OPINION
This matter comes before the Court on three separate motions: (1) Defendant Al-liedSignal, Inc.’s (“Allied”) motion for summary judgment (in which Defendant PPG Industries, Inc. (“PPG”) joins); (2) Defendants Occidental Chemical Corporation’s and Maxus Energy Corporation’s (collectively, “Occidental”)
1
motion for summary judg
The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367.
STATEMENT OF THE CASE
The NJTA operates approximately one hundred eighty miles of highway, from the George Washington Bridge in northern New Jersey to the Delaware Memorial Bridge in the southwestern part of the State. In this action, it seeks to recover for the cost of investigating and remediating environmental contamination discovered at seven sites it currently owns or operates. The sites at issue are pareéis of real property located primarily in Jersey City and Kearny, New Jersey. They are identified by the following New Jersey Department of Environmental Protection (“NJDEP”) site numbers: 7, 20, 21, 56,131,192 and 201, and are described in greater detail by NJTA in its discovery responses. (See Field Cert., Exh. A at 5). All seven sites contain parts of the physical structure of the highway — piers, pilings and footings for elevated portions of the highway, work roads, access roads, etc. — which were built at different times from the early 1950’s to the mid-1970’s. (Doolan Cert. ¶ 2).
Each of the sites has been found to contain chromite ore processing residue (“COPR”), a substance designated as hazardous by the United States Environmental Protection Agency and NJDEP. COPR is a by-product of the refinement of chromium ore into metallic chromium components. (Id. ¶ 3). During the 1980’s, the previously well-known toxic effects of chromium and chromium compounds became recognized as hazardous to the environment. Upon learning of the widespread use of COPR as landfill in Essex and Hudson Counties, NJDEP began investigating possible chromium contamination at numerous sites in that region of New Jersey.
NJTA alleges that at various times during the 1900’s, the three Generator Defendants named in the complaint, Occidental, Allied and PPG (or the predecessor companies of these Defendants), owned or operated chemical companies in Hudson County that processed chromium ore. (Compile 47, 68, 96, 97). Defendant PPG allegedly acquired the Natural Products Refining Company, which processed chromium ore at a site in Jersey City from the 1950’s until 1964. (Id. ¶¶ 54, 57, 68). Defendants Occidental and Maxus are allegedly responsible for the actions of Diamond Shamrock, which processed chromium ore at a facility in Kearny until the 1970’s. (Id. ¶¶ 96-97). Defendant Allied is allegedly responsible as the successor of Mutual Chemical Corporation of America, which processed chromium ore at a site in Jersey City until the early 1950’s. (Id. ¶ 47). The COPR produced at these three facilities was allegedly transported to other locations in New Jersey for use as fill material in various construction projects, including projects associated with the New Jersey Turnpike. (Id. ¶¶ 118, 120, 122). According to NJTA, the seven sites at issue in this litigation were among the properties that received COPR from the facilities of the alleged Generators. (Id. ¶¶ 119,121,123).
In April 1990, Occidental entered into an Administrative Consent Order (“ACO”) with NJDEP, voluntarily agreeing to investigate and remediate 26 chromium-contaminated sites in Kearny, including NJTA Sites 56 and 131. (Field Cert., Exh. E). Occidental agreed in the 1990 ACO to make monetary payments under the Spill Act, reimburse certain costs to NJDEP, and propose and implement interim and long-term remedial measures with respect to the Kearny sites. Occidental’s execution of the 1990 ACO did not constitute an admission of any liability or fault, the agreement specifically stating that: “[although it agrees to pay this civil penalty, [Occidental] denies any violation of statute, rule, regulation or ordinance and payment of this penalty is without admission of fact, fault, liability or oblidation.” (Id. ¶ 22). As well, the ACO states: “Neither the entry into this [ACO] nor the conduct of the Respondents hereunder, shall be construed as any admission of fact, fault or liability by the Respondents under any applicable laws or regulations.” (Id. ¶ 109).
Since the entry of the 1990 ACO, Occidental has continued to assume responsibility for investigating and remediating chromium-contaminated sites in Kearny, including NJTA Sites 56 and 131. In addition, in March 1997, Occidental agreed with NJDEP to assume responsibility for a recently-designated NJTA site in Kearny — Site 201, “notwithstanding that the Department has been unable to identify the source of the COPR” located at that site and, again, without Occidental’s admitting any legal liability for the contamination at that site. (Starnes Cert., Exh. C at 2). To date, Occidental has spent more than $700,000 implementing investigatory and remedial activities at the NJTA sites in Kearny alone and over $47 million at the many non-NJTA sites in Kearny that are also covered by the 1990 ACO. 3 (Id. at 18).
Three of the other four NJTA sites in question — Sites 7, 20, 21 — are located in Jersey City, where Allied and PPG conducted their chromite ore processing operations, and Site 192 is located in Newark. Recall that the 1988 Directive assigned responsibility for the investigation and remediation of three of these four sites — Sites 7, 20, and 21 — collectively to Occidental, Allied and PPG. None of the Generator Defendants, however, has assumed responsibility for the COPR deposited on those sites. Later, in May 1994, NJDEP issued a Directive assigning responsibility for Site 7 to Allied (Starnes Cert., Exh. G), but Allied and NJDEP have apparently been unable to agree upon a plan to remediate that site. Similarly, no one has agreed to investigate or remediate the COPR found at Sites 20, 21 or 192. (Field Cert, Exh. D at ¶ 8).
