New Jersey Turnpike Authority v. Ppg Industries

• Citation: 16 F.Supp.2d 460
• Decision Date: 15 May 1998
• Docket Number: Civil Action No. 93-2037.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
• Parties: NEW JERSEY TURNPIKE AUTHORITY, Plaintiff, v. PPG INDUSTRIES, INC.; Natural Products Refining Company; F.S.F. Company; Alliedsignal, Inc.; Mutual Chemical Company of America; Occidental Chemical Corporation; Maxus Energy Corporation; Occidental Petroleum Corporation; Oxy-Diamond Alkali Corporation; Chemical Land Holdings, Inc.; Martin Dennis Company; George M. Brewster & Sons, Inc.; Felhaber Corporation; Mohawk Constructors, II, Inc.; Reid Contracting Company, Inc.; Klevens Corporation; Horn Construction Company, Inc.; United States Fidelity & Guaranty Company; American Mutual Liability Insurance Company; John Doe Generators; John Doe Operators; John Doe Owners; John Doe Transporters; John Doe Affiliates; Defendants.

16 F.Supp.2d 460

NEW JERSEY TURNPIKE AUTHORITY, Plaintiff, v. PPG INDUSTRIES, INC.; Natural Products Refining Company; F.S.F. Company; Alliedsignal, Inc.; Mutual Chemical Company of America; Occidental Chemical Corporation; Maxus Energy Corporation; Occidental Petroleum Corporation; Oxy-Diamond Alkali Corporation; Chemical Land Holdings, Inc.; Martin Dennis Company; George M. Brewster & Sons, Inc.; Felhaber Corporation; Mohawk Constructors, II, Inc.; Reid Contracting Company, Inc.; Klevens Corporation; Horn Construction Company, Inc.; United States Fidelity & Guaranty Company; American Mutual Liability Insurance Company; John Doe Generators; John Doe Operators; John Doe Owners; John Doe Transporters; John Doe Affiliates; Defendants.

Civil Action No. 93-2037.

United States District Court, D. New Jersey.

May 15, 1998.

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Schwartz, Tobia, Stanziale, Becker, Rosensweig & Sedita by Warren B. Kasdan, Roger C. Ward, Montclair, NJ, for Plaintiff.

St. John & Wayne by Joseph F. Lagrotteria, Newark, NJ, Sweeney, Metz, Fox, McGrann & Schermer by George E. McGrann, Pittsburgh, PA, for Defendant PPG Industries, Inc.

Lowenstein, Sandler, Kohl, Fisher & Boylan by David W. Field, Roseland, NJ, for Defendant AlliedSignal, Inc.

Drinker Biddle & Reath by William L. Warren, Lori A. Mills, Princeton, NJ, Andrews & Kurth by Thomas E. Starnes, Thomas R. Kline, Washington, D.C., for Defendants Occidental Chemical Corporation and Maxus Energy Corporation.

OPINION

BISSELL, District Judge.

This matter comes before the Court on three separate motions: (1) Defendant AlliedSignal, Inc.'s ("Allied") motion for summary judgment (in which Defendant PPG Industries, Inc. ("PPG") joins); (2) Defendants Occidental Chemical Corporation's and Maxus Energy Corporation's (collectively, "Occidental")¹ motion for summary judgment and (3) Plaintiff New Jersey Turnpike Authority's ("NJTA") cross-motion for partial summary judgment on the issue of liability against all of the Generator Defendants (Occidental, Allied and PPG). NJTA instituted this action on May 17, 1993 against the three Generator Defendants, asserting claims under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq.; the New Jersey Spill Compensation and Control Act ("Spill Act"), N.J.S.A. 58:10-23.11 et seq.; and the common law of the State of New Jersey.² Also included in the complaint was a claim for a declaratory judgment against the major defendants' insurance companies; however, summary judgment was granted in favor of the insurers in early 1996 and the declaratory judgment claim was dismissed from this action with prejudice. Certain other minor defendants were also named in the complaint. To date, none of the minor defendants have appeared in this action, with the exception of a non-generator defendant, Mohawk Constructors, Inc., in whose favor summary judgment was entered, without opposition from NJTA, on January 12, 1998.

The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.

STATEMENT OF THE CASE

The NJTA operates approximately one hundred eighty miles of highway, from the George Washington Bridge in northern New Jersey to the Delaware Memorial Bridge in the southwestern part of the State. In this action, it seeks to recover for the cost of investigating and remediating environmental contamination discovered at seven sites it currently owns or operates. The sites at issue are parceis of real property located primarily in Jersey City and Kearny, New Jersey. They are identified by the following New Jersey Department of Environmental Protection ("NJDEP") site numbers: 7, 20, 21, 56, 131, 192 and 201, and are described in greater detail by NJTA in its discovery responses. (See Field Cert., Exh. A at 5). All seven sites contain parts of the physical structure of the highway — piers, pilings and footings for elevated portions of the highway, work roads, access roads, etc. — which were built at different times from the early 1950's to the mid-1970's. (Doolan Cert. ¶ 2).

