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HATCO CORP. v. W.R. GRACE & CO.

October 4, 1993

HATCO CORPORATION, Plaintiff,
v.
W.R. GRACE & CO. - CONN., Defendant, Third-Party Plaintiff, v. ALLSTATE INSURANCE CO., et al., Third-Party Defendants.



The opinion of the court was delivered by: ALFRED M. WOLIN

 Wolin, District Judge

 No-wax vinyl floor tiles, artificial sweetener, automobile engine protectants and sporting goods provide a few examples of the products available to ease and enrich our lives. The irony of sugar-free sweetness and these other effort-saving modern conveniences lies in the grudging chemical residues that persist in the soils and groundwater of a New Jersey coastal industrial tract from which components of these products originated.

 For almost a decade this eighty-acre parcel of land and the chemical plant within its borders have served as the target of state environmental regulatory scrutiny, the object of study and debate of environmental consultants and the subject of sworn conversations with many past and present employees. These inquiries have generated a wealth of information about the facility's thirty-three years of operation and a detailed accounting of the current environmental condition of the property.

 During the past four years this site also has demanded the attention, patience and resources of the Court as Hatco Corporation and W.R. Grace & Co. - Conn., the current and former owners of the facility, have sought to assign the costs of these and any future efforts to the other based on the contractual relations between them, common law principles and the legislative schemes of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA") and the New Jersey Spill Compensation and Control Act (the "Spi11 Act"). In this time, the Court rejected plaintiff's strict liability claim, limited defendant's defenses, stricken plaintiff's demand for attorney's fees and dismissed defendant's first and third counterclaims.

 In addition, the Court denied plaintiff's motion for summary judgment on the issue of defendant's liability for all response costs under CERCLA. In reaching this decision, however, the Court recognized the fact of defendant's liability. Thus, when the bench trial commenced on July 12, 1993, the principal task remaining for determination was the scope of defendant's liability. *fn1"

 To aid the Court in this decision, plaintiff called two environmental experts, Dr. Dan Raviv and Dr. John Trela, both of whom are associated with Dan Raviv Associates Incorporated ("DRAI"), the environmental consulting firm plaintiff engaged to address the problems that spawned this litigation. Dr. Raviv offered an opinion on the proper apportionment of liability between the parties, and Dr. Trela gave testimony about plaintiff's remedial measures to date.

 Hatco also introduced several past and present employees, including Mr. Alex Kaufman, plaintiff's president and sole shareholder, Mr. George Chryss, plaintiff's executive vice president and chief operating officer, and Mr. Harry Reid, a former assistant to Mr. Kaufman, chief engineer and consultant to Hatco. Together these witnesses traced the site's history from a managerial perspective.

 Grace presented two expert environmental witnesses, Dr. Charles Staples and Mr. Richard Gryzinswki. Dr. Staples presented the Court with a second opinion on the proper apportionment of liability between the parties. Mr. Gryzinswki evaluated plaintiff's plant and practices in light of the standard of environmental due care in the industry. *fn2"

 Three and a half weeks later the parties went home, leaving behind over 3365 exhibits, unwieldy demonstrative evidence, volumes of designated deposition testimony and 3100 pages of trial testimony. At the direction of the Court, plaintiff and defendant filed proposed findings of fact on August 9, 1993 and August 25, 1993, respectively. Both parties submitted proposed conclusions of law on the eve of trial.

 The size of the record underscores the complexity of the causation inquiry and the wisdom Congress exhibited in declining to require such a showing as a prerequisite to CERCLA liability. A routine stroll in other tort contexts, to resolve the causation question in the environmental arena, the Court must cross a mine field with a faded map as its guide. Despite the mass of information gathered during the parties' seemingly exhaustive search, the limitations inherent in science as well as the mandate of CERCLA compel the Court to qualify many of the answers it hands down today. Mindful of these limitations, the Court now makes the following findings of fact and conclusions of law.

 I. FINDINGS OF FACT3

 BACKGROUND

 A. The Parties

 1. Plaintiff Hatco Corporation ("Hatco"), a New Jersey corporation, is the present owner of the property at issue in this case.

 2. Defendant W.R. Grace & Co. - Conn. ("Grace"), a Connecticut corporation, is the prior owner of the property at issue in this case and a wholly owned subsidiary of W.R. Grace & Company, a New York Corporation. (Stipulation No. 46) *fn4"

 B. The Property

 3. The property at issue in this litigation is an eighty-acre parcel of land located in Fords, New Jersey (the "Fords property"). (Stipulation No. 1) The Fords Property is situated approximately 4000 feet from the Raritan River, (47:19 (Raviv)), *fn5" and is bounded to the north by King George Post Road, to the east by Sling Tail Creek, to the south by Industrial Highway and to the west by Crow's Mill Creek. (DE002)

 4. The slope of the Hatco site is generally south-southwest. Groundwater flow and surface drainage events follow the site's surface topography, which is high in the center (34:13 (Raviv)), and run toward and are collected by Sling Tail Brook and Crows Mill Creek. (Stipulation No. 9)

 5. The soil profile of the Hatco site, moving from the surface to the underlying soils, changes from fill with clay to light to dark gray clay to clay mixed with sand to clay to poorly sorted sand and finally to dark gray clay. (357:6 (Raviv)) The natural dark clay layer is significant because its lower permeability prevents the movement of contamination. (357:21 (Raviv))

 C. Plant History

 1. Ownership

 6. In the early 1950s, a brick and tile manufacturer used the Fords Property as a clay pit. (Stipulation No. 2)

 8. From approximately 1954 until 1959, Hackman owned and operated the Hatco Chemical Company on the Fords property (the "Fords facility"). (Stipulation No. 5)

 9. In June 1959, Grace purchased the Hatco Chemical Company from Hackman for approximately $ 5.4 million. (E10 at WRG 06767) The business became a division of Grace known as the Hatco Chemical Division. *fn6" (Stipulation No. 6)

