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MAYOR & COUNCIL OF ROCKAWAY v. KLOCKNER & KLOCKNER

January 26, 1993

MAYOR AND COUNCIL OF THE BOROUGH OF ROCKAWAY, a municipal corporation of the State of New Jersey, Plaintiff,
v.
KLOCKNER & KLOCKNER, a partnership, MULTI-FORM METALS, INC., MASDEN INDUSTRIES, INC., THIOKOL CORPORATION, INC., RONED REALTY COMPANY, XYZ, INC., ABC CO., and JOHN DOE, Defendants. KLOCKNER & KLOCKNER, Third Party Plaintiff, v. E. CARL FABEND, individually, and JOSEPH A. MAURIELLO, individually, Third Party Defendants.



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

 ACKERMAN, District Judge:

 This matter comes before the court on the motions of defendant Thiokol Corporation ("Thiokol") to dismiss in part the Complaint of plaintiff Mayor and Council of the Borough of Rockaway ("Rockaway"), and to dismiss in part the Cross-claim of defendant Klockner & Klockner ("Klockner") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted.

 I. Background

 This action arises out of the alleged contamination of water supply wells and groundwater resources located within the Borough of Rockaway, Morris County, New Jersey.

 According to the Complaint, in March 1980, analysis of water from three of Rockaway's drinking supply wells indicated the presence of volatile organic compounds, including trichloroethylene ("TCE") and tetrachloroethylene ("PCE"), in the municipal well field. To address this situation, Rockaway constructed a three-bed, granular activated carbon absorption treatment system ("treatment system") to treat the water pumped from the municipal wells. The treatment system has been in operation since that time.

 In December 1982, the United States Environmental Protection Agency ("EPA") designated the Rockaway Borough Well Field site as a Superfund Site and placed it on the National Priority List ("NPL") of Superfund Sites pursuant to CERCLA. In January 1984, the New Jersey Department of Environmental Protection ("DEP") *fn1" initiated a Remedial Investigation/Feasibility Study of the well field contamination. The result of the investigation, issued in August 1986, suggested general areas in Rockaway that could be contributing to the contamination, but failed to specify responsible parties. The study recommended further investigation.

 In September 1986, the EPA Regional Administrator issued a Record of Decision ("ROD") which indicated that the treatment system implemented by Rockaway was the appropriate remedy. In January 1990, the EPA released a report which identified certain properties as the sources of the groundwater contamination. The properties identified were those of defendants Klockner and Roned Realty Company ("Roned"). On July 18, 1991, the EPA issued a subsequent Remedial Investigation/Feasibility Study for the Well Field Site which confirmed that the appropriate remedy was the existing treatment system. On the same day, the EPA issued a Notice of Potential Liability letter to a number of parties deemed to be potentially responsible for the contamination of the Well Field, including defendants Klockner, Thiokol, Multi-Form Metals, Inc. ("Multi-Form"), and Roned. On August 2, 1991, the EPA confirmed again that the treatment system implemented by Rockaway was the appropriate remedy. On September 30, 1991, the EPA issued another ROD which selected a remedial alternative for the Borough Well Field.

 On October 31, 1991, Rockaway filed a Complaint in this court seeking response costs, natural resource damages and injunctive relief under a variety of legal theories. Specifically, the Complaint sets forth the following nine counts for relief: Count I (claim for response costs under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq., ("CERCLA")); Count II (claim for natural resource damages under CERCLA); Count III (strict liability); Count IV (claim under the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et seq., ("Spill Act")); Count V (private and public nuisance); Count VI (trespass); Count VII (tortious contamination); Count VIII (tortious failure to remediate contamination); and Count IX (claim under the Environmental Rights Act, N.J.S.A. 2A:35A-1, et seq. ("ERA")). Thiokol seeks to dismiss Count I to the extent it seeks injunctive relief, Count II, and Counts IV through IX. *fn2"