Occidental, Allied and PPG all agree on the central point of the motion filed by Allied and joined in by PPG — that NJTA cannot recover from any of the Generator Defendants in this action unless it establishes, at a minimum, that COPR generated by that specific defendant was deposited at one or more of the seven NJTA sites at issue in this litigation. This argument underlies the three Defendants’ motions for summary judgment on all of NJTA’s claims — its CERCLA and Spill Act claims as well as its state law claims. The motion submitted by Allied and PPG, however, distinguishes between the three Kearny sites and the other four sites insofar as Occidental is concerned, indicating that a slightly different analysis may be required regarding Occidental’s liability for the Kearny sites. Occidental submits a separate memorandum of law to address this point and to emphasize that, in its view, the central
ANALYSIS
I. SUMMARY JUDGMENT STANDARD
As previously stated, all three motions presently before the Court seek awards of summary judgment. Federal Rule of Civil Procedure 56(c) provides that summary judgment should be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). In applying that standard:
the judge must ask ... not whether ... the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented. The mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]. The judge’s inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.
Anderson v. Liberty Lobby, Inc.,
It is clear that the Generator Defendants seek judgment in their favor on all of NJTA’s claims — under CERCLA, the Spill Act and New Jersey common law. It is surprisingly unclear, however, whether NJTA cross-moves for summary judgment on all of its claims or just on its CERCLA and Spill Act claims. NJTA’s brief in support of its cross-motion contains a “Scope Note,” which notifies the reader that the arguments found therein serve a dual purpose: to respond to the motions of the Generator Defendants and to support its own cross-motion for summary judgment “as to liability.” (See NJTA Cross-Motion Br. at 1). It is apparent from its arguments that NJTA moves for summary judgment on its CERCLA claim. Presumably, this is its intention with respect to its Spill Act claim as well. However, although NJTA also repeatedly states that it has made out a “prima facie ” case for “common law liability,” its arguments are not directed toward demonstrating an absence of a genuine issue of material fact with respect to any of its common law claims. These are discussed in greater detail in Section IV, below.
II. CERCLA LIABILITY
A. STATUTORY FRAMEWORK
Congress enacted CERCLA, 42 U.S.C. § 9601
et seq.
and, later, the Superfund Amendments and Reauthorization Act (“SARA”), 42 U.S.C. § 9613, in order “[t]o provide for liability, comprehensive cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites.”
United States v. Rohm & Haas
(1) current owner or operator of a facility;
(2) person who owned or operated the facility at the time of the disposal of a hazardous substance;
(3) person who arranged for disposal or treatment, or arranged for transport for disposal or treatment, of hazardous substances at the facility; and
(4) person who accepts or accepted hazardous substances for transport to sites selected by such person.
U.S. v. CDMG Realty Co.,
An action under § 107 differs from an action under § 113 in one significant respect: a § 107 action can be brought only by innocent parties that have undertaken clean-ups. An action brought by a PRP, on the other hand, is by necessity a § 113 action for contribution.
See New Castle County v. Halliburton NUS Corp.,
(1) that the defendant falls within one of four categories of “responsible parties;”
(2) that “hazardous substances” 4 were disposed of at a “facility;” 5
(3) that there has been a “release” 6 or “threatened release” of hazardous substances from the facility into the environment; and
(4) that the release or threatened release has required or will require the plaintiff to incur “response costs.”
42 U.S.C. § 9607(a);
CDMG Realty Co.,
In the instant case, NJTA seeks to hold the Generator Defendants hable as entities who “arranged for disposal” or “arranged for the transport” of a hazardous substance for disposal at each of the seven sites in question, see 42 U.S.C. § 9607(a)(3), under both § 107 and § 113 of CERCLA. In other words, NJTA is pursuing herein both a cost recovery claim as well as a contribution claim. For purposes of the instant motion, there is no dispute that COPR is a “hazardous substance” within the meaning of CERC-LA, that the Generator Defendants (or their predecessors) were producers of COPR or that COPR was, in fact, discovered at each of the seven sites in question. A significant dispute exists, however, as to whether the COPR found at these seven sites can be linked to COPR produced by each of the Generator Defendants.
B. SECTION 107 CLAIM
NJTA’s attempt to proceed on its cost recovery claim under § 107 of CERCLA fails as a matter of law because NJTA itself is a PRP under the clear language of the statute. There is no dispute that NJTA is the current owner and operator of all seven sites in question. CERCLA’s plain language clearly provides that current owner or operator of a facility is one of the four categories of PRPs liable for all costs of removal or remedial
In a obvious attempt to avoid this inevitable result, NJTA advances the curious argument that, despite its status as the current owner and operator of all seven sites in question; it may nevertheless maintain a § 107 cost recovery action because, for recovery purposes, it qualifies as the State. NJTA does not, of course, explain how its alleged status as the State exonerates it from the liability clearly imposed upon it as a PRP under CERCLA. Rather, it merely discusses at length the reasons why it must be considered the equivalent to the State for purposes of recovery. The Court determines that the question of whether NJTA is the State is wholly irrelevant to this action, wherein there is no dispute that NJTA is the current owner or operator of the seven sites in question. The Court notes only that it seriously doubts that NJTA fails within CERCLA’s definition of “state,”
7
especially given that courts of this State have repeatedly recognized (although not in the CERCLA context) NJTA as analogous in many respects to a municipal corporation.
City of Newark v. New Jersey Turnpike Auth.,
For the foregoing reasons, the Court determines that NJTA’s CERCLA claim is limited to a contribution action under § 113.