 10. Hackman remained at the helm of the Hatco Chemical Division until 1962 when Mr. Alex Kaufman ("Kaufman") became president of the Hatco Chemical Division. Kaufman held this position until his resignation in 1978. (Stipulation No. 85)

 11. From 1959 until August 21, 1978, Grace owned and operated the Fords facility. On August 21, 1978, the Farben and Fuss Corporations purchased the Fords facility from Grace for $ 9.6 million. (E671 at H037006; 2032:18-2033:6 (Kaufman)) The Fuss Corporation ("Fuss") purchased the "Chemical Realty" of the Hatco Chemical Division. The Farben Corporation ("Farben") purchased the "Chemical Assets other than the Chemical Realty" of the Hatco Chemical Division. (Stipulation No. 7) Kaufman held controlling interests in both Fuss and Farben. (1967:6-9, 2032:18-21 (Kaufman))

 12. On September 1, 1978, Farben changed its name to the Hatco Chemical Corporation. On September 30, 1978, Fuss merged into the Hatco Chemical Corporation. On October 28, 1986, the Hatco Chemical Corporation was renamed the Hatco Corporation. (Stipulation No. 8)

 2. Manufacturing

 13. Upon arrival at the Fords property in 1954, the Hatco Chemical Company had one reactor, one stripper, one refiner, a filter press and tanks. (1878:5 (Kaufman))

 14. From approximately 1954 until 1959, two plants were in operation at the Hatco Chemical Company: (1) an esterification plant (Ester I) where plasticizers and synthetic lubricants, including dioctyl phthalate, dibutyl phthalate and diisooctyl phthalate, were manufactured from acids and alcohols; and (2) a sebacic acid plant where raw materials were generated to make aviation turbine oils. (Stipulation No. 5; (1882:9) (Kaufman))

 15. During this period, alcohols, sebacic acid and phthalic anhydride were stored at the site and the railroad siding was used to load and unload tankers. (1989:22 (Kaufman)) Other raw materials brought to the site included octyl alcohol, butyl alcohol, 2-ethylhexyl alcohol and castor oil. (E10 at WRG06810; Hackman Dep. 52:12)

 16. Grace's 1959 purchase brought the necessary capital for expansion. (1884:20 (Kaufman)) Besides continuing to produce various phthalate esters in the Ester I plant, during the 1960s, additional manufacturing facilities were built at the site.

 17. In 1960, the Hatco Chemical Division constructed and began operating a benzyl chloride plant. The plant manufactured benzyl chloride which in turn was combined with phthalic anhydride to produce butyl benzyl phthalate ("BBP"), a plasticizer. (Stipulation No. 15) The benzyl chloride plant operated until 1965. (37:8 (Raviv); Stipulation Nos. 15, 60) Plaintiff Hatco never has manufactured butyl benzyl phthalate. (Stipulation No. 35)

 18. In 1961 and 1963, the Hatco Chemical Division built two plants on the eastern portion of the Fords property, known as PA-1 and PA-2. These plants manufactured phthalic anhydride from naphthalene. (Stipulation No. 10) George Napack was hired to oversee the construction and operation of the PA plants. (Napack Dep. 18, 217-18)

 20. The Hatco Chemical Division continued to use phthalic anhydride in its operations, purchasing quantities from outside suppliers to manufacture various esters. The use of purchased phthalic anhydride at the Fords facility continues to the present day. (Stipulation No. 13)

 21. While the PA plants were in operation, still bottoms from the PA production were deposited in an area to the east of the PA plants referred to as the "PA Residue Area." (Napack Dep. 47-48)

 22. In 1961, the Hatco Chemical Division installed a molecular still in the Ester I Tank Farm to separate by-products manufactured in the sebacic acid plant. The molecular still was closed in 1965. (Stipulation Nos. 16, 60; 1066:2-11 (Trela))

 23. In or around 1960, the Hatco Chemical Division installed two thermal units ("SH-1 and SH-2") to provide heat for a new reactor added in the Ester I plant. (E22, 23, 29) From approximately 1961 to 1966 aroclor was used as a heat transfer fluid in the hydrotherm units. (Stipulation No. 27)

 24. In 1970, Grace constructed a second esterification plant ("Ester II") to manufacture DOP and other phthalate esters. (1239:21 (Reid)) The Ester II plant remains in operation today at the Fords facility.

 25. After Hatco purchased the facility in 1978, it continued to manufacture a variety of plasticizers, including di-n-butyl phthalate ("DBP"), bis (2-ethylhexyl) phthalate ("DEHP"), diisodecyl phthalate and DOP. (E1043 at A301887; 186:25-187:2 (Raviv) (Hatco and Grace made same use of Ester I complex)); 2170:18-21 (Staples) (same))

 26. Other chemicals that have been used and stored at the site since 1978 include benzene ("BZ"), 1,1,1-TCA ("TCA"), methylene chloride, styrene, xylene and toluene. (E968, 1241, 1737)

 27. In the post-1978 period, Hatco began the manufacture of phenyl xylyl ethane ("PXE"), which required the use of xylene and styrene. (E1043 at A301975, 1410 at A301646; 1243:5 (Reid) (PXE manufacture began in early 1980s))

 28. Since 1978, Hatco has used the Ester II plant to manufacture various phthalate esters, including DOP, DEHP and DIDP, and to distill PXE and TCA bottoms. (2179:22-2180:11, 2905:4-23 (Staples); Lynch Stipulation PP 6, 7; Maimon Stipulation P 34; E1404)

 29. In 1983, Hatco modified existing facilities and constructed a new plant at the Fords site to manufacture Z-Aspartic Acid ("ZAA"). (Maimon Stipulation PP 1-3; Napack Dep. 45:20-46:9; 152:8 (Raviv)) These facilities are located in the area of the former benzyl chloride plant. (146:16 (Raviv)) By June 1984, the ZAA facility was in the semi-commercial startup phase. (1339:15 (Chryss))