 On December 10, 1991, defendant Klockner filed an Answer and Cross-claim against the other defendants Multi-Form, Masden, Thiokol, Roned, XYZ Corp., ABC Co. and John Doe. *fn3" According to the Cross-claim, Thiokol leased certain property from Klockner (the "Property") from 1949 until 1970, using the premises for the manufacture of missiles. Klockner alleges that as part of the manufacturing process, Thiokol used large quantities of cutting oils, coolants and degreasing solution, which allegedly contain TCE and other contaminants. Klockner further alleges that these chemicals were stored in underground storage tanks located beneath the Property, and that hazardous substances were discharged into the soil and groundwater during the course of the leasehold. According to the Cross-claim, when Thiokol vacated the premises in 1970, it failed to clean up the alleged contamination and failed to disclose the pollution to Klockner.

 In 1985, Klockner entered into an agreement to sell the Property. Because the Property was used for industrial purposes, the contemplated sale triggered the provisions of New Jersey's Environmental Cleanup Responsibility Act ("ECRA"), N.J.S.A. 13:1K-6, et seq.4 In an effort to comply with ECRA, and thus consummate the sale, Klockner initiated an investigation of the extent of contamination on the Property. Klockner removed the underground storage tanks utilized by Thiokol and installed monitoring wells. Klockner alleges that the investigation revealed the presence of TCE and other contaminants in the soil and groundwater. Klockner, however, never completed cleanup measures at the Property nor consummated the sale.

 Klockner then brought this Cross-claim for contribution and indemnification against the other defendants, setting forth twenty claims for recovery. Thiokol has moved to dismiss the following eleven counts: Count II (Spill Act); Count III (New Jersey Solid Waste Management Act, N.J.S.A. 13:1E-1, et seq. ("Solid Waste Management Act")); Count IV (New Jersey Water Pollution Control Act, N.J.S.A. 58:10A-1, et seq. ("Water Pollution Control Act")); Count V (private nuisance); Count VI (public nuisance); Count VIII (negligence); Count X (fraudulent concealment); Count XVI (waste of property); Count XVII (trespass); Count XVIII (restitution and unjust enrichment); and Count XX (common law contribution).

 II. Discussion

 A. Standard on Motion to Dismiss

 Rule 12(b)(6) of the Federal Rules of Civil Procedure permits the dismissal of a complaint, or a count therein, for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). When reviewing the efficacy of a complaint under this rule, I "must accept as true all well-pleaded allegations of the complaint, and construe them in the light most favorable to the plaintiff; . . . dismissal may [result] only if the plaintiff alleges no set of facts which, if proved, would entitle him or her to relief." Marshall-Silver Constr. Co. v. Mendel, 894 F.2d 593, 595 (3d Cir. 1990); accord Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Rogin v. Bensalem Township, 616 F.2d 680, 685 (3d Cir. 1980), cert. denied sub nom. Mark Garner Assoc., Inc. v. Bensalem Township, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981).

 I will now consider each of the counts sought to be dismissed in turn.

 B. Motion to Dismiss Rockaway's Complaint

 1. Claim for Injunctive Relief under CERCLA

 CERCLA, enacted in 1980 and amended in 1986, is directed at the cleanup of hazardous waste disposal sites. Count I of the Complaint is brought under Section 107 of CERCLA, which permits the recovery of certain costs of clean-up from responsible parties. See 42 U.S.C. § 9607. Specifically, Section 107 provides that responsible parties, such as owners and operators of facilities at which hazardous substances have been discharged, may be liable for:

 (A) all costs of removal or remedial action *fn5" incurred by the United States Government or a State . . . not inconsistent with the national contingency plan; *fn6"

 (B) any other necessary costs of response incurred by any other person consistent with the national contingency plan;

 (C) damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release; and

 (D) the costs of any health assessment or health effects study carried out under section 9604(i) of this title.

