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T & E INDUS. v. SAFETY LIGHT CORP.

February 26, 1988

T & E Industries, Inc., Plaintiff,
v.
Safety Light Corp., et al., Defendants



The opinion of the court was delivered by: WOLIN

 This is an action brought by T & E Industries, (T & E) pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601, et seq. The complaint seeks a declaration that defendants are liable for all necessary costs of cleanup and decontamination, consistent with the National Contingency Plan, of the site presently known as 422 Alden Street, Orange, New Jersey. In addition, T & E seeks a judgment for "response costs" already incurred, including the costs of prosecuting this action, and injunctive relief enforcing such judgment.

 From approximately 1917 until 1926 the United States Radium Corporation (U.S. Radium) conducted radium extraction operations at its radium processing facility in Orange, New Jersey. U.S. Radium processed radium from carnotite ore which was transported by railroad to the facility in Orange. Utilizing a fractional crystallization process, U.S. Radium extracted approximately 80% of the radium from the carnotite ore. The radium was used for medical and commercial applications, including the manufacture of luminous paint which was applied to instrument dials, watches and other products.

 The by-products of this operation consisted of solid and liquid waste. The liquid residue was disposed of through the Orange sewer system pursuant to permit. The solid by-products, more commonly known as "tailings", which contained small amounts of radium, were deposited onto vacant portions of the U.S. Radium property.

 In 1926, U.S. Radium ceased all radium processing activities and permanently closed its facility in Orange, New Jersey. The property remained vacant until the mid-1930's when portions of the original facility were leased to various commercial tenants.

 In 1943, U.S. Radium sold the Alden Street property to Arpin Products, Inc. After the purchase, Arpin constructed an addition to the rear portion of the building on the site over what it knew were tailings. Arpin subsequently sold the property in 1951 to Top Plastics, Inc. In February, 1952, Top Plastics sold the property to LaScalla Industries, Inc., who in turn sold the property to Henry Morrow.

 In March, 1979, the New Jersey Department of Environmental Protection (DEP) informed T & E that it believed that there were levels of radiation at the property which exceeded those occurring naturally. The DEP proceeded to install long term monitoring equipment to measure the levels of radon, radon progeny and gamma radiation. In November, 1979, the DEP advised T & E that excess levels of radiation existed at the site. Specifically, the DEP expressed concern as to the levels of radon and gamma radiation located in the vicinity of the building originally used by U.S. Radium, added to by Arpin, and at the time, occupied by T & E. On November 20, 1979, the Director of the DEP wrote a letter to T & E which directed T & E to begin "immediate remedial action."

 Subsequently, T & E conducted its own tests to confirm the DEP's findings and to assess the effectiveness of interim remedial measures instituted to bring down the radon levels. T & E sealed all the cracks, expansion joints, and sewer drains in the oven room, which the DEP had specified as an area of concern. In addition, T & E tried to increase ventilation in the building by using five fans and a vent pipe. Although such actions by T & E helped to lower the radon level somewhat, such did not effectively keep the radon level down and did not reduce the gamma radiation level.

 In March, 1981, T & E commenced a lawsuit against U.S. Radium in the Superior Court of the State of New Jersey, Law Division, Essex County (Docket No. L-41346-80). The complaint sought recovery of damages allegedly incurred as a result of U.S. Radium's dumping of radium tailings on the Alden Street property under several New Jersey common law theories. *fn1"

 In December of 1983, T & E amended its complaint and sought to impose liability upon Safety Light Corporation and various other corporate defendants as alleged corporate successors to U.S. Radium. *fn2"

 The amended complaint sought the identical relief from Safety Light as the original complaint against U.S. Radium had. Specifically, T & E sought the following relief:

 
1. All of the costs that T & E may be required to expend to effect the decontamination of or to clean up the premises (Fifth Count);
 
2. Monetary damages incurred due to the substandard interruption of T & E's business. (Second, Third and Fourth Counts);
 
3. All of the costs associated with T & E's relocation of its business. (Second and Third Counts); and
 
4. Monetary damages due to the diminished value of T & E's property. (Third and Fourth Counts). *fn3"

 Prior to the trial, the Court granted T & E partial summary judgment declaring that (1) Safety Light is a "successor or continuation of U.S. Radium, " and (2) U.S. Radium "placed hazardous wastes in the form of radium ore tailings" on the Alden Street property. The State Court also granted defendants request to bifurcate the claims against Safety Light from the claims against the other corporate defendants. Accordingly, the trial commenced on February 3, 1986 against Safety Light only, with all other claims to be tried against the remaining defendants only if T & E obtained a judgment against Safety Light.

 At the conclusion of Safety Light's case, Safety Light moved to dismiss T & E's 1943 and 1974-based claims. The trial court denied defendant's motion as it pertained to the 1943 conduct and reserved decision on the 1974-based claim.

 On March 11, 1986, the jury returned a no cause verdict on the 1943 claim and a verdict for plaintiff on the 1974 claim, that U.S. Radium had been negligent in not warning T & E before its purchase of the property that the tailings constituted a potential risk to health or property.

 Safety Light subsequently moved for judgment notwithstanding the verdict on the ground that U.S. Radium owed no duty to warn in 1974. T & E moved at the same time to set aside the order dismissing its absolute liability claims and sought a judgment for indemnification. *fn4"

 The trial court denied T & E's post-trial motions and granted defendant Safety Light's motion to set aside the jury verdict, based upon the ground that the doctrine of caveat emptor barred T & E's 1974 negligence award. Judgment was entered in favor of all the defendants on May 29, 1986.

 T & E filed a Notice of Appeal to the New Jersey Appellate Division on July 9, 1986.

 On March 27, 1987, the same date that T & E filed its brief in the Appellate Division of the Superior Court, it filed its complaint in this action with the United States District Court for the District of New Jersey. As noted above, T & E's federal complaint seeks declaratory relief and response costs under § 107 of CERCLA, 42 U.S.C. § 9607.

 On July 15, 1987 the defendants filed a motion to dismiss the complaint. On September 14, 1987, T & E filed a cross-motion for partial summary judgment against Safety Light. After numerous adjournments, for a myriad of reasons, these motions are currently before the Court.

 As the motion for partial summary judgment is only relevant if plaintiff's complaint is not dismissed, this Court will address defendant's motion to dismiss first. Defendants contend that plaintiff's suit should be dismissed for several reasons. First, defendants contend that plaintiff's suit should be dismissed as it is barred by the New Jersey "entire controversy doctrine". Second, defendants contend that plaintiff's alleged response costs are not recoverable under CERCLA. Third, defendants argue that plaintiff's claim is barred by the applicable statute of limitations and finally, defendants submit that a mandatory injunction is not available to private parties under CERCLA.

 DISCUSSION:

 1. Claim Preclusion.

 Defendants contend that New Jersey's "entire controversy doctrine" precludes the plaintiff from maintaining this action in federal court when a similar action has previously been brought by plaintiff and addressed by a state court. While agreeing with defendants' assertion that the deliberate fractionalization of lawsuits in order to provide a party with "two bites at the apple" is abhorable and impermissible under the "entire controversy doctrine", this Court finds that as plaintiff's current claim ...


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