 30. In 1986, plaintiff Hatco dismantled the two PA plants at the Fords facility. (Stipulation No. 72)

 3. Waste Treatment

 31. Between 1954 and 1959, Hackman dug at least one settling pond at the Fords facility that was designed to handle waste by allowing product to separate from water. (1881:14 (Kaufman); 33:10-19 (Raviv); E10 at WRG06830; DE001) During this period, liquid wastes flowed into the pond system. (E10 at WRG06830) After settling, the effluent was released from the pond and flowed through marsh land into Raritan River. Id.; (1891:19 (Kaufman))

 32. By 1961, Grace had expanded the pond system, adding additional ponds, one of which subsequently was divided into two ponds, for a total of four ponds at the site. (E12, 15; Stipulation No. 59)

 33. With the settling pond system, Grace sought to minimize the amount of process waste discharged and to recover suspended solids containing product. To accomplish these goals, Grace skimmed the esters and other organic matter that floated to the surface of the ponds and neutralized the remaining liquid effluent with lime slurry The recovered product was returned to the plant to manufacture off-color plasticizer ("OCP") to sell as a Grace product. (Stipulation No. 18)

 34. While in operation, semi-solid matter accumulated in the ponds, thereby necessitating periodic cleaning. (Stipulation No. 17) Known as "demucking," this process involved scooping solid material from the bottom of the ponds. (Stipulation No. 19) The dredged material was deposited in an area west of ponds three and four known as the "muck storage area." (40:16-43:5 (Raviv))

 35. From 1959 until 1971, Grace discharged waste products from the various plant operations into the ponds system. Aroclor leaks, liquid waste effluent from the Ester I and benzyl chloride plants and Ester I leaks and spills of phthalates and raw materials were discharged to the ponds. (Stipulations Nos. 31-34)

 36. In 1966, Grace completed the construction of sewer lines at the site to connect the Fords facility to the Middlesex County Sewerage Authority ("MCSA"). The MCSA later changed its name to the Middlesex County Utilities Authority ("MCUA"). (Stipulation No. 20)

 37. As part of the MCSA connection, Grace installed two clay-lined lagoons at the Fords facility. (Stipulation No. 21) The lagoons were designed and used, until 1971, as a temporary storage location for plant effluent prior to discharge to the MCSA. (Stipulation No. 36; Ackelsberg Dep. 204:14-20)

 38. When Grace's gravity-based settling pond system and the clay-lined lagoons were in operation between 1966 and 1971, process effluent flowed from the settling ponds to the clay-lined lagoons to sewers connected to MCSA. (Stipulation Nos. 22, 36) Liquid waste from the phthalic anhydride plants was released to the lagoons and ultimately to the MCUA. (Stipulation No. 37)

 39. In 1969, the New Jersey Department of Environmental Protection (the "DEP") directed the Hatco Chemical Division of W.R. Grace to eliminate the ponds because of odor problems. (Stipulation No. 24) The Hatco Chemical Division completed the pond elimination program in March 1971. (Stipulation No. 25) Plaintiff Hatco never operated the settling pond system or the muck storage areas. (Stipulation No. 26)

 40. In 1990, plaintiff Hatco began operating an effluent pretreatment plant (the "EPT plant") at the Fords site. (Stipulation No. 13) The main purpose of the EPT plant was to reduce the organics in Hatco's effluent prior to its discharge to the MCUA. (715:7-14 (Raviv))

 4. Location of Site Facilities7

 41. Throughout the history of the site, the manufacturing and waste disposal facilities largely have been situated in the central portion of the site. In aerial photographs, this concentration of buildings and other artificial structures forms a capital letter "T" with the vertical structures traveling north to south and the horizontal improvements running east to west.

 42. During Grace's ownership, the Ester I complex served as the industrial center and was bounded on the west by the Ester I Tank Farm and to the east by the two PA plants. To the south of the PA plants four large tanks, known as the "M tanks," were installed to store the naphthalene used in PA production. Continuing south from the M tanks, the Ester II building appears. West of Ester II, two railroad sidings, one serving each ester plant, run north from the southern boundary of the property.

 43. Directly to the south of the Ester I complex two ponds were located, pond number one to the west and pond number two to the east. Two larger ponds were found further to the south, pond number three to the east and pond number four to the west. The sebacic acid plant was situated to the east of ponds one and two. East of ponds three and four, the benzyl chloride plant was located. A muck storage area was created southwest of ponds three and four. At the southern boundary of the property, just west of the railroad sidings, the two lagoons were constructed.

 44. Due north of these manufacturing and waste structures, a pilot plant, the quality control laboratory, the alcohol tank farm and drum storage areas were located.

 45. Many of these structures remained unchanged following Hatco's purchase of the site. During the pond elimination program, Grace reclaimed the areas of the site the ponds and muck storage areas had occupied. Hatco constructed the EPT plant in the area of former pond four. Hatco also added the ZAA facility, converting the former benzyl chloride plant and constructing a new building just south of former ponds one and two.