 42 U.S.C. § 9607(a)(4)(A)-(a)(4)(D).

 In the Complaint, Rockaway alleges that it has incurred and will continue to incur response costs that are consistent with the national contingency plan ("NCP") with respect to contamination at the Rockaway Well Field and the groundwater aquifer. Compl. at P 48. It further alleges that defendants Thiokol, Masden and Multi-Form are "operators" at the facility which has released hazardous substances into the groundwater aquifer, and are jointly and severally liable for all costs of removal and remedial action. Compl. at PP 50, 52. In its prayer for relief, Rockaway requests, inter alia, that the court issue:

 a mandatory injunction to compel the Defendants to comply with their obligations under CERCLA to take all removal and remedial actions necessitated by the release or threatened release of hazardous substances impacting, or likely to impact, the Borough well field. . . .

 Section 107 by its terms does not provide for injunctive relief. Rather, it provides only for the recovery of damages as set forth in subsections (4)(A) through (C).

 In contrast, Section 106 expressly authorizes injunctive relief. This section provides in pertinent part:

 when the President determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment because of an actual or threatened release of a hazardous substance from a facility, he may require the Attorney General of the United States to secure such relief as may be necessary to abate such danger or threat, and the district court of the United States in the district in which the threat occurs shall have jurisdiction to grant such relief as the public interest and the equities of the case may require.

 42 U.S.C. § 9606(a). Thus, Section 106(a) authorizes the President, acting through the EPA, to seek an injunction to force a responsible party to clean up any site or spill that presents an "imminent and substantial" danger to public health or welfare or the environment. Section 106 does not confer this same authority upon private citizens.

 The Second Circuit, in a carefully reasoned opinion, held that injunctive relief was not available to the plaintiff, the State of New York, under Section 107. See New York v. Shore Realty Corp., 759 F.2d 1032 (2d Cir. 1985). The Court determined that the statutory scheme demonstrates a congressional intent not to authorize such injunctive relief. It reasoned:

 Section [106] expressly authorizes EPA to seek injunctive relief to abate "an actual or threatened release of a hazardous substance from a facility." Implying the authority to seek injunctions under section [107] would make the express injunctive authority granted in section [106] surplusage.

 759 F.2d at 1049.

 The Court also reasoned that the scope of injunctive relief under section 107 would conflict with the express scope of section 106 because the standard for seeking abatement under section 106 is narrower than the standard of liability under section 107. Section 106 authorizes injunctive relief only where the EPA "determines that there may be an imminent and substantial endangerment to the public health or welfare or the environment." In contrast, Section 107 contains no such limitation. Id.; see also Cadillac Fairview/California, Inc. v. Dow Chem. Co., 840 F.2d 691, 697 (9th Cir. 1988) ("to allow parties entitled to damages under section 107(a) to seek injunctive relief under that section would enable such parties to bypass the specific limitations on the President's authority to seek injunctive relief described in section 106(a)").

 The Second Circuit also found support for its holding in the legislative history of CERCLA. See Shore Realty, 759 F.2d at 1049-50. Earlier versions of CERCLA granted authority to seek injunctive relief to both the President and the states. In contrast, the compromise version of CERCLA that was finally enacted gives that power to the President only. Id.

 The conclusion that injunctive relief is not available under Section 107 is supported by the overwhelming weight of authority. See, e.g., Cadillac, 840 F.2d at 697 ("Congress did not intend to create a private cause of action for injunctive relief under CERCLA"); United States v. Cannons Eng'g Corp., 720 F. Supp. 1027, 1052 (D. Mass. 1989) ("Under CERCLA, injunctive relief is available only to the United States."), aff'd, 899 F.2d 79 (1st Cir. 1990); Utah State Dep't of Health v. Ng, 649 F. Supp. 1102, 1106 (D. Utah 1986) (dismissing CERCLA claim of state department to the extent it requested injunctive relief); Velsicol Chem. Corp. v. Reilly Tar & Chem. Corp., 21 Env't Rep. Cas. (BNA) 2118, 2121 (E.D. Tenn. 1984) (dismissing CERCLA claim of private plaintiff for injunctive relief); see also McGregor v. Industrial Excess Landfill, Inc., 709 F. Supp. 1401, 1409 (N.D. Ohio 1987) (only Attorney General, through EPA, has authority to seek injunctive relief under Section 106), aff'd, 856 F.2d 39 (6th Cir. 1988).