C. SECTION 113 CLAIM
1. Lack Of Evidence That COPR Generated By Each Defendant Was Disposed Of At the Seven Sites In Question
In order to be able to proceed against each of the Generator Defendants on its contribution claim under § 113, NJTA must first establish that each Defendant has incurred § 107 liability.
See SC Holdings,
NJTA admits that it lacks direct evidence establishing that COPR generated by any of the Generator Defendants was deposited at any of the sites in question. In an effort to make up for its lack of proof, NJTA argues that the Court should apply the “alternative liability doctrine,” pursuant to which the burden would shift to the Generator Defendants to prove that COPR originating from its plant was
not
the source of the COPR detected on each site in question. According to NJTA, if a Defendant cannot exclude itself as a possible source of the COPR in question, then not only should that Defendant’s motion for summary judgment be denied, but NJTA’s motion with respect to that Defendant should be granted. Additionally, with respect to the Kearny sites (#’s 56, 131 and 201), NJTA argues that, even if the Court
2. Shifting the Burden of Proof of Causation: NJTA’s Alternate Liability Theory
(a) CERCLA’s Causation Requirement
At the outset of this analysis, the Court finds it important to briefly address CERCLA’s causation requirement, as there appears to be some confusion about this issue in general. To avoid summary judgment in Defendants’ favor on its CERCLA claims, NJTA contends that the statute does not require it to establish that each of the Generator Defendants’ COPR caused damage to each of the seven sites in question. Such an argument misconstrues the causation requirement under CERCLA. While it is true that CERCLA does not require NJTA to establish a causal connection between each Defendant’s hazardous waste and the corresponding response costs at a particular site, the statute does require NJTA to establish that the release or threatened release of each Defendant’s waste caused the incurrence of response costs at that site.
Rohm & Haas Co.,
Because such a significant portion of the instant motions is devoted to a discussion of the issue of causation under CERCLA, it is important to be clear about what is and what is not required to be proven under the statute. While it is not necessary for NJTA to link trace the cause of the response costs to each Generator Defendant, it is not enough that it simply prove that each Generator Defendant produced COPR and that COPR was found at each of the sites in question and ask the trier of fact to supply the link. Rather, in order to prevail, it must prove that each Generator Defendant deposited (or caused to be deposited) COPR at each of the sites in question.
See New Windsor v. Tesa Tuck, Inc.,
NJTA’s characterization of
Dana,
If the plaintiff demonstrates that the defendant produced a continuous and predictable waste stream that included hazardous constituents of the sort eventually found at the site, and that at least some significant part of that continuous and prediotable waste stream was disposed of at the site, the factfinder reasonably may infer that the defendant’s hazardous waste was disposed of at the site. If the plaintiff cannot demonstrate such a continuous and predictable waste stream, or is unable to show that a significant part of defendant’s waste stream reached the site, the plaintiff must present some further evidence to justify a reasonable fact finder in inferring that the defendant contributed to the hazardous waste at the site.
Id. at 1489.
The cases NJTA itself cites recognize the importance of the requirement that a plaintiff seeking to recover under CERCLA demonstrate a nexus between an off-site generator and the waste disposed of at a particular site. Indeed, the court in
United States v. Wade,
(b) Shifting the Burden of Proof
NJTA suggests that this Court shift the burden of proof of causation under CERCLA to the Generator Defendants. Despite the fact that NJTA cites absolutely no persuasive authority to support its attempt to invoke a rarely-used common law doctrine to a cause of action arising under a comprehensive and explicit Congressional statute, it suggests that, “[l]ike Al Jolsen’s rainbow, the alternative liability procedure fits the Authority’s record on these motions like a glove.” (NJTA Br. on Cross-Motions at 29). It should go without saying that for the Court to apply such a doctrine in this ease would be the exception rather than the rule.
Generally, a plaintiff bears the burden of proving the element of causation in the course of its effort to establish a prima facie case. In limited circumstances, exceptions to that rule have been carved out in order to remedy the difficulties encountered by plaintiffs in particular situations who would otherwise be unable to recover for negligently inflicted injuries. In the classic alternative liability case,
Summers v. Tice,
Under any burden-shifting framework, the plaintiff still bears the initial burden of demonstrating that the theory should be invoked. Thus, even in
Summers,
the court did not shift the burden on causation to the defendants until the plaintiff had already established that they had acted negligently—
i.e.,
that they had breached a duty of care owed to him when they pointed their guns in his direction and fired. In order for the alternative liability doctrine to apply, the plaintiff must initially prove that “the two or more actors joined as defendants acted ‘tortiously”’ towards the plaintiff and, furthermore, “all of culpable defendants [must] have been joined in the action.”
See also McLaughlin v. Acme Pallet Co.,
Putting to one side for the moment the issue of whether this doctrine, grounded in the common law of tort, has any application at all in the context of a cause of action under CERCLA, the Court determines that NJTA
In addition to its failure to sustain the threshold requirements for invoking the alternative liability doctrine in this case, NJTA has failed to cite a single case under either CERCLA or the Spill Act that has ever applied the alternative liability doctrine or, for that matter, any other collectivist liability theory, such as “enterprise”
10
or “market share”
11
liability. Especially given the clear statutory requirements for establishing liability under CERCLA, NJTA has presented no precedent that suggests to this Court that a burden shifting framework should be employed in this case. Further, one of the primary justifications for invoking the alternative Lability doctrine — to provide redress for injuries that would not be remedied otherwise — is plainly absent here. The alleged damage here — the environmental harm' — is already being addressed in ongoing NJDEP proceedings, which have already secured the agreement of Occidental to address three of the seven sites in question. As well, unlike in the traditional alternative liability scenario, the lack of proof of causation here is not due to the Defendants’ conduct. In fact, NJTA is in a
better
position than the Defendants to ascertain the source of the COPR at each site, because NJTA is the present owner and operator of all seven sites and was the entity that contracted to receive the COPR that is the source of the contamination.