 D. Contamination Overview

 1. Sampling

 46. In August 1979, the DEP visited the Hatco site and took a single sample from the surface of each of the two lagoons. (1220:3-1221:10 (Reid); E699) In March 1980, DEP officials returned to the Hatco site and gathered soil samples. (1229:7-17 (Reid))

 47. In 1981, the DEP's selected seven groundwater monitoring well sites, beginning the first systematic testing at the Hatco facility. (214:15-23 (Raviv)) Paulus, Sokolowski and Sartoe, Inc. ("PS&S"), an environmental consulting firm, installed these wells in 1982. (66:11-15 (Raviv))

 48. Subsequent DEP spot sampling of the lagoons and other portions of the site occurred in 1981 (876:23 (Trela); E720), 1984 (879:6 (Trela); E825) and 1985. (883:1 (Trela); E881) The MCUA drew samples of Hatco's sewer waste water in 1986. (886:19 (Trela); E1040)

 49. As a result of the DEP's continued interest in the site, in 1986 Hatco hired DRAI to provide advice with respect to the DEP's demands. (1443:3-10 (Chryss)) DRAI installed additional groundwater monitoring wells in 1987, 1990 and 1992, (65:23-66:22, 214:15-23 (Raviv)), and performed surface and subsurface soil investigations in various areas throughout the site in 1987, 1988, 1991 and 1992. (E2253) The DEP specified the groups of chemicals to be tested as well as the testing methods. (97:7-21 (Raviv))

 50. Based on evidence of historical activities at the Hatco site, DRAI created areas of environmental concern ("AECs"), a basic concept in any kind of environmental investigations of plants, which allowed it to examine the impact of particular operations at relevant parts of the site. See Appendix III. (54:2-23 (Raviv)) DRAI also developed a grid system to guide its soil studies. (DE013; 64:11-19 (Raviv)) In areas where contamination was found, the density of the grid was increased in order to fine-tune its delineation. (64:20-65:22 (Raviv))

 51. In 1987 and 1988 Exxon Chemical, a potential Hatco purchaser, hired Environ, an environmental consulting company, to come to the site and conduct testing. Environ examined soil and groundwater conditions at Hatco. (1472:8-20 (Chryss))

 2. Contaminants

 52. The resulting data indicates that the Hatco site contains three principal contaminants: (1) base neutrals ("BNs"); (2) polychlorinated biphenyls ("PCBs"); and (3) volatile organic compounds ("VOCs"). (69:6 (Raviv))

 53. BNs, also known as semivolatiles, are a subset of organic chemicals. (919:11 (Trela)) This category includes different phthalate esters, including DEHP, BBP, DEP, DBP and DOP, (93:4, 69:8, 75:21 (Raviv)), as well as petroleum products and naphthalene ("Naph"). (2068:2 (Staples)) BNs are the source of the greatest volume of contamination at the Hatco site. (2067:2-15 (Staples))

 54. Two types of PCBs were found at the site, aroclor 1248 and aroclor 1254. When tracing the history of PCBs, it is important to evaluate reports of the presence or absence of PCBs carefully. (882:12 (Trela)) Obtaining accurate PCB results is difficult, because the applicable testing method is susceptible to interference by organic chemicals, such as the phthalate esters present at the Hatco site. (880:5, 881:1 (Trela)) Testing of soil borings is more accurate than testing of groundwater samples. (888:6 (Trela))

 55. Sampling also revealed the presence of a variety of VOCs. This category of chemicals includes solvents such as toluene, xylene, TCA, TCE and benzene. (76:3 (Raviv))

 56. These pollutants are distributed throughout the site at various depths and concentrations. To some degree, each group of contaminants is present in the soils and the groundwater. Often these chemicals are commingled in the same soil. The DEP primarily is concerned with the VOC contamination in the groundwater and the PCB soil contamination. (742:4-20 (Raviv); E2453 at A216332)

 E. Apportionment of Responsibility

 57. While the assignment of responsibility for the remediation of this contamination ultimately requires a judgment regarding the sufficiency of the mechanism of division, a question of law, initially the Court must explore the causation relationship and identify, as a matter of fact, the actions that lead to the problems that exist at the Hatco facility.

 1. Relevant Factors

 58. It is the commingling of contaminants within the soils and groundwater that complicates attempts to draw conclusions about the relationship between site activities and contamination. This burden is not insurmountable, however, as the expert testimony at trial revealed. A number of variables distinguish the respective parties' uses of the Hatco site, including time of use, manufacturing activities and production rates. The migratory aspects of the contamination and the exclusive use of certain chemicals also guide the causation inquiry. While the utility of the former list of factors is evident, the latter category, whose members dominated the testimony at trial, merits more thorough treatment.

 a. Exclusive Use of Chemicals

 59. The causation inquiry begins with an attempt to identify the party who introduced the contamination to the site. Frequently this quest will uncover multiple sources. At the Fords facility, however, some chemicals found in the soil and groundwater can be traced with certainty to either Grace or Hatco, but not to both. For example, the record indicates that Grace served as the sole source of PCBs and that only Hatco used TCA in its manufacturing activities.

 60. The utility of the exclusive use factor is limited, however, because it alone may not reveal which party is responsible for the precise distribution of contamination at the site. Nevertheless, exclusive use serves an important default function. If no evidence supports an alternate explanation for the way in which a chemical reached its current location, the party that brought the chemical at issue onto the site will retain responsibility for the resultant contamination.

 (1) Grace

 61. From approximately 1961 through 1966, Grace purchased and used heat transfer fluids at the Fords facility that contained PCBs, including aroclor 1248, aroclor 1254 and Therminol FR-2. (Stipulation Nos. 27, 29) Grace also used convaclor, a mixture of aroclors. (Stipulation No. 28)

 62. Grace used aroclors in the hydrotherm units, the molecular still, the caproyl still and in the manufacturing operation at PA-2. (Stipulation Nos. 28, 38; (1066:15 (Trela)) Grace used aroclor 1248 as a heat exchange fluid in the hydrotherm units and aroclor 1254 in the manufacture of OCP. (1064:5-21 (Trela)

 63. Plaintiff Hatco never has purchased PCB products in conjunction with its manufacturing activities at the Fords facility. (Stipulation No. 30)

 64. The PCB contamination at the Hatco site is widespread and generally is found in the areas where Grace used PCBs. (1064:25-1065:5 (Trela))