Each of the sites has been found to contain chromite ore processing residue ("COPR"), a substance designated as hazardous by the United States Environmental Protection Agency and NJDEP. COPR is a by-product of the refinement of chromium ore into metallic chromium components. (Id. ¶ 3). During the 1980's, the previously well-known toxic effects of chromium and chromium compounds became recognized as hazardous to the environment. Upon learning of the widespread use of COPR as landfill in Essex and Hudson Counties, NJDEP began investigating possible chromium contamination at numerous sites in that region of New Jersey.

NJTA alleges that at various times during the 1900's, the three Generator Defendants named in the complaint, Occidental, Allied and PPG (or the predecessor companies of these Defendants), owned or operated chemical companies in Hudson County that processed chromium ore. (Compl.¶¶ 47, 68, 96, 97). Defendant PPG allegedly acquired the Natural Products Refining Company, which processed chromium ore at a site in Jersey City from the 1950's until 1964. (Id. ¶¶ 54, 57, 68). Defendants Occidental and Maxus are allegedly responsible for the actions of Diamond Shamrock, which processed chromium ore at a facility in Kearny until the 1970's. (Id. ¶¶ 96-97). Defendant Allied is allegedly responsible as the successor of Mutual Chemical Corporation of America, which processed chromium ore at a site in Jersey City until the early 1950's. (Id. ¶ 47). The COPR produced at these three facilities was allegedly transported to other locations in New Jersey for use as fill material in various construction projects, including projects associated with the New Jersey Turnpike. (Id. ¶¶ 118, 120, 122). According to NJTA, the seven sites at issue in this litigation were among the properties that received COPR from the facilities of the alleged Generators. (Id. ¶¶ 119, 121, 123).

In 1988, NJDEP issued a "Directive" that listed 118 chromium-contaminated sites, including four of the seven sites at issue in this lawsuit — Sites 7, 20, and 21 in Jersey City (where Allied's and PPG's plants were located) and Site 56 in Kearny (where Diamond Shamrock's plant was located). (See Starnes Cert., Exh. B). The 1988 Directive assigned the responsibility for the investigation and remediation of these four NJTA sites collectively to Allied, PPG and Occidental. (Id., Attachment One). It acknowledged, however, that it "cannot identify which of the Respondent's chromite chemical production waste has been discharged and/or is being discharged" at those sites. (Id. ¶ 17).

In April 1990, Occidental entered into an Administrative Consent Order ("ACO") with NJDEP, voluntarily agreeing to investigate and remediate 26 chromium-contaminated sites in Kearny, including NJTA Sites 56 and 131. (Field Cert., Exh. E). Occidental agreed in the 1990 ACO to make monetary payments under the Spill Act, reimburse certain costs to NJDEP, and propose and implement interim and long-term remedial measures with respect to the Kearny sites. Occidental's execution of the 1990 ACO did not constitute an admission of any liability or fault, the agreement specifically stating that: "[a]lthough it agrees to pay this civil penalty, [Occidental] denies any violation of statute, rule, regulation or ordinance and payment of this penalty is without admission of fact, fault, liability or oblidation." (Id. ¶ 22). As well, the ACO states: "Neither the entry into this [ACO] nor the conduct of the Respondents hereunder, shall be construed as any admission of fact, fault or liability by the Respondents under any applicable laws or regulations." (Id. ¶ 109).

Since the entry of the 1990 ACO, Occidental has continued to assume responsibility for investigating and remediating chromium-contaminated sites in Kearny, including NJTA Sites 56 and 131. In addition, in March 1997, Occidental agreed with NJDEP to assume responsibility for a recently-designated NJTA site in Kearny — Site 201, "notwithstanding that the Department has been unable to identify the source of the COPR" located at that site and, again, without Occidental's admitting any legal liability for the contamination at that site. (Starnes Cert., Exh. C at 2). To date, Occidental has spent more than $700,000 implementing investigatory and remedial activities at the NJTA sites in Kearny alone and over $47 million at the many non-NJTA sites in Kearny that are also covered by the 1990 ACO.³ (Id. at 18).

Three of the other four NJTA sites in question — Sites 7, 20, 21 — are located in Jersey City, where Allied and PPG conducted their chromite ore processing operations, and Site 192 is located in Newark. Recall that the 1988 Directive assigned responsibility for the investigation and remediation of three of these four sites — Sites 7, 20, and 21 — collectively to Occidental, Allied and PPG. None of the Generator Defendants, however, has assumed responsibility for the COPR deposited on those sites. Later, in May 1994, NJDEP issued a Directive assigning responsibility for Site 7 to Allied (Starnes Cert., Exh. G), but Allied and NJDEP have apparently been unable to agree upon a plan to remediate that site. Similarly, no one has agreed to investigate or remediate the COPR found at Sites 20, 21 or 192. (Field Cert., Exh. D at ¶ 8).

Occidental, Allied and PPG all agree on the central point of the motion filed by Allied and joined in by PPG — that NJTA cannot recover from any of the Generator Defendants in this action unless it establishes, at a minimum, that COPR generated by that specific defendant was deposited at one or more of the seven NJTA sites at issue in this litigation. This argument underlies the three Defendants' motions for summary judgment on all of NJTA's claims — its CERCLA and Spill Act claims as well as its state law claims. The motion submitted by Allied and PPG, however,...