United States v. Price

• Decision Date: 23 September 1981
• Docket Number: Civ. A. No. 80-4104.
• Citation: 523 F. Supp. 1055
• Parties: UNITED STATES of America, Plaintiff, v. Charles PRICE, individually and d/b/a Price's Trucking Company; Virginia Price; Carl F. Price; and Bernard Abramoff, Lee Garell, and Frank Abramoff, individually and d/b/a A.G.A. Partnership, Defendants. ATLANTIC CITY MUNICIPAL UTILITIES AUTHORITY, Plaintiff-Intervenor, v. Charles PRICE, individually and d/b/a Price's Trucking Company; Virginia Price; Carl F. Price; and Bernard Abramoff, Lee Garell, and Frank Abramoff, individually and d/b/a A.G.A. Partnership, Defendants.
• Court: U.S. District Court — District of New Jersey

523 F. Supp. 1055

UNITED STATES of America, Plaintiff, v. Charles PRICE, individually and d/b/a Price's Trucking Company; Virginia Price; Carl F. Price; and Bernard Abramoff, Lee Garell, and Frank Abramoff, individually and d/b/a A.G.A. Partnership, Defendants.

ATLANTIC CITY MUNICIPAL UTILITIES AUTHORITY, Plaintiff-Intervenor, v. Charles PRICE, individually and d/b/a Price's Trucking Company; Virginia Price; Carl F. Price; and Bernard Abramoff, Lee Garell, and Frank Abramoff, individually and d/b/a A.G.A. Partnership, Defendants.

Civ. A. No. 80-4104.

United States District Court, D. New Jersey.

September 23, 1981.

COPYRIGHT MATERIAL OMITTED

William W. Robertson, U.S. Atty., by Charles J. Walsh, First Asst. U.S. Atty., Michael V. Gilberti, Sp. Asst. U.S. Atty., Newark, N.J., for plaintiff.

John L. Miller, Jr., Miller & Daniels, Cherry Hill, N.J., and Robert E. Gladden, Gladden, Brierley & Paglione, Camden, N.J., for Price defendants.

John P. Hauch, Jr., Archer, Greiner & Read, Haddonfield, N.J., for A.G.A. defendants.

BROTMAN, District Judge.

For fundamental and deeply rooted psychological reasons, as well as more mundane utilitarian considerations, it is characteristic of man to bury that which he fears and wishes to rid himself of. In the past, this engrained pattern of behavior has generally proven harmless and, indeed, has often led man to restore to the earth the substances he had removed from it. In today's industrialized society, however, the routine practice of burying highly toxic chemical wastes has resulted in serious threats to the environment and to public health. See Note, An Analysis of Common Law and Statutory Remedies For Hazardous Waste Injuries, 12 Rut.L.J. 117, 117-22 (1980). The dangers are especially acute when buried chemical wastes threaten to contaminate the underground aquifers, upon which half of the nation relies for its supply of drinking water. Id. at 121.

The United States brought the instant action for injunctive relief to remedy the hazards posed by chemical dumping that occurred at Price's Landfill in Pleasantville, New Jersey during 1971 and 1972. The action was brought pursuant to section 1431 of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300i, section 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973, and the federal common law of nuisance. Defendants are the present owners of the now dormant landfill and the persons who owned and managed the landfill in the early 1970's when it was in operation. Currently being considered by the court are the government's motion for a preliminary injunction and defendants' motions for summary judgment and to compel the joinder of additional defendants. In accord with Rule 65, Fed.R.Civ.P., the court now renders the following findings of fact and conclusions of law.¹

FINDINGS OF FACT

I. The Parties and Their Relation to the Litigation

1. Plaintiff is the United States of America, acting on behalf of the Administrator of the Environmental Protection Agency (E.P.A.).

2. The Atlantic City Municipal Utilities Authority (ACMUA) has intervened as a plaintiff. The ACMUA owns the Atlantic City Water Department, which supplies water to approximately 10,600 domestic, commercial and public users in Atlantic City. The system contains approximately 10,000 connections and relies upon both surface and well water. All raw water is treated at the ACMUA's treatment plant in Pleasantville, New Jersey.

3. Defendants are Charles Price, individually and d/b/a Price's Trucking Company, Virginia Price, and Carl Price (Collectively referred to as the Price defendants); and Bernard Abramoff, Lee Garell, and Frank Abramoff, individually and d/b/a A.G.A. Partnership (Collectively referred to as the A.G.A. defendants).

4. Charles Price and his wife, Virginia Price, are residents of Atlantic County, New Jersey. Price Trucking Company is a sole proprietorship owned and operated by Charles Price, which was formed in or about 1937.

5. From January 18, 1960 to January 19, 1979, Charles and Virginia Price owned a twenty-two acre lot situated on the border of the City of Pleasantville and the Township of Egg Harbor, commonly referred to as Price's Landfill Number 1 (Price's Landfill). That property is the subject of this litigation.

