*1 Liаbility Company; al Insurance John the court abuse discretion hold did Generators; Operators; Doe John Doe in- declining permanent amend Owners; Doe John Doe Trans John junction accepting or in- General Instru- porters; John Doe Affiliates attorney’s fees and ment’s calculation No. 98-6309. Furthermore, court we believe the costs. Appeals, Act’s dam- United States Court of properly interpreted the Cable n Third Circuit. ages provision. Argued July 1999. judgment thé Accordingly, we will affirm Nov. Decided of the District Court.
NEW JERSEY TURNPIKE
AUTHORITY,
Appellant INDUSTRIES, INC; Prod Natural
PPG Refining Company;
ucts Com F.S.F. Inc;
pany; Allied-Signal, Mutual Company America;
Chemical Occi Corporation;
dental Chemical Maxus
Energy Corporation; Pe Occidental Oxy-Diamond Corporation;
troleum Corporation;
Alkali Land Chemical
Holdings, Inc.; Martin Dennis Com
pany; George Sons, M. Brewster &
Inc.; Corporation; Felhaber Mohawk Inc.;
Constructors, Mohawk Con II, Inc.; Contracting
structors Reid
Company, Inc.; Corporation; Klevens Inc.; Company,
Horn Construction
New Manufacturers Insurance
Company; The Travelers Insurance Fidelity
Company; United States
Guaranty Company; Mutu American *3 Jamieson,
Ross (Argued), A. Lewin Moore, P.C., Princeton, & Spicer, Peskin NJ, Kasdan, Schwartz, Tobia,
Warren B. Stanziale, Sedita, P.A., Rosensweig & NJ, Montclair, Attorneys for New *4 Turnpike Authority. McGrann, (Argued),
George E. Swee- Fox, Schermer, ney, Metz, McGrann & L.L.C., PA, Pittsburgh, Joseph Lagrotteria, F. St. John & Newark, NJ, Wayne, Attorneys for PPG Industries, Inc.
David Field (Argued), W. Lowenstein PC, Roseland, NJ, Attorneys Sandler for Allied-Signal, Inc. (Argued),
Thomas E. Starnes Andrews L.L.P., Kurth, D.C., & Washington, Mills, Warren, Lori A. William L. Drink- er, Biddle, Reath, L.L.P., Princeton, NJ, & Attorneys Corpo- for Occidental Chemical Corporation. ration and Maxus ROTH, BECKER, Judge, Before: Chief RENDELL, Judges. Circuit OPINION OF THE COURT RENDELL, Judge. Circuit case, In Act Spill this CERCLA and appellant, Jersey Turnpike the New Au- thority (“Turnpike”) ap- hold the seeks to pellees liable for contribution for the con- tamination along of number of sites processing with chromate ore residue, COPR, or under standard theories оf liability and under an alternative liabili- ty theory. We conclude that has not sufficient evidence to judgment survive appellees’ summary mo- Spill tion under either or the CERCLA Act or theory, under an alternative affirm and will Court’s order District on this basis. 1069a, 903a, A. at disposal purchase. Background and Procedural
I. Factual 681a, 713a. legal of a series of This case is latest liability against affix attempting actions began investigating possi- The NJDEP for contamination appellees COPR at sites ble chromium contamination the state and federal Jersey New both In in the New 1980s.2 litigation centers courts. The instant a “Directive” to Allied- NJDEP issued along the New around seven different sites PPG, and Occidental. The NJDEP Signal, alleges Jersey Turnpike that the stated that the Directive issued have been contaminated COPR. following purposes: action, largely relies [Allied, PPG, notify and Occi- order
upon prior investigations and actions the Department, pursuant dental] and the made in parties, other records [Spill provisions Act] to the cases, to liabil- connection with those necessary to re- determined it is for the ity for contribution arrange the removal of cer- move or in question. substances, in order tain hazardous Envi- Jersey Department The New [Allied, PPG, notify Occidental] *5 (“NJDEP”) has de- ronmental Protection to be Department that the believes them 20, numbers, 7, noted these areas as site discharge of such responsible 56, 192, 21, 131, According to and 201.1 A. at 499a. hazardous substances. sites, among seven Turnpike, put appellees The Directive on notice others, COPR, directly or indi- received sites, including 118 contaminated four rectly, early appellees from from 1950s 7, here, 20, and the sites at issue Sites at to mid 1970s. A. 46a-47a. Jersey Kearny. in A. City, in and Site appellees, Allied-Signal three assigned 507-12a. The collec at Directive (“PPG”), (“Allied”), PPG Industries and Allied, responsibility tive for these sites to (“Oc- Corporation Occidental and Maxus PPG, Occidental, it could not and because cidental”) or appeal, in this involved identify discharged company had which predecessors, their corporate pro- were at these and other sites. chromate waste 30a, chromium ore. A. at cessors of 1990, A. entered at 502a. Occidеntal 1976, early 34a. From the 1900s until into administrative consent order Allied, PPG, and Occidental were relating the NJDEP to 26 chrome-contam in only companies Jersey process- New Kearny, inated sites in including 499a, ing chromium. A. at 501a. Out- 56 and 131. 339a-364á. Occidental sites plants, side of their next closest or agreed, via this administrative consent facility production chromate chemical der, implement remedial propose and Falls, A. was in Glens New York. at Kearny all of listed. measures at 500a, Allied, PPG, 1057a. and Occiden- in A. at This order did not 343a-347a.3 tal gave sold or the COPR by clude an admission or fault plants their to contractors for construc- 362a, 343a, A. at 962a, Occidental for sites. 903a, tion A. at fill or other uses. 1241a, 923-38a, 894a, 957a-960a, 897a, spent 495a. more than Occidental has 922a, $700,000 and nor remedial investigation 981a. Neither sites, Kearny has at the and over kept records of COPR measures A. 1. versions record below indi- Waste Task Force of New in 1984. Earlier Turnpike initially cate on site at 281a. focused 198, parties agreement to be appear but the in that it is site that is at issue in this case. Turnpike Site 3.When the NJDEP identified 201 as a new chrome in Occidental site 1996, agreed pres- one aware of the to treat site as covered made 494a- ence of COPR at some of the sites at issue in administrative consent order. A. at this case from the Director the Hazardous 95a. al, Signal, al. v. non-Turnpike Kearny Allied et Docket No. W-14248-89 million $47 (N.J A. at 1138a-41a. PPG Ct. .Super. sites. Law Div. Feb. 1993) (order order signed an administrative consent granting summary judg investigating it has and whereby Allied); been ment in favor of and Ger PPG remediating Indus., over 55 sites Hudson Coun al, trude et Settle PPG Inc. ty. A. at 626-68a. Docket No. (N.J.Super. W-10654-92 Ct. 1996) (order Law Div. granting June Directive in
