United States v. Manzo, Civil Action No. 97-289 (MLC) (D. N.J. 12/29/2000)

• Decision Date: 29 December 2000
• Docket Number: Civil Action No. 97-289 (MLC)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. DOMINICK MANZO, et al., Defendants/Counterclaimants, Third-party Plaintiffs, v. MONSANTO COMPANY, et al., Third-party Defendants.
• Court: U.S. District Court — District of New Jersey

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UNITED STATES OF AMERICA, Plaintiff, v. DOMINICK MANZO, et al., Defendants/Counterclaimants, Third-party Plaintiffs, v. MONSANTO COMPANY, et al., Third-party Defendants.

Civil Action No. 97-289 (MLC)

United States District Court, D. New Jersey.

December 29, 2000.

Amended August 15, 2001.

Lois J. Schiffer, Kenneth G. Long, U.S. Department of Justice, Environmental & Natural Resources Division, Environmental Enforcement Section, Washington, DC, Attorneys for Plaintiff.

Robert J. Cleary, Irene E. Dowdy, United States Attorney's Office, Trenton, NJ, Attorneys for Plaintiff.

Amelia Wagner, U.S. Environmental Protection Agency, Region II, New Jersey Superfund Branch, New York, NY, Of Counsel to Plaintiff.

Lee W. Shelly, Manasquan, NJ, Attorney for Defendants/Counterclaimants/Third-party Plaintiffs.

James E. Tyrrell, Jr., Robert A. Magnanini, Scott Louis Weber, D. Marsh Prause, Latham & Watkins, Esquires, Newark, NJ, Attorneys for Third-party Defendant Monsanto Company.

Alan S. Golub, Dwyer, Kinburn & Hall, PC, Totowa, NJ, Attorney for Third-party Defendant Champion Chemical Company.

MEMORANDUM OPINION

COOPER, District Judge

This consolidated matter comes before the Court on the motion of plaintiff United States of America (the "United States") for partial summary judgment and to strike certain affirmative defenses; the cross-motion of defendants/counterclaimants/third-party plaintiffs Dominick Manzo, Carmella Manzo, and Ace-Manzo, Inc. (collectively "Defendants"); and the motion of third-party-defendant Monsanto Company ("Monsanto") for dismissal of Defendants' third-party complaint and sanctions.

BACKGROUND

The United States initiated this action against Defendants under section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9607(a). (Compl. ¶ 1.) In its Complaint, the United States seeks to recover from Defendants response costs that it has incurred in responding to alleged release or threatened release of hazardous substances at the Burnt Fly Bog Superfund Site located on sixty acres of land in the Townships of Marlboro and Old Bridge, New Jersey (the "Site"). (Id. ¶¶ 1, 7.)

