US v. Kramer

• Decision Date: 31 October 1995
• Docket Number: 89-4380 (JBS).,Civil No. 89-4340 (JBS)
• Citation: 913 F. Supp. 848
• Parties: UNITED 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.
• Court: U.S. District Court — District of New Jersey

913 F. Supp. 848

UNITED 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.

Civil Nos. 89-4340 (JBS), 89-4380 (JBS).

United States District Court, D. New Jersey.

October 31, 1995.

Deborah Reyher, Environmental Enforcement Section, Lands & Natural Resources Division, United States Department of Justice, Washington, DC, for United States.

Emerald E. Kuepper, Deputy Attorney General, Division of Law & Public Safety, Trenton, New Jersey, for State of New Jersey.

William H. Hyatt, Jr., Pitney, Hardin, Kipp & Szuch, Morristown, New Jersey, for Defendants.

Franklin J. Riesenburger, Vineland, New Jersey, for Third-Party Plaintiffs.

Jonathan Eron, Thatcher, Lonabaugh, Thatcher & Passarella, Runnemede, NJ, for Transporter Third-Party Defendants.

Robert B. McKinstry, Jr., Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pennsylvania, for Municipality Third-Party Defendants.

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

OPINION

SIMANDLE, District Judge:

Presently before the court in this Superfund cost-recovery action is the motion in limine of the plaintiff United States to narrow issues for trial pursuant to Fed.R.Civ.P. 12(f), 16(c), and 57. The plaintiff asks this court to make two findings: 1) that it is the law of this case that defendants' arguments that costs are excessive, unreasonable, duplicative, not cost-effective, and improper do not allege inconsistency with the National Contingency Plan ("NCP"), do not provide a defense to a cost recovery action under section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended, 42 U.S.C. § 9601 et seq, and have been stricken as defenses in this case; and 2) that, as a matter of law, those same arguments do not allege inconsistency with the NCP and therefore do not provide defenses in a cost recovery action under section 107(a) of CERCLA.¹

This motion thus requires this court to determine what Congress meant when enacting section 107(a) of CERCLA, 42 U.S.C. § 9607(a), which provides in relevant part: "Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section, a responsible party shall be liable for all costs of removal or remedial action incurred by the United States Government or a State or an Indian Tribe not inconsistent with the national contingency plan."

For reasons herein discussed, the plaintiff's motion will be granted.

BACKGROUND

The United States and 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 and state governments have incurred substantial costs to remedy conditions at the landfill and its environs. There are approximately 30 direct defendants (depending on how several joint entities are counted) which are alleged to be responsible parties as generators and/or haulers of hazardous substances pursuant to section 107(a)(3) & (4), 42 U.S.C. § 9607(a)(3) & (4). Several hundred third-party defendants also have been joined. Because this motion concerns a question of law,² a precise factual background is not necessary.³

I. Law of the Case

We will first consider whether it is the law of this case that the defendants' arguments that costs are excessive, unreasonable, duplicative, not cost-effective, and improper do not allege inconsistency with the NCP, do not provide defenses in a cost recovery action, and have been stricken as defenses to cost recovery. The United States alleges that the 1991 opinion of the late Chief Judge John F. Gerry, United States v. Kramer, 757 F.Supp. 397 (D.N.J.1991), established the law of the case with respect to these issues, and that the undersigned, to whom this case was reassigned on February 8, 1995, is not free to vary the determination therein.

The Third Circuit "follows a restrictive view of the circumstances in which the work of one judge may be undone by another. Under the law of the case doctrine, once an issue has been decided, it will not be relitigated in the same case except in unusual circumstances." Geibel v. United States, 667 F.Supp. 215, 219 (W.D.Pa.1987), aff'd, 845 F.2d 1011 (3d Cir.1988). See also United States Gypsum v. Schiavo, 485 F.Supp. 46, 55 (E.D.Pa.1979), aff'd in part, rev in part, 668 F.2d 172 (3d Cir.1981), cert. denied, 456 U.S. 961, 102 S.Ct. 2038, 72 L.Ed.2d 485 (1982); United States v. Kikumura, 947 F.2d 72, 77 (3d Cir.1991) ("Under the law of the case doctrine, when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.") (citing Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988)); Devex Corp. v. General Motors Corp., 857 F.2d 197 (3d Cir.1988), cert. denied sub nom. Technograph Liquidating Trust v. General Motors Corp., 489 U.S. 1015, 109 S.Ct. 1128, 103 L.Ed.2d 190 (1989); Cowgill v. Raymark Indus., 832 F.2d 798 (3d Cir.1987); Harrington v. Lauer, 893 F.Supp. 352 (D.N.J.1995). Moreover, the Supreme Court has held that once an issue has been decided or "decided by necessary implication," reconsideration of that issue is precluded. Christianson, 486 U.S. at 819, 108 S.Ct. at 2179. In other words,

