U.S. v. Kramer

Decision Date29 January 1997
Docket NumberCivil No. 89-4380 (JBS).,Civil No. 89-4340 (JBS).
PartiesUNITED STATES of America, Plaintiff, v. Helen KRAMER, et al., Defendants. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiffs, v. ALMO ANTI-POLLUTION SERVICES CORP., et al., Defendants.
CourtU.S. District Court — District of New Jersey

William H. Hyatt, Jr., David W. Payne, Pitney, Hardin, Kipp & Szuch, Morristown, NJ, for Direct Defendants.

Glenn A. Harris, Levin & Hluchan, Voorhees, NJ, for Defendant Elf Atochem North America, Inc.

Robert B. McKinstry, Jr., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, PA, for Third-Party Defendant Municipalities.

Kenneth Mack, Fox, Rothschild, O'Brien & Frankel, Lawrenceville, NJ, for Third-Party Defendant Generators.

Jonathan Eron, Thatcher, Lonabaugh, Thatcher & Passarella, Runnemede, NJ, for Third-Party Defendant Transporters.

John F. Strazzullo, Fairway Oaks, Pennsauken, NJ, for Third-Party Defendants G & S, Inc., G & S Co., and Thomas Gola.

Joseph A. Manfredi, Hartlaub, Dotten, Connelly, Terry, Townsend & Manfredi, Summit, NJ, for Defendant Albert J. Mitchell.


SIMANDLE, District Judge:

Presently before the court in this Super-fund cost-recovery action is a motion in limine brought by certain of the direct defendants in this case1 ("Direct Defendants"). The Direct Defendants' motion asks the court to resolve the following issue of law prior to the commencement of trial in this case:

Whether, as a matter of law, the orphan share of responsibility for response costs (however and in whatever amount that share may ultimately be defined or determined to be) must be borne in its entirety by the direct defendants and not to any extent by the third-party defendants, or whether, as a matter of law, the Court may allocate the orphan share of responsibility among all parties, including not only the direct defendants, but also the third-party defendants, under Section 113(f)(1) of the CERCLA, using such equitable factors as the Court determines are appropriate.

(Direct Def. Br. at n. 2). For the reasons discussed herein, the Direct Defendants' motion in limine will be granted, and the court determines that section 113(f)(1) of CERCLA, 42 U.S.C. § 9613(f), permits equitable allocation of a portion of responsibility for such orphan share, if any, to liable third-party defendants using such equitable factors as the court determines are appropriate.

I. Background

The United States and the State of New Jersey brought these consolidated cases pursuant to section 107(a) of CERCLA, 42 U.S.C. § 9607(a), to recover costs incurred at the Helen Kramer Landfill in Mantua, New Jersey. This is a major Superfund site at which the federal government and the State of New Jersey have incurred substantial costs claimed to exceed $100 million to remedy conditions at the landfill and its environs.

There are a total of approximately 30 direct defendants in this case, depending on how several joint entities are counted. The government alleges that those direct defendants, as owners or operators of the landfill, and as generators and/or haulers of hazardous substances, are liable for the cleanup of the Kramer landfill pursuant to section 107(a)(1)(3), & (4) of CERCLA, 42 U.S.C. § 9607(a)(1)(3), & (4). Several hundred other entities have been brought into this case as third-party defendants, as alleged generators or haulers of hazardous substances from whom defendants/third-party plaintiffs seek contribution pursuant to section 113(f) of CERCLA, 42 U.S.C. § 9613(f). Collectively, the direct defendants and third-party defendants are called potentially responsible parties (or "PRP's").

Because this motion concerns a question of law and this court has previously set forth in detail the facts underlying this case, see, e.g., United States v. Kramer, 757 F.Supp. 397 (D.N.J.1991), and 913 F.Supp. 848 (1995), further discussion herein of the events leading up to the Direct Defendants' motion is unnecessary.

II. Discussion
A. The Question Presented

Before reaching the merits of the Direct Defendants' motion, it is necessary to explain what the motion seeks and what it does not seek. Generally stated, the Direct Defendants are asking the court to determine whether defendants (that is, parties from which the United States seeks CERCLA cost recovery and remediation directly under section 107(a)) and third-party defendants (that is, parties joined as potentially responsible parties by the defendants seeking contribution under section 113 of CERCLA, but which have not been joined as direct defendants by the United States) can both be called upon, if found to be liable, to bear some equitable share of monetary responsibility for parties that are defunct or otherwise unable to pay a full share, and for recovery of cleanup costs attributed to hazardous wastes of unknown origin. At almost any multi-party hazardous waste site, such as the Helen Kramer Landfill, many tons of hazardous wastes may not be traceable to any known generator or transporter. Similarly, a party otherwise qualifying as a responsible party under CERCLA may be defunct, bankrupt, uninsured, or otherwise lack the resources to bear its ideal measure of responsibility in monetary terms. This inability to account for all hazardous wastes-treams, or to assign an ideal measure of monetary responsibility to an otherwise responsible party, gives rise to an "orphan share." An orphan share can be measured by the gap between a party's narrowly defined ideal share (based on perfect knowledge of harm caused by that party only, expressed as a proportion of the total costs of remediation at the site) and the party's actual share (if equitably apportioned among all responsible parties considering such factors as, for example, the proportion of the party's wastes — however measured — to the total wastes for which responsible parties have been identified, and the ability of each party to pay for its responsible share when financially disabled parties are excluded from consideration). There are, of course, many ways to define such an "orphan share." This opinion uses the term "orphan share" to describe the concept that an equitable allocation among PRP's under CERCLA may take into account the need to increase the ideal allocation of a party to reflect the inability of other entities, known and unknown, to pay a full share, and the inability to ascribe some portion of the wastes to any known entity, all to be considered by the court before fixing the responsible party's actual share. This motion asks whether CERCLA permits such a concept to be applied to the determination of the share of a responsible party which is a third-party defendant from which contribution is sought by a direct defendant, or whether direct defendants must bear the orphan share among themselves, passing no portion on to third-party defendants by way of a section 113(f) contribution claim.

