at 551-52a, 559-62a, 585-86a, 593-620a, 626a-34a, 635-664a.

This activity spawned a series of lawsuits in state and federal courts seeking damages for personal injury and property claims arising out of chrome ore residue, and the courts in Hudson County, New Jersey, in particular, have been the locus of a number of suits.⁴ See, e.g., Jersey City Redevelopment Authority v. PPG Indus., Inc., Civ. A. No. 85-2014, 1987 WL 54410 (D.N.J. Sept. 3, 1987), aff'd, 866 F.2d 1410-11 (3d Cir. 1988); Florence Trum, et al. v. Allied Signal, et al., Docket No. W-14248-89 (N.J. Super. Ct. Law Div. Feb. 11, 1993) (order granting summary judgment in favor of PPG and Allied); Gertrude Settle v. PPG Indus., Inc. et al., Docket No. W-10654-92 (N.J. Super. Ct. Law Div. June 7, 1996) (order granting summary judgment in favor of Allied); PPG Indus., Inc. v. Lawrence Construction Co., et al., Docket No. L-195-93 (N.J. Super. Ct. Law Div. April 11, 1996) (consent order). The Hudson County litigation that is relied upon most frequently by the Turnpike in this appeal, Exxon v. PPG Indus., et al., was filed in 1990, and the appellees, or their corporate predecessors, were named in this suit.

In May 1993, the Turnpike filed suit in District Court, alleging claims under CERCLA, the New Jersey Spill Act, tort, contract, and quasi-contract claims, and a declaratory judgment claim against numerous defendants, including insurance companies, construction and trucking companies, and corporations alleged to have produced COPR. Discovery efforts in this matter were sporadic at best. In February, 1994, the Magistrate Judge entered a case management order that indicated that discovery would be conducted in phases, and that the first phase of discovery would include document requests, interrogatories, and depositions. The parties exchanged documents and interrogatory answers shortly thereafter. For a period of at least twelve months afterward, however, the Turnpike sought no discovery from any defendant or third party on the question of liability. We also note that there appeared to be little or no discovery taken by any party for almost two years.

On October 16, 1996, the Magistrate Judge issued an order closing fact discovery at the request of Allied, so that its dispositive motion could be filed. The Turnpike appealed this decision to the District Court and received an extension of time to pursue fact discovery on the issue of liability through March...