  65. The evidence indicates that Grace purchased trichloroethylene ("TCE") in 1964, (255:4 (Raviv); E159), and used it to clean the hydrotherm units. (2422:19 (Staples); 1063:11-16 (Trela); E163 (Grace reporting TCE cleaning to manufacturer); 1062:5-24 (Trela); E159 (TCE purchase order))

  67. Despite suggestions to the contrary, (376:1 (only Grace used toluene) (Raviv); (2777:7) (toluene last introduced to site in 1965) (Staples)), both Grace and Hatco brought toluene to the Fords site. During Grace's tenure, toluene was a benzyl chloride production material. ( E140 at 2 P 4) Hatco also purchased toluene post-1978. (698:16 (Raviv); 2115:23 (Staples))

  68. Lagoon samples from 1979 and 1980 contained toluene. (375:13, 809:11, 810:1 (Raviv)) Subsequent tests Hatco commissioned confirmed the initial toluene result. (2897:9 (Staples); E751) Today, in the area around and downgradient of the former benzyl chloride plant, the data reveals traces of toluene at the surface and toluene contamination in the subsurface soils. (2779:2 (Staples))

  (2) Hatco

  69. From 1983 to 1990, plaintiff Hatco used 1,1,1-trichloroethane ("TCA") in the manufacture of ZAA. (811:3 (Raviv); Maimon Dep. 242:12-15; Maimon Stipulation PP 7, 10) Hatco used over 250,000 pounds of TCA annually in the production of ZAA. (E1780 at A300773; 583:6-584:4 (Raviv), 2842:14-2843:8 (Staples))

  70. Hatco recovered and later distilled TCA used in the ZAA manufacturing process in the Ester II and ZAA plants. (Maimon Dep. 43:25-46:20; Maimon Stipulation PP 11, 16, 34) The distillation process created "TCA bottoms." TCA bottoms contain benzyl chloride, dibenzyl carbonate, TCA and butyl alcohol. (Maimon Dep. 46:5-20; Maimon Stipulation PP 15, 27)

  71. There is no evidence that Grace purchased or used TCA at the Fords facility. (578:15 (Raviv); 2090:1 (Staples)) Although a report of 1979 DEP surface lagoon sampling results indicated the presence of TCA in the lagoons, this finding was not supported by data. (2090:8 (Staples)) Today, there is no TCA contamination upgradient of the ZAA plant of the Hatco facility. (2091:10 (Staples))

  72. Xylene also is unique to the post-1978 period. (2174:12 (Staples)) Hatco used xylene in the production of PXE. (376:7 (Raviv); 2112:18 (Staples)). *fn8"

  73. There is no evidence that Grace used xylene. *fn9" Although 1980 lagoon sampling of the DEP revealed the presence of xylene, (810:1 (Raviv); 2502:18 (Staples); E737), Hatco disputed this finding, (2895:3 (Staples); reading E774 at 29712; 2896:10 (Staples)), and commissioned additional tests that refuted the initial results. (2897:9 (Staples); E751; 2503:25 (Staples))

  74. An August 27, 1984 analysis of a lagoon skimming sample indicated the presence of PXE. (692:5 (Raviv); E841) Xylene itself was present in a sample taken from the lagoon skimmings on October 5, 1984. (692:16 (Raviv); E847) Today xylene is found in monitoring wells 15S and 17S. (2113:6 (Staples)

  b. Migration of Contaminants

  75. As indicated above, however, the Court must do more than identify the source of contamination at the Hatco facility to resolve the instant dispute; it must determine who is responsible for the distribution of contamination at the site. The interaction among chemicals and between chemicals and the environment, referred to as fate and transport analysis, controls this inquiry and supplies the second portion of the causation equation.

  76. Chemical fate and transport analysis is crucial to determining which of a number of activities contributed to the contamination at the site. (2080:11-20 (Staples)) If the activities of either party transport a contaminant from the location in which the other party placed it to a different location, for purposes of divisibility, the party responsible for the transport caused the contamination. (Cf. 1181:7 (Trela noting that there is more to allocation than identity of source)) The use of chemical fate and transport analysis in the assessment of environmental property damage has been endorsed by the United States Environmental Protection Agency ("EPA"). (2116:18-2117:12 (Staples))

  (1) General Dynamics

  77. Various properties unique to each chemical determine the ways in which chemicals react with the environment and with each other. These attributes include density, volatility, degradability, solubility in water, solubility in other chemicals, and the tendency to adsorb or stick to soils. (2080:21-2081:11 (Staples)) The profile generated by these properties helps predict the behavior of chemicals and discern the cause of environmental harm.

  78. The place in which a chemical is introduced into the environment also affects its migratory potential. Above the water table, contaminants generally will move vertically down through the soil column. (474:15 (Raviv)) A chemical's behavior below the water table, where the soil and water columns are equivalent, (2086:4 (Staples)), is controlled by its density. Low-density chemicals disperse and float in the groundwater, (2085:14 (Staples); DE056), while higher density substances migrate downward into the aquifer. (DE055)

  79. PCBs exhibit stubborn characteristics. This group of contaminants adsorbs to soil particles, (460:6 (Raviv); 2084:2 (Staples)) and does not biodegrade. (2084:8 (Staples)) PCBs have very low water solubility, (464:20 (Raviv); 2084:1 (Staples)), but higher solubility in solvents. (2085:9 (Staples)) If released onto soil, PCBs will remain in place unless impacted by some external force. (2085:7 (Staples))

  80. The BNs or phthalate ester products manufactured at the Hatco site have low densities, around .9, and tend to float on water. This characteristic enabled the parties to use skimming operations and oil-water separators to capture recyclable BNs contained in plant effluent. (2082:14, 2852:18-2853:22 (Staples)) Some BNs do not degrade easily in the environment, while others have some tendency to biodegrade. (2082:1-4 (Staples))

  81. VOCs, as their name suggests, are more volatile than their sister organics, BNs. (2074:4 (Staples)) This category of chemicals moves through the soil column faster than PCBs. (460:20 (Raviv)) VOCs can solubilize PCBs, (464:22 (Raviv)), and, under the right circumstances, move them down through soils. (465:7 (Raviv))

  82. The manufacturing activities at a plant site also contribute to the distribution of previously released contaminants. Events such as spills, leaks and drips and sewer and tank overflows can mobilize and rearrange chemicals in the environment.