See Blanks v. Murphy,
Additionally, as NJTA itself recognizes, the alternative liability doctrine applies only when the party seeking to invoke the doctrine is blameless.
See Shackil,
For all of the abovementioned reasons, the Court determines that it would be inappropriate to apply the doctrine of alternative liability to NJTA’s CERCLA claims in the present case. Without the aid of the alternative liability doctrine, NJTA cannot maintain a claim under CERCLA against either Allied or PPG with respect to any of the sites at issue, because it can produce no competent evidence to show that COPR from either Allied’s or PPG’s facility was deposited on any of the sites at issue. The Court reaches the same conclusion with respect to Occidental, but only for Sites 7, 20, 21 and 192. With respect to these four sites, all three Generator Defendants stand in the same position, NJTA essentially agreeing with this Court’s conclusion that it cannot maintain a CERC-LA claim against any of them without the aid of a collectivist liability theory. (See NJTA Answering Br. at 9). With respect to Sites 56, 131 and 201 (the Kearny sites), however, NJTA argues that its CERCLA claim survives as against Occidental even without the aid of such a theory.
3. Indirect Evidence of Occidental’s Liability for Sites 56, 131 and 201 (Kearny Sites)
NJTA maintains that its claims against Occidental regarding the Kearny sites can survive summary judgment regardless of whether the Court applies the doctrine of alternative liability, because the record contains strong inferential evidence that Occidental is responsible for the contamination of Sites 56, 131 and 201. This evidence can be summarized as follows: (a) the geographical proximity of the Kearny sites to the site of Diamond Shamrock’s former chromite ore processing plant; (b) a statement made by NJDEP in the 1990 ACO in which Occidental agreed to investigate and remediate Sites 56 and 131; and (c) the subsequent agreement of Occidental to investigate and remediate Site 201 pursuant to the same terms outlined in the 1990 ACO. The Court determines that this evidence is insufficient to defeat Occidental’s motion for summary judgment.
(a) Proximity of Diamond Shamrock’s Former Plant
NJDEP has itself made clear that the proximity of the Kearny sites to Diamond Shamrock’s former plant site is not an adequate basis for concluding that any COPR detected on the Kearny sites was produced by Diamond Shamrock, rather than by Allied and/or PPG at their plant sites in Jersey City. NJDEP clearly stated that it could not determine which of the three Generator’s chrome waste was present on which of the Sites 7, 20, 21,
56
and
131
and that, with respect to these sites, “it could have been any one of [Allied, PPG or Occidental].”
(See
Corcory Cert., Exh. A ¶ 17). Similarly, as recently as 1996, NJDEP expressly stated that, despite the proximity of Site 201 to the site of the former Diamond Shamrock plant, it could not ascribe responsibility for Site 201 to Diamond Shamrock and, thus, it was
(b) The 1990 ACO and Occidental’s Conduct Thereunder
Nor does the 1990 ACO provide a basis on which to conclude that Diamond Shamrock was the source of the COPR on Sites 56 and 131. The clear words of the 1990 ACO itself preclude reliance upon the ACO as evidence of liability. The 1990 ACO specifically states that: “Although it agrees to pay this civil penalty, [Occidental] denies any violation of statute, rule, regulation or ordinance and payment of this penalty is without admission of fact, fault, liability or obligation.” (Field Cert., Exh. E ¶22). As well, the ACO states: “Neither the entry into this [ACO] nor the conduct of the Respondents hereunder, shall be construed as any admission of fact, fault or liability by the Respondents under any applicable laws or regulations.” (Id-¶ 109).
Several sources of law also preclude any reliance upon the 1990 ACO as evidence of liability in this case. Federal Rule of Evidence 408 provides that evidence of “furnishing or offering or promising to furnish ... a valuable consideration in compromising ... a claim which was disputed as to either validity or amount is not admissible to prove liability for ... the claim or its amount.” Fed.R.Evid. 408. Courts agree that Rule 408 applies to eivfl consent decrees- executed with government agencies.
See, e.g., United States v. Austin,
The purpose of Rule 408 is, of course, to encourage settlements and compromises of disputed claims, which would be discouraged if such evidence were admissible.
See
Advisory Committee Notes (1974 Enactment) to Fed.R.Evid. 408. A similar policy has been incorporates into the two environmental statutes governing this case, which not only encourages compromise of disputed claims but, perhaps even more important to the purposes underlying those statutes, such a policy also encourages clean-up.
See In re Reading Co.,
NJTA’s argument that the Court should distinguish the words of the 1990 ACO from the actions taken by Occidental and Maxus pursuant to that agreement — because actions such as paying a fine and pursuing clean-up measures “provide a very powerful inference of consciousness of specific responsibility”— is wholly without merit. (See NJTA Mem. in Suppt. of Cross-Motion at 24). The above-quoted provisions of both the Spill Act and the 1990 ACO itself are directly contrary to NJTA’s proposed distinction. See Spill Act, N.J.S.A. 58:10-23.11f.a(3) (“No action taken by any person to contain or clean up and remove a discharge shall be construed as an admission of liability for said discharge”) (emphasis added); 1990 ACO ¶ 109 (“Neither the entry into this Administrative Consent Order nor the conduct of the Respondents hereunder, shall be construed as any admission of fact, fault or liability ....”) (emphasis added). As well, Fed.R.Evid. 408 excluded not only the settlement offer or promise as evidence of liability, but also the furnishing of the consideration promised in the settlement offer. Fed.R.Evid. 408.
