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MAYOR & BD. OF ALDERMEN OF BOONTON v. DREW CHEM. C

November 15, 1985

THE MAYOR AND BOARD OF ALDERMEN OF THE TOWN OF BOONTON, a municipal corporation organized under the laws of the State of New Jersey and located herein, Plaintiff,
v.
DREW CHEMICAL CORPORATION, a corporation organized under the laws of the State of Delaware, with offices located in the State of New Jersey, Defendant/Third-Party Plaintiff, v. DOMENICO PEPE, OWNER (1 to 100) a GENERATOR (1 to 499), a TRANSPORTER (1 to 200) a fictitious name, Third Party Defendant



The opinion of the court was delivered by: ACKERMAN

 This is an action by plaintiffs, the Mayor and Board of Alderman of the Town of Boonton, New Jersey, against the Drew Chemical Corporation, for damages pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq. ("CERCLA" or the Act) and state law. This matter is presently before me on defendant's motion for summary judgment on plaintiff's CERCLA claims and for dismissal of plaintiff's pendent claims under state law. This motion was first before this court on June 24, 1985. At that time I ruled on some of defendant's arguments, however a portion of defendant's motion was continued to this date to permit plaintiff an opportunity to respond to two arguments raised by defendant for the first time in its reply brief to this court. In particular, the issues presently before this court are:

 
(1) whether a municipality, such as plaintiff, is a "state" for purposes of recovery under § 9607(a)(4)(A) or (C) of CERCLA and
 
(2) whether plaintiff can recover for response costs incurred prior to December 11, 1980, the effective date of CERCLA.

 Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment shall not be granted unless, drawing all reasonable inferences in favor of the nonmoving party, there are no genuine issues of material fact such that the moving party is entitled to judgment as a matter of law. See Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984).

 Viewing the facts in a light most favorable to plaintiff, the underlying facts here are as follows. Pepe Field is a 3.5 acre park located in Boonton. The property was acquired by Boonton in the early 1970's from the Bentley Estate which had owned it for many years. The area had originally been low and swampy but, according to plaintiffs, due to arrangements between the Bentley Estate and Drew Chemical, Drew had dumped waste from its industrial operations in the field for many years. The dumping activity ceased some time in the 1940's. See Video Taped Depositions of Padavano and Bentley, Affidavit of Ricky Prill, Exhibits E and F. Boonton has taken a variety of steps to assess and mitigate any threat to public health from contamination of Pepe Field. The field is closed to the public. Town police monitor the site. The Town has constructed and currently maintains an on-site treatment facility which treats subsurface drainage from the site prior to its discharge into a nearby gravel curtain drain by application of hydrogen peroxide to the drainage from the field. Town employees check the filtration facility on a daily basis. To date, the Town has expended nearly $40,000.00 on this effort alone. See Pr. 11 Affidavit.

 Further, in order to determine the nature and extent of the threat to public health and to develop data on the waste deposits at the field, the Town engaged the services of Elson T. Killam Associates, Environmental and Hydraulic Engineers. Killam Associaties have taken subsurface waste samples and performed a variety of sophisticated tests on the samples obtained. It is unclear from the record exactly when the above described costs were incurred.

 Pursuant to CERCLA, in December of 1982 the Environmental Protection Agency designated Pepe Field as a national priority toxic waste site for cleanup purposes. By letter dated May 23, 1983, the New Jersey Department of Environmental Protection (NJDEP) notified both parties to this action "that a site evaluation study must be conducted to determine the effect of the wastes buried in Pepe Field on the quality of the air, ground waters and surface waters in the area." See Prill Aff. at Ex. A. After further describing the study in question, NJDEP reiterated that it "is requesting the Town of Boonton, as the present owner of the site, and Drew Chemical Corp., as the principal generator of wastes buried at the site, to jointly or singularly conduct this study." Id. By letter dated June 24, 1983, the Town of Boonton notified Drew that it had "determined that the requested site evaluation study should be the sole responsibility of Drew . . . inasmuch as Drew was the generator of the wastes dumped over the years . . . [and] because it places the burden of responsibility upon the party whose conduct created the problem . . . [and who] is better positioned to identify and evaluate the characteristics of the wastes." See Prill Aff. at Ex. B.

 Efforts to resolve the issue of responsibility between the parties by negotiation failed and on December 9, 1983 the Town filed a formal claim letter with Drew, see Ex. C to Prill Affidavit, and filed the instant civil action. Count One seeks recovery of costs incurred by Boonton as a result of the pollution of Pepe Field under 42 U.S.C. § 9607(a)(4)(A) and (B). Count Two seeks damages for injury to natural resources pursuant to 42 U.S.C. § 9607(a)(4)(C). The remaining four counts seek relief under state law as noted supra.

 The operative provision of CERCLA regarding liability states in pertinent part as follows:

 
Notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section /--
 
(1) the owner and operator of a vessel (otherwise subject to the jurisdiction of the United States) or a facility,
 
(2) any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
 
(3) any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility owned or operated ...

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