persuaded instead that "it is . . . consistent with the legislative scheme . . . to include within the sweep of liability past owners who owned the property . . . during a period in which the property was actively discharging contaminants into the environment.")
This Court finds Petersen to be well reasoned and accurate in its construction of the over-all thrust of CERCLA's Congressional intent vis-a-vis "disposal" liability as opposed to the mere triggering of the Executive's response authority when a "release" occurs. As such, when viewed in conjunction with other cases reaching a like conclusion, and when contrasted to those cases holding to the contrary, Petersen's holding that "disposal" does not encompass a passive element is adopted by this Court. Accordingly, its mere ownership of the Property at a time when contamination may have been leaching, leaking or moving through its soil or groundwater is not enough, by itself, to render Dowel liable for CERCLA "disposal."
Because the Court is satisfied that disposal requires some element of active human participation before owner liability for disposal can attach under CERCLA, the issue then becomes whether, during its tenure at the Property, Dowel actively disposed of contaminated materials. HMAT contends that because Dowel commissioned a subsurface investigation of the Property, it was responsible for discharging preexisting contaminants into the groundwater
Several courts have concluded that when contaminants are upset during excavations and fillings of landfills, the CERCLA requirements for disposal are satisfied. See, e.g., Tanglewood East Homeowners v. Charles-Thomas, Inc., 849 F.2d 1568, 1573 (5th Cir. 1988) ("disposal" extends beyond initial introduction of hazardous materials onto property to include the move[ment], dispersal, or release [of such substances] during landfill excavations and fillings"). See also Kaiser Aluminum v. Catellus Dev., 976 F.2d 1338, 1342-43 (9th Cir. 1992); Portsmouth Redev. & Hous. Auth. v. BMI Apts. Assoc., 827 F. Supp. 354, 358 (E.D.Va. 1993); Burlington Northern v. Woods Industries, 815 F. Supp. 1384, 1392 (E.D.Wash. 1993).
Before analyzing whether Dowels' conduct met the criteria for active disposal, it is helpful to review that conduct which other courts have found to meet that threshold. In Tanglewood, the defendants had built a housing subdivision on the property in question and in the course of grading the subdivision, they had spread contaminated soil over the whole site. 849 F.2d at 1573. In Kaiser, the defendant had excavated tainted soil and moved it to other previously uncontaminated sections of the property. 976 F.2d at 1342. In Burlington, the defendant had demolished a contaminated building and pushed its walls into the basement, thereby potentially contaminating the groundwater. 815 F. Supp. at 1392. The allegation that the defendant in Portsmouth had "'moved some dirt around in the course of constructing the apartment buildings now on the site'" was sufficient leave open a factual issue regarding disposal in that case. 827 F. Supp. at 357-58.
In the instant matter, HMAT attempted to equate Dowel's activities on the Property with those of the defendants in the above line of cases, thus attempting to show that Dowel's conduct constituted active disposal. HMAT has contended that "Dowel prepared the property for development, including performing compaction studies, digging and drilling soil borings and running drilling rigs across the property." HMAT's Statement of Undisputed Facts, p. 2. The work was carried out for Dowel by Thor Engineers, Inc. ("Thor"). HMAT pointed out that eight drive borings were made by Thor
to depths of twelve to eighteen feet, each encountering groundwater, and that in three of these "excavations," waste materials collapsed into the holes during drilling. Affidavit of Laura E. Truettner, P 12. Truettner concluded that the Thor borings resulted in the contamination of clean soils with "sanitary and petroleum waste and other types of waste material." Truettner Affidavit at P 11. Truettner also concluded that contaminated materials were probably left on the surface of the property by Thor and that these materials probably spread and contaminated clean soils. Truettner Affidavit at P 13. Generally, Truettner concluded that Thor "did not follow the standard operating procedures for investigative work typically in use at potential waste disposal sites." Truettner Affidavit at P 14.
Dowel has countered HMAT's conclusions (which Dowel terms "conjectures") by showing that the borings undertaken by Thor were "open", i.e. that they consisted of tubes being driven into the ground at prescribed depths and extracted with soil in them. Each boring had a casing with an inner diameter of one and three-eighth inches. According to Thor's principal in charge of the borings, Peter Wilner, no drills were used; no cuttings were generated; no soils or other materials were in any way spread around the Property; and no holes were left open which might allow the infiltration of foreign materials. Wilner submitted under oath that the "open" method of boring used by Thor at the Property "does not cause underground mixing or shifting of subsurface materials." Affidavit of Peter Wilner, PP 2-7.
