US v. Rohm & Haas Co.
| Decision Date | 29 September 1989 |
| Docket Number | Civ. No. 85-4386. |
| Citation | 721 F. Supp. 666 |
| Court | U.S. District Court — District of New Jersey |
| Parties | UNITED STATES of America and New Jersey Department of Environmental Protection, Plaintiffs-Intervenors, v. ROHM & HAAS COMPANY, E.I. Dupont De Nemours & Company, Owens-Corning Fiberglass, Hercules, Inc., The Glidden Company, SPS Technologies, Inc., Allied Paper, Inc., Triangle Publications, Inc., The Gilbert Spruance Company and Betz Laboratories, Inc., Defendants, v. John CUCINOTTA, Firestone Tire & Rubber Co., Technitrol, Inc., American Packaging Corp., Lek's, Inc., Crown, Cork & Seal, Inc., National Vulcanized Fiber, Inc., Continental Can Company, NL Industries, Inc., AT & T Corp., Essex Chemical Corp. and Mantua Township, Third-Party Defendants. |
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Joseph Hurley, Paul Chassy, Environmental Enforcement Section, Land & Natural Resources, U.S. Dept. of Justice, Washington, D.C., James C. Woods, U.S. Dept. of Justice, Newark, N.J., and Helene Cohen, Office of Regional Counsel, U.S. E.P.A., New York City, for plaintiff U.S.
Kenneth W. Elwell, Deputy Atty. Gen. and Neal Brody, N.J. Dept. of Environmental Protection, Office of Regulatory Services, Trenton, N.J., for plaintiff New Jersey Dept. of Environmental Protection.
Julia Lambeth Phillips, E.I. DuPont de Nemours & Co. Legal Dept., Wilmington, Del., for defendant E.I. DuPont de Nemours.
Ann C. Hurley, Skadden, Arps, Slate, Meagher & Flom, Washington, D.C., for defendant Owens-Corning Fiberglass.
Etta Ryan Clark, Hercules, Inc., Wilmington, Del., for defendant Hercules, Inc.
Louis T. Bolognini, Drinker, Biddle & Reath, Philadelphia, Pa., for defendants The Glidden Co. and Allied Paper.
Michael Nelson Becci, SPS Technologies, Inc., Newtown, Pa., for defendant SPS Technologies, Inc.
Frank E. Ferruggia, McCarter & English, Newark, N.J., for defendant Owens-Illinois.
Kevin Wall, Wall, Makowski & James, Oaklyn, N.J., for defendant Marvin Jones.
Paul F. Ware, David Mackey, Goodwin, Procter & Hoar, Boston, Mass., and Shanley & Fisher, Morristown, N.J., for defendant CBS.
Lee Thomason, Wilson, Elser, Moskowitz, Edelman & Dicker, Newark, N.J., for defendant Manor Health Care.
Bradford F. Whitman, Wendy Relation, Dechert, Price & Rhoads, Philadelphia, Pa., and James A. Nolan, Jr., Montano, Summers, Mullen, Manuel & Owens, Cherry Hill, N.J., for defendant Rohm & Haas Co.
Michael L. Krancer, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., for defendant Triangle Publications.
Henry H. Janssen, Rapp, White, Janssen & German, Ltd., Philadelphia, Pa., and Seth Cooley, Duane, Morris & Heckscher, Philadelphia, Pa., for defendant The Gilbert Spruance Co.
James H. Decker, Betz Laboratories, Inc., Trevose, Pa., for defendant Betz Laboratories.
Paul E. Gutermann, Squire, Sanders & Dempsey, Washington, D.C., and George C. Jones, Ribis, Graham, Verdon & Curtin, Morristown, N.J., for third-party defendant Firestone Tire & Rubber.
John Wilmer, Stradley, Ronon, Stevens & Young, Philadelphia, Pa., for third-party defendant Technitrol.
