Mayor and Council v. Klockner & Klockner

• Citation: 811 F. Supp. 1039
• Decision Date: 26 January 1993
• Docket Number: Civ. A. No. 91-4842.
• Parties: MAYOR AND COUNCIL OF the BOROUGH OF ROCKAWAY, a municipal corporation of the State of New Jersey, Plaintiff, v. KLOCKNER & KLOCKNER, a partnership, Multi-Form Metals, Inc., Masden Industries, Inc., Thiokol Corporation, Inc., Roned Realty Company, XYZ, Inc., ABC Co., and John Doe, Defendants. KLOCKNER & KLOCKNER, Third Party Plaintiff, v. E. Carl FABEND, individually, and Joseph A. Mauriello, individually, Third Party Defendants.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

811 F. Supp. 1039

MAYOR AND COUNCIL OF the BOROUGH OF ROCKAWAY, a municipal corporation of the State of New Jersey, Plaintiff, v. KLOCKNER & KLOCKNER, a partnership, Multi-Form Metals, Inc., Masden Industries, Inc., Thiokol Corporation, Inc., Roned Realty Company, XYZ, Inc., ABC Co., and John Doe, Defendants.

KLOCKNER & KLOCKNER, Third Party Plaintiff, v. E. Carl FABEND, individually, and Joseph A. Mauriello, individually, Third Party Defendants.

Civ. A. No. 91-4842.

United States District Court, D. New Jersey.

January 26, 1993.

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Archer & Greiner, Edward C. Laird, Christopher R. Gibson, Haddonfield, NJ, for Thiokol Corp., Inc.

Riker, Danzig, Scherer, Hyland & Perretti, Dennis J. Krumholz, Morristown, NJ, for Klockner & Klockner.

Goldshore, Wolf & Lewis, Lewis Goldshore, Robert J. Cash, Lawrenceville, NJ, for Mayor and Council of Borough of Rockaway.

Maraziti Falcon & Gregory, Diane Alexander, Morristown, NJ, for Masden Industries, Inc. and Multi-Form Metals, Inc.

OPINION

HAROLD A. ACKERMAN, District Judge:

This matter comes before the court on the motions of defendant Thiokol Corporation ("Thiokol") to dismiss in part the Complaint of plaintiff Mayor and Council of the Borough of Rockaway ("Rockaway"), and to dismiss in part the Cross-claim of defendant Klockner & Klockner ("Klockner") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.

I. Background

This action arises out of the alleged contamination of water supply wells and groundwater resources located within the Borough of Rockaway, Morris County, New Jersey.

According to the Complaint, in March 1980, analysis of water from three of Rockaway's drinking supply wells indicated the presence of volatile organic compounds, including trichloroethylene ("TCE") and tetrachloroethylene ("PCE"), in the municipal well field. To address this situation, Rockaway constructed a three-bed, granular activated carbon absorption treatment system ("treatment system") to treat the water pumped from the municipal wells. The treatment system has been in operation since that time.

In December 1982, the United States Environmental Protection Agency ("EPA") designated the Rockaway Borough Well Field site as a Superfund Site and placed it on the National Priority List ("NPL") of Superfund Sites pursuant to CERCLA. In January 1984, the New Jersey Department of Environmental Protection ("DEP")¹ initiated a Remedial Investigation/Feasibility Study of the well field contamination. The result of the investigation, issued in August 1986, suggested general areas in Rockaway that could be contributing to the contamination, but failed to specify responsible parties. The study recommended further investigation.

In September 1986, the EPA Regional Administrator issued a Record of Decision ("ROD") which indicated that the treatment system implemented by Rockaway was the appropriate remedy. In January 1990, the EPA released a report which identified certain properties as the sources of the groundwater contamination. The properties identified were those of defendants Klockner and Roned Realty Company ("Roned"). On July 18, 1991, the EPA issued a subsequent Remedial Investigation/Feasibility Study for the Well Field Site which confirmed that the appropriate remedy was the existing treatment system. On the same day, the EPA issued a Notice of Potential Liability letter to a number of parties deemed to be potentially responsible for the contamination of the Well Field, including defendants Klockner, Thiokol, Multi-Form Metals, Inc. ("Multi-Form"), and Roned. On August 2, 1991, the EPA confirmed again that the treatment system implemented by Rockaway was the appropriate remedy. On September 30, 1991, the EPA issued another ROD which selected a remedial alternative for the Borough Well Field.

