SC Holdings, Inc. v. AAA Realty Co.
| Decision Date | 16 August 1996 |
| Docket Number | Civ. No. 95-0947 (GEB). |
| Citation | 935 F. Supp. 1354 |
| Parties | SC HOLDINGS, INC., Plaintiff, v. A.A.A. REALTY CO. et al., Defendants. A.A.A. REALTY CO. et al., Third-Party Plaintiffs, v. ALUMINUM COMPANY OF AMERICA et al., Third-Party Defendants. |
| Court | U.S. District Court — District of New Jersey |
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Alan V. Klein, Saul, Ewing, Remick & Saul, Princeton, NJ, for SC Holdings, Inc.
Keith N. Leonard, Leonard, Tillery & Sciolla, Moorestown, NJ, for A.A.A. Realty Company, Meredith Paving Corp.
Sandford F. Schmidt, Law Offices of Sandford F. Schmidt, Medford, NJ, for ACR Inc. of South Jersey.
Gail Hokanson Allyn, Pitney, Hardin, Kipp & Szuch, Morristown, NJ, for AFG Industries, The Dial Corp.
Joel Schneider, Archer & Greiner P.C., Haddonfield, NJ, for Aldan Rubber Co., Hercules, Inc.
Kenneth Michael Denti, Duane, Morris & Heckscher, Cherry Hill, NJ, for Allied Signal, Inc.
Samuel H. Israel, Fox, Rothschild, O'Brien and Frankel, Lawrenceville, NJ, for Atlantic Metals Corp.
John Frederick Semple, Sterns & Weinroth, a Professional Corporation, Trenton, NJ, for BOC Group, Inc.
William C. Foster, Kelly, McLaughlin & Foster, Philadelphia, PA, for Budd Co.
Ralph R. Smith, Pepper, Hamilton & Scheetz, Westmont, NJ, for Cabot Corp., SKF USA, Inc.
Terrie-Anne Duda, Levin & Hluchan, Voorhees, NJ, for Campbell Soup Co., Megtom, Inc., Myles Transportation Co., TNT Equipment Sales & Rentals, Inc.
Dolores E. Lusa, Consolidated Rail Corporation, Philadelphia, PA, for Consolidated Rail Corporation.
Robert L. Gambell, Cherry Hill, NJ, for Deb Maintenance, Inc., Ramfab, W & K Welding and Tank Erectors, Inc.
Mark Leslie First, Reed, Smith, Shaw & McClay, Princeton, NJ, for Del Val-Ink & Color, Inc., Homet Realty Co.
Lila Wynne Williams, Margolis Edelstein, Westmont, NJ, for Delaware Valley Scrap Company.
Howard A. Matalon, Latham & Watkins, Newark, NJ, for Ford Electronics & Refrigeration Corp., Ford Motor Company, Georgia Pacific Corp.
Marilyn Heffley, Reed Smith Shaw & McClay, Philadelphia, PA, for General Electric Co.
Gerald A. Hughes, Hughes & Hendrix, PC, Trenton, NJ, for Industrial Trucking Service Corp.
David A. Christie, Jr., Wolff, Helies, & Duggan, PC, Red Bank, NJ, for Kasper Brothers, Inc.
Theresa A. Chmara, Jenner & Block, Washington, DC, for Mobile Dredging & Pumping Co.
William C. Popjoy, III, Gercke, Dumser & Feld, Cherry Hill, NJ, for Modern Way Refuse Container Service Inc.
David Joseph D'Aloia, Saiber Schlesinger Satz & Goldstein, Newark, NJ, for National Casein Company of New Jersey, Tenn. Gas Pipeline.
David Paul Schneider, Bressler, Amery & Ross, PC, Florham Park, NJ, for Owens-Corning Fiberglas, Inc.
Thomas F. Quinn, Wilson, Elser, Moskowitz, Edelman & Dicker, Newark, NJ, for Portfolio One, Inc. Granville D. Magee, Magee & Pagano, Wall Township, NJ, for Triple G. Coatings, Inc.
David F. Michelman, Blackburn & Michelman, Cherry Hill, NJ, for Twentieth Century Refuse Removal.
Robert P. Avolio, Avolio & Hanlon, P.C., Trenton, NJ for Inductotherm Corporation.
This matter comes before the Court on the motion of defendants, A.A.A. Realty Co., Atlantic Metals Corp., The Budd Company, Consolidated Rail Corporation, Deb Maintenance, Inc., Ford Motor Company, Ford Electronics and Refrigeration Corp., Georgia-Pacific Corporation, Hercules Inc., Hoeganaes Corp., Inductotherm Corp., Kasper Brothers, Inc., Meredith Paving Corp., Mobile Dredging & Pumping Co., National Casein Company of New Jersey, RAMFAB, Simon Wrecking Co., Inc., SKF USA, Inc., Tenneco, Inc. a/k/a/ Tennessee Gas Pipeline Co., Triple G. Coatings, Inc., Twentieth Century Refuse Removal Company, Inc., and W & W Welding and Tank Erectors, Inc. to dismiss certain counts of the above-captioned action against them pursuant to FED.R.CIV.P. 12(b)(6). Also before the Court are the motions of certain third-party defendants ("moving third-party defendants") to dismiss several of the third-party claims against them pursuant to FED.R.CIV.P. 12(b)(6). Additionally, the United States has moved for leave to file a response to the moving third-party defendants' motion to dismiss.1 For the reasons set forth in this Memorandum Opinion, the Court will grant defendants' motion to dismiss,2 deny the moving third-party defendants' motion to dismiss, and stay those third-party claims.