The NJDEP issued another Allied); summary judgment in favor of following set forth the as its 1989 that Indus., 1) PPG Inc. v. Laurrence Construc reported Allied had it “findings”: Co., al, tion et Docket No. L-195-93 of all disposition could account for the 1996) (N.J.Super. Ct. Law Div. waste, April its chromate chemical but (consent order). County liti The Hudson used fill at offsite locations had been as gation produc- relied most upon frequently and had been stored one of its appeal, and used fill in construc- Exxon v. tion sites then 2) Indus., al., PPG et employees tion had was filed projects; Occidental aрpellees, corporate predeces that chromate chemical waste their reported sors, named in had used as fill wetlands areas or were this suit. been roadway con- projects construction In May filed suit struction; 3) during 50s the late Court, alleging District claims under 60s, early approximately PPG allowed 40 CERCLA, Act, tort, Jersey Spill the New day produc- per tons chromate chemical contract, claims, quasi-contract and a charge tion waste to be taken free of from judgment claim nu- declaratory against site. The Di- A. at 524-26a. PPG defendants, *6 including merous insurance of testimony rective also cited the PPG and companies, construction com- trucking prior waste employees cases that its was panies, corporations alleged and have Jersey City, used fill in was sold as and Discovery in this COPR. efforts and for fill in and indus- used construction sporadic matter In Febru- were at best. trial A. at NJDEP sites. 527a. Other 1994, ary, Magistrate Judge the entered a Directives were issued that discussed how management case order that indicated that plants waste from the PPG and Allied discovеry phases, would be conducted in fill, were and these Directives also used of phase discovery and that the first would that Allied observed both and PPG had interrogato- requests, include document into entered administrative consent orders ries, depositions. parties The ex- and with NJDEP determine remedial the an- changed interrogatory documents and plans admitting liability. A. at without shortly of period swers thereafter. For a 585-86a, 593-620a, 551-52a, 559-62a, afterward, however, at least twelve months 626a-34a, 635-664a. sought discovery the no from Turnpike activity spawned a of law This series any ques- party defendant or third on the seeking in state courts suits and federal liability. note tion of We that there damages personal injury property discovery be taken appeared to little or no residue, arising out chrome claims ore years. any party for almost two County, courts in Hudson New 1996, 16, particular, Magis have Jersey, been locus On October See, Judge closing of a trate issued an order fact e.g., number suits.4 Allied, that Redevelopment discovery request so City Authority v. PPG In Inc., dus., 85-2014, The dispositive Civ. A. No. 1987 WL its motion could be filed. (D.N.J. 3,1987), to thе Dis Sept. aff'd, Turnpike appealed this decision (3d Cir.1988); Trum, an 1410-11 et trict and received extension Florence Court example, corporation 4. behalf in the state For Allied’s counsel in this matter Jersey. 1285a. approximately federal in New A. at has handled fifteen cases on courts liability, and it had instead discovery on the issue that pursue time to fact CERCLA 15, urged apply the Court to alternative 1997, and on liability through March doctrine, whereby liability the “burden subject damages through September Defendants would shift the Generator . depo- The served five from originating that COPR its notices, one. and withdrew but sition source of the COPR plant was not the one, sum, take one In did New question.” on site in detected each in this case served deposition hour Indus- Jersey Turnpike Authority v. PPG requests appel- on the discovery written (D.N.J. tries, Inc., F.Supp.2d lees, it from sources obtained various 1998). alter- examining Turnpike’s In transcripts, but concedes deposition liability arguments, native District tran- review all of those it did not any that under burden-shift- Court noted PPG, Allied, scripts. and Occidental framework, ini- ing plaintiff still had an summary judgment, as did the moved for demоnstrating two or tial burden of Turnpike. support of motion joined acted more actors as defendants summary judgment, quoted plaintiff, and that all tortiously toward testimony pri- from deposition and utilized culpable joined were ac- defendants heavily state- and also relied on actions (citing id. Shackil v. tion. See ments made the NJDEP Directives and Laboratories, 116 N.J. Lederle that the the administrative consent orders (1989); McLaughlin v. Acme A.2d 511 into appellees had entered N.J.Super. A.2d Pallet Co. 281 The District heard oral NJDEP. Court deciding (App.Div.1995)). Without motions, argument on and then ruled theory question of whether a of alter- PPG, Allied, and Occidental favor native applicable cases law Turnpike’s federal state CERCLA, brought under the District upon This final dis- claims. order became theory if could Court found that even missal of all other claims.5 apply, had not demonstrated opinion District focus Court’s applied be alternative should that an alter- Turnpike’s was assertion at 470-71. Dis- to this case. See id. liability theory applied. native should trict noted Court *7 In its District Court noted opinion, the a to aided proрer party not “innocent” doctrine, had admitted it could Turnpike by liability that the an alternative for produce potentially not to was also liable the COPR direct evidence