  83. Another important catalyst is surface water run-off generated by rainfall and other precipitation. Generally, this run-off will not contaminate subsurface soils. Contamination of the subsurface occurs when water dissolves contaminants at the surface before infiltrating downward through the soil column to the water table. Once dissolved, the contamination will travel with the water. (180:1 (Raviv))

  84. With respect to BNs and PCBs, the short time period associated with run-off events is insufficient to dissolve these materials. (180:22, 181:6 (Raviv)) Although rain water percolates through BNs and PCBs, because these chemicals have low water solubilities, they do not infiltrate down to the water table. (230:16 (Raviv))

  85. In contrast, water will dissolve and carry VOCs. (180:18 (Raviv)) When rainwater comes into contact with VOCs on the surface, it will dissolve a portion of the VOCs and move them to the water table. (460:24 (Raviv))

  86. The passage of time alone will not move PCBs. (2706:3 (Staples)) Generally, as a result, one would not expect PCBs to migrate to the subsurface soils or into the groundwater without decades or hundreds of years. (745:9 (Raviv))

  87. PCBs can reach deep soils as a result of mechanical means or transport by another chemical. (2668:11 (Staples); 1089:10 (Trela) (spills of organics mobilize PCBs in physical and chemical sense))

  88. Similarly, PCBs can reach the groundwater in one of three ways, specifically through: (1) physical introduction, (743:11 (Raviv)); (2) transport by VOCs, (743:23 (Raviv)); and (3) direct contact between the groundwater and PCB-soils. This third method, however, dissolves extremely low levels of PCBs into solution. (744:17 (Raviv))

  89. The transport of PCBs is accomplished by chemicals in which PCBs solubilize. These chemicals carry PCBs downward as they migrate through the soil column to deeper soils and eventually to the water table. (2085:9 (Staples)) After reaching the water table, a low-density solvent will disperse and float on the surface of the groundwater, (2085:14 (Staples); DE056), while a solvent of higher density will continue to migrate downward into the aquifer. (DE055)

  90. PCBs will remain in the solvent after it reaches the water table provided that the solvent is in substantial enough concentrations. At the edge of the solvent, however, PCBs will disperse into the water. (2086:17; 2107-2112 (Staples))

  91. This solvent migration theory was used to explain the distribution of contaminants at the J.T. Baker site, a case with which both apportionment experts were familiar. There, DDT, a chemical that shares the low water solubility of PCBs, (468:2 (Raviv)), was found thirty-five feet from the surface in soils below the water table. A plume of chlorobenzene, a solvent with properties similar to those of TCA, (2104:9 (Staples); 468:8 (Raviv)), appeared in the groundwater downgradient from the DDT deposits, (469:23 (Raviv)), but only traces of chlorobenzene were found in the soil column with the DDT. (470:11, 476:12 (Raviv)) Both apportionment experts who testified in the instant case agreed that the chlorobenzene was the driving force that "allowed DDTs to migrate downward." (468:25, 471:5 (Raviv); 2105:7 (Staples))

  92. Examples of VOCs present at the Hatco site that have the potential to cause the migration of PCBs include TCA, TCE, toluene and xylene. Toluene and xylene have densities less than one and therefor could not move PCBs down through the water table. TCA and TCE, in contrast, are heavier than water and capable of transporting PCBs to soils below the water table.

  93. TCA and TCE degrade into similar chemicals. (2101:10 (Staples)) In fact, all TCA daughter products are also TCE daughter products. (2744:14 (Staples)) The primary daughter products of TCA are 1,1 DCA and monochloroethane (or chloroethane ("CA")), while the primary daughter product of TCE is 1,2 DCE. (2095:4 (Staples)) Daughter products help discern the identity of the parent chemical. (2101:19 (Staples))

  94. The principal method by which TCA and TCE degrade in an aquifer is the removal of chlorine atoms, a process known as reductive dechlorination which produces DCA and DCE, respectively. (2824:11-23 (Staples); DE090)

  95. Although TCE can degrade into DCA, the double-bonded carbons of the TCE molecule make degradation to DCA more difficult. (2824:24 (Staples)) The reductive dechlorination process which transforms TCE to DCE occurs almost thirty times more frequently than the degradation of TCE into other daughter products. (2825:17-21 (Staples))

  96. Although the monitoring well data at the Fords facility indicates no exclusive TCA daughter products, but some exclusive TCE daughter products, (2765:13 (Staples); DE088), the relative concentrations of these chemicals indicate that the DCA and CA degraded from TCA not TCE. (2886:7 (Staples); DE088A)

  98. Although a more detailed analysis of the TCA-PCB phenomenon is necessary before the Court can use this theory to explain the contamination at the Fords facility, this inquiry is better incorporated into the discussion pertaining to the areas in which defendant argued that the presence of TCA explained the PCB contamination.

  c. Toxicity of Contaminants

  99. Without a risk assessment, which details and determines the risk of exposure posed by chemicals detected at the Hatco site, the relative toxicity of chemicals detected at the Hatco site is not a relevant factor in dividing responsibility for contamination. (2265:22-2271:24 (Staples and the Court))

  d. Remediation Costs

  100. The cost of the disposal of contaminated material is controlled, in part, by whether it is classified as a hazardous waste as opposed to a hazardous substance. (969:17 (Trela)) This classification rests on the concentration and properties of the chemical as well as its source. (970:2, 963:18 (Trela)

