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July 30, 1992

TRANSTECH INDUSTRIES, INC., et al.; Plaintiff,
A & Z SEPTIC CLEAN, et. al., Defendants.

The opinion of the court was delivered by: HAROLD A. ACKERMAN

 Plaintiffs in this action are owners and/or operators of a hazardous waste site. Having spent approximately $ 13 million to clean up the site, plaintiffs seek through this action contribution costs from the 440 users of the site. Over two-hundred of the 440 defendants had previously settled a claim for clean-up costs brought by the federal government. Accordingly, these defendants, citing a federal statutory provision, filed a motion to dismiss the complaint for a failure on the part of the plaintiffs to allege a set of facts upon which relief can be granted. The motion is opposed by plaintiffs and by the other, non-settling, defendants. Additionally, defendant Clairol (one of the settling defendants) moves to strike the plaintiffs' complaint, and, in the alternative, for summary judgment pursuant to Rule 56. I will address each motion separately.


 I. Standard for Summary Judgment

 As an initial matter, Federal Rule of Civil Procedure 12(b) states that

 In their motion papers, defendants rely heavily on language of a consent decree they entered into with the United States government, a document that was not a part of the pleadings. *fn1" Thus, parties were notified that I am treating their motion as a Rule 56 motion for summary judgment. All parties were given an opportunity to submit additional relevant materials under Rule 56.

 Construing this motion as one for summary judgment, I note that summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See Todaro v. Bowman, 872 F.2d 43, 46 (3rd Cir. 1989); Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3rd Cir.), cert. dism'd, 483 U.S. 1052 (1987). Put differently, "summary judgment may be granted if the movant shows that there exists no genuine issues of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Indiana Hospital, 843 F.2d 139 143 (3rd Cir. 1988), cert. denied, 488 U.S. 870, 102 L. Ed. 2d 147, 109 S. Ct. 178 (1988). An issue is "genuine" if a reasonable jury could possibly hold in the nonmovant's favor with regard to that issue. See Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is material if it influences the outcome under the governing law. Id. at 248.

 Within the framework set out above, the moving party essentially bears two burdens: First, there is the burden of production, of making a prima facie showing that it is entitled to summary judgment. This may be done either by demonstrating there is no genuine issue of fact and that as a matter of law, the moving party must prevail or by demonstrating the nonmoving party has not shown facts relating to an essential element of the issue for which it bears the burden. Once either showing is made, this burden shifts to the nonmoving party who must demonstrate facts supporting each element for which it bears the burden as well as establish the existence of genuine issues of material fact. Second, there is the burden of persuasion. This burden is a stringent one which always remains with the moving party. If there remains any doubt as to whether a trial is necessary, summary judgment should not be granted. See Celotex Corp. v. Catrett, 477 U.S. 317, 330-33, 91 L. Ed. 2d 265, 106 S. Ct. 2548 ; Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-61, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Advisory Committee's Notes on Fed. Rule of Civ. Pro. 56(e), 1963 Amendment; see generally C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2727 (2nd ed. 1983).

 With this standard in mind, I turn to the facts surrounding this motion.

 II. Background

 This case turns on an interpretation of the Comprehensive Environmental Response, Liability and Compensation Act (CERCLA), a complex piece of federal legislation passed in 1980, significantly amended in 1986, and designed to effectuate quick cleanups of hazardous waste sites. At issue here is a site known as Kin-Buc (the "Site"), which has been a trash disposal site in New Jersey since 1947. During 1968, the Site began operating as a state-approved landfill for hazardous waste disposal, and continued as such until 1976, when the state of New Jersey revoked Kin-Buc's operating permit and enjoined any further hazardous waste disposal.

 Following the Site's closure to hazardous waste, the Environmental Protection Agency ("EPA") began pursuing statutory remedies to make the Site safer and cleaner. Specifically, the EPA filed an action against the owners and operators of the Site (which included plaintiffs in the instant action), which was designed to force those responsible for the Site's situation to engage in clean-up operations. The action was settled on January 30, 1980, when the owner/operators (again, including plaintiffs) agreed to perform and bear the costs of a number of actions designed to limit pollution at the Site. Shortly thereafter, in 1980, the EPA determined that the pollution was still occurring, and instituted its own cleanup. It treated and disposed of leachate at a pool at the Site, and removed numerous toxic drums. At some point in the next two years, the EPA also prepared a Remedial Investigation and Feasibility Study ("RI/FS") to determine the nature and extent of hazardous substances at the site. when plaintiffs assumed the remedial activities pursuant to a 1982 agreement with the EPA, the EPA ceased its own clean-up operations.