Jonathan Petrakis, Saul, Ewing, Remick & Saul, Philadelphia, Pa., for third-party defendant American Packaging Corp.
Jeffrey J. Norton, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for third-party defendant Leksi, Inc.
Joseph J. Castano, Waters, McPherson, McNeill & Fitzpatrick, Secaucus, N.J., for third-party defendant Crown Cork & Seal.
Jane A. Lorber, Brown & Connery, Westmont, N.J., and J. Bradford McIlvain, Reed, Smith, Shaw & McClay, Philadelphia, Pa., for third-party defendant Nat. Vulcanized Fiber, Inc.
Wayne Streitz, Streitz & Streitz, Pitman, N.J., for third party-defendants John and Joseph Cucinotto.
Terrance Dwyer, William, Caliri, Miller & Otley, Wayne, N.J., for third-party defendant Continental Can Co.
Susanne Peticolas, Ruth Rosenberg, Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, N.J., for third-party defendant NL Industries, Inc.
Kenneth H. Mack, Picco, Mack, Kennedy, Jaffe, Perrella & Yoskin, Trenton, N.J., for third-party defendant Essex Chemical.
Mark Kundla, Bumgardner, Hardin & Ellis, Springfield, N.J., for third-party defendant Mantua Tp.
Before us today is a motion for entry of a partial consent decree, which embodies a so-called "de minimis" settlement negotiated pursuant to § 122(g) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"). 42 U.S.C. § 9622(g).1 The settlement resolves the United States and the State of New Jersey's claims against certain parties in this action pursuant to § 107(a) of CERCLA, 42 U.S.C. § 9607(a), to recover costs incurred for enforcement, investigation and clean-up activities at the Lipari Landfill in the Township of Mantua, Gloucester County, New Jersey.
The decree was lodged with this court on July 28, 1988, as was a fact sheet explaining EPA's determination to enter into the decree. United States Exhibits 1 & 2. On August 8, 1988, the United States published a notice of the lodging of the decree inviting public comment on the proposed settlement. Fed.Reg. 12613 (Aug. 8, 1988); U.S. Ex. 3. The United States received three sets of comments on the proposed settlement from three defendants who are not parties to the settlement. U.S. Ex. 4-6. The United States, or more specifically the Environmental Protection Agency ("EPA"), reviewed these comments and decided to move this court for entry of the Partial Consent Decree. U.S. Ex. 7 & attachments. The motion is before us now and is joined in by the settling defendants.2
The motion is opposed by certain defendants to this action. Rohm & Haas, which is alleged to have contributed 46,507 55-gallon drums out of the estimated 54,361 drums of the hazardous waste dumped at Lipari, opposes entry of the decree on the grounds that the settling parties' payment does not adequately reflect their proportionate share of the waste at Lipari. Rohm & Haas asserts that the plaintiffs are allowing the settlors to cash out so cheaply because they can recover any shortfall, which could run into the millions of dollars, from the remaining defendants. The non-settlors will bear this risk, because the settlement extinguishes their contribution rights vis-a-vis the settlors and leaves the defendants with only a credit in the amount of the settlement. Another defendant, Manor Health Care ("Manor Health"), the successor company to a waste haulage firm, objects to and seeks to enjoin the proposed consent decree because it has not been permitted to participate as a de minimis party, while its predecessor's customers have. These objections will be dealt with during our evaluation of whether to enter the proposed consent decree.
On August 9, 1989, this court held a lengthy hearing on the proposed consent decree, in which it entertained argument from the United States on behalf of itself and the State of New Jersey; by the objecting defendants, Rohm & Haas and Manor Health Care; and by several of the de minimis settlors. The presentations made at that oral argument, voluminous briefs and the record evidence compiled by all parties informs the analysis that follows.
The landfill site, as we have indicated in a previous opinion, see 669 F.Supp. 672 (D.N.J.1987), occupies approximately six acres in Mantua Township, New Jersey. It is bordered by two streams.