On October 31, 1991, Rockaway filed a Complaint in this court seeking response costs, natural resource damages and injunctive relief under a variety of legal theories. Specifically, the Complaint sets forth the following nine counts for relief: Count I (claim for response costs under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq., ("CERCLA")); Count II (claim for natural resource damages under CERCLA); Count III (strict liability); Count IV (claim under the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq., ("Spill Act")); Count V (private and public nuisance); Count VI (trespass); Count VII (tortious contamination); Count VIII (tortious failure to remediate contamination); and Count IX (claim under the Environmental Rights Act, N.J.S.A. 2A:35A-1, et seq. ("ERA")). Thiokol seeks to dismiss Count I to the extent it seeks injunctive relief, Count II, and Counts IV through IX.²

On December 10, 1991, defendant Klockner filed an Answer and Cross-claim against the other defendants Multi-Form, Masden, Thiokol, Roned, XYZ Corp., ABC Co. and John Doe.³ According to the Cross-claim, Thiokol leased certain property from Klockner (the "Property") from 1949 until 1970, using the premises for the manufacture of missiles. Klockner alleges that as part of the manufacturing process, Thiokol used large quantities of cutting oils, coolants and degreasing solution, which allegedly contain TCE and other contaminants. Klockner further alleges that these chemicals were stored in underground storage tanks located beneath the Property, and that hazardous substances were discharged into the soil and groundwater during the course of the leasehold. According to the Cross-claim, when Thiokol vacated the premises in 1970, it failed to clean up the alleged contamination and failed to disclose the pollution to Klockner.

In 1985, Klockner entered into an agreement to sell the Property. Because the Property was used for industrial purposes, the contemplated sale triggered the provisions of New Jersey's Environmental Cleanup Responsibility Act ("ECRA"), N.J.S.A. 13:1K-6, et seq.⁴ In an effort to comply with ECRA, and thus consummate the sale, Klockner initiated an investigation of the extent of contamination on the Property. Klockner removed the underground storage tanks utilized by Thiokol and installed monitoring wells. Klockner alleges that the investigation revealed the presence of TCE and other contaminants in the soil and groundwater. Klockner, however, never completed cleanup measures at the Property nor consummated the sale.

Klockner then brought this Cross-claim for contribution and indemnification against the other defendants, setting forth twenty claims for recovery. Thiokol has moved to dismiss the following eleven counts: Count II (Spill Act); Count III (New Jersey Solid Waste Management Act, N.J.S.A. 13:1E-1, et seq. ("Solid Waste Management Act")); Count IV (New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1, et seq. ("Water Pollution Control Act")); Count V (private nuisance); Count VI (public nuisance); Count VIII (negligence); Count X (fraudulent concealment); Count XVI (waste of property); Count XVII (trespass); Count XVIII (restitution and unjust enrichment); and Count XX (common law contribution).

The parties appeared before this court for oral argument on the instant motions on May 14, 1992, at which time I reserved decision. For the following reasons, Thiokol's motions to dismiss are granted in part and denied in part.

II. Discussion

A. Standard on Motion to Dismiss

Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of a complaint, or a count therein, for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). When reviewing the efficacy of a complaint under this rule, I "must accept as true all well-pleaded allegations of the complaint, and construe them in the light most favorable to the plaintiff; ... dismissal may result only if the plaintiff alleges no set of facts which, if proved, would entitle him or her to relief." Marshall-Silver Constr. Co. v. Mendel, 894 F.2d 593, 595 (3d Cir.1990); accord Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Rogin v. Bensalem Township, 616 F.2d 680, 685 (3d Cir.1980), cert. denied sub nom. Mark Garner Assoc., Inc. v. Bensalem Township, 450 U.S. 1029, 101 S.Ct. 1737, 68 L.Ed.2d 223 (1981).

I will now consider each of the counts sought to be dismissed in turn.

B. Motion to Dismiss Rockaway's Complaint

1. Claim for Injunctive Relief under CERCLA

CERCLA, enacted in 1980 and amended in 1986, is directed at the cleanup of hazardous waste disposal sites. Count I of the Complaint is brought under Section 107 of CERCLA, which permits the recovery of certain costs of clean-up from responsible parties. See 42 U.S.C. § 9607. Specifically, Section 107 provides that responsible parties, such as owners and operators of facilities at which hazardous substances have been discharged, may be liable for:

(A) all costs of removal or remedial action⁵ incurred by the United States Government or a State ... not inconsistent with the national contingency plan;⁶

(B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

(C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and

(D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

42 U.S.C. § 9607(a)(4)(A)-(a)(4)(D).

In the Complaint, Rockaway alleges that it has incurred and will continue to incur response costs that are consistent with the national contingency plan ("NCP") with respect to contamination at the Rockaway Well Field and the groundwater aquifer. Compl. at ¶ 48. It further alleges that defendants Thiokol, Masden and Multi-Form are "operators" at the facility which...