 Rockaway contends, however, that injunctive relief is available to a CERCLA plaintiff pursuant to the inherent equitable powers of the court. It relies on Califano v. Yamasaki, which held that "absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction." 442 U.S. 682, 705, 61 L. Ed. 2d 176, 99 S. Ct. 2545 (1979). Rockaway reasons that because nothing in CERCLA expressly prohibits issuance of injunctive relief under Section 107, the court has the equitable power to do so. I disagree. Based on an analysis of the statutory scheme of CERCLA and its legislative history, I find that Congress has clearly indicated its intent to limit injunctive relief to the federal government. See Utah State Dep't, 649 F. Supp. at 1106 ("Congress expressly and inescapably limited injunctive power under the statute to the President") (emphasis added); see also Colorado v. Idarado Mining Co., 916 F.2d 1486, 1497 (10th Cir. 1990) (in action for injunctive relief under Section 121, application of court's equitable power held inappropriate because CERCLA carefully limits injunctive relief as a remedy), cert. denied, 113 L. Ed. 2d 648, 111 S. Ct. 1584 (1991).

 Rockaway also relies on the decision of my colleague, Judge Wolin, in T & E Indus., Inc. v. Safety Light Corp., 680 F. Supp. 696 (D.N.J. 1988), for the proposition that injunctive relief is available under Section 107. I do not read Judge Wolin's decision, however, as supporting Rockaway's position. In T & E, Judge Wolin did not dismiss the plaintiff's claim for injunctive relief under CERCLA. The plaintiff in T & E, however, was seeking an injunction to enforce a potential judgment for response costs.

 In its analysis, the Court first acknowledged that "CERCLA does not provide a private party with the right to injunctive relief requiring cleanup of a hazardous waste site . . . ." Id. at 704. The Court went on to note that a court does not need statutory authorization to grant injunctive relief and that absent a clear command from Congress, courts retain their inherent power to issue injunctive relief. With regard to CERCLA, however, the Court simply held that it may issue injunctive relief requiring payment of response costs. Judge Wolin stated:

 while this Court acknowledges the fact that CERCLA does not provide private litigants with a cause of action by which they may require others to clean up hazardous sites, it nevertheless does not prohibit other forms of injunctive relief to private litigants. Other forms of injunctive relief could be granted to compel defendants to "comply with their obligations," which may be limited to simply reimbursing plaintiff for "necessary costs."

 Id. at 705 (emphasis added).

 Thus, Judge Wolin essentially found that while a court is precluded from issuing an injunction requiring clean-up of a waste site, it can issue an injunction compelling payment of response costs. Here, Rockaway seeks an injunction compelling defendants to clean up the Borough Well Field. T & E is therefore of no avail to Rockaway. Rockaway's claim for injunctive relief under CERCLA fails to state a claim for relief and therefore will be dismissed.

 2. Claim for Natural Resource Damages under CERCLA

 Count II of the Complaint is asserted under Section 107(f)(1) of CERCLA. Section 107(f)(1) essentially elaborates on the recovery of natural resource damages as provided for under Section 107(a)(4)(C). As noted above, Section 107(a)(4)(C) permits recovery of "damages for injury to, destruction of, or loss of natural resources, including the reasonable costs of assessing such injury, destruction, or loss resulting from such a release." 42 U.S.C. § 9607(a)(4)(C). Section 107(f)(1) provides:

 42 U.S.C. § 9607(f)(1) (emphasis added). Section 107(f)(1) further provides:

 The President, or the authorized representative of any State, shall act on behalf of the public as trustee of such natural ...


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