Borough of Sayreville v. Union Carbide Corp.

• Decision Date: 10 April 1996
• Docket Number: Civil Action No. 94-5674 (AJL).
• Citation: 923 F. Supp. 671
• Parties: The BOROUGH OF SAYREVILLE, et al., Plaintiffs, v. UNION CARBIDE CORPORATION et al., Defendants.
• Court: U.S. District Court — District of New Jersey

923 F. Supp. 671

The BOROUGH OF SAYREVILLE, et al., Plaintiffs, v. UNION CARBIDE CORPORATION et al., Defendants.

Civil Action No. 94-5674 (AJL).

United States District Court, D. New Jersey.

April 10, 1996.

Nielsen V. Lewis, Skey, Dumont & Matejek, Princeton, NJ, John A. Avery, Barry & McMoran, Newark, NJ, for Plaintiffs.

Faith S. Hochberg, United States Attorney, Susan C. Cassell, Assistant United States Attorney, District of New Jersey, Newark, NJ, Lois J. Schiffer, Assistant Attorney General, Paul H. Ladehoff, United States Department of Justice, Environment and Natural Resources Division, Environmental Defense Section, Washington, DC, for Defendants United States Department of Defense (United States Army).

Kenneth R. Russell, Lynch, Martin, Philibosian, Chansky, Fitzgerald & Kane, North Brunswick, NJ, for Defendant Middlesex County Utilities Authority.

Dennis M. Toft, Wolff & Samson, P.C., Roseland, NJ, for Defendants GAF Corp. and Chevron Chemical Co.

William L. Handler, George R. and William L. Handler, West Orange, NJ, for Defendant Anselmi & DiCicco, Inc.

Glenn A. Harris, Defense Liaison Counsel, Levin & Hluchan, P.C., Voorhees, NJ, William H. Hyatt, Jr., Pitney Hardin Kipp & Szuch, Morristown, NJ, for Defendants 55 Acre Corp. and Melvin H. Safran.

Steven N. Yermish, Secondary Defense Liaison Counsel, Caplan & Luber, Marlton, NJ, for Defendants Simon Wrecking Co. and Mid-State Trading Co.

Damon R. Sedita, Schwartz, Tobia & Stanziale, Montclair, NJ, for Defendants John C. Polak, Sr. and Theresa C. Polak.

Michael D. Suarez, Joseph M. Suarez, Suarez & Suarez, Jersey City, NJ, for Defendant Kupper Associates.

William J. Hanley, Ronca, McDonald & Hanley, Livingston, NJ, for Defendants Joao Martins, Rogerio Martins and Manuel Martins.

Richard J. Schachter, Schachter, Trombadore, Offen, Stanton & Pavics, Somerville, NJ, for Defendants Union Carbide Corp. and Union Carbide Chemicals and Plastics Co., Inc.

Jonathan M. Heilbrunn, Stacey J. Citron, Heilbrunn, Finkelstein, Heilbrunn, Alfonso, Goldstein & Pape, Old Bridge, NJ, for Defendants Ben Rosenblum and Aron Rosenblum.

Thomas S. Cosma, Vincent E. McGeary, Connell, Foley & Geiser, Roseland, NJ, for Defendant George Harms Construction Co., Inc.

Christopher R. Gibson, Archer & Greiner, Haddonfield, NJ, for Third-Party Defendant Air Products & Chemicals, Inc.

Robert E. Plunkett, LeBoeuf, Lamb, Greene & MacRae, Newark, NJ, for Third-Party Defendant Aluminum Company of America, Inc.

David E. Loder, Frank A. Luchak, Duane, Morris & Heckscher, Cherry Hill, NJ, for Third-Party Defendant Lehigh Structural Steel Co.

Kevin M. McKenna, Kleinbard, Bell & Brecker, Cherry Hill, NJ, for Third-Party Defendant Small Tube Products, Inc.

Michael A. Bogdonoff, Dechert, Price & Rhoads, Philadelphia, PA, for Settled Defendants.

OPINION

LECHNER, District Judge.

This is an action brought by plaintiffs the Borough of Sayreville ("Sayreville"), Mobil Oil Corporation ("Mobil"), Rhone-Poulenc, Inc. ("Rhone-Poulenc") and Ruetgers-Nease Corporation ("Ruetgers-Nease") (collectively the "Plaintiffs") against defendant United States Department of Defense (the "Government") and numerous other defendants (collectively the "Co-Defendants") seeking cost recovery, contribution and declaratory relief for the cleanup of environmental contamination under Federal and state statutory and common law including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), 42 U.S.C. §§ 9601-75. An amended complaint (the "Amended Complaint") was filed on 7 December 1994. The Government filed an answer to the Amended Complaint (the "Government Answer") on 21 February 1995. Jurisdiction is alleged pursuant to 42 U.S.C. § 9613(b) and 28 U.S.C. § 1331.

Currently before the court is a motion filed by the Government for judgment on the pleadings dismissing the Plaintiffs' claims for joint and several liability under section 107 of CERCLA contained in Count I of the Amended Complaint, derivative claims for declaratory relief relating to joint and several liability contained in Count III of the Amended Complaint and claims for declaratory relief relating to natural resource damages also contained in Count III of the Amended Complaint (the "Motion for Judgment").¹ The Government seeks dismissal of Count I and certain claims in Count III with respect to itself and all Co-Defendants pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, the Motion for Judgment is granted.