  101. Without the hazardous waste categorization the charge for removing VOC and BN contamination is $ 50-$ 150. PCB removal requires an expenditure of $ 200-$ 400 per ton at low concentration levels, $ 400-$ 1000 at medium levels and $ 1000 if the concentrations reach the 500 ppm threshold. (965:2 (Trela))

  102. Because the investigation and analysis of the contamination at the site is not complete, neither a risk assessment nor a remediation plan has been proposed or approved, and the ultimate remediation will not occur for several years, speculation as to remedial technologies or remediation costs appropriate to the site are premature and cannot be taken into account in an allocation of responsibility for the contamination at the site. (2258:18-22, 2259:12-22 (Staples))

  e. Pre-1959 Manufacturing Activities

  103. Due to the limited information about pre-1959 activities, (2173:21 (Staples)), and the increase in production of existing 1959 facilities, (522:25-23:24 (Raviv)), levels of Ester I production pre-1959 much lower than post-1959) as well as the construction of additional manufacturing plants which have dramatically changed the potential for impact to environment, (526:4 (Raviv)), the activities of the Hatco Chemical Company will not shape the apportionment decision of the Court. *fn10"

  104. This result is consistent with the approach of both apportionment experts. (526:4 (Raviv); 2173:21 (Staples)) Neither expert offered an opinion regarding the level of contamination caused by the pre-1959 operation of the Fords facility. (526:14 (Raviv))

  F. Apportionment--Soil Contamination

  105. The Court will follow the areas of environmental concern devised by plaintiff's expert. This site division has been incorporated into the remediation plans and reports previously submitted to the DEP. In addition, the numerous divisions offer a degree of detail that facilitates a complete discussion of the contamination at the Fords facility.

  1. Areas of Joint Use

  a. Lagoons (AEC 1)

  (1) Respective Uses

  (a) Grace

  107. Constructed in 1966, the two lagoons were installed atop clean fill with a man-made clay liner separating the lagoon bottoms from the underlying soils. (2203:6-12 (Staples)) Thereafter, Grace used the lagoons to drain the ponds. (380:11 (Raviv)) During this period, the lagoons received liquid waste from the pond system, (2203:6 (Staples)), and all chemicals discharged to the ponds reached the lagoons. (2414:10 (Staples)) Although Grace's skimming of the ponds, (670:2 (Raviv)), reduced the contamination in the liquid sent to the lagoons, (674:20 (Raviv)), contamination remained in the effluent because the pond skimming was not a constant operation. (830:1 (Raviv))

  108. Following the pond elimination program in 1971, during which Grace installed by-pass piping around the lagoons, (2861:19 (Raviv); E368), Grace's effluent went directly from the sewers to the MCUA, and did not pass through the lagoons. As such, from 1971 to 1978 the lagoons were used only sporadically. (1318:5-12 (Reid); 2203:6 (Staples))

  109. Grace did not skim the lagoons. (661:5 (Raviv) (no evidence of lagoon skimming at any time prior to 1984); Dominach Dep. at 472:3)

  (b) Hatco

  110. Hatco skimmed the lagoons for a period of twelve months from May 4, 1984, (538:1 (Raviv); 2373:17 (Staples), E840) to April 18, 1985. (726:6 (Raviv); 2374:24 (Staples); E909, 892)

  111. During the skimming project, Hatco closed the sewer line from the west lagoon to the MCUA, fitted the west lagoon with a boom, and skimmed product from the surface of the west lagoon. (401:20 (Raviv)) The line from the east lagoon to the MCUA remained active. (401:24 (Raviv))

  112. Hatco pumped contaminated storm water run-off, (1752:10, 1755:1, 1842:19 (Chryss); E1070 Bates 002221), from the Ester I railroad swale area into the east lagoon, (681:5 (Raviv)), from 1985 to 1991. (1751:18 (Chryss))

  113. Following the lagoon skimming project, Hatco used the lagoons on an "emergency" basis during periods of heavy rainfall as a retention basin for sewer overflows. (1382:4 (Chryss); E918)

  114. Hatco took the lagoons out of service in 1991 and covered them with a plastic cap. (984:23-985:23 (Trela))

  (2) Contamination

  115. DRAI conducted lagoon sampling in 1988. The capping of the lagoons made subsequent sampling impossible. (82:3 (Raviv))

  116. The sludge layer above the clay liner of the west lagoon contains actionable 1,1-DCA and 1,1,1-TCA, actionable PCBs, specifically aroclor 1248, and actionable DEHP, BBP, DBP and DOP. *fn11"

  117. The sludge layer above the clay liner of the east lagoon contains actionable BZ and 1,1-DCA, actionable PCBs, specifically aroclor 1248, and actionable DEHP, BBP, DBP and DOP.

  118. The soils below the clay liner in the west lagoon contain actionable 1,1-DCA and 1,1,1-TCA, actionable PCBs, specifically aroclor 1248, and actionable DEHP, BBP, DBP and DOP.

  119. The soils below the clay liner in the east lagoon contain actionable PCBs, specifically aroclor 1248, and actionable DEHP, BBP, DBP and Naph, but no actionable VOCs.

  120. The PCB and BN contamination in the east and west lagoons both above and below the clay liner is similar. The same menu of contaminants appears at similar orders of magnitude. (412:20, 24, 413:20 (Raviv); 2219:4 (Staples))

  121. Although the east and west lagoons above the clay liner both contain 1,1-DCA and 1,1,1-TCA, the orders of magnitude differ across lagoons. In the east lagoon the results for DCA range from 1.6 to 4.2 ppm and for TCA from 1.4 to 8.2 ppm. In the west lagoon the values for DCA range from 5.7 to 180 ppm and for TCA from 12 to 3600 ppm.

  122. No DCA or TCA was detected below the clay liner in the east lagoon. Below the clay liner in the west lagoon, from zero to one-half of a foot, DCA and TCA were found in concentrations of 320 and 430 ppm, respectively. Between 0.5 to 2 feet, however, these values drop off dramatically to 0.03 ppm and nondetect ("ND") for DCA and 0.1 and 0.01 ppm for TCA.

