Lenox Inc. v. Reuben Smith Rubbish Removal

• Decision Date: 04 April 2000
• Docket Number: Civil Action No. 97-5065 (JEI).
• Citation: 91 F.Supp.2d 743
• Court: U.S. District Court — District of New Jersey
• Parties: LENOX INCORPORATED, Atlantic City Electric Company, & American Cyanamid Company, Plaintiffs, v. REUBEN SMITH RUBBISH REMOVAL, et al., Defendants.

91 F.Supp.2d 743

LENOX INCORPORATED, Atlantic City Electric Company, & American Cyanamid Company, Plaintiffs, v. REUBEN SMITH RUBBISH REMOVAL, et al., Defendants.

Civil Action No. 97-5065 (JEI).

United States District Court, D. New Jersey.

April 4, 2000.

COPYRIGHT MATERIAL OMITTED

Sills Cummis Radin Tischman Epstein & Gross by James E. Brandt, Newark, NJ, for plaintiffs Lenox Inc., Atlantic City Elec. Co., and American Cyanamid Co.

Methfessel & Werbel by Fredric Paul Gallin, Edison, NJ, for defendant Douglas Keefe.

OPINION

IRENAS, District Judge.

This matter appears before the Court upon defendant Douglas Keefe's motion for summary judgment. For the reasons set forth below, this motion is granted in part and denied in part.

I.

This action revolves around the environmental contamination of the Delilah Landfill Superfund Site in Egg Harbor Township, New Jersey ("the Site"). Plaintiffs in this action seek contribution for the costs of the ongoing remediation of the Site. Defendant is the Site's current owner.

Defendant purchased the Delilah Landfill in January of 1981. In 1982, the United States Environmental Protection Agency ("EPA") conducted a preliminary assessment of the Landfill which indicated that it may have impacted groundwater quality in the surrounding areas. (Second Am. Compl., ¶ 98). On October 4, 1984, the Site was listed on the National Priorities List. (Id. at ¶ 99). Subsequently, the EPA authorized the New Jersey Department of Environmental Protection ("NJDEP") to assume control of the Site's remediation. (Id.)

In 1985, the NJDEP conducted an investigation of the Site and discovered a host of hazardous substances present in the soil and groundwater.¹ (Id. at ¶ 101). Based upon these findings, the NJDEP issued a Record of Decision ("ROD") which proposed a remedy for the Site including, inter alia, installation of a landfill cap. (Id. at ¶ 102). On or about November 7, 1992, the NJDEP issued a Directive to remedy the site to several parties including the present plaintiffs. (Id. at ¶ 103). In or around October of 1994, the NJDEP entered an Administrative Consent Order ("ACO") in which the present plaintiffs agreed to create a "soil cap" at the site. (Id. at ¶ 107). Plaintiffs currently estimate that the total cost of the investigation and remediation of the Site will be $6,979,846.² (Id. at ¶ 110).

In their Amended Complaint, plaintiffs seek contribution from Keefe under § 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9613(f), and under the New Jersey Spill Act, N.J.S.A. 58:10-23.11g.c.(1). Plaintiffs also seek treble damages under the Spill Act, § 58:10-23.11f.a.(3), and assert common law claims for unjust enrichment and the creation of a constructive trust. Keefe moves for summary judgment as to all claims. Keefe argues, on equitable grounds, that because he did not own the Site at the time the majority of the hazardous substances were deposited, he should not be held liable for its cleanup. Furthermore, he argues that he has a good faith defense to plaintiffs' claim for treble damages and that plaintiffs' claim for $1.5 million in past oversight costs should be dismissed as speculative. Keefe also argues that this is not an appropriate case for the creation of a constructive trust because he was not unjustly enriched by plaintiffs' remediation of the Site. The Court will consider each issue in turn.

II.

"[S]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III.

Under CERCLA, a private party who has incurred "response costs" for environmental cleanup may seek contribution from any person who is liable or potentially liable for depositing the hazardous wastes. 42 U.S.C. § 9613(f). In order to recover under § 9613(f), plaintiff must first show that defendant is liable under CERCLA § 107(a), 42 U.S.C. § 9607(a). If plaintiff succeeds in establishing defendant's liability under § 107(a), the Court then may apportion defendant's share of liability in an equitable manner. U.S. v. Compaction Sys. Corp., 88 F.Supp.2d 339, 354 (D.N.J.2000).