Occidental, by Judgment previously brought which were 5. had been entered terclaims Co., G, of USF Travelers "stayed administratively favor & Insurance and terminated Co., and and is N.J. Manufacturers Insurance disposition appeals pending any from this subject appeal. not of this A. at 241-44a. a 15, May Order Court's dated 1998.” Summary judgment granted in favor of accompanied by correspondence order was 4, 15, appellees May August on On 1998. stating that order to ensure the was issued 1) 1998, the District Court entered an order: 54(b) appeal, finality prior and that no to dismissing against the the John claims necessary. questioned We certification was 2) prejudice; stating Doe Defendants without jurisdiction this had in the whether court Turnpike any by and all claims certification, 54(b) of a counsel absence and Co., against Refining Products F.S.F. Natural 54(b) sought a certification from the District Company, Company Mutual Chemical 54(b) by Court. A was entered certificatiоn America, Oxy-Diamond Corporation, Alkali presented to court the District Court and this Company, George Dennis Martin M. Brewster argument. any jurisdic at We conclude that Sons, Inc., Corporation, & Felhaber Reid tional defects inherent the District Court’s Inc., Contracting Corpora- Company, Klevens 4, 54(b) August by cured order were tion, Company, Horn and Amer- Construction certification, juris we and that therefore have Liability Company ican Mutual Insurance appeal. diction to See Instruc consider acknowledged by were to be 813, Inc., (3d Systems, claims; 35 F.3d n. 9 defunct, 3) tional dismissing and those dis- Cir.1994); Mine Workers missing by Feather United and' cross claims counterclaims America, 530, Cir.1983). (3d exception coun- 711 F.2d of the CERCLA, subject at sites under The District had contamination Court matter jurisdiction over pursuant rather than this case to Turnpike, and 9613(b). § § 1331 and 42 un- U.S.C. U.S.C. position was in a better appellees, jurisdiction pursuant We have to 28 See U.S.C. relating evidence to causation.6 cover § 1291. Our review of the District reasons, Court’s Court For these the District id. grant summary judgment plenary. doctrine apply declined of alterna- Carp., See United Statеs v. USX Turnpike’s tive to the claims. (3d Cir.1995). 811, 819 The District Court also concluded that evidentiary were Turnpike’s proffers II. Discussion sufficient in and to es- not themselves A. CERCLA fact, question of material under tablish CERCLA, § 9601, Both U.S.C. and Spill or the Act. The Dis- either CERCLA Superfund Amendments Reau- had trict Court noted that (“SARA”), thorization Act were enacted to produced competent not sufficient evidence for provide liability and remediation of demonstrate Allied or facili- PPG’s hazardous substances in environment ty deposited any had on sites COPR cleanup for inactive hazardous issue, not at and that had waste sites. Section 107 of CERCLA as sufficient evidence Occi- produced against categories signs to four of “poten id. dental as to sites and 192. See tially responsible parties” or PRPs for Court The District then took costs of removal or remediation or hazard produced by look evidence closer at the 9607(a). § ous waste. U.S.C. A PRP Turnpike against re- Occidental with 1) the current owner or operator includes: spect sites 201 and conclud- 2) facility; any person of a who owned or could produce ed opеrated facility at the time of the against adequate evidence Occidental with 3) substance; disposal a hazardous any respect summary to these survive person arranged disposal for who or treat judgment under CERCLA. See id. ment, arranged transport for dispos or 472-75. The District Court found al or of hazardous treatment substances had not suffi- 4) any person facility; accepts who summary judg- cient evidence to survive accepted hazardous substances claims, Spill ment on its Act and it also to sites such transport person. selected other Turnpike’s addressed denied County New Castle Halliburton state law claims. The Turnpike argues (3d Corp., 111 NUS F.3d Cir. 1) appeal that the District Court erred 1997). link failing to consider evidence that would *8 Allied, PPG, and Occidental to the COPR In prove order to CERCLA lia 2) sites; refusing found at the to 107, a bility plaintiff under section must to proving 1) 2) shift the burden of causation PRP; prove: that the defendant is a liabili- the defendants under alternative disposed that hazardous were substances 3) 3) ty theory; exercising supplemental “facility”; and of at a that there has been a jurisdiction Turnpike’s оver the state law or “release” “threatened” release of haz claims, presented where the claims novel facility from the into ardous substances 4) environment; complex issues of state law. and the release following already being made 6. The District Court com- ronmental harm —is ad proof ments as to of causation: ongoing proceedings, dressed in NJDEP primary justifications already agreement [O]ne of the for in have secured the which voking the alternative doctrine —to to three of the of Occidental address seven provide injuries redress for that would question. sites in plainly be remedied otherwise —is absent F.Supp.2d 16 at 471. alleged damage here. The here —the envi 104 expenditures that PRP believes required or will its when
or
release has
threatened
“response
incur
it
a
of the costs
require
plaintiff
has assumed
share
-
9607(a);
§
See 42 U.S.C.
United
its
share
greater
equitable
costs.”
is
than
706,
Co., 96
Realty
v.
F.3d
States
CDMG
New
under the circumstances. See
Castle
(3d Cir.1996).
re-
712
A
107 cost
section
1121-22;
In
County, 111
at
see also
F.3d
may only
pursued by an
covery
(3d
action
Co.,
1111,
Reading
115 F.3d
1119
re
haz-
party that
undertаken
innocent
has
Cir.1997). A
must
plaintiff
section 113
im-
cleanup,
section 107
ardous waste
are liable
demonstrate that the defendants
joint
poses strict
and several
107;
under
ele-
potentially liable
or
for
associated with
liability on PRPs
costs
essentially
ments
both claims are
for
Id.
