Southland to participate in the cleanup. Southland subsequently entered into a second Administrative Consent Order with the NJDEP, in August 1987, which requires Southland to implement a NJDEP-approved cleanup of the contaminated facility pursuant to the Environmental Cleanup Responsibility Act ["ECRA"], N.J. Stat. Ann. §§ 13:1K-6 to 13:1K-14 (West Supp. 1988).
By August 1987, the studies conducted by the RI/FS consultants, Geraghty & Miller, were complete. Their report showed high levels of volatile organic compounds
["VOC"], base-neutral extractable and acid extractable organic compounds, PCBs and heavy metals in the groundwater, surface water, and soil around the facility. A study of the groundwater and surface waters also showed a concentration of totally dissolved solids ["TDS"], consisting of ammonia, calcium, sodium, sulfates, fluoride, magnesium, potassium and nitrates. The highest concentration of these compounds were found around the sites utilized for waste disposal.
Ordered by the NJDEP to remedy the pollution problem at the plant, Southland instituted this action to compel Ashland to contribute to the costs already incurred in assessing the environmental conditions as well as that amount necessary to rid the facility of the contamination.
Southland's Complaint also alleges fraud, breach of contract, nuisance and various state and federal statutory claims; however, in this motion, it requests summary judgment on its CERCLA claims only and seeks a declaration that Ashland is liable under sections 107(a) and 113(f) for cleanup costs at the plant.
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Brown v. Hilton, 492 F. Supp. 771, 774 (D.N.J. 1980). The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). This "burden . . . may be discharged by 'showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Nonetheless, in deciding a motion for summary judgment, the facts and inferences therefrom are construed in a light most favorable to the nonmoving party. Pollock v. American Telephone & Telegraph Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).
CERCLA was first enacted in 1980 to provide a solution to the growing number of "uncontrolled 'inactive hazardous waste sites'" and to remedy the severe environmental problems caused by extensive negligent hazardous waste disposal practices. United States v. Price, 577 F. Supp. 1103, 1109 (D.N.J. 1983). Through the original enactment and its subsequent amendment in 1986, Congress has provided a number of mechanisms for recovery of costs for hazardous waste cleanups. In asserting its CERCLA claims against Ashland, Southland relies on two sections which are of particular relevance to private party actions -- sections 107(a) and 113(f). Both sections reflect a Congressional intent to allocate the financial burden of cleaning up hazardous waste sites between those parties responsible for causing the contamination. Chemical Waste Management, Inc. v. Armstrong World Indus., Inc., 669 F. Supp. 1285, 1290 n.6 (E.D. Pa. 1987).
Section 107(a) of CERCLA authorizes a private party to bring suit against any person who owned or operated a facility at a time when hazardous waste was disposed of to recover those costs expended in response to the environmental crisis.
Cadillac Fairview/California v. Dow Chemical Co., 840 F.2d 691, 693 (9th Cir. 1988); T & E Indus., Inc. v. Safety Light Corp., 680 F. Supp. 696, 705 (D.N.J. 1988). To be granted a declaratory judgment on the issue of liability, Southland, as plaintiff, must establish four factors to satisfy the requirements of section 107(a): (1) that the Great Meadows chemical plant is a "facility"; (2) that Ashland is a "covered party" as defined by the Act; (3) that a "release" or "threatened release" of a hazardous substance from the plant has occurred; and (4) that, as a result, Southland has incurred response costs. T & E Indus., Inc. v. Safety Light Corp., 680 F. Supp. at 708.
Southland also asserts a claim for contribution under section 113(f) of CERCLA, as amended under the Superfund Amendments and Reauthorization Act of 1986 ["SARA"], Pub.L. No. 99-499, 100 Stat. 1647 (1986). This section provides an express right to seek contribution from "any other person who is liable or potentially liable under section 107(a)." Prior to the SARA amendments, a number of courts held that while CERCLA did not expressly provide for a private right of contribution, the inclusion of section 107(e)(2)
in the statute preserved claims for contribution under the federal common law. See United States v. New Castle County, 642 F. Supp. 1258, 1265 (D. Del. 1986); Colorado v. Asarco, Inc., 608 F. Supp. 1484, 1491-92 (D. Colo. 1985). Now, under section 113(f), a district court is expressly permitted to "allocate response costs among liable parties using such equitable factors as the court determines are appropriate." 42 U.S.C. § 9313(f)(1) (1988).
Clearly, the Great Meadows plant falls within the broad definition given to "facility" by section 101(9) of the statute.
See New York v. General Electric Co., 592 F. Supp. 291, 295 (N.D.N.Y. 1984). It is undisputed that from 1966 until the sale to Southland in May 1978, Ashland owned and operated the plant. If hazardous materials were disposed of during that time period, it follows that Ashland falls neatly within that class of persons section 107(a)(2) was meant to reach -- prior owners and operators. New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir. 1985).
Ashland makes no attempt to dispute the fact (as evidenced by the voluminous documentation submitted by Southland) that during the time it owned the chemical plant, vast amounts of hazardous wastes were pumped directly onto and beneath the property surrounding the plant and that these releases continue to contaminate the property today. Ashland does argue, however, that Southland has failed to show that the "response costs" incurred were both "necessary" and "consistent with the national contingency plan" as required by section 107(a).
When considered in light of the relief that Southland seeks at this stage of the action, Ashland's argument must fail. By definition, response costs include remedial action taken to ". . . monitor, assess and evaluate . . ." environmental conditions. 42 U.S.C. § 9601(23)(25) (1982). Remedial investigations such as the one undertaken by Southland are consistently held to be within the scope of response costs. Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 892 (9th Cir. 1986). Moreover, while the need for a factual determination on specific costs would preclude summary judgment on the issue of damages at this stage, this is not the result when the request is for a declaration of liability. T & E Indus., Inc. v. Safety Light Corp., 680 F. Supp. at 709. A finding that the type of recovery Southland seeks is included within the meaning of response costs is sufficient at this stage. Id. Thus, Southland has met its burden.
Liability under CERCLA is strict -- no showing of negligence is required. New York v. Shore Realty Corp., 759 F.2d at 1044. Nonetheless, CERCLA's liability provisions are subject to three express defenses set forth in the statute: an act of God, an act of war and the "innocent landowner" defense. 42 U.S.C. § 9607(b) (1982). Ashland does not and cannot, however, seek shelter under the umbrella of any of these defenses. Instead, it contends that the Agreement entered into between the parties at the time of sale acts as a complete bar to Southland's CERCLA claims as well as Southland's indemnification claim in Count Four.
Determination of this issue requires a two-part inquiry. First, do CERCLA's liability provisions preclude a contractual allocation of liability between private parties? Second, if not, are the terms of this particular pre-CERCLA Agreement sufficient to effect an assumption of liability by Southland as to any claims arising out of Ashland's waste disposal practices?
By its own terms, CERCLA expressly preserves the right of private parties to contractually transfer to or release another from the financial responsibility arising out of CERCLA liability. Section 107(e)(1) provides:
No indemnification, hold harmless, or similar agreement or conveyance shall be effective to transfer from the owner or operator of any vessel or facility or from any person who may be liable for a release or threat of release under this section. Nothing in this subsection shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under this section.