Beginning in 1958, the Landfill's owner, Nicholas Lipari, accepted chemical and industrial wastes for deposit at the site. Overall, the United States now estimates that 55,782 55-gallon drums, or approximately 3,068,010 gallons, of liquid wastes were deposited at Lipari before it was closed by the State of New Jersey in 1971. A variety of hazardous substances, including benzene, chromium, lead, zinc and arsenic, have been detected at the site and on areas adjacent to and down gradient from the Landfill.3 The Lipari Landfill has the dubious honor of being the number one site on the National Priorities List, a ranking of hazardous waste sites based on potential threat to human health and the environment. 42 U.S.C. § 9605(c); 40 C.F.R. Part 300, Appendix B; U.S. Ex. 2 at 1.
The United States has responded to the situation at Lipari by undertaking or preparing to undertake three phases of remedial action. During Phase I, the EPA installed a slurry wall encircling 16 acres of contaminated soil and groundwater, topped by an impermeable cap. See Record of Decision ("ROD") for Phase I, U.S. Ex. 9. Costs incurred through June 1, 1988 for Phase I, and for Phases II and III, are approximately $10,500,000. U.S. Ex. 7, Attachment 1. Phase II, selected by EPA on September 30, 1985, consists of a flushing system, and its estimated price tag is $33,- 800,000. ROD for Phase II, U.S. Ex. 10, 10A; U.S. Ex. 7, Attachment 1. On July 11, 1988, EPA selected the Phase III remedy which will address off-site contamination. See ROD for Phase III; U.S. Ex. 11. Its cost is projected at $20,970,000. U.S. Ex. 7, Attachment 1. Thus, total costs for remedial action are currently estimated at $65,270,000.4
On September 10, 1985, the United States filed a complaint under § 107 of CERCLA against Rohm & Haas Company, Inc., Owens-Illinois, Inc., CBS Records, Inc., Almo, Inc., Cenco, Inc., Manor Health Care Corporation and Marvin Jonas, Inc.5
The complaint seeks to recover costs already incurred in responding to the problem at Lipari, as well as a declaratory judgment on liability for future costs. The complaint alleges that Rohm & Haas, CBS Records and Owens-Illinois were parties that arranged with a transporter for disposal or treatment of hazardous substances they generated, and that Almo and Marvin Jonas transported these hazardous substances to the Lipari Landfill. See 42 U.S.C. 9607(a)(3), (4) ("generators" and "transporters," respectively). Cenco and Manor Health were named as successor corporations to Almo.
In January 1986, the State of New Jersey intervened pursuant to § 104(...
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...good the balance regardless of whether the settlor paid less than its proportionate share of liability."); United States v. Rohm & Haas Co., 721 F.Supp. 666, 676 (D.N.J.1989) ("while non-settlors lose their contribution rights, defendants who are parties to a CERCLA settlement retain the ri......
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...Corp., 899 F.2d 79, 85-86 (1st Cir.1990). When viewed as a whole, the decree is reasonable. See also United States v. Rohm & Haas Co., 721 F.Supp. 666, 685-86 (D.N.J.1989) ("For this settlement to be reasonable, it need not be bottomed on the most convincing analysis of the present factual ......
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...along the broad spectrum of plausible approximations, judicial intrusion is unwarranted ...." Ibid. (citing United States v. Rohm & Haas, 721 F.Supp. 666, 685–86 (D.N.J. 1989) ). Courts must "compare the proportion of total projected costs to be paid by the settlors with the proportion of l......
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...(S.D. Ohio 1991); United States v. Union Gas Co., 743 F. Supp. 1144, 21 ELR 20337 (E.D. Pa. 1990); United States v. Rohm & Haas Co., 721 F. Supp. 666, 20 ELR 20127 (D.N.J. 1989). other hand, where a PRP settled its liability with another PRP in a §113 contribution action, the nonsettlers’ l......
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