Facts

A. Background

Sayreville is a municipal corporation formed under the laws of the State of New Jersey. Amended Complaint, ¶ 5.² Mobile and Rhone-Poulenc are corporations incorporated under the laws of New York. Id., ¶¶ 6-7. Ruetgers-Nease is a corporation incorporated under the laws of Pennsylvania. Id., ¶ 8. The Government has facilities and functions in the State of New Jersey. Id., ¶ 19; Government Answer, ¶ 19.

This action concerns the cleanup of environmental contamination at a site of approximately thirty-five acres located at or around Jernee Mill Road in Sayreville, Middlesex County, New Jersey (the "Site"). Amended Complaint, ¶ 32. Sayreville operated a solid waste landfill licensed by the State of New Jersey at the Site. Id. Hazardous substances defined under CERCLA were found at the Site causing the Site to be placed on the National Priorities List ("NPL") on 1 September 1983 by the United States Environmental Protection Agency ("EPA"). Id., ¶¶ 33-34. In response to releases and threatened releases of hazardous substances at the Site, the EPA authorized the State of New Jersey Department of Environmental Protection ("NJDEP") to remediate the Site. Id., ¶ 34.

On 20 June 1986, NJDEP issued a coercive Directive and Notice to Insurers, dated 19 June 1986, ("Directive I") to Plaintiffs and other Potentially Responsible Parties ("PRPs").³Id., ¶ 35. Directive I directed Plaintiffs and other PRPs to fund a Remedial Investigation/Feasibility Study ("RI/FS") and pay $901,000 to NJDEP within thirty days or face treble damage liability in a future cost recovery action by NJDEP. Id., ¶ 36. Plaintiffs denied responsibility for the discharges at the Site. Id., ¶ 37. Directive I was eventually settled by a NJDEP Administrative Consent Order and Agreement ("ACO I") entered into by Sayreville, Mobil, Rhone-Poulenc, Ruetgers-Nease and other PRPs without admission of liability. Id. Pursuant to ACO I, the settling parties agreed to pay $901,000 to fund an RI/FS. Id., ¶ 38.

On or about 7 August 1989, NJDEP issued a second directive ("Directive II") directing Rhone-Poulenc and other PRPs to arrange Phase 2 RI/FS by paying $632,899 to NJDEP.⁴ Id., ¶¶ 39-40. Partial payments towards Directive II were made to NJDEP by Rhone-Poulenc without admission of liability or fault. Id., ¶ 40. On or about 18 September 1989, NJDEP issued a third directive ("Directive III") directing the named PRPs to arrange Phase 2 RI/FS by paying $580,157.41, the unpaid balance of Directive II, or face possible sanctions including treble damage liability in a future cost recovery action by NJDEP.⁵ Id., ¶¶ 41-42. In October and November 1989, certain Plaintiffs paid $171,867 to NJDEP in settlement of Directive III without admission of liability or fault. Id., ¶ 43. Directive III was later settled by Rhone-Poulenc without admission of liability or fault. Id.

In 1990, B & V Waste Science and Technology Corp., NJDEP's contractor for the RI/FS, issued a Final Remedial Investigation Report reporting the presence of hazardous substances on and off the Site. Id., ¶¶ 45-46. In August 1990, the EPA issued letters to Plaintiffs and others notifying them that they were PRPs for cleanup of the Site under section 107(a) of CERCLA, 42 U.S.C. § 9607. Id., ¶ 50. On 28 September 1990, the EPA issued a Record of Decision ("ROD") selecting a cleanup plan for the Site with an estimated cost of $16.5 million for the first operable unit of cleanup and reserving for future decision whether a second operable unit of cleanup will be required. Id., ¶ 51. Plaintiffs allege a second operable unit of cleanup could potentially exceed $50 million. Id.

In April 1991, NJDEP issued a fourth directive ("Directive IV") directing Plaintiffs and other PRPs to pay $16.5 million to fund the cleanup in the ROD.⁶Id., ¶ 52. Directive IV provided that if the named PRPs did not comply with its terms, NJDEP would undertake the cleanup work and seek treble damage recovery from the Plaintiffs and other PRPs. Id., ¶ 53. On 26 November 1991, Plaintiffs settled Directive IV by entering into a second Administrative Consent Order and Agreement ("ACO II") with NJDEP, in which the EPA concurred. Id., ¶ 54. In ACO II, Plaintiffs agreed to perform cleanup of the Site but without admission of liability or fault and with reservation of all rights against non-settling PRPs. Id. Plaintiffs have since entered into a number of PRP agreements implementing the cleanup under ACO II. Id., ¶ 55. Under the PRP agreements, Plaintiffs agreed to allocate the cleanup costs while reserving their rights to obtain indemnification, contribution and restitution from non-signatories to ACO II. Id.

Plaintiffs allege that to date they have incurred response costs in excess of $1 million for the RI/FS and in excess of $500,000 in furtherance of ACO II remediation of the Site. Id., ¶ 56. Plaintiffs also allege they have never been administratively or judicially adjudicated to be liable for cleanup at the Site. Id., ¶ 57.

B. Procedural History

On 23 November 1994, Plaintiffs filed a complaint initiating this action and on 7 December 1994 filed the Amended Complaint. In Count I of the Amended Complaint, Plaintiffs seek to hold the Government and Co-Defendants jointly and severally liable under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for response costs incurred or to be incurred at the Site and for...