a court has the power to revisit prior decisions of its own or of a coordinate court in any circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.

Id. at 817, 108 S.Ct. at 2178.

Naturally, this doctrine is not without exception. As the Supreme Court has held, while the "law of the case directs a court's discretion, it does not limit the tribunal's power." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983) (citing Southern R. Co. v. Clift, 260 U.S. 316, 319, 43 S.Ct. 126, 126-27, 67 L.Ed. 283 (1922); Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912)). The Third Circuit recognizes, for example, the following exceptions to the law of the case doctrine: when a timely motion for reconsideration is made before a second judge when the first judge is not available; when evidence not considered by the first judge becomes available for consideration by the second judge; when a supervening rule of law renders invalid the decision rendered by the first judge; and when the first judge's decision was clearly erroneous and would work a manifest injustice. Schultz v. Onan Corp., 737 F.2d 339 (3d Cir.1984). With this frame of reference, we will evaluate the law of the case.

The plaintiff asserts that Chief Judge Gerry, in his February 8, 1991 opinion, held that defendants' claims that costs were excessive, not cost-effective, duplicative, unreasonable, and improper did not allege inconsistency with the NCP and therefore were stricken as defenses to cost recovery. (Pl. Mem. at 2-3). The plaintiff cites to the following holding of Judge Gerry's opinion to support its argument: "terms used by defendants in their affirmative defenses such as `proper' or `improper,' `remote, speculative and contingent,' and `unreasonable, duplicative and not cost-effective,' do not state an appropriate challenge to the propriety of the government's response costs, and will be stricken." United States v. Kramer, 757 F.Supp. 397, 436 (D.N.J.1991).

The United States "asks this Court to affirm Judge Gerry's ruling that the NCP imposes no requirement that the United States minimize the cost of implementing a remedy, and that even `excessive' and `unreasonable' response costs are recoverable.... and that `CERCLA does not impose a duty on the Government to mitigate response costs.'" (Pl. Mem. at 3). In other words, the plaintiff wants this court to affirm Judge Gerry's holding that

the only criterion for the recoverability of response costs under CERCLA is whether costs are consistent with the NCP. All costs not inconsistent with the NCP are recoverable. Defendants have the burden to prove that response costs are inconsistent with the NCP.

Kramer, 757 F.Supp. at 436 (citing United States v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726, 747-48 (8th Cir. 1986), cert. denied, 484 U.S. 848, 108 S.Ct. 146, 98 L.Ed.2d 102 (1987) ("NEPACCO")).

The defendants argue that Judge Gerry did not so hold. Instead, they contend that "Judge Gerry's ruling pertained solely to defendants' affirmative defenses to liability, not to the recovery of damages." (Df. Mem. at 3) (emphasis in original). To support this argument, the defendants cite the following passage of Judge Gerry's opinion: "a defense that the government's response costs are inconsistent with the NCP is only a defense to the recoverability of particular response costs, but not to liability." 757 F.Supp. at 436. The defendants, however, fail to consider the previous paragraph in the opinion which clearly states that arguments that costs are excessive and unreasonable do not challenge the propriety of the response costs. The defendants also omit the word "moreover" which begins the sentence they cite. This word implies that the sentence reinforces the earlier statements and adds emphasis. It does not suggest that the statement which follows is the only or even the main finding.

In addition, referring to the language of section 107(a) of CERCLA, the defendants argue that "Judge Gerry never decided the meaning of the phrase `all costs of removal or remedial action not inconsistent with the NCP' in this case." (Df. Mem. at 3). Consequently, they contend that this court does not know whether wasteful or excessive costs are...