Dominick and Carmella Manzo, who are husband and wife (collectively the "Manzos"), own three parcels of land on or near the Site. (Decl. of Kenneth G. Long dated 2-3-00 ("Long Decl.") Ex. K: Decl. of Thomas Porucznik, EPA Remedial Project Manager, dated 2-3-00 ("Porucznik Decl.") at ¶¶ 5-6, Ex E: Dep. of Dominick Manzo dated 3-24-99 ("1999 Dominick Manzo Dep.") at 15, 27-28, 80-82, Ex F: Dep. of Carmella Manzo dated 3-24-99 ("1999 Carmella Manzo Dep.") at 7-9, 13; Ex J: Tax Sale Certificate for Lot 43 ("Lot 43 Tax Sale Certificate"); Defs.' Br. in Opp'n to Pl.'s Mot. for Summ. J. & in Supp. of Defs.' Counter Mot. for Summ. J. ("Defs.' Br.") at 2.) The Manzos purchased the parcels during the 1960s. (See, e.g., Long Decl. Ex C: Deed dated 7-23-68 for Lot 6 ("Lot 6 Deed"), Deed dated 12-16-62 for Lot 6A ("Lot 6A Deed"), Deed dated 6-65 for Lot 43 ("Lot 43 Deed"); 1999 Dominick Manzo Dep. at 13, 21, 27; 1999 Carmella Manzo Dep. at 7-9.) The Manzos acquired the first parcel, formerly identified as Block 38, Lot 6A (the "landfill parcel" or "Lot 6A"), in 1963. (Lot 6A Deed; 1999 Dominick Manzo Dep. at 13-18, 26-27; 1999 Carmella Manzo Dep. at 7-8.) The landfill parcel had been used as a landfill prior to the Manzos' purchase, and the Manzos thereafter attempted to use it as a landfill until the issuance of a zoning injunction against this use in 1969. (See, e.g., 1999 Dominick Manzo Dep. at 51-55; 1999 Carmella Manzo Dep. at 13-18; 26-27; Defs.' Br. at 2.) The Manzos acquired the second parcel, formerly identified as Lot 43 (the "Eagle parcel" or "Lot 43"), in 1965. (See, e.g., Lot 43 Deed; 1999 Dominick Manzo Dep. at 16-21; 1999 Carmella Manzo Dep. at 8-9; Defs.' Br. at 2.) The Eagle parcel adjoined the landfill parcel and was used by Champion Chemical Company, Inc. ("Champion")¹ and Eagle Asphalt, Inc. ("Eagle") from the early 1950s until approximately 1963 for storage and disposal of waste oil, used filter clay, and sludge. (See, e.g., Long Decl. Ex B: Defs.' Response to Interrog. ("Defs.' Response") §§ 6, 16, Ex. G: Dep. of Martin Eckel dated 8-7-80 ("Eckel Dep.") at 3-17; Defs.' Br. at 2-3.) These materials were initially disposed of in waste oil lagoons (the "Lagoons"), a sludge pile, and in drums discarded at the Site. (See, e.g., Porucznik Decl. ¶ 10; Defs.' Response ¶¶ 6, 16; Defs.' Br. at 3.) Lot 43 was later sold to Marlboro Township at a tax sale conducted because of the Manzos' failure to pay real estate taxes, but it appears that the Manzos retain their right of redemption. (See, e.g., Lot 43 Tax Sale Certificate; 1999 Dominick Manzo Dep. at 15, 27-28, 80-82; 1999 Carmella Manzo Dep. at 8-9.) In 1968, the Manzos purchased the third parcel, formerly known as Block 38, Lot 6 (the "boarding home parcel" or "Lot 6"), on which was and remains situated a boarding home. (Lot 6 Deed; 1999 Dominick Manzo Dep. at 15, 27; 1999 Carmella Manzo Dep. at 13; Defs.' Br. at 2.)

When the Manzos acquired title to the Eagle parcel, Dominick Manzo knew that the Lagoons contained waste oil and sludge from the operations of Eagle and Champion. (See, e.g., 1980 Dominick Manzo Dep. at 71-72; Defs.' Br. at 4-5.) At the time of purchase, the walls surrounding the Lagoons were intact. (See, e.g., 1980 Dominick Manzo Dep. at 79, 128.) In addition, the walls had valved pipes through them, which valves allowed excess water to drain from the Lagoons. (Id. at 95-96.) Dominick Manzo also knew at that time that there were many old reused drums filled with oil and tar scattered around the Eagle parcel. (See, e.g., id. at 70, 83-85; Defs.' Br. at 4-5.) Some of these drums were open with the oily contents spilling out. (See, e.g., 1980 Dominick Manzo Dep. at 85.)