  123. The groundwater in this area contains TCA and its daughter products. Sampling from monitoring well 6S, located south of the east lagoon recorded: an initial 1,1,1-TCA value of 120 ppb in April 1988 that decreased steadily to ND in April 1992; 1,1-DCA at a concentration of 1100 ppb in April 1988 that decreased steadily to 54 ppb in April 1992; the first appearance of chloroethane in October 1988 at a level of 15 ppb that increased steadily to 91 ppm in April 1991 and then dropped to 68 ppb by April 1992. Located south of the west lagoon, monitoring well 7S never has tested positive for 1,1,1-TCA, but contained 1,1-DCA at values of 74 ppb in April 1988 which decreased steadily to ND by April 1992. Chloroethane first appeared in monitoring well 7S in October 1988 and increased to 330 ppb by April 1991 before dropping to 250 ppb on April 1992.

  (3) Apportionment of Lagoons

  124. The location of PCBs below the clay liner of the lagoons was a problem for which Dr. Raviv had no ready explanation at the time of his deposition. (736:2 (Raviv)) The similarity in the BN and PCB contamination across the lagoons, as well as the finding of aroclor 1248 at a depth of 4.5 feet in the east lagoon, (731:19 (Raviv)), defeats the theory offered at trial that the pre-1971 ditch that traversed the area in which the west lagoon is now located caused the PCB contamination below the lagoon liner. (730:24 (Raviv))

  125. It is clear, however, that some external mechanism is required to mobilize PCBs. PCBs in a liquid form will migrate vertically with a driving force. (733:20 (Raviv)) The introduction of large volumes of effluent creates an hydraulic head that mobilizes contamination in the lagoons downward. (666:14-667:1 (Raviv)) Alternatively, PCBs mixed with BNs or other liquids can migrate vertically. (732:17, 733:11 (Raviv))

  126. The data indicates the presence of TCA and its daughter products in both monitoring wells 6S and 7S. Due to the site's south-southwest groundwater flow, as depicted on demonstrative exhibit 33, the VOC contamination found in monitoring well 6S, located east of the west lagoon, did not originate from the west lagoon. As a result, the east lagoon is the source of the TCA found within well 6S.

  127. Time of use, exclusive use of contaminants and the migratory properties of PCBs guide the apportionment of responsibility for contamination in the lagoons area.

  128. Based on exclusive use, the PCBs within the soil above the liner in the east and west lagoons will be assigned 100% to Grace. Similarly, the TCA and TCA daughter products found above and below the clay liner in the west lagoon will be assigned 100% to Hatco.

  129. VOC contamination in the soils above the clay liner in the east lagoon, which results from both Grace and Hatco chemicals, will be divided between the parties according to time of use as will the BN contamination throughout the lagoons.

  130. PCB contamination in the soils below the clay liner in the east and west lagoons also will be divided among the parties according to time of use. During their respective periods of lagoon use, both Hatco and Grace created the enhanced conditions needed for PCB movement. The introduction of BNs and VOCs to the lagoon area as well as the physical effects of introducing large-volumes of liquid into the lagoons mobilized the PCBs in the sludge and caused them to reach depths below the clay liner. *fn12"

  132. Grace's full use of the lagoons spanned 5.25 years while its partial use of the lagoons continued seven more years. Hatco's full use filled one year, and its partial-use lasted for eleven years. As such, Grace is responsible for 73.2% of the VOC contamination in the east lagoon, *fn14" the PCB contamination below the clay liner and the BN contamination, and Hatco is responsible for 26.8% of the VOC contamination in the east lagoon, the PCB contamination below the clay liner and the BN contamination.

  b. Former Ponds Area (AEC 2)

  (1) Respective Uses

  (a) Grace

  133. From 1959 to 1971, Grace operated a settling pond system, to which Grace discharged all plant effluent and from which Grace periodically removed semi-solid muck. See PP 32-35 supra.

  134. By 1962, this system consisted of four unlined ponds which were created by digging large holes in the earth. (Stipulation No. 59; DE003; DE005; Napack Aff. P 6) Effluent from manufacturing processes went directly into ponds one and two. Ester material floating on top of these ponds was removed, and the waste water then went to pond number three. The main waste water pond, pond three was skimmed periodically, and the skimmed material was pumped to pond one for reclamation. Pond four also was used for waste water storage. (Napack Aff. P 7)

  135. Until 1966, this waste water was discharged off-site through unlined trenches. (DE002; 35:23-36:2 (Raviv); Napack Dep. at 275:11-24) Thereafter, skimmed pond effluent flowed to the lagoons. (Stipulation No. 22)

  136. As of 1970, the dimensions of the ponds were as follows: (a) pond one measured 85 feet by 50 feet; (b) pond two was 7-5 feet by 45 feet; (c) pond three reached 90 feet by 95 feet; and (d) irregularly-shaped pond four was slightly larger than 90 feet by 90 feet. (E363 at H501626) The ponds and muck areas themselves occupied only a fraction of the ponds region depicted in AEC 2. (2671:21 (Staples))

  137. By early 1971, Grace had eliminated the ponds. To accomplish this reclamation, Grace first dug diversionary trenching in the earth throughout the pond area. Used for pond drainage, these trenches carried effluent from the ponds to the sewage authority via the lagoons. (Dominach Dep. at 190:14-91:13)

  138. The ponds were then excavated. The "oil-laden earth" removed was easily identified by its black color. (273:12 (Raviv); 2223:11 (Staples)) Engineering plans estimated excavation depths from two to six feet. (E338 at H516540; 277:8 (Raviv) (two, three and six feet scenarios measure depth of excavation, not depth from surface)) Photographs taken during the pond elimination program indicate that ...


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