US v. Rohm and Haas Co.

• Decision Date: 27 September 1996
• Docket Number: Civil Action No. 85-4386.
• Citation: 939 F. Supp. 1142
• Parties: UNITED STATES of America, Plaintiff, and New Jersey Department of Environmental Protection, Plaintiff-Intervenor, v. ROHM AND HAAS COMPANY, et al., Defendants, v. John CUCINOTTA, et al., Third Party Defendants.
• Court: U.S. District Court — District of New Jersey

939 F. Supp. 1142

UNITED STATES of America, Plaintiff, and New Jersey Department of Environmental Protection, Plaintiff-Intervenor, v. ROHM AND HAAS COMPANY, et al., Defendants, v. John CUCINOTTA, et al., Third Party Defendants.

Civil Action No. 85-4386.

United States District Court, D. New Jersey.

September 27, 1996.

COPYRIGHT MATERIAL OMITTED

Faith S. Hochberg, United States Attorney, Dorothy Donnelly, Dolmar Karlen, United States Department of Justice, Trenton, NJ, Joseph E. Hurley, Peter M. Flynn, Daniel C. Beckhard, Environmental Enforcement Section, United States Department of Justice, Washington, DC, Lois J. Schiffer, Assistant Attorney General, Environment & Natural Resources Division, United States Department of Justice, Washington, DC, Frank A. Fritz, III, Patricia Hick, United States Environmental Protection Agency, Region II, New York City, for Plaintiff.

Frank X. Cardiello, John F. Dickinson, Anthony T. Drollas, Jr., State of New Jersey, Dept. of Environmental Protection, Trenton, NJ, for Plaintiff-Intervenor.

Frank E. Ferruggia, Glen P. Callahan, Joseph M. Aronds, McCarter & English, Newark, NJ, for Defendant, Owens-Illinois, Inc.

OPINION

RODRIGUEZ, District Judge.

This matter is before the court on several motions: (1) plaintiff United States of America's ("USA-EPA") motion for partial summary judgment on liability based on the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq.; (2) plaintiff-intervenor New Jersey Department of Environmental Protection's ("NJDEP") similar motion based on the New Jersey Spill Compensation and Control Act (Spill Act), N.J.S.A. § 58:10-23.11 et seq.; and (3) defendant Owens-Illinois, Inc.'s ("Owens-Illinois") cross-motion for summary judgment on liability and divisibility of harm. The court, having considered the submissions of the parties, and for the reasons set forth below: (1) grants in part and denies in part plaintiff's motion for partial summary judgment; (2) grants in part and denies in part plaintiff-intervenor's motion for partial summary judgment; and (3) denies defendant's motion for summary judgment.

BACKGROUND

The Lipari landfill occupies approximately six acres in Mantua Township. Toxic wastes, in both solid and liquid forms, were dumped there beginning in 1958 and ending in 1971 when the site was closed by the State of New Jersey. The site is currently listed on the National Priorities List ("NPL") promulgated by the Environmental Protection Agency ("EPA") pursuant to section 105 of CERCLA, 42 U.S.C. § 9605.

After discovering and investigating the contamination at the Lipari site, the EPA issued several "Records of Decision" ("RODs") requiring various clean-up responses, costs of the third ROD being the subject of the present motions. On August 3, 1982, the EPA issued its first ROD ("ROD I"), which required, inter alia, the installation of a containment system designed to reduce the flow of leachate and contaminated groundwater from the landfill. On September 30, 1985, the EPA issued its second ROD ("ROD II"), requiring the installation of a pump and treatment system designed to remediate the "on-site" contamination. On July 11, 1988, the EPA issued its third ROD ("ROD III"), requiring remedial actions to address the continuing "off-site" contamination from the landfill and to provide a permanent solution for the problems at the site.