This Court must decide, based on these facts and the differing conclusions drawn from them by the parties, whether the investigative work commissioned by Dowel and carried out by Thor constituted "disposal" as interpreted by the Tanglewood line of cases. Initially, the Court must recognize that HMAT has not pointed to any concrete evidence that the Thor borings uncovered or disturbed any actual contaminants or caused same to become mixed with clean soil. The Truettner Affidavit, although the affiant is apparently an experienced scientist, amounts to little more than a speculative attempt at the reconstruction of a series of borings conducted almost thirteen years before on a site since made infamous as a Superfund site. Truettner has painted a picture in which Thor has become the creator of mass contamination on a site later to prove an environmental wasteland. Thor, on the other hand, has minimized its role by suggesting that its conduct was innocuous. And yet both their respective patrons, HMAT and Dowel, assert that there are no issues of material fact outstanding in this matter. The Court, albeit only by untrammelled vision of the forest notwithstanding the trees, concurs.
Even assuming, arguendo, that Dowel -- by the hand of Thor -- had done as HMAT and Truettner contends, the Court would have to find Dowel's conduct insufficient to confer upon it CERCLA disposal liability. Needless to say, therefore, under Dowel's version of the facts, a similar result would ensue. Under the Tanglewood line of cases, the Thor investigation fell short of that conduct accepted as being enough of a disturbance to constitute disposal. Compare supra Tanglewood (building a housing subdivision); Kaiser (excavating and moving contaminated soil onto clean soil); Portsmouth (allegation of dirt shifting during the course of constructing apartment buildings); Burlington ("pushing the walls of a building into the basement to fill it in [could allow a jury to find] that the buried building materials have contaminated (or threaten to contaminate) the groundwater")
Under their worst possible portrayal, the Thor borings cannot match these scenarios. Indeed, the Portsmouth court was hesitant to accept an allegation of dirt shifting -- in the course of constructing apartment buildings -- as sufficient to survive a Fed.R.Civ.P. 12(b)(6) motion:
the allegations of the complaint are legally sufficient [on a Tanglewood construction of "disposal"], albeit marginally, to survive as a matter of law because the plaintiffs may be able to establish that the construction activity . . . falls within the applicable definition of disposal.
827 F. Supp. at 358 (emphasis added).
Likewise, this Court is unwilling to encompass within the term "disposal" as used in CERCLA the type of borings conducted by Thor on the Property. To do so would be an unjustified expansion of the proper principle enunciated in Tanglewood -- namely that significant disturbance of already contaminated soil constitutes disposal -- and is particularly inappropriate in a case such as that presently before the Court.
For the foregoing reasons, this Court concludes as a matter of law that HMAT has failed to establish a prima facie case of CERCLA disposal liability against Dowel in this matter. Accordingly, summary judgment is entered in Dowel's favor on that element of HMAT's case.
STATE LAW CLAIMS
Dowel seeks summary judgment on HMAT's state law claims on the ground that HMAT, as a private entity, lacks standing to assert a claim under the New Jersey Environmental Rights Act ("ERA"). The ERA provides in pertinent part that:
a. Any person may commence a civil action in a court of competent jurisdiction against any other person alleged to be in violation of any statute, regulation or ordinance which is designed to prevent or minimize pollution, impairment or destruction of the environment.
The primary prosecutorial responsibility for enforcing the state's environmental laws resides in the government, and the ERA anticipates private parties' standing only when the government has failed to properly act. Superior Air Products Co. v. NL Industries, Inc., 216 N.J.Super. 46, 58, 522 A.2d 1025 (App. Div. 1987). In this case, the government has already taken action to redress the situation at the Sharkey Landfill Superfund site, which encompasses the Property. The state and federal authorities continue to ensure cleanup of the site and are aggressively pursuing the parties they deem responsible for the contamination. Unless and until the government can be shown to have fallen short in its dedication to full enforcement of the respective statutes and regulations involved, HMAT cannot maintain an ERA action. Allied Corp. v. Frola, 730 F. Supp. 626, 636 (D.N.J. 1990).
The ERA does not provide private citizens with an independent substantive right or cause of action. Bowen Engineering v. Estate of Reeve, 799 F. Supp. 467, 478-79 (D.N.J. 1992). However, an action for injunctive or equitable relief may be brought by a private entity "to compel compliance with a statute, regulation or ordinance, or to assess civil penalties for the violation as provided by law." N.J.S.A. 2A:35A-4(a). To avail of this provision the claimant must bring suit while the defendant's acts are either ongoing or imminent. Id.
In the instant matter, any violation engaged in by Dowel has long since ceased. Dowel sold the Property in 1987, and has had no control over it since then. As such, this latter provision of the ERA cannot apply to Dowel in the instant matter, and must be dismissed for lack of standing.
Spill Act claim
Dowel has demanded summary judgment on HMAT's Spill Compensation and Control Act ("Spill Act") claims on the grounds that Dowel's conduct on the Property failed to meet the Spill Act's prerequisite for liability, namely "discharge." The Spill Act imposes liability against "any person who has discharged a hazardous substance or is in any way responsible for any hazardous substance . . ." N.J.S.A. 58:10-23.11g(c)(1). The Spill Act defines "discharge" as:
Any intentional or unintentional action or omission resulting in the releasing, spilling, leaking, pumping, pouring, emitting, emptying or dumping of hazardous substances into the waters or onto the lands of the State . . .