To establish defendant's liability under § 107(a), plaintiff must show: (1) that the site in question is a "facility" as defined by CERCLA; (2) the defendant is a "responsible person" as defined by CERCLA; (3) there was a release of hazardous substances; and (4) such release has required the plaintiffs to incur response costs. New Jersey Turnpike Auth. v. PPG Indus. Inc., 16 F.Supp.2d 460, 467 (D.N.J.1998).

In the present motion, Keefe does not dispute that plaintiffs have established each of the elements of their prima facie case under § 107(a).³ Nor does Keefe assert one of the defenses to liability potentially available under 42 U.S.C. § 9607(b). Rather, Keefe asks this Court to enter summary judgment on his behalf because, even if he were found liable under § 107(a), as a matter of equity he should not be made to bear any of plaintiffs' response costs.

42 U.S.C. § 9613(f)(1) provides that in allocating contribution costs among liable parties, the Court may consider "such equitable factors as the court determines are appropriate." Although CERCLA itself provides no precise list of equitable factors for the Court's consideration, several courts have looked to the so-called "Gore factors" for guidance. American Cyanamid Co. v. Nascolite Corp., No. Civ.A. 92-CV-3394, 1995 WL 934871, at *6-7 (D.N.J. March 31, 1995). The "Gore factors" were proposed as an amendment to CERCLA in 1980 by then Congressman Al Gore. Although the amendment was not passed, New Jersey courts have used the Gore factors to aid in the equitable allocation of contribution costs. (Id.). The Gore factors include:

1. the ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished;

2. the amount of the hazardous waste involved;

3. the degree of toxicity of the hazardous waste involved;

4. the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;

5. the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and

6. the degree of cooperation by the parties with the Federal, State or local officials to prevent any harm to the public health or the environment.

(Id.)

In the instant motion, Keefe argues that "as a matter of law, under the facts and circumstances of this case, [his] equitable share [of the response costs] should be zero." (Def.'s reply, 7). Keefe argues that plaintiffs have not produced any evidence that hazardous substances were deposited on the property after he bought it, that the condition of the property deteriorated during the time he owned it, or that plaintiffs' remediation costs have increased as a result of his actions. (Id. at 9). In support of these assertions, Keefe cites to the deposition testimony of David R. Perry, an environmental consultant who was retained by plaintiff Lenox, Inc. to investigate possible remedies at the Site. (Pl.'s Ex. C, dep. of D. Perry, 26:17-20, 35:1-10). At his November 6, 1998 deposition, Mr. Perry gave the following testimony:

Q: Is there anything based upon the investigation and materials you reviewed that indicated that site conditions had gotten any worse from the time the landfill stopped accepting waste in 1980?

A: No.

Q: Was there anything in which you reviewed would indicate anything which occurred in that nine years was going to make the remedy more expensive?

....

A: No.

(Id. at 96:10-97:1). In light of Mr. Perry's deposition testimony, Keefe argues that it would be inequitable for the Court to require him to pay a portion of the response costs: "[p]ut another way the plaintiffs are asking Mr. Keefe to pay money to clean-up their own mess." (Def.'s brief, 5).

Plaintiffs offer several arguments in response to Keefe's characterization of their claims. First, plaintiffs argue that Keefe has misrepresented Mr. Perry's testimony. Plaintiffs point out that Mr. Perry was asked whether he found any evidence that the Site had worsened during the relevant period based upon his review of three specific documents (two 1989 environmental reports prepared by another consulting firm and an August 18, 1989 transcript of a public meeting). (Pls.'s brief in opp., 4-5, n. 6). According to plaintiffs, Mr. Perry was not offering an opinion as to whether or not conditions had deteriorated during that time, only whether those three documents indicated that conditions had deteriorated. (Id.). In addition, plaintiffs have attached a recent affidavit from Mr. Perry in which he states that it was beyond the scope of his investigation to determine whether or not conditions at the Site had actually gotten worse. (Aff. of D. Perry, ¶ 5).

Plaintiffs also contend that, contrary to Keefe's assertions, hazardous wastes were deposited at the Site while Keefe was the owner. In a deposition taken on December 14, 1999, Keefe indicated that quantities of a...