Pursuant to section 107 of CERCLA, 42 U.S.C. § 9607, the EPA initiated suit on September 10, 1985 to recover the costs of implementing these clean-up efforts. The original complaint named Rohm & Haas Company, Inc. ("Rohm & Haas"), Owens-Illinois, CBS Records, Inc., Almo Tank Cleaning and Maintenance Corp., Cenco, Inc., Manor Health Care Corporation and Marvin Jonas, Inc., as defendants. In January of 1986, NJDEP intervened pursuant to Section 104(c) of CERCLA, 42 U.S.C. § 9604. In March of 1986, some of the defendants filed a third-party complaint against John Cucinotta, Joseph Cucinotta, Marvin Jonas, American Packaging Corp., AT & T Technologies, Inc., Continental Can Co., Crown Cork & Seal Co., Essex Chemical Corp., Firestone Tire and Rubber Co., the Borough of Glassboro, the Township of Mantua, NL Industries, Inc., Leski, Inc., NVF Co., Technitrol, Inc., and Nick Lipari. On July 28, 1988, the United States filed an amended complaint naming Triangle Publications, Inc., The Glidden Company, E.I. DuPont de Nemours & Co., Allied Paper, Inc., Owens-Corning Fiberglas Corp., SPS Technologies, Inc., The Gilbert Spruance Company, Betz Laboratories, Inc., and Hercules, Inc. as additional defendants.

According to the suit, defendants Rohm and Haas and Owens-Illinois are waste generators responsible for a large portion of the contamination at the Lipari site. Defendant Marvin Jonas is a waste hauler who allegedly disposed of waste at the Lipari site. The other defendants were waste generators considered to be de minimis contributors of waste to the Lipari site, meaning that their volumetric contribution to the contamination at the site was small in comparison with the contributions of the other defendants.

On September 29, 1989, the court entered a partial consent decree with the de minimis defendants, essentially requiring them to pay $2.873 million in exchange for the plaintiffs' promise not to sue for any of the cleanup costs associated with ROD I, ROD II, and ROD III. The decree also includes "reopener provisions" which permit plaintiffs to reopen the case against the de minimis defendants under certain circumstances. See United States v. Rohm and Haas, 721 F.Supp. 666 (D.N.J.1989).

A second consent decree required Rohm & Haas and Owens-Illinois, among others, to pay $52,519,375 plus interest¹ in exchange for the promise of the United States and the State of New Jersey not to sue or take administrative action in connection with the clean-up measures ordered in ROD I, ROD II, and two components of ROD III. Some of the cleanup measures ordered in ROD III are not covered by the agreement.

In a third consent decree, Rohm & Haas agreed to perform the bulk of the off-site, ROD III remedies in exchange for the government's compromise of their claims against them. This decree, the government contends, reflects a "rough sort of `allocation' of liability for the universe of previously unsettled matters...." USA-EPA Br. in Supp. of Mot. for Summ.J. at 4. Indeed, this court found the allocation reasonable. See Opinion and Order (May, 17, 1995) at 20.

Soon thereafter, both USA-EPA and NJDEP filed motions for summary judgment in this court against Owens-Illinois based upon CERCLA and the Spill Act, respectively. Owens-Illinois responded with its own cross-motion for summary judgment based upon the principles of divisibility as applied by United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir.1993), on remand, 892 F.Supp. 648 (M.D.Pa.1995), aff'd, No. 95-7570, 96 F.3d 1434 (3d Cir. Aug. 22, 1996). These are the motions presently before the court.

DISCUSSION

A. Standard of Review for Summary Judgment

The entry of summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c). An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is "material" if, under the governing substantive law, a dispute about it might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Once the moving party has met this burden, the non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. The non-moving party may not rest upon mere allegations or denials of its pleadings. Id. "The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322, 106 S.Ct. at 2552.

However, in deciding the motion, the court does not "weigh the evidence and determine the truth of the matter, but instead determines whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. If the non-movant has provided evidence exceeding the "mere scintilla" threshold in demonstrating a genuine issue of material fact, the court cannot weigh the evidence and credit the movant's interpretation of the evidence. This is so even if the movant's evidence far outweighs the nonmovant's evidence. Credibility determinations are the province of the fact-finder. Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1363 (3d Cir.1992), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

Finally, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91...