1120-21.
cleanup and remediation.
at
9613(f)(1);
§
42
Prisco
same.7 See U.S.C.
a
In
case where a CERC-
order
Carting Corp.,
A & D
F.3d
603
v.
168
LA
PRP
“ar-
that a
has
plaintiff asserts
(2d
Sills,
Cir.1999);
Bedford Affiliates
transportation
disposal
for
or
ranged”
(2d
Cir.1998); Redwing
427
F.3d
substances,
prior
our
case
of hazardous
Carriers,
Apts.,
Inc. v.
94 F.3d
Saraland
“must
plaintiff
law
clear that such a
is
(11th
Cir.1996);
see
CDMG
hazard-
simply prove that
defendant’s
However,
Co.,
Realty
ceive an
(Sec
causation,
liability
see
any person
proving
includes
of
Restatement
strict
scheme
433B(1)
ond)
Torts,
(1965),
any
§
any way responsible
“in
for
courts
who is
of
substance,” and the
Act is
this rule in
Spill
exceptions
hazardous
have fashioned
effec
liberally
construed
wоuld
oth
supposed
plaintiffs
be
situations which
be
recover,
§ 58:10-
purposes.
tuate its
See N.J.S.A.
as alterna
erwise unable to
such
Supreme
The
Court New
liability,
liability,
23.11x.
tive
market share
party
See,
that a
“even remote
has determined
v.
enterprise liability.
e.g., Doe Cutter
(9th
Inc.,
ly responsible
causing
for
contamination Biological
971
375
Cir.
F.2d
responsible party
will
deemed a
under
1992);
Inc.,
be
v.
72
Biological,
Smith Cutter
re
the
In
Kimber Petroleum
(Haw.1991);
Act.”12 See
416,
Hy
Haw.
717
823 P.2d
69,
1181, 1189
539 A.2d
Corp.,
487,
110 N.J.
Co.,
Eli
73
Lilly
mowitz v.
&
N.Y.2d
(1988);
Pro
Dept.
State
Environmental
941,
1069,
539
1077
541 N.Y.S.2d
N.E.2d
Ventrón,
473,
v.
468 A.2d (1989)
tection
N.J.
liability
market share
the
(applying
(1983).
150,
remote
Co.,
165-66
However
a
Inc., 15
ory);
v. Ashland
Minnich
Oil
party’s responsibility
Spill
under
Act
396,
(1984);
N.E.2d 1199
Ohio St.3d
be,
may
requires
Laboratories,
statute nevertheless
Sindell v. Abbott
Cal.3d
degree
particularity;
some
one cannot
924, 933,
Cal.Rptr.
607 P.2d
“responsible” for hazardous
(1980)
substance
for
(discussing
applying
reasons
having
without
some connection to the site
enterprise
rather than
market share
liabil
deposited.
that substance was
which
for
ity theory).
general
The
rule
alterna
CERCLA,
words,
Spill
In
like
other
liability is:
two
tive
“Where the conduct of
Act
places
burden on
tortious,
it is proved
actоrs is
more
connection or nexus be
demonstrate some
the plaintiff
that harm
been caused to
question
at the sites in
tween
COPR
them,
by only one of
but there is uncer
this case.13 See
it,
tainty
one
as to which
has caused
Marsh,
Kimber,
931;
C. Alternative effectively case established Turnpike argues pro that it doctrine of alternative is Summers (1948). Tice, In duced sufficient evidence survive sum 33 Cal.2d P.2d Summers, mary judgment apart discharged from the two hunters their application liability theory, guns plaintiff, of an it also in the direction of alternative but trial, argues able plaintiff the District Court erred to establish failing proof negligent, plain to shift the to Al both hunters were but burden PPG, lied, identify law him. and Occidental via common tiff could not the shot that hit principles response problem of alternative on the As a to the proof injured plaintiff, basis of the evidence that it faced the court appellees’ production required COPR and dis each of the hunters to posal. Although general princi- injurеd plaintiff tort law the shot that did private right
ting forth A of contribution similar interrelation exists between way cleanup against persons any costs "in recovery pro- contribution and the direct cost responsible discharged for a substance who Spill Act as visions of the is found in CERC- cleanup"). are liable for the cost of the lf(a)(2) provides: § LA. N.J.S.A. 58:10-23.1 contribution, operator 12. As the action owner the sites in contribu- question at time of the plaintiffs prove only contamination at need that a dis- tion case, responsi- issue in charge occurred for which the contribution Spill party under the Act. Marsh ble pursuant defendant or defendants are liable NJDEP, A.2d N.J. 931-33 58:10-23.llg(c)(l)]. to [§ (1997).
107
justification
Shackil
gun.
from his
The
court indicated that it
come
would
be averse to
imposition
liability
recognizing
of alternative
is to
market
lia-
share
bility
situations,
in other factual
wrongdoers responsible
“perhaps
for their con-
hold
one
application
where its
duct,
would be consis-
“escape
and not to
them to
allow
tent with public policy and
liability
where no other
merely because the nature of their
remedy would be available.” 561
resulting harm
A.2d
and the
has made
conduct
529. We do
it is clear
believe
impossible
it difficult or
which of
Jersey
New
have recognized
courts
has caused the
them
harm.” Restatement
the burden
of an
43SB(3)
shifting
(Second) Torts,
alternative liabili-
§
cmt. f.
of
ty theory does not eliminate the require-
application
liability
The
of an alternative
ment that a plaintiff establish some “rea-
theory
requirements
does place certain
sonable connection” between a defendant
any
shifting
before
oc-
plaintiff
burden
and the
harm that a plaintiff
ultimate
suf-
Some courts
set forth the fol-
curs.
have
fers,
culpable
and that all
joined
actors be
1)
lowing
liability:
test for alternative
all
516, 520-21;
as defendants.
id. at
See
see
2)
tortiously;
defendants must have acted
v. St.