NJTA’s argument that the rule excluding settlement agreements from consideration does not apply to “factual findings” contained within an administrative consent order is equally unavailing. NJTA seeks to rely on
The 1988 Directive stated that all of the Respondents [Allied, PPG and Occidental] were “responsible” for the contamination at Sites 7, 20, 21 and 56 (Corcory Cert., Exh. A ¶ 20), and the 1994 Directive stated that all three of these Generator Defendants were “responsible” for the contamination at Sites 20 and 21. (Supp. Cert, of NJTA’s Counsel, Exh. 67 ¶ 16). It appears that NJTA itself recognizes that the use of the term “responsible” in the 1988 and 1994 Directives does not preclude an award of summary judgment on the Jersey City sites against it, as it acknowledges that those claims can go to trial only if the Court invokes the alternative liability doctrine. (NJTA Answering Br. at 9). There is simply no basis for concluding that the use of the term “responsible” in the 1990 ACO regarding the Kearny sites was meant to be any different than the use of that term in the 1988 and 1994 Directives regarding the Jersey City sites. Further, NJDEP itself has recognized that a directive is simply a form of notice pleading. It has argued that directives do not possess independent legal force but, rather, serve only to provide notice to potentially responsible parties of their obligations under CERCLA or the Spill Act.
See In re Kimber Petroleum Corp.,
The very terms of the 1990 ACO agreement support this conclusion. The 1990 ACO expressly states that it incorporates by reference the 1988 Directive insofar as that directive related to the Kearny sites at issue in the 1990 ACO. (See 1990 ACO ¶ 13). Included, then, are the provisions in the 1988 Directive which state that the NJDEP could not identify which of the Generator Defendants’ COPR had been discharged and/or is discharging at the NJTA sites and that the source of the COPR could have been from any of the Defendant’s facilities. (1988 Directive ¶ 17). Even without incorporating the terms of the 1988 Directive, however, it is clear that at the time of the 1990 ACO, NJDEP remained unable to distinguish between Diamond Shamrock’s COPR and the COPR produced by Allied and PPG. Thus, even though neither Allied nor PPG was a party to the 1990 ACO, the NJDEP stated therein that the COPR at the Kearny sites was chemically and physically indistinguishable from the COPR generated by the chemical facilities of Diamond Shamrock, Allied and PPG. (1990 ACO ¶ 10). In other words, NJDEP still understood that any of the three Generator Defendants could have been responsible for the COPR covered by the 1990 agreement with Occidental.
(c) Occidental’s Agreement Regarding Site 201
At the time that it was executed, the 1990 ACO did not apply to Site 201, because that site was not designated as a chrome site until some six years later. Thus, NJTA’s arguments concerning the alleged “factual findings” embodied in the 1990 ACO cannot be applied to Site 201. Furthermore, when it was designated as a contaminated site in 1996, NJDEP clearly stated that it would be treated as an “orphan” site, because the contamination found thereupon could not be traced to any previously identified site. (Doolan Cert. Exh. C). The only evidence to which NJTA can point regarding Occidental’s alleged liability for the contamination of Sites 201, then, is that Occidental volunteered to investigate and remediate that site under the same terms set forth in the 1990 ACO. This argument is very similar to NJTA’s contention that the actions Occidental has taken in furtherance of the 1990 ACO provide strong inferential evidence of its liability for the contamination of Sites 56 and 131. For the same reasons discussed above, the Court determines that NJTA’s argument regarding
(d) Remediation at Kearny is Underway
As a final matter on this topic, the Court notes that all three Generator Defendants have argued that fatal to NJTA’s CERCLA claims against them is the fact that, apart from spending $40,000 to erect a fence around Site 20 in Jersey City, NJTA has failed to prove that it has incurred or will incur any expense to remediate any alleged environmental damage at any of the sites in question. NJTA argues that it need not present any evidence of damages at this point “since that factual topic is not before the court at this time.” (NJTA Answering Br. at 8). There are at least two reasons why NJTA’s failure to present evidence on this issue is relevant at this time. The first reason was addressed above in connection with NJTA’s unsuccessful attempt to invoke the alternative liability doctrine, the Court concluding that that doctrine is designed to make available to a plaintiff who has been harmed a remedy for such harm that it would not realize if the doctrine were not applied.
See Rutherford v. Owens-Illinois, Inc.,
D. ALLIED/PPG’s INVOLVEMENT IN THE KEARNY SITES
As the Court has already determined, NJTA’s CERCLA claim cannot survive against Allied or PPG with respect to any of the seven sites at issue. There is a remaining issue to discuss regarding the Kearny sites — Occidental’s crosselaim against Allied and PPG for its own investigation and remediation of the Kearny sites. Occidental showed no indication that it would seek contribution from Allied or PPG until NJTA filed the instant lawsuit against all three Generator Defendants. Given the Court’s conclusion herein, that NJTA may not proceed on its CERCLA claim against any of the Defendants for any of the seven sites, there is some question as to whether Occidental will continue to pursue this crosselaim. Its briefs to this Court seem to indicate that it will not. It repeatedly argues that if NJTA’s claims are allowed to proceed against Occidental for any of the sites at issue, then it must be allowed to seek contribution for PPG and Allied. {See, e.g., Occidental’s Mem. at 15,16-17). Occidental does not argue, however, that it should be allowed to proceed against Allied and PPG even if NJTA’s CERCLA claim against it is not allowed to go forward.