This litigation concerns allocation of remediation costs for a contaminated area of land covering approximately 400 acres in Cinnaminson and Delran Townships in Burlington County, New Jersey ("the Site"). Plaintiff SC Holdings Inc. ("SCH") currently owns approximately 136 acres of that land, on which there is a landfill, as the successor-in-interest to Sanitary Landfill, Inc. ("SLI") after an acquisition in 1993. Third Amended Complaint ¶¶ 5-6. SCH is a wholly owned subsidiary of Waste Management, Inc.
Before SLI acquired the property through a series of purchases between 1962 and 1985, Lockhart Construction Company operated a sand and gravel quarry there. Id. ¶¶ 6-7. Between 1962 and 1980, the landfill accepted a variety of municipal and industrial wastes, including hazardous substances. Id. ¶¶ 3-10. Mining operations on the Site continued until the late 1960s. Id. ¶ 8. During the 1970s, the New Jersey Department of Environmental Protection ("NJDEP") cited SLI on several occasions for violations of state landfill regulations. By September 1980, NJDEP issued an Administrative Order to SLI to close the landfill and, on October 15, 1984, approved an NJDEP Administrative Consent Order requiring SLI to implement closure of the landfill. Id. ¶ 12. On October 27, 1980, the New Jersey Superior Court, Chancery Division, Burlington County ordered SLI to close the landfill. Thereafter, site assessments confirmed the presence of groundwater contamination in the area of the landfill. Id. ¶ 15.
In June 1984, the United States Environmental Protection Agency ("EPA") placed the Site on the National Priorities List ("NPL"). Id. ¶ 14. In 1985, the EPA initiated a remedial investigation to determine the source, nature and extent of the groundwater contamination. Id. ¶ 17. The EPA concluded that the groundwater beneath the Site was contaminated with hazardous substances, and that "the SLI Landfills were the major source of groundwater contamination" at the Site. Id. ¶¶ 15-17. See Affidavit of Kristine O'Connor, Exh. 1 ¶ 39. A remedial investigation and feasibility study determined that several of the industries on the Site may have contributed to the groundwater contamination. Third Amended Complaint ¶ 20. The EPA issued a Record of Decision ("ROD") on September 28, 1990 embodying EPA's chosen remedy for the first operable unit at the Site. Id. ¶ 21. The ROD required the extraction and treatment of contaminated groundwater from deep and shallow aquifiers, reinjection of treated groundwater into the deep aquifiers, and installation of additional wells to insure that the remedy was effective. Id.
In December 1990, the EPA asked SCH and other defendants in this action, including Allied Signal. Inc., Atlantic Metals Corp., Del Val Ink & Color Inc., Ford Motor Co., Hoeganaes Corp., Tenneco Inc. and Twentieth Century Refuse Removal Co., to undertake response action at the Site. SCH alleges that it was the only PRP that complied with the EPA's request. After extensive negotiations, SCH and the EPA agreed upon the scope of response activities, and on June 28, 1991 produced a Unilateral Administrative Order ("UAO") under section 106 of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675.3 SCH also agreed to reimburse the EPA for over $3 million in past EPA response costs. SLI/ SCH alleges that it has incurred over $10 million in costs in responding to the release or threatened release of hazardous substances, including reimbursing the EPA's costs, remedial action undertaken pursuant to the EPA's June 28, 1991 UAO, investigation costs, and costs incurred in capping the landfill, installing a ventilation system, implementing a groundwater monitoring program, and erosion control. Second Amended Complaint ¶ 25.
On February 27, 1995, SCH filed the instant action seeking recovery of all or part of the money it has expended in remediating the site. Count I of the Complaint seeks relief jointly and severally against all defendants pursuant to section 107 of CERCLA, 42 U.S.C. § 9607(a).4Id. ¶¶ 86-96. Count II seeks relief against all defendants for contribution pursuant to section 113(f) of CERCLA. Id. ¶¶ 97-100. Count III asserts that defendants are strictly liable, jointly and severally, for all cleanup costs plaintiff incurred, pursuant to N.J.S.A. 58:10-23.11g(c)(1). Id. ¶¶ 101-05. Count IV alleges that defendants are strictly liable, jointly and severally, for contribution costs under the New Jersey Spill Act, N.J.S.A. 58:10-23.11f(a)(2). Id. ¶¶ 106-10. Count V asserts a common law strict liability claim against the "generator or arranger" defendants as listed supra at note 4, alleging that those defendants generated abnormally dangerous materials and thereby participated in an abnormally dangerous activity. Id. ¶¶ 111-15. Count VI seeks relief against all defendants under the common law theory of unjust enrichment. Id. ¶¶ 116-18. Finally, Count VII seeks contribution from all defendants pursuant to the New Jersey Joint Tortfeasors Contribution Act, N.J.S.A. 2A:53A-2 and N.J.S.A. 2A:53A-3. Id. ¶¶ 119-22. The Court has jurisdiction over Counts I and II of the Third Amended Complaint pursuant to 42 U.S.C. § 9613(b) and 28 U.S.C. § 1331, and supplemental jurisdiction over the remaining counts pursuant to 28 U.S.C. § 1367.
Defendants now move to dismiss Counts I, III, V, VI and VII of the Third Amended Complaint.5 Defendants contend that Counts I and III must be dismissed because plaintiff, as a responsible party under CERCLA, cannot maintain an...
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