Estate
Chin
Medi-
Barnabas
of
been
plaintiff
must have
harmed
Center,
454,
cal
160 N.J.
nized the of alternative liabili ty theories under the Resource Conserva record reveals that COPR waste The See, Act, Recovery e.g., or tion and RCRA. appellees’ found at the three chemical was v. Aurora National Bank Tri Star Mar sites, and processing appellees that (N.D.Ill.1998); keting, F.Supp. trucking and made contracts with various Nelson, Zands 812-13 F.Supp. v. hauling companies to the wastes. remove (S.D.Cal.1992).15 here whether What is contested reliable particular ties the COPR of the evidence applicability The of liа alternative defendants to the seven sites bility action not to CERCLA has been in this The relies issue case. law, in case specifically addressed federal Directives, upon expert reports, NJDEP here, and we will not decide the issue deposition testimony from other find not because we that We note at the outset that cases.17 to produced sufficient evidence survive only sup- in all of the material evidence if summary judgment, even alternative lia begins link plied even bility apply. stating, In so do were we question depositions with the sites in is the reject of concept alternative liabili cases, in they solely relate previous these ty the context of statutes out of 7 and 20. hand; rather, we find that we have not presented setting proffered been with a factual find Directives and the We theory report probative which is tenable. The Turn to be of little val- expert such ue, they met initial of re- pike prov- has not burden because contain no evidence 16. Our following concurring colleague require 15.The Zands court set forth the would that, particular rule theory, fоr alternative in its under an alternative 1) plaintiff period case: where identifies a plaintiff merely had to that defendants show occurred; during time 2) which contamination generated specific sort of hazardous operators property owners or where of the in the We waste relevant area. do not sub- gas strictly station are liable for the plaintiff's burden scribe this statement property contamination occurred law, which, we our have dis- under case during period ownership opera- their or cussed, requires col- a "connection.” Our tion; 3) plaintiff joins where as defendants all Tice, league only a *13 Berger there, and Associates is helpful, “if it even less as is it must be theirs.” The since it paints generalized a contamination Turnpike urges large the conceded scenario at Turnpike locations, again production scale appel- COPR in lacking a link to one or more of the lees, disposal, the need for its local appellees, and also in lacking certainty as proximity of the appellees’ production fa- prеcise nature of the contamination. issue, cilities to the sites at and the use of report indicates that sources other years, this material as fill over the combine than COPR-contaminated fill construction a question create of material fact as to might be at work at some of the appellees responsibili- whether these bear question, and it draws no conclusions as to ty pay and must Turn- contributions to the which appellee is accountable for the con- pike depositing COPR at the sites particular tamination at a site.19 question. For example, Turnpike ar- 56, 131, gues that since sites and 201 are that, We also note notwith close to Occidental’s former processing standing the urgings of the Turnpike to sites, plant, it is liable for those and since the contrary, we are not convinced that site 21 is close to plant, PPG’s PPG should even if probative, the Directives would be held accountable for the contam- COPR constitute admissible evidence. Rule ination Although 803(8)(C) there.18 facts provides for admissibility civil might serve as if corroboration there were actions of findings “fаctual resulting from proofs other of the actual involvement of an investigation pursuant made to authori with disposal ty granted by law, at the sites in unless the sources of Also, 18. Site facility 192 is close to an Occidental report A. at 385a. indicates that the Newark, present but it is not clear from the chromium record could be the result of rail- site, particular facility gener- this road beds north of the even and that in al, it was activity COPR. difficult to know Kearny As for the other sites located in what was likely most transportation to have caused for which the seeks to hold Occiden- accountable, 56, 131, of chromium fill to the site. A. at namely, 408a. tal an internal memo Occidental concedes that major Site 20: The historical land uses properties surrounding plant chrome in railway identified at this site were and road- Kearny probably scattering is result ore way transportation. A. at 385a. The fill used years and from the many fact that "for could be due to either the construc- dumped indiscriminately chrome wastes were site, tion or the railroad embankments on this property anywhere on our own else that presence yard or to the of a lumber in this likely spot to be a [bjeginning seemed .... 419a, area or other construction. A. at a- 17, 1965, July trucking the mud contract was Disch, awarded to who sold the mud for fill in report Site 21: The *14 ably the of the own result NJDEP’s inves- Inc., Indus., v. Raymark 61 F.3d urge they that not tigations, appellees are (3d Cir.1995).21 Turnpike The has not See, process. the result of an adversarial satisfy attempted thefirst or third even to Kimber, e.g., A.2d at 1185. We think requirement regarding admissibility the of argu- better that the have the proceeding, giv- the in this and depositions findings the ment and the contained in en of information in the record paucity the not shown to ad- Directives have been be as to before us the whereabouts these missible as evidence.20 prior pro- and nature of witnesses the deposition The also relies on it for to deter- ceeding, impossible is us testimony litigation from other as evidence our own that these depositions mine on are the appel- a link and between sites rely solely We do not on this admissible. but, above, testimony is lees as noted in assessing import concern of this only to sites 7 20. helpful as and all— —if evidence, however, view because we it has ac- explains The that had testimony impre- itself so unreliable and range of depositions prior cess to from a cise does not constitute evidence involving appellees cases and ma- genuine sufficient to a create issue excerpts some of these cases in the from appellees’ summary terial fact withstand us, support but in record before motion, Turn- judgment or to 20, it arguments as to sites 7 and relies pike’s summary judgment own motion. excerpts depositions primarily on from case of Exxon County in taken the Hudson 1. Evidence at Site and its Indus., PPG et v. al. with Connection Allied’s COPR Production offers de contending they are positions, proba given Turnpike points testimony and have our Exxon tive admissible. We doubts Lesofski in the case John Rep- fill regarding admissibility their we dis he had obtained chrome from a facility Inc. agree Turnpike’s penhagen, with the view of their from the Allied held; 4) 803(8)(C) preclude possible reports not bias when are does introduc- 20. opinions in possible litigation. tion ports and conclusions suсh re- prepared with a view to 1) long so a as: statements such party opposing See 85 F.3d 112. The report investigation; be based factual must report public of a bears the "bur- introduction 2) any portion report that is admitted coming enough negative den of forward sufficiently trustworthy. be re must See In persuade report court a factors to a Co., Ltd., Complaint Nautilus Motor Tanker should not be admitted.” See id. 113. (3d Cir.1996) (citing 85 F.3d Seech 153, 169, Rainey, Corp. v. 488 U.S. Aircraft Privity property or a is common interest 21. (1988); 109 S.Ct. L.Ed.2d 445 Clark required a predecessor to establish (3d Clabaugh, Cir. rather, relationship, a interest interest shared 1994)). may factors Four non-exhaustive in the material facts outcome of case determining a report considered in whether is Lloyd create such an interest. See will 1) trustworthy: sufficiently the timeliness of Lines, Inc., Export F.2d American 2) investigation; investigator’s skill (3d 1978). 1185-87 Cir. 3) experience; hearing whether a was
HI con- large-scale it to a sewer PPG is accountable for the delivered COPR contami- where project Jersey City, he struction nation site and at this indicates that the backfilling pipeline. Giv- witnessed following serves as evidence PPG linking reasonable ing the benefit of found at the COPR Site 20: assertions, the con- from their inferences 1. The refers to testi- we can draw is that Lesofski wit- clusion Samuelson, mony of Richard J. discuss- Be- pipeline.22 backfill nessed ing the movement of residue and mud appear there to be at least cause However, PPG property. off of the testimony pipeline vicinity, his does deposition testimony hearsay, is if not fill went to Site not establish Allied’s hearsay, double his is knowledge 7. a upon based statement a Robert trucker, case, In the Exxon Michael Widing, who testified another case Pitsinos, fill testified that he hauled mate- knowledge that his was based upon Allied, rial and that he delivered him by statement made to agent, PPG sewage pipeline being put where areas 1023-24, 1026, Worth Franklin. A. at Jersey City. 7 within the down Site City sewer- area considered be a *15 Kordulak, 2. Richard who testified However, project. this age construction Exxon case deposition his from the that sewerage not consist of the site does entire material the PPG was all “distributed Further, entirely clear project. it is not over the Caven Point area” and that transported that the material Pitsinos was waste was chromium taken to the “Turn- he chrome: described the material as area, pike underneath the at turnpike sand, dirty “black sand.” which he con- the end of Caven Point Avenue.” A. at with “gray trasted the chrome” at another However, testimony 1044a. Kordulak’s site, is which referred to as the “Route that period also notes the time he when A. at no point 440” 1010a-18a. At site. four receiving witnessed individuals testify did Pitsinos that he hauled this waste from chromium the PPG site was to a Turnpike part material site as of a 1980s, early from late 1960s to the the best, project. construction At he testified after had closed its Ave- PPG Garfield bringing that he remembered load of others, facility nue and sold it to when origins “fill”—what kind or its are not COPR at the site piles gone. the were of Laff- Turnpike clear—to on behalf words, In A. at other this 10sa-llsa. got era and that he stuck Construction is relevant to a testimony period time A. the mud. at 1018a.23 Turnpike alleg- after the events that the 2. Site 20 and tvith es caused the contamination at 20. Connection Site
PPG COPR Production A. at 972-73a.24 Testimony by Turnpike points depo- Zygmunt also to 3. other Wozniak Exxon case to in the Exxon case indicates that materi- from the that prove sitions addition, 22. the evidence of Lesofski’s testi- fill in the material” for construction of mony supplied Turnpike. that has been record Even in the is Id. if this letter be could but, evidence, deposition, his to reliable not rather a reference construed as the letter does testimony acknowledge that in one of the NJDEP Di- not that the it material to which deposit- rectives. refers is COPR waste nor that it was litiga- any ed at the sites involved in this tion. A. at is a letter in 1311a-12a. There the record from Allied’s to the Director Environmental Services brief, indicating reply NJDEP that a site than those in its other 24.In a footnote the Turn- fill, testified, litigation pike says involved in this but "Kordulak un- was used in no terms, "make-up that neither the the amount of certain that PPG’s waste nor was delivered during that was A. the fill used” were known. to Site 20 after the time both operation 887a. letter also indicates that New Jer- was in and that PPG facilities sey Highway Department may used "the remained on site as have PPG's COPR late as 1981. sum, we find the evidence plant moved from the als were PPG construction, and that Turnpike Turnpike is insufficient site dump returned to the trucks recover nexus for the required However, PPG A. at 1040-41. quickly. appellees from the under either CERCLA provided deposition further testimo- Act, Spill nor evidence suffi- or the is this had indicating never ny that Wozniak these cient to show that each of persons all with the any conversations at acted manner within a tortious material; actually transported the who meaning of these statutes toward not trucks that he was certain theo- sites such that alternative at the were the same he saw would ry appropriate. be plant; trucks he PPG as the saw further, note, that we concur We recognize any that he did conclusion that District Court’s driving dump to the people trucks may not be the innocent and that some the COPR the Turnpike; fill came from plaintiff permit- used in fairness should be plant other than PPG somewhere advantage liabili- ted to take of alternative knowledge at least of his some noted, ty. Turn- As the District Court A. hearsay. at 4sa-10a. based case, joint pike a PRP such, tortfeasor; may very well Even the benefit giving an alternative lia- inappropriate utilize evi- from these reasonable inferences bility apply to theory, which is meant to proffers, testimony is defi- dentiary it is respects: vague wholly plaintiffs, cient in the bur- several innocent shift questionable reliability, and imprecise, of proof in a den of to its fellow tortfeasors *16 sufficiently probative to cre- therefore not action. contribution v. ate an issue for trial. See Anderson clearly that note We also 242, 249-50, 477 106 Liberty Lobby, U.S. not all that it to causa- did do could (1986) 2505, (stating 202 S.Ct. 91 L.Ed.2d shifting approach tion such that burden if judgment may that summary granted be in The should be utilized this matter.25 “not “merely is colorable” or is evidence clearly mili- Turnpike’s diligence lack v. significantly probative”); Blackburn against a alternative lia- finding tates that (3d Service, 81, 95 United Parcel bility applied should be here. The Turn- Cir.1999) (citing Philbin v. Trans Union presence of pike was made aware of the (3d Cir.1996)) 957, n. 1 Corp., 101 F.3d 961 1984, at at COPR some issue (noting hearsay that a statement that is until yet did not file suit in this matter trial being not admitted capable 1993, fact procеss finding and the of its summary should not be considered at than Unisys impressive. this case has been less judgment stage); Armbruster v. (3d Cir.1994). 768, In Corp., Layton F.3d 777 A. at 271a. v. Blue Giant 32 Cf. City Redevelopment Authority liability Unlike in the traditional alternative Indus., scenario, (D.N.J.1987) F.Supp. proof here PPG 655 1257 the lack of of causation being (finding that taken In PPG's COPR is not due to Defendant’ conduct. 1975).” fact, facility Turnpike] position from the Garfield Avenue is in a better [the that, testimony *17 Third, plaintiff join fault. must all the first time on appeal that the District Court might defendants who responsible should not supplemental jurisdiction have harm, so that it would be clear that at claims, over its state law due to then- least one of actually the defendants did 1367(c)(1). complexity. § 28 See U.S.C. A Nelson, cause the v. harm. Zands district court’s decision to determine such (S.D.Cal.1992); F.Supp. Aurora discretionary, claims is party where a Inc., Nat’l Bank v. Marketing, Tri Star object has failed to to the district court’s 1031 (N.D.Ill.1998). F.Supp. jurisdiction, exercise of this in the absence I believe that the Turnpike’s evidence circumstances, of special the challenge is may be sufficient to meet this threshold See, e.g., waived. Int’l College Surgeons of (1) test for the following reasons: the de- (7th v. City Chicago, 153 F.3d of produced large quantities fendants of Cir.1998); Doe Fein v. Distñct Co of (2) COPR; no one else COPR lumbia, (D.C.Cir.1996). (3) within 150 miles of Hudson County; We exceptional find no circumstances practice dispose was to of COPR local- case, this and hold that the (4) ly; freely the defendants and indiscrim- objections waived its to the District inately disposed of COPR in and around supplemental jurisdic Court’s exercise of (5) County; Hudson the defendants’ tion in this matter. COPR was used various construction reasons, (6) foregoing For the we will af- and development projects; the Turn- firm judgment pike building District Court. was buy- Plan; Pierce, Jr., E. Trustee at the same time as Donald
ingfill material fill; Mine of the United Workers Amer- disposing were COPR defendants (7) Plan; ica 1974 Trustee of the defendants understood that COPR Pension Mine America 1993 being highway projects; used as fill United Workers of was (8) Plan; Segal, Elliott A. proximity sites are close Benefit Trust- the seven I none- facilities. would ee of the United Mine Workers of the defendants’ Plan; I America Pension Trustee judgment affirm because be- theless that, requirements to the of the United Mine Workers of Amer- lieve addition Plan; Joseph above, alternate doctrine ica Pension J. set forth Stahl, II, dili- Mine plaintiff exercise Trustee the United demands gence identity Pension determining Workers of America 1974 Plan; Marty Hudson, responsible parties, yet D. Trustee of other Mine Workers of America failed to do so. United Plan; F. 1992 Benefit Thomas Con- I also take statement of issue nors, Trustee of the United Mine theory alternate the court Workers of America 1992 Benefit apply wholly plain- is meant innocent Plan; Mine Trustee the United alternate lia- tiffs. Consider the seminal Workers of America 1993 Benefit Tice, case, bility Summers 33 Cal.2d Plan; Wallace, T. Trustee Robert (1948) telling plaintiff, P.2d 1 after Mine United Workers America defendants, hunting with whom he was 1992 Benefit Plan range, they quail open line, remain in went a hill and up should Holland; Marty Hudson; D. Michael H. put tip triangle thus himself at the Connors; F. T. Wal- Thomas Robert which formed the other base of was lace, Third-Party-Plaintiffs was in plaintiff position hunters. Despite being far from when he shot. plaintiff, an innocent he was to recov- Lady able Valley Company; Brush Jane Coal id. 199 at 1. er. See P.2d This result belies Inc.; Energy Collieries, Interstate Moreover, a con- Pemico, the Court’s contention. Company; Inc., Third-Party- surely tributorily negligent plaintiff could Defendants. 402(A) § in a case contribu- recover where Pennsylvania Corporation; Lady Mines defense, negligence yet
tory is not Collieries, Inc. Interstate Jane liability applies. alternate Energy Company, Appellants.