Allied and PPG nevertheless raise an important point. Unlike NJTA, which has not established that it has suffered any damages as a result of clean-up efforts, Occidental has established that it has expended $700,000 in connection with the investigation and remediation of the Kearny sites. Of course, Occidental bears the same burden of proof on its crossclaim that NJTA bears on the underlying CERCLA claim itself. Thus, Allied and PPG are correct in arguing that, in order to recover from them for any part of the cost expended to investigate and remediate the Kearny sites, Occidental must present evidence indicating that Allied’s or PPG’s chrome residue was deposited at each of the three sites in question. This it has not done. Accordingly, summary judgment on Occidental’s crosselaim for contribution under CERCLA must be awarded in favor of Defendants Allied and PPG.
F. CONCLUSION
For all of reasons set forth thus far in this Opinion, the Court determines that judgment must be awarded to the Generator Defendants on NJTA’ s CERCLA claims under § 107 and § 113 with respect to all seven sites at issue. Accordingly, the Count One is dismissed from this action in its entirety. Having dismissed the only fed
III. SPILL ACT LIABILITY
A. STATUTORY FRAMEWORK
The Spill Act, N.J.S.A. 58:10-23.11
et seq.,
is the New Jersey analog to CERCLA. It was adopted in 1976 to provide funds for a swift and sure response to environmental contamination. Like CERCLA, the Spill Act prohibits the discharge of hazardous substances and provides for the clean up and removal of such spills.
See
N.J.S.A. 58:10-23.11g;
S.C. Holdings,
Any person who has discharged a hazardous substance, or is in any way responsible for any hazardous substance, shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs no matter by whom incurred.
N.J.S.A. § 58:10-23.llg(c)(1);
New Castle,
B. APPLICATION
NJTA relies upon the “is in any way responsible for any hazardous substance” language of the Spill Act to suggest that, because the Generator Defendants unquestionably produced COPR, each of them can be held liable. This argument, of course, completely ignores the need to show some nexus between the COPR that the Generator Defendants produced and the discharge of COPR occurring at each of the sites in question. While there is no doubt that the Spill Act has been liberally construed, certainly that construction has not been so liberal as to require the imposition of liability on the Generator Defendants merely because they were producers of COPR. It is precisely that logic that NJTA asks the Court to accept which, taken to the extreme, would render every manufacturer of COPR liable under the Spill Act for NJTA’s seven sites regardless of whether they were connected in any way to those sites.
Alied attempts to bring NJTA’s argument to the Court’s attention but, in doing so, also misconstrues the statutory language on which NJTA improperly relies. When the Spill Act was first enacted, liability under llg(c) (quoted above) depended on one’s having “discharged”
13
a hazardous substance.
See Marsh v. N.J. Dept. of Envtl. Protection,
At the center of the ensuing debate over the interpretation of the phrase “in any way responsible” was the question of whether an innocent landowner — on whose land hazardous substances were dumped prior to that owner’s acquisition — could be held hable under the Spill Act. The New Jersey Supreme Court concluded that, although “[t]he subsequent acquisition of land on which hazardous substances have been dumped may be insufficient to hold the owner responsible,” one who owned or controlled the property at the time of the pollution was a responsible party.
14
Id.
(citing
Ventron,
Ironically, the very language upon which NJTA relies to argue that the Generator Defendants are hable to it under the Spill Act is language which was meant to bring within the ambit of Spill Act liability parties such as NJTA itself who owned and controlled the' sites in question when the disposal of COPR took place. Furthermore, as the foregoing discussion makes clear, NJTA’s attempt to divorce the phrase “in any way responsible for any hazardous substance” from the rest of the statute must fail, as there is no support for its argument that one can be “responsible” for a hazardous substance without having a connection to the site on which that substance was deposited. In short, in order to proceed against the Generator Defendants on the theory that they are parties “in any way responsible for any hazardous substance,” NJTA is charged with the burden of establishing some nexus between the COPR that each one allegedly produced and the COPR that was deposited at each of the sites in question. To hold otherwise would be to permit the imposition of Spill Act liability based solely upon the production of COPR.
Similarly, evidence that any of the Generator Defendants participated in the “trafficking” of COPR generally is not in itself enough to demonstrate a nexus between that Defendant and one or more of the sites in question. Evidence that each Defendant produced COPR, transported COPR, disposed of COPR and/or sold COPR is simply meaningless without evidence that each of these Defendants was responsible for COPR at each of the sites in question.
As the Court has already discussed above in connection with NJTA’s CERCLA claims, NJTA has failed to come forward with competent evidence on which the trier of fact could conclude that each of the Generator Defendants was responsible for the discharge of COPR on any of the sites in question. Accordingly, judgment on NJTA’s Spill Act claim is awarded in favor of the Generator Defendants, and Count Two of the complaint is dismissed in its entirety.