6. Carl Price, the brother of Charles Price, resides in Atlantic County, New Jersey. From 1969 until 1976, Carl Price managed, supervised, and operated Price's Landfill on behalf of his brother.

7. Bernard Abramoff, Lee Garell, and Frank Abramoff comprise a general partnership known as A.G.A. Partnership. Each of the partners resides in or maintains a residence in Atlantic County, New Jersey.

8. A.G.A. Partnership is a New Jersey general partnership, which was formed for the purpose of purchasing and reselling for profit real estate in the Atlantic County area.

9. On November 13, 1978, Lee Garell, on behalf of A.G.A. Partnership, entered into a purchase agreement with Charles and Virginia Price to purchase Price's Landfill, and, on January 19, 1979, A.G.A. purchased the property.

10. During the negotiation period, Charles Price advised Garell that the property had been used as a landfill. Further, he requested that A.G.A. formally acknowledge that the property had been used as a landfill and assume responsibility for the property. Price did not specifically advise Garell that chemical wastes had been dumped on the property.

11. At the closing, on January 19, 1979, Garell, for A.G.A. Partnership, signed an acknowledgment stating that:

Buyer hereby acknowledges that the property Price's Landfill # 1 was used as a landfill and accepts it as is, with no responsibility from seller.

12. Under the laws of New Jersey, a licensed broker has an obligation to inquire of a seller about any conditions on his property that may materially affect the value of the property. At least as of 1975, both Lee Garell and Bernard Abramoff, two of the partners in A.G.A., were brokers licensed by the State of New Jersey.

13. The presence of the chemicals and toxic wastes buried at the landfill was a condition that affected the value of the landfill, but Garell made no inquiry to determine whether such wastes were present.

14. No one from or acting on behalf of A.G.A. visited the property before A.G.A. purchased it. The surface condition of the property would not have revealed that toxic wastes were buried there, although several monitoring wells were present and visible. A.G.A. made no inquiry of Price as to when the landfill was properly closed, and there was no requirement in the deed or contract of sale prepared by A.G.A., or any representation from Charles Price, that the landfill had been properly closed.

15. At the time of purchase, A.G.A. was aware that building on former landfills required special construction techniques. Before taking title, however, A.G.A. made no inspection of the property and made no effort to determine what was buried at the landfill.

16. In the summer of 1979, Garell and his partners became aware from newspaper accounts that toxic chemicals had been buried at the landfill.

17. In November and December of 1979, A.G.A. received additional information which confirmed that hazardous chemicals were buried beneath Price's Landfill.

18. At no time has A.G.A. actively disposed of any wastes at the landfill or actively contributed to the migration of contaminants from the site. Nor, however, has A.G.A. taken any steps to prevent the flow of chemical wastes from the landfill or any other action to remedy the condition present there.

19. A.G.A. purchased the property, in an arm's length transaction, for $70,000.00. This price was substantially less than the fair market value of such a property, had it not been used as a landfill, but was a reasonable price given the prior use of the property.

II. State Action Will Not Be Effective

20. On two occasions, once in 1974 and again in 1976, the New Jersey Department of Environmental Protection (D.E.P.) commenced actions to remedy the potential hazard posed by Price's Landfill. Those actions proved ineffective.

21. In mid-1979, E.P.A. initiated a program designed to identify, investigate, and remedy problems caused by the improper disposal of hazardous wastes. In an attempt to avoid duplication of effort and to make the best use of available resources, E.P.A. and D.E.P. met on several occasions and agreed to divide between them responsibility for existing waste disposal sites in New Jersey.

22. At that time, Price's Landfill was identified as a source of groundwater pollution, and it was agreed that E.P.A. would have primary responsibility for investigating that site and pursuing appropriate corrective action.

23. In November of 1979, E.P.A. began a site review of the landfill and began to investigate the geohydrology of the area in an attempt to determine the extent of groundwater contamination that had occurred as a result of chemical dumping at the landfill and to evaluate the likely effect of that contamination on public and private wells located nearby.

24. Since November of 1979, E.P.A. has actively studied the extent of the problem posed by Price's Landfill. Based on this study, the United States instituted this action on December 22, 1980.

III. The Location and History of Price's Landfill

25. Price's Landfill occupies approximately twenty-two acres extending across the boundary of Egg Harbor Township and the Town of Pleasantville, New Jersey. The landfill is roughly rectangular in shape with its longitudinal axis running north and south along the west side of Mill Road. Spruce Street runs east and west along the north side of the property. The legal description of Price's Landfill is Block 36A, Lots 3 and 6 of Egg Harbor Township, and Block 190, Lot 3 of the Town of Pleasantville.

26. On January 18, 1960, Charles and Virginia Price purchased the property known as Price's Landfill from Richard and Betty Simon.

27. From the...