The court, however, is not being asked to determine whether there will be an orphan share in this case, or what the size of any such share might be, or to identify all bases on which the court plans to apportion liability in this case. Moreover, the Direct Defendants are not seeking a court declaration that if there is an orphan share of some kind in this case, the third-party defendants will necessarily have to bear partial responsibility for that share. Similarly, the court is not called upon to determine whether any party's share is divisible from all other shares under the principles of United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir.1992). Likewise, this motion does not require the court to determine the consequences of a party's failure to pay a CERCLA judgment after that judgment has been entered. Rather, the present motion asks the court to determine that it will not, as a matter of law, rule out the possibility that the liability of the third-party defendants may be allocated in an amount higher than it otherwise would have been in this case if all PRP's were identifiable and financially solvent, and if all hazardous wastes could be allocated to a specific known party based upon perfect information.

B. The Ripeness Issue

As a threshold matter, the court will explain why, contrary to the arguments of the third-party defendants, the Direct Defendants' motion in limine is ripe for adjudication at this time.

This case has been managed upon two "tracks," the litigation track in which the United States and State of New Jersey will first try their direct claims arising under CERCLA and other statutes against the direct defendants, and a settlement track in which over 90% of the PRP's have engaged in a court-annexed process of gathering and analyzing data under a settlement protocol followed by negotiations under the guidance of mediators selected by these settlement process parties themselves. The commencement of the first phase of the trial of the government's direct claims is fast approaching, and the court-annexed settlement process is likewise in progress simultaneously.

The third-party defendants contend, inter alia, that the Direct Defendants' motion is not sufficiently "definite or concrete" for resolution, and that if the court were to rule on the motion at this time, its ruling would constitute an advisory opinion. They point out that no judgments have been entered against the defendants, nor have the defendants consummated a settlement with the United States, so that the adjudication of questions relating to the third-party contribution action are premature. The court concludes, however, that this question of law is a live controversy presented by the parties arising from the pleadings.

The Direct Defendants' motion seeks resolution of an almost purely legal issue,...

To continue reading

Request your trial
19 cases
  • Miami-Dade County, Fla. v. U.S.
    • United States
    • U.S. District Court — Southern District of Florida
    • September 30, 2004
    ...among the solvent parties according to the solvent parties' relative equitable shares previously derived. See United States v. Kramer, 953 F.Supp. 592, 597-98 (D.N.J.1997); Charter Township of Oshtemo v. American Cyanamid Co., 898 F.Supp. 506, 508 17. The Court will consider the United Stat......
  • U.S. v. Compaction Systems Corp.
    • United States
    • New Jersey Supreme Court
    • December 2, 1999
    ...traditionally requires common liability for the same injury and the same holds true for Section 113(f)); United States v. Helen Kramer, 953 F.Supp. 592, 601 (D.N.J.1997) (holding that third-party defendants are only severally liable while direct defendants' liability to satisfy judgments is......
  • Litgo N.J. Inc. v. Comm'r N.J. Dep't of Envtl. Prot.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 6, 2013
    ...for example, that party is immune from suit, bankrupt, or defunct—this gives rise to an orphan share. United States v. Kramer, 953 F.Supp. 592, 595 (D.N.J.1997). A court may equitably allocate orphan shares among liable parties at its discretion. Stearns & Foster Bedding Co. v. Franklin Hol......
  • Ashley Ii of Charleston Llc v. Pcs Nitrogen Inc.
    • United States
    • U.S. District Court — District of South Carolina
    • August 19, 2011
    ...in monetary terms.” United States v. Newmont USA Ltd., 2008 WL 4621566, at *62 (E.D.Wash. Oct. 17, 2008) (quoting United States v. Kramer, 953 F.Supp. 592, 595 (D.N.J.1997)). When a so-called orphan share exists, a court may take this fact into account to increase the equitable share of oth......
  • Request a trial to view additional results
2 books & journal articles
  • Re-exploring Contribution Under Rcra's Imminent Hazard Provisions
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 87, 2021
    • Invalid date
    ...Star Mktg., Inc., 990 F. Supp. 1020, 1034 (N.D. Ill. 1998). 335. See HYSON, supra note 65, at 261-62. 336. See United States v. Kramer, 953 F. Supp. 592, 600-01 (D.N.J. 1997) (holding CERCLA original defendants jointly and severally liable, but third-party defendants only severally liable);......
  • Unresolved CERCLA Issues After Atlantic Research and Burlington Northern
    • United States
    • Environmental Law Reporter No. 40-12, December 2010
    • December 1, 2010
    ...22 ELR 21124 (3d Cir. 1992); Acushnet Co. v. Mohasco Co., 191 F.3d 69, 77, 30 ELR 20071(1st Cir. 1999) 121. See United States v. Kramer, 953 F. Supp. 592, 614, 27 ELR 20878 (D.N.J. 1997). 122. See Restatement (Third) Torts: Apportionment of Liability §11 cmt. a (“several liability shifts th......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT