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September 23, 1981

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

The opinion of the court was delivered by: BROTMAN

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

The United States brought the instant action for injunctive relief to remedy the hazards posed by chemical dumping that occurred at Price's Landfill in Pleasantville, New Jersey during 1971 and 1972. The action was brought pursuant to section 1431 of the Safe Drinking Water Act ("SDWA"), 42 U.S.C. § 300i, section 7003 of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6973, and the federal common law of nuisance. Defendants are the present owners of the now dormant landfill and the persons who owned and managed the landfill in the early 1970's when it was in operation. Currently being considered by the court are the government's motion for a preliminary injunction and defendants' motions for summary judgment and to compel the joinder of additional defendants. In accord with Rule 65, Fed.R.Civ.P., the court now renders the following findings of fact and conclusions of law. *fn1"


 I. The Parties and Their Relation to the Litigation

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

 II. State Action Will Not Be Effective

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

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

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

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

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

 III. The Location and History of Price's Landfill

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

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

 27. From the purchase in 1960 until approximately 1967, Charles Price excavated sand and gravel from the property for use in his road contracting business.

 28. In about 1968, when the pit was excavated to within approximately two feet of the water table, people from the surrounding area began to dump trash into it. Price permitted this and he had a worker periodically collect the trash in one corner of the pit and cover it.

 29. In 1969, Price began to operate the property as a landfill on a commercial basis.

 30. From 1969 until the landfill was closed in 1976, Carl Price worked at the site and conducted the daily operations of the landfill. He supervised the other workers, directed the disposal of wastes, including chemicals, and reported daily to Charles Price on the operation of the landfill.

 31. On June 11, 1970, Charles Price, d/b/a Price Trucking Company, applied to D.E.P. for a license to conduct a sanitary landfill operation at Price's Landfill. The application listed the materials that Price intended to accept at the landfill. Price's application specifically excluded "Chemicals (Liquid or Solid)," because Price did not, at that time, intend to dispose of chemical wastes.

 32. Based on the June 11, 1970 application, D.E.P. issued a certificate permitting Price to operate Price's Landfill as a solid waste disposal facility. The certificate, which took effect on June 30, 1970, remained valid until June 30, 1971. During that time, the New Jersey State Sanitary Code required each landfill operator to submit a sanitary landfill design, which was to include a plot plan, topographical, geological and hydrological maps of the site and surrounding areas, drilling procedures, proposed final elevation of the fill, and detailed drawings of any dikes, dams, or other pollution protection devices that might be necessary. Charles Price was aware of this requirement.

 33. Several bureaus within D.E.P., including the Bureau of Solid Waste Management, would review each application for certification and the accompanying engineering plan to determine whether the wastes that the operator had noted on the application would pose a threat to health or the environment, given the method of disposal and other factors indicated on the plan.

 34. It was not until approximately September 29, 1971 that Price submitted an engineering plan to the D.E.P. The plan, which had been prepared by his son Ronald Price, a professional engineer, did not include any provision for the disposal of chemicals, despite the fact that the landfill was, at that time, accepting and disposing of chemical wastes. Charles Price never advised his son that the landfill was or would be accepting chemical wastes.

 35. In May of 1971, Charles and Carl Price began to accept and dispose of chemical wastes at the landfill. The disposal of these wastes during 1971 occurred on a sporadic basis.

 36. On June 30, 1971, Charles Price's permit to conduct a landfill operation at Price's Landfill expired. He did not file an application to renew his permit until February 11, 1972, and he never received a permit to operate for the period of June 30, 1971 to June 30, 1972. Price's February application was prompted by a D.E.P. letter of January 28, 1972, which notified Price that he had not submitted an application to renew his permit and threatened legal action if he did not promptly file such an application.

 37. In his February 11, 1972 application, Price, for the first time, sought permission to accept and dispose of liquid and chemical wastes at the landfill. During this period, Price was accepting increased quantities of chemical wastes.

 38. In response to Price's application, on June 30, 1972, D.E.P. granted Charles Price a certificate subject to the conditions that:


No liquid or soluble industrial wastes, petrochemicals, waste oils, sewage sludge, or septic tank wastes shall be received for disposal at this site.


Observation well(s) shall be constructed for monitoring ground water conditions no later than six (6) months from the date of issuance of the Certificate of Registration. Said observation well(s) shall be constructed according to standards established by the Department of Environmental Protection.

 39. Despite the above limitations, Charles and Carl Price continued to accept and dispose of significant quantities of chemical and liquid wastes at the landfill until November, 1972.

 40. These wastes were disposed of with minimal precautions. Frequently, wastes would be poured into the refuse from an open spigot on a tank truck. At other times, drums of chemicals would simply be buried under the refuse at the landfill.

 41. On July 21, 1972, only three weeks after the permit prohibiting liquid wastes was issued, Alan Kaczoroski, the D.E.P. inspector responsible for the region containing Price's Landfill, inspected the landfill and cited it for accepting chemical wastes. By letter dated August 4, 1972, D.E.P. formally advised Price of the violation. Nonetheless, Price continued to accept and dispose of chemical wastes in significant quantities until November, 1972.

 42. Mr. Kaczoroski visited the landfill approximately every six weeks during 1970 and 1971 and somewhat more frequently during 1972. In each instance, he would walk around the site and prepare a report detailing the operation of the landfill, noting any remarkable conditions and citing any violations he observed.

 43. Kaczoroski first observed chemical dumping at the landfill on February 15, 1972. He observed such dumping, as well as the signs of chemical dumping, on numerous occasions thereafter until November of 1972.

 44. Kaczoroski never authorized Price to accept chemical wastes. Nor did any other official of D.E.P. ever authorize the disposal of chemical wastes at the landfill.

 45. On one occasion, Kaczoroski pointed out to Carl Price that a driver was using an unsafe method to unload chemical drums, and he instructed Price to have the driver use a safer method. Other than that occasion, neither Kaczoroski nor any other D.E.P. official ever instructed Charles or Carl Price as to where or how to dispose of chemical wastes.

 46. Kaczoroski was not directly responsible for permit violations and often would not be familiar with the terms of a landfill's permit. He was aware, however, that the July 30, 1972 permit issued to Price prohibited chemical dumping at the Landfill.

 47. Kaczoroski regularly reported his observation of chemical dumping at the landfill to his superiors in the Bureau of Solid Waste Management at D.E.P. D.E.P. took no action to stop the disposal of chemical wastes at the landfill.

 48. After November of 1972, no chemical wastes were disposed of at the landfill, although it continued in operation.

 49. In 1976, Charles Price terminated the landfill operation and covered the site with fill material.

 50. The property has been unused since 1976. Neither Price nor A.G.A. has conducted or permitted any dumping at the property since that time.

 IV. The Nature of the Toxic Wastes Migrating from the Landfill

 51. During the period from May, 1971 to mid-November, 1972, Charles and Carl Price accepted and disposed of approximately 9 million gallons of toxic and flammable chemical and liquid wastes in drums and directly into the ground, including acetone; acids (glycolic, nitric and sulfuric) and spent acid wastes; acryloid, acryloid monomer and poly acryloid; caulking and spent caulking solvent; caustics and spent caustic wastes; cesspool waste; chemical resins and other waste chemicals; chloroform; cleaning solvents; ether and spent ether wastes; ethyl acetate; ethylene dichloride; fatty acids; glue wastes; grease and spent grease solvents; heptane; hexane; inks and waste ink residues; isopropanol; isopropyl alcohol; isopropyl ether; lacquer thinner; manganese dioxide; methanol; methyl ethyl ketone; methyl isobutyl ketone; methyl vinyl ketone; miscellaneous chemical laboratory wastes; mineral spirits; oil and waste oil products (No. 6 waste oil); paint, paint sludge, paint thinner and spent paint wastes; perfume wastes; phenols, phenolics and phenolic solvents; resins; septic waste and sludge; still bottoms; styrene and styrene wastes; tar; titanium wastes; toluene; xylene and xylol.

 52. Between 1973 and the present, 12 observation wells have been installed on or in the vicinity of Price's Landfill. In addition, there are approximately 35 private wells in the vicinity of the landfill.

 53. On December 6, 1979; April 9-10, 1980; August 26, 1980; October 28, 1980; November 6, 1980; December 10-11, 1980; January 21, 1981; and January 26, 1981, employees of E.P.A. and members of the Field Investigative Team (FIT) (employees of Fred C. Hart Associates) collected water samples from monitoring wells located on and around Price's Landfill, and from public and private water wells in the vicinity of the landfill. These samples were collected using standard and generally-accepted procedures. Standard Chain of Custody, Field Data, and Request for Analysis forms were prepared for each sample. Subsequently, the samples were transported to the E.P.A. Laboratory in Edison, New Jersey or to one of the FIT contract laboratories where they were analyzed using standard E.P.A. procedures outlined in Methods for Chemical Analysis of Water and Wastes and Sampling and Analysis Procedure for Screening of Industrial Effluents for Priority Pollutants for the 127 priority and consent decree pollutants.

 54. The analysis of these samples has revealed significant contamination of the water drawn from wells on the landfill as well as the water drawn from wells in the surrounding area. The toxicological significance of this contamination will be discussed below. It is useful, however, to measure the level of contamination in terms of Water Quality Criteria (WQC) promulgated by the E.P.A. The most recent publication of these standards appeared in the Federal Register on November 28, 1980.

 Testing of some of the monitoring wells and private wells has revealed the following contaminants, among others, present in the groundwater: 1. D.E.P. Well # 2 (at eastern boundary of the landfill) (samples on April 9-10, 1980) Arsenic ///-- 1,500 times WQC Vinyl Chloride /-- 346 times WQC 1, 2 dichloroethylene -- 24,000 times WQC Lead ///-- 14 times WQC 2. E.P.A. Well # 6 (2,000 feet east of the landfill) (sampled on December 11, 1980) Chloroform ///-- 28 times WQC Tetrachloroethylene -- 7 times WQC 1, 2 dichloroethane /-- 500 times WQC 3. Dorsey Well (# 41) (1,000 feet north of northwest corner of landfill) (sampled on November 6, 1980) Benzene ///-- 77 times WQC Methylene chloride -- 68 times WQC Arsenic ///-- 450 times WQC 4. Opie White Well (# 15) (1,400 feet north-northeast of landfill) (samples on November 6, 1980) Benzene ///-- 68 times WQC Methylene chloride -- 58 times WQC Arsenic ///-- 450 times WQC


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