Pennsylvania Corporation Mines *18 Holland, Michael H. Trustee of the Mine America United Workers of Plan; Pension Trustee the United Mine Workers of America 1992 Bene- PENNSYLVANIA MINES Plan; fit of the Mine Trustee United CORPORATION America Benefit Workers Plan; Jr., Pierce, E. Trustee Donald HOLLAND, H. Mine Michael Trustee of United Workers of Amer- Plan; Mine United Workers America ica Pension Trustee Plan; Pension Trustee the United United Mine America 1993 Workers of Plan; Segal, Mine Workers of America 1992 Bene- Benefit Elliott A. Trust- Plan; fit Mine Mine Trustee United ee the United Workers of Plan; of America Benefit America Pension Workers Trustee notes v. Summers persons operated property who owned the or showing negligence required; was howev- gas portion station for at least a er, the there clear— factual cоnnection during time which the contamination oc- plaintiff's shooting were di- both hunters curred; 4) plaintiff but cannot where rection. operator or which owner “caused” con- person one tamination because more than upon argued The relied operated gas property owned the sta- significance Or- of the Administrative Consent during period tion of known contamina- Court, they in the District but neither ders tion; 5) the will Court shift the burden to upon appeal. rely orders nor cite owner/operator each defendants to (3d Nagle Alspach, See 8 F.3d during show did the contamination not occur 1993); Colafella, period ownership Cir. 66, Lunderstadt of the defendant's 1989). (3d operation. F.Supp. at 817-18. Cir. garding responsibility appel- question, they of these provide proof no whatsoever deposits they dispose lees for COPR the sites did fact of their COPR question. at the sites in question. expert relies a col- upon report commissioned the Turnpike from lection facts could be summarized Louis
Notes
notes chromium fill highway building both construction.” A. might present prior have been to the at 917a. While thеre is some evidence that construction, part as of a railroad embank- highway projects, Disch sold to construction 385a, 429a, ment traverses A. this site. nothing in the record links Occidental to the 446a. Although via Disch. was de- Disch report Site 56: The concludes that chromi- posed in Route Corp. 440 Vehicle Bob d/b/a likely transported um fill was most to the site Nicholas, al., Ciasulli Acura v. G. et James No. Turnpike authority subsequent for the to the (D.N.J.), only page 86-5064 one of that testi- roadway actual work. construction A. at mony us, proffered part is of the record before 385a, 446a. nothing and it reveals about where Disch report Site 131: The concludes that it does distributed or sold the waste. appear construction transportation was involved in the of fill to report location, 19. Site 7: The states that it could not although may chromium have provide conclusive brought information “to determine been via the site the maintenance present whether the chromium fill at the or creation of an access road at this site. A. 385a, prior during turnpike site” to or construction. 446a. evidence. In order for former other circumstances indi- value as information or Rule testimony to be admissible under Turn- cate lack of trustworthiness.” 1) 804(b)(1): un- the declarant must be are the Directives pike contends 2) available; testimony must taken government investigation of a result pro- civil or deposition, or action hearing, Appellees chal- are therefore admissible. 3) party whom ceeding; against than lenge nothing the Directives as more testimony now offered must have pleading of notice used serve form had, predecessor interest must potential notice of costs had, mo- opportunity and similar have and, although findings factual up, clean direct, develop testimony by tive to presum- are set forth within Directives Kirk or redirect examination. cross,
The notes "This is in than ascertain the source the Defendants to site, portions transcript provided not to of the COPR each because Turn- [the states, Court PPG.” It then "We would pike] present operator is the owner provide pleased, requested, Court if to entity and was the that con- seven sites transcripts the entire Kordulak’s receive COPR that is the tracted to depositions.” We this Wozniak’s note source of the contamination. See Blanks not in record is evidence is before Murphy, N.J.Super. 632 1264 A.2d request parties court to not for the (App.Div.1993) shifting (rejecting burden augment proof. their position to plaintiff was in a better because injury). determine the cause itsof F.Supp.2d at 471. 25. As District Court noted: Canada, Ltd., BECKER, Equip, F.Supp. Judge, Chief Concurring. (E.D.Pa.1984) (declining apply alterna I agree with the Court that Turn- liability theory, in part tive because it was pike failed to diligence exercise in discov- apparent plaintiff could not identi ering evidence as to shipped who what fy the through manufacturer the exercise COPR However, to the various sites. I Abel, diligence); of reasonable 343 N.W.2d ground would the affirmance of the sum- (stating plaintiffs must “make a mary judgment on this factor alone. genuine attempt identify the tortfeasor view, my that, the Court’s insistence responsible injury,” for the individual and order to fulfill CERCLA’s causation re- a finding diligence pre of a lack of would quirements, “must offer liability clude utilization of alternative the PPG, proof Allied, some and Occiden- cases); ory in future DES Bixler v. Avon deposited, tal of, disposal caused the Mills, (Minn.Ct. dale 405 N.W.2d COPR at each of the sites at the issue App.1987) (finding year case,” delay eleven be is too strict a test under the filing fore suit court governing made reluctant law liability. of alternate adopt liability theory). alternative I believe that requisites threshold First, for alternate are as follows. has, quite simply, not plaintiff has to show that it would be has, instead, enough. done The Turnpike entitled to if recover it established causa asked us to rewrite the burdens that a cases, tion. In strict liability this would litigant must meet under the CERCLA require only showing of actionable harm. Act, Spill placed the burden Second, plaintiff should show that each upon plaintiff when alternative defendant did the thing exposed it to applicable, up for the make shortcom- Tice, liability. In Summers v. both defen ings in proof. We will not do so. We dants were negligent. See 33 Cal.2d will affirm the order of the District Court. (1948). By way P.2d analogy, CERCLA, requisite action would be Stipplemental E. Jurisdiction generating the relevant kind of hazardous waste in the regardless relevant area maintains for the