Amland Properties Corp. v. Aluminum Co. of America
| Decision Date | 18 April 1989 |
| Docket Number | Civ. A. No. 86-1830. |
| Citation | 711 F. Supp. 784 |
| Parties | AMLAND PROPERTIES CORP., Plaintiff, v. ALUMINUM COMPANY OF AMERICA, Defendant/Third Party Plaintiff, v. TRI-TERMINAL CORP., Edith Maidman as Executrix of the Estate of Irving Maidman; Donald Steinberg, as Executor of the Estate of Irving Maidman; 700 River Road Realty, Inc.; Edgewater Associates; Does 1 through 10; Citibank, N.A., Third Party Defendants. |
| Court | U.S. District Court — District of New Jersey |
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Robinson, Wayne & La Sala, P.A. by Robert A. Wayne, Newark, N.J., and Morgan, Lewis & Bockius, P.A. by John Quarles, Washington, D.C., for plaintiff Amland Properties Corp. LeBoeuf, Lamb, Leiby & MacRae, P.A. by Frederick B. Lacey, Newark, N.J., and LeBoeuf, Lamb, Leiby & MacRae, P.A. by Grant S. Lewis, New York City, for defendant Aluminum Co. of America.
As may be expected when motions and cross-motions for summary judgment are supported by eight briefs, totalling some 350 pages, and over 300 separate exhibits, totalling thousands of pages, very little is agreed upon by the parties. They do agree that defendant Aluminum Company of America (hereinafter "Alcoa") constructed and operated an industrial manufacturing plant in Edgewater, New Jersey (hereinafter "Edgewater plant") from 1914 through 1965. They agree, as well, that between 1956 and 1965, Alcoa made use of at least two fire-resistant hydraulic fluids containing polychlorinated biphenyls, or PCBs. These hydraulic fluids, Pydraul F-9 (assertedly composed of over 50% PCBs) and Pydraul 600, were used in at least fourteen of the 120 hydraulic systems that operated in the Edgewater plant. At least two machines ?€” a Dempster baler and a vertical impact extrusion press ?€” utilized Pydraul F-9, and an indeterminate number of electrical transformers in the Edgewater plant were contaminated with PCBs. The parties also agree that in 1968 Alcoa sold the Edgewater plant, "as is," to Irving Maidman (who thereupon assigned his rights to Tri-Terminal Corporation), and that in 1983 (after two intervening owners), plaintiff Amland Properties Corporation (hereinafter "Amland") acquired title to the property pursuant to an "as is" purchase agreement with Citibank.
The condition of the property at the time of the 1968 sale is in considerable dispute. Alcoa maintains that it removed most of the manufacturing equipment (except for 45 transformers) from the Edgewater plant, that the plant was free of debris and had been swept clean, and that the buildings were weather-tight. See Deft's Brief in Opposition to Plaintiff's Motion for Partial Summary Judgment (hereinafter "Deft's CERCLA Opposition Br.") at 7-8; Anderson Aff., ?? 7-10 and Exhs. 1-13. Amland contends that, at the time of the 1968 sale, "many ovens, furnaces, tanks, machines, and pumps" remained, and that "areas of the Edgewater plant floors were stained with oil and fluids."1 See Plff's Reply Brief in Support of Motion for Partial Summary Judgment (hereinafter "Plff's CERCLA Reply Br.") at 18-19; Plff's Supp.App., Tab 4. The parties also disagree as to the activities conducted at the plant by Tri-Terminal Corporation and its lessees, and particularly disagree as to whether those activities may have involved use of PCBs, compare Plff's CERCLA Reply Br. at 19 with Deft's CERCLA Opposition Br. at 8-10; discovery as to these issues has apparently has not been completed. Id. at 8. Furthermore, although it is clear that, even in 1968, Alcoa had knowledge that PCB use presented some amount of risk, see Deft's Reply Brief in Support of Summary Judgment Motion on Plaintiff's Common Law Claims (hereinafter "Deft's Common Law Reply Br.") at 43-44; Deft's Supp.App., Tabs 9-10, the extent of that knowledge remains undetermined, and further discovery in this area is necessary as well. See Plff's Brief in Support of Cross-Motion for Summary Judgment on Strict Liability Claim (hereinafter "Plff's Strict Liability Br.") at 62 and n. 68.
Prior to its purchase of the Edgewater plant, Amland inspected the property. In 1981, a laboratory retained by Amland advised that testing for organics (such as PCBs) and inorganics be conducted, a suggestion Amland chose to decline. Although Alcoa contends that the suggested testing would have revealed any presence of PCBs, it does not appear to argue that Amland in fact was aware of the PCB contamination at the time of its 1983 purchase of the Edgewater plant. See Deft's CERCLA Opposition Br. at 15 and n. 15; 17 n. 18. The date of Amland's discovery of PCBs at the plant was April 1985, a result of testing performed by the engineering firm of Paulus, Sokolowski & Sartor. See Plff's CERCLA Reply Br. at 22; Plff's App., Tab 9.