 In 1981, the rules governing much cleanups changed, and the EPA gained a new point of leverage: CERCLA. CERCLA allocated 1.6 billion for cleanups of hazardous waste sites for which no responsible party could be found. It also authorized the EPA to institute broad measures to force owners, users, or operators of sites to clean up their sites or reimburse the EPA for any of its unilateral actions in cleaning up sites. These owners/operators/users of hazardous waste sites were referred to in CERCLA as "potentially responsible parties" ("PRPs").

 In 1983, the EPA determined that the owners and operators of Kin-Buc were PRPs for the pollution, and hence were potentially liable to the EPA for EPA expenditures in its clean-up programs. On September 23, 1983, the EPA issued a unilateral administrative order pursuant to CERCLA Section 106 (the "106 Order") requiring all owners and operators of the Site, which included plaintiffs in this action, to continue the response actions they were performing since 1982, perform its own RI/FS, and operate, maintain and monitor systems to eliminate the release or threat of release of hazardous substances. *fn2" In May 1984, the owners and operators of the Site submitted proposed remediation plans to the EPA. The EPA selected a plan that included a variety of remedial actions for the owners and operators to undertake. *fn3"

 In 1984, the EPA sought to collect restitution for its expenses at the Site. It wrote letters to about 360 PRPs, demanding reimbursement for $ 4,980,398. This amount constituted the EPA's expenses regarding: 1) the leaching costs at the pool between February, 1980 and October, 1982; 2) personnel, analytical and administrative costs; 3) engineering plans for effectuating the cessation of releases at the Site; and 4) preparation of its initial Remedial Investigation and Feasibility Study. *fn4"

 Shortly after the EPA instituted the action for response costs, a number of operators began negotiating a settlement with the EPA. Eventually, in the summer of 1988, 226 defendants joined in the settlement, agreeing to pay the EPA a total of $ 4.9 million. Though they were given notice of the settlement, as was required by statute, *fn5" plaintiffs did not join in the settlement agreement.

 On August 16, 1990, plaintiffs brought this CERCLA action against 441 users and operators of the Site, to recoup their share of the expenses. This action flows out of the work plaintiffs have undertaken pursuant to the EPA's 106 Order. Plaintiffs estimate their costs to date for the work they had undertaken pursuant to the EPA's Order to be $ 13 million, and that future remedial work will exceed $ 100 million. *fn6" The settler-defendants, *fn7" relying on a different provision of CERCLA, contend that the consent decree they entered into with the EPA absolved them of all liability to any other PRP connected with the Site for disposal of hazardous wastes at the Site. They thus make this motion for dismissal. I will now turn to a discussion of these issues.

 III. Discussion


 In 1980, congress became convinced that deposits of hazardous substances and wastes at various dump sites throughout the country posed serious problems to public health and necessitated prompt clean-up operations. See, e.g., Dedham Water Col. v. Cumberland Farms Dairy, Inc., 805 F.2d 1074, 1081 (1st Cir. 1986). In response, it enacted an exceedingly' complex piece of legislation called the Comprehensive Environmental Responses, Compensation, and Liability Act, 42 U.S.C. § 9601 et. seq., which authorized funds for an enormous clean-up program and presented statutory authority to hold operators of and contributors to hazardous waste sites strictly liable for the clean-up costs of remedying the situation. 42 U.S.C. § 9607. Under the statute, persons who owned or operated a hazardous waste facility, disposed hazardous substances at such facility, arranged for disposal at a facility, or who accepted hazardous substances for transport to disposal or treatment facilities could be held liable for "all costs of removal or remedial action incurred by the United Sates Government or a State . . . [and for] any other necessary costs of response incurred by any other person consistent with the national contingency plan." Id.

 Once a site was identified as necessitating immediate cleanup, the statute explicitly provided the EPA with several remedies. It could issue an administrative order directing the responsible parties to implement response actions. 42 U.S.C. § 9606. It could apply to a district court for an injunction to compel responsible parties to abate releases of hazardous substances from the site. Finally, it could undertake remedial action itself, using funds from the Superfund provided by the statute, and then sue the responsible parties for reimbursement. 42 U.S.C. §§ 9604, 9607. See, e.g., United Sates v. Rohm & Haas Co., 669 F.Supp. 672, 674 ...

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