IV. COMMON LAW CAUSES OF ACTION
In addition to its federal and state statutory claims, NJTA- asserts six claims against the Generator Defendants under New Jersey common law. Defendant Allied moves for summary judgment on all six claims. As it did with respect to the other aspects of Allied’s motion, Defendant PPG joins in Allied’s motion on the common law claims. As well, Defendants Occidental and Maxus join wholeheartedly in Allied’s motion on the common law claims although they do not submit a supplemental brief as they did with respect to the CERCLA claim. For the following reasons, the Court determines that the motion for summary judgment should be granted dismissing all six of NJTA’s common law claims.
In Count Four of its complaint, NJTA asserts a claim against the Generator Defendants for trespass. Apparently, NJTA seeks to hold the Generator Defendants hable under a trespass theory for the entry of the COPR onto NJTA’s land. Trespass constitutes the unauthorized entry (usually of tangible matter) onto the property of another.
See Harvard Industries, Inc. v. Aetna Casualty & Surety Co.,
Trespass has been held to be an inappropriate theory of liability in a case such as this. In
Kenney v. Scientific, Inc.,
Even if a trespass claim were appropriate in an action such as this, NJTA’s claim would fail as a matter of law. NJTA’s subsequent discovery of the “true nature” of the fill substance it used to construct various parts of the Turnpike, does not transform its acceptance of fill into a trespass. For obvious reasons, NJTA does not appear to be alleging that the initial entry of the fill substance onto its property — for use in its own construction projects — constitutes trespass. Any claim that NJTA may be attempting to make in this respect, however, would necessarily fail for the same reasons that its CERCLA claims fails — there is no competent evidence before this Court which establishes that the COPR of the Generator Defendants was deposited at each of the NJTA sites in question. Finally, the Court notes that it declines NJTA’s invitation to exercise its “discretion to permit the trespass claim to remain in the ease pending evidence that will identify the actual trespasser” for the simple reason that, discovery having concluded, the Court does not have discretion to preserve a claim on which Defendants are entitled to judgment as a matter of law.
B. PRIVATE NUISANCE
As noted, there is serious doubt as to whether NJTA’s nuisance claim in Count Five has any place in this action. Even if it did, NJTA fails to establish the elements necessary to support a finding of liability. In order to establish a private nuisance, a plaintiff must demonstrate “an invasion of one’s interest in the private use and enjoyment of land.”
See Jersey City Redevelopment,
NJTA has not demonstrated that either Allied or PPG engaged in an unreasonable or unwarranted use of land adjoining any of the sites in question here. Indeed, its opposition to Allied’s motion is limited to an argument that Diamond Shamrock’s refinery
C. STRICT LIABILITY
In Count Three, NJTA alleges that the Generator Defendants’ “generating, handling, storing, transportation and disposal” of “hazardous substances, pollutants and wastes” constituted abnormally dangerous activities for which they are strictly liable. (Compl.ira 135-158). Any claim of strict liability for abnormally dangerous activities requires a plaintiff to demonstrate that the defendant engaged in an abnormally dangerous activity and harmed plaintiff as a result of that activity.
T & E Industries v. Safety Light Corp.,
NJTA’s reliance upon
Jersey City Redevelopment Auth. v. PPG Industries, Inc.,
D. NEGLIGENCE
NJTA claims in Count Six that the Generator Defendants “negligently caused and/or permitted hazardous substances to be generated, stored, treated, disposed of and otherwise managed so as to cause, permit or allow the release or threatened release of hazardous substances onto the NJTA Sites,” and breached its alleged duty “to warn members of the general public, including NJTA, of the potential hazards or risks ... presented ... by the residue mud.” (Compl.lffl 167-171). It is well settled that, for a defendant to be liable in negligence, it must have breached a duty of care it owed to the plaintiff, which breach must have been both the factual and legal cause of plaintiff’s injuries.
See Weinberg v. Dinger,
In an argument which purports not only to defeat Defendants’ motions for summary judgment on its negligence claim but, as well,
Also fatal to this claim is its argument that a plaintiff does not bear the burden of proof on all of the elements of a claim for negligence: “Proximate cause in this scenario is established or establishable ... by the facts and legal doctrine discussed in Point 11(D) above.” (Id.). Its reference, of course, is to its attempt to invoke the doctrine of alternative liability in order to shift the burden of proof on the causation element to Defendants. As previously discussed, that doctrine does not apply in this case and, even if it did, it would not excuse NJTA from first having to show that Defendants acted negligently by breaching a duty of care owed to it. There being no evidence that any actions attributable to the Defendants constituted a breach of a duty owed to NJTA or that any of their actions resulted in any damage to NJTA, its claim for negligence in Count Six is dismissed as a matter of law.
E. IMPLIED WARRANTY
In Count Seven of its complaint, NJTA asserts a claim for breach of implied warranty of fitness for a particular purpose. In this regard, NJTA claims that the Generator Defendants knew of NJTA’s “special needs ... for fill material to be used in the construction of the New Jersey Turnpike,” and that they “impliedly warranted that the fill material which they generated, transported and delivered would be reasonably fit for ... [NJTA’s] special needs” when, in fact, it was not. (CompLUf 172-175). This claim, like NJTA’s trespass and private nuisance claims, has no place in the present case. As the court recognized in
Kenney,
concepts of implied or express warranty simply cannot be applied to hazardous waste cases.
Moreover, NJTA cannot prevail on its implied warranty claim as a matter of law, because it has not demonstrated proof of any of the elements of such a claim. Indeed, there is no evidence in this case even to make the threshold showing that NJTA contracted with any of the Generator Defendants to obtain COPR from any of their facilities. Further, there is no evidence that any of the Generator Defendants knew of NJTA’s alleged “special needs,” that NJTA relied on them to furnish material suited to those needs or that any of them knew that NJTA was so relying.