After the Manzos acquired the Eagle parcel, Dominick Manzo and employees of Ace-Manzo, Inc. ("Ace-Manzo")² broke through and leveled the walls surrounding four of the Lagoons after mixing the contents with sand and gravel. (1980 Dominick Manzo Dep. at 78-80, 127-130; Defs.' Br. at 5.) Dominick Manzo and employees of Ace-Manzo used some of the oily mixed material from the leveled Lagoons to build a road from the Eagle parcel to the part of the landfill parcel being used as a landfill. (1980 Dominick Manzo Dep. at 80-81; Defs.' Br. at 5.) Dominick Manzo and employees of Ace-Manzo also spread some of the oily mixed material from the leveled Lagoons as cover on top of the landfill that the Manzos operated on the landfill parcel. (1980 Dominick Manzo Dep. at 81-82, 129-30; Defs.' Br. at 5.) Dominick Manzo and employees of Ace-Manzo also moved some of the oil and tar filled drums, possibly with a bulldozer, during the excavation, and some of the drums may have been punctured during this movement. (1980 Dominick Manzo Dep. at 127-28.) Ace-Manzo also placed creosote on Lot 43. (Decl. of Dominick Manzo dated 3-21-00 ("Manzo Decl.") ¶ 3; Decl. of Lee W. Shelly, Esq. dated 3-22-00 ("Shelly Decl.") Ex. C: Dep. of Dominick Manzo dated 8-7-80 at 123.) This creosote, however, was in the form of logs or telephone poles, and Defendants claim that it was never identified or listed as a hazardous substance and was never released into the environment and does not pose a threat of such a release. (Manzo Decl. ¶ 3; Shelly Decl. Ex. H: Monmouth County Department of Health Continuation Sheet ("Monmouth County Health Continuation Sheet"); Defs.' Br. at 11.)

In 1979, Dominick Manzo observed water or liquid escaping from one of the remaining Lagoons through a breach in the wall and flowing down to the boarding home parcel, although he claims that the liquid did not contain any sludge. (1980 Dominick Manzo Dep. at 100-02, 104-05.) Dominick Manzo made no attempt to repair the breach. (Id. at 104-05.)

Beginning in 1979, the United States Environmental Protection Agency ("EPA") and the New Jersey Department of Environmental Protection ("NJDEP") conducted investigations of the Site. (Porucznik Decl. ¶ 11; Defs.' Br. at 6.) These investigations revealed hazardous substances, including but not limited to polychlorinated bi-phenyls ("PCBs"), lead, methylene chloride, trichloroethylene, chloroform, and benzene at the Site. (See, e.g., Porucznik Decl. Ex. 4: Record of Decision ("ROD1"); Porucznik Decl. ¶ 17.) EPA issued General Notice letters to Defendants on February 8, 1982, informing Defendants of their potential liability under section 107 of CERCLA, 42 U.S.C. § 9607, for contamination at the Site. (See, e.g., Porucznik Decl. ¶ 14.) EPA placed the Site on the National Priorities List on September 1, 1983. (Id. ¶ 13.)

EPA and the State of New Jersey entered into a cooperative agreement, pursuant to section 104(d) of CERCLA, which provided Superfund monies to NJDEP for work at the Site. (Id. ¶ 15.) Under this cooperative agreement, NJDEP was assigned responsibility as the lead agency for the Site and EPA was assigned responsibility as the support agency for the Site. (Id.) EPA and NJDEP have coordinated response actions at the Site. (Id.) It appears that spills occurred during the cleanup process. (Manzo Decl. Ex A: Letter from Lee W. Shelly, Esq. to Lawrence G. Moncher, Esq. dated 12-23-81 ("12-23-81 Moncher Letter"), Ex B: Letter from Lee W. Shelly, Esq. to Lawrence G. Moncher, Esq. dated 3-30-82 ("3-30-82 Moncher Letter"); Decl. of Lee W. Shelly, Esq. dated 3-22-00 Ex. K: Burnt Fly Bog Site Report ("Burnt Fly Bog Site Report").)

The agencies divided the Site into different areas or sections. The Site was divided into: (1) the Uplands Area, (2) the Tar Patch Area, (3) the Contaminated Soils Area, (4) the Northerly Wetlands, (5) the Westerly Wetlands, (6) the Downstream Area. (Id. at ¶ 7; Porucznik Decl. Ex. 2: Site Map ("Site Map").) The Uplands Area, the Tar Patch Area, and the Northerly Wetlands Area are located on Lots 6A, 6, and 43. (Porucznik Decl. ¶...