In June 1985, Amland notified Alcoa, the municipality of Edgewater, the New Jersey Department of Environmental Protection (hereinafter "DEP"), and the United States Environmental Protection Agency (hereinafter "EPA") of the presence of PCBs at the Edgewater plant. That same month, Amland contends, it was notified by DEP that it (and Alcoa) were parties responsible for that contamination, and that DEP would, if need be, commence an enforcement action mandating that Amland clean up the PCBs. See Plff's CERCLA Reply Br. at 23; Brecher Aff., ? 8. A draft administrative consent order ("ACO"), proposed in July 1985, called for a cleanup standard of no detectable PCBs at surface levels and up to 5 parts per million ("ppm") of PCBs below surface. See Plff's Supp. App., Tab 35 at 16. The final ACO, signed on August 21, 1986, contained a surface level standard of 1 ppm, and the same below-surface standard. Id., Tab 4, ? 13.2 Whereas Amland portrays the DEP action as the imposition of a cleanup standard upon Amland, see Plff's CERCLA Reply Br. at 24-25, Alcoa maintains that DEP advised Amland that the condition of the Edgewater plant was not severe enough to warrant coverage by the Superfund, and that Amland (at DEP's suggestion) signed the ACO as "the fastest route for getting state approvals" for its planned transformation of the Edgewater site into residential condominiums. Deft's CERCLA Opposition Br. at 20-21, and 21 n. 23; Deft's App., Tab 75.
The cleanup of the Edgewater plant included, according to Amland, initial consideration of various remedial measures, such as the use of solvents and microwaves, and encapsulation (covering) of affected surfaces. See Plff's CERCLA Reply Br. at 27; Brecher Aff., ?? 10, 16. The actual cleanup undertaken by Amland is said to have included "scarifying (removing the surfaces of) concrete flooring, removing concrete slabs, removing contaminated wood block flooring, and decontaminating non-porous surfaces (walls, pipes, roofs, trusses, etc.)." Plff's CERCLA Reply Br. at 27; see Plff's Supp.App., Tab 43. In addition, the cleanup procedure called for the decontamination of debris to a level of 50 ppm PCBs or lower, so that the decontaminated debris could be disposed of at a general municipal landfill, rather than at a hazardous waste landfill. See Brecher Aff., ? 17; Deft's Reply Brief in Support of Summary Judgment Motion on Plff's CERCLA Claims (hereinafter "Deft's CERCLA Reply Br.") at 29 n. 36. It appears, however, that PCB contamination has "migrated" deeper into certain concrete flooring than had been previously detected, see Plff's CERCLA Reply Br. at 28, requiring that Amland petition DEP for a revised cleanup procedure. See Brecher Aff., ? 11.
Amland has conducted numerous tests for the presence of PCBs in the land and ambient air surrounding the Edgewater plant. Tests performed at a school located across from the plant's northern front proved negative, as have all other tests performed outside the plant's property. See Deft's App., Tabs 68-69; Deft's CERCLA Opp. Br. at 18 n. 19. The only ?€” or at least the primary ?€” exterior PCB contamination pointed to by Amland is the presence of PCBs in the asphalt of the Edgewater plant's parking area. See Plff's CERCLA Reply Br. at 47 n. 136; Plff's App., Tab 9 at 1. This contaminated area, directly adjacent to the Edgewater plant's loading docks, shows PCB levels of 2 to 47 ppm. Perhaps because this contamination is less than 50 ppm, which is the minimum level of PCB contamination that would constitute a spill under EPA's Spill Cleanup Policy, see 52 Fed.Reg. 10,688 (1987), Amland has not yet acted to remedy the contaminated area. See Deft's Supp.App., Tab 6.
Amland commenced the instant lawsuit against Alcoa in April 1986 and seeks recovery of the costs it has incurred in evaluating and responding to the PCB contamination at the Edgewater plant. Jurisdiction in this Court is predicated upon the claim asserted under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. ? 9601 et seq., for the recovery of past and future response costs. In addition, the complaint asserts four common law tort claims: strict liability, private nuisance, public nuisance, and negligence.
Amland moved, in early 1988, for partial summary judgment, requesting a declaration that Alcoa was and will be liable to Amland for the latter's response costs.3 Alcoa thereupon cross-moved for summary judgment as to Amland's CERCLA and common law claims. In response, Amland cross-moved for summary judgment as to its strict liability claim.
For the reasons that follow, I grant Alcoa's motions as to Amland's CERCLA claim, excluding monitoring and evaluation costs since April 1985, and as to Amland's private nuisance, public nuisance, and negligence claims. Both parties' summary judgment motions as to Amland's strict liability claim will be denied, in that at this juncture factual issues preclude a definitive application of the Restatement (Second) of Torts' factors regarding abnormally dangerous activities.
CERCLA was enacted in 1980, in the waning months of the 96th Congress, and its "precipitous passage" perhaps explains the ...
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