See Henningsen v. Bloomfield Motors, Inc.,
F. UNJUST ENRICHMENT
Finally, in Count Eight, NJTA asserts a claim against the Generator Defendants for unjust enrichment, arguing that they were unjustly enriched at NJTA’s expense because, “[b]y providing the chromium containing residue mud to [NJTA], ... instead of properly disposing of same,” the
V. NJTA’S CROSS-MOTION
Judgment on all of NJTA’s claims against the Generator Defendants having been awarded in their favor, NJTA’s cross-motion for judgment on liability is perforce denied.
CONCLUSION
For the reasons discussed herein, the Court determines that all of NJTA’s claims under CERCLA, the Spill Act and New Jersey common law against the Generator Defendants fail as a matter of law, and it awards judgment on these claims in their favor. The Court determines, as well, that Defendant Occidental’s cross-claim fails as a matter of law and, therefore, judgment on that elaim is awarded in favor of Allied and PPG. Accordingly, the Generator Defendants’ motions for summary judgment are granted in their entirety, and Plaintiff’s cross motion for summary judgment on liability is, therefore, denied.
ORDER
For the reason set forth in the Court’s Opinion filed herewith,
It is on this 15th day of May, 1998, ORDERED that:
(1). The motions of defendants AlliedSig-nal, Inc., PPG Industries, Inc., Occidental Chemical Corporation and Maxus Energy Corporation for summary judgment be and the same hereby are granted; and
(2). Plaintiffs cross-motion for summary judgment on liability be and the same hereby is denied.
Notes
. Occidental and Maxus are referred to in Allied’s briefs collectively as "Diamond Shamrock,” because the Diamond Shamrock Chemical Corporation was Occidental’s predecessor, and a related entity of that corporation is Maxus. (See the corporate history of Diamond Shamrock, Occidental and Maxus, set forth in Occidental/Max-us’ moving brief at 4-5). NJTA refers to them collectively as “Occidental/Maxus,” asserting that the two companies are "united in interest.” Occidental and Maxus have indicated that that is not the case. Rather, they maintain that, beyond Maxus' status as an indemnitor of Occidental, Maxus' only other connection to this case is that it is the successor of a non-operating stock holding company of Diamond Shamrock that never exercised actual control over the plant operations at issue. Moreover, Maxus did not even exist until 1983, some twelve years after all generating operations ceased at the Diamond Shamrock facility.
. NJTA alleges the following common-law causes of action: strict liability, trespass, private nui-sanee, negligence, implied warranty and unjust enrichment.
. Siles 56, 131 and 201 are referred to throughout this Opinion as the “Kearny sites.” The same sites are often referred to by Allied as the "Diamond Shamrock ACO sites.”
. See 42 U.S.C. § 9601(14).
. See 42 U.S.C. § 9601(9).
. See 42 U.S.C. § 9601(22).
. See 42 U.S.C. § 9607(27) (defining "state” to include "the several States of the United States, the district of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Marianas, and any other territory or possession over which the United States has jurisdiction”). Compare id. at § 9601(21) (defining “person" to include "an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body").
. It is important to stress that we are dealing with
offsite
generators here. NJTA fails to understand the importance of this fact. It places great emphasis on the holdings in
Alcan
and
Rohm and Haas
regarding causation under CERCLA (which the generator defendants do not disputer but ignores the fact that even those two cases expressly slate that a CERCLA plaintiff must demonstrate not just that the defendant is a generator of hazardous substances, but also that the defendant is a generator of hazardous substances
at the facility
in question).
See,
e.g.,
Alcan,
. NJTA’s attempt to rely on
Anderson v. Somberg,
. Enterprise (or "concert-of-action”) liability has been applied to allocate responsibility among parties who pursue a common plan or design to commit a tortious act. That theory is clearly inapplicable to the facts of the instant case. Here, NJTA does not contend, nor is there any evidence to show, that the Generator Defendants engaged in any sort of common plan to deposit .COPR at the sites in question.
.Market-share liability has been applied in situations where a plaintiff joins in one lawsuit a substantial share of the manufacturers who might have supplied a particular product that caused his harm. Any manufacturer which cannot exculpate itself by showing that it was not the manufacturer of the particular product that caused plaintiff's harm is liable for its percentage share of the market for that product. NJTA does not allege that market-share liability should be invoked in this case where, given the limited number of potentially responsible "manufacturers,” that theory has no logical application.
. Zands is also distinguishable because in that action, all of the defendants were on-site generators of hazardous waste. Here, we are dealing with off-site generators whose very connection to the specific sites in question is precisely the issue.
. "Discharge” is defined under the Spill Act as
... any intentional or unintentional action or omission resulting in the release, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous substance into the waters or onto the lands of the Stale, or into waters outside the jurisdiction of the State when damage may result to the lands, waters or natural resources within the jurisdiction of the State ....
N.J.S.A. 58:10-23.1 lb(h).
. Following another Spill Act amendment in 1991, the DEP adopted a regulation, NJ.A.C. 7:1E-1.6, defining "person responsible for a discharge" to include, among others, "[e]a'ch owner or operator of any facility, vehicle or vessel from which a discharge has occurred."
. Contrary to NJTA’s contentions regarding evidence obtained against PPG in the Jersey City Redevelopment case, evidence that its COPR "may have gone to the Turnpike” does not tie PPG's COPR to any of the seven sites in question in this litigation.