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UNITED STATES v. CDMG REALTY CO.

January 23, 1995

United States of America, Plaintiff,
v.
CDMG Realty Company, et al., Defendants. State of New Jersey, Department of Environmental Protection, Plaintiff, vs. Ciba-Geigy Corporation, et al., Defendants. Beazer Materials and Services, Inc., et al., Third-Party Plaintiffs, vs. Adron, Inc., et al., Third-Party Defendants. HMAT Associates, Inc., Third-Party Plaintiff, vs. Dowel Associates, a general partnership; Herbert M. Iris, individually and as a general partner in Dowel Associates; and Lester Z. Lieberman, individually and as a general partner in Dowel Associates; Third-Party Defendants.



The opinion of the court was delivered by: NICHOLAS H. POLITAN

 Dear Litigants:

 This matter comes before the Court on cross-motions for summary judgment by Dowel Associates, Herbert M. Iris, and Lester Z. Lieberman ("Dowel"), and by HMAT Associates, Inc. ("HMAT"). *fn1" The subject of the instant cross-motions is a ten-acre plot of land on Edwards Road in Parsippany-Troy Hills Township, known as Block 768, Lots 2 and 3 ("the Property"). The Property was once part of the Sharkey's Farm Landfill ("Sharkey Landfill"), a site suspected of containing hazardous substances and the subject of the larger above-titled matter. The Sharkey Landfill closed in 1972. Dowel acquired the Property as an undeveloped tract of land on December 17, 1981.

 The Sharkey Landfill became a Superfund site in or around December of 1982. As of November, 1983, at the latest, Dowel was aware that the Property was part of the Sharkey Landfill Superfund site. See Letter from Herbert M. Iris to Kevin F. Kratina, dated August 28, 1986. The Property remained vacant during Dowel's term of ownership, and was not actively used in any manner during Dowel's tenure. However, Dowel did commission a Preliminary Soils and Foundation Investigation in 1981 in connection with a proposed building site on the Property. That investigation involved at least eight borings and uncovered no obvious contamination on the Property.

 In 1987, Dowel sold the Property to HMAT, fully disclosing to the purchaser the fact that the Property was part of the Sharkey Landfill, and thus part of a Superfund site. In October, 1989, both the federal and state authorities commenced actions against all parties potentially culpable for reimbursement of the costs of cleaning up the contamination on the Superfund site, and also seeking a declaration of future liability. HMAT was among the named defendants; Dowel was not.

 HMAT filed a third-party suit against Dowel, seeking contribution pursuant to §§ 107(a)(2) and 113(f) of CERCLA *fn2" , as well as asserting state law claims. These latter claims involve causes of action under the Environmental Rights Act *fn3" , the Spill Compensation and Control Act *fn4" , the Water Pollution Control Act *fn5" , and the Solid Waste Management Act *fn6" .

 DISCUSSION

 Summary judgment standard

 Under Fed.R.Civ.P. 56, summary judgment may only be granted if, drawing all inferences in favor of the non-moving party, there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dismissed, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Once that burden has been met, the non-moving party must set forth "specific facts showing that there is a genuine issue for trial," id. at 324, or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. See Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. Speculation, conclusory allegations, and mere denials are not enough to raise genuine issues of material fact.

 Moreover, the mere existence of an alleged factual dispute will not defeat an otherwise properly supported summary judgment motion; rather, the nonmoving party must show a genuine issue of material fact to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., supra, 475 U.S. at 587 ("Where the record taken as a whole could not lead the trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'"). Facts are material only if they have the potential to affect the outcome of the lawsuit under the applicable law, and a dispute over material facts is genuine only if the evidence on the issue is such that a reasonable jury could return a verdict in favor of the non-moving party. Anderson, 477 U.S. at 247-48; EEOC v. Westinghouse Elec. Corp., 725 F.2d 211, 218 (3d Cir. 1983), cert. denied, 469 U.S. 820, 83 L. Ed. 2d 38, 105 S. Ct. 92 (1984). Thus, the non-movant's claims must be viewed in a favorable light by the court in a summary judgment context; however, the court must also be realistic in analyzing the potential for success of the nonmovant's claims.

 CERCLA claim

 Section 107(a)(2) of CERCLA provides that

 
any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of . . . shall be liable for . . . [cleanup costs].

 42 U.S.C. § 9607(a)(2).

 CERCLA borrows its definition of "disposal" from another section of the Code:

 
The term "disposal" [as used in CERCLA] means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste into or on any land or water so that such solid waste or hazardous waste or any constituent thereof may enter the environment or be emitted into the air or discharged into any waters, including ground waters.

 42 U.S.C. § 6903(3), as adopted by 42 U.S.C. § 9601(29).

 There is some difference of opinion between the Circuits as to the scope of this definition of the term "disposal." The courts of this Circuit have not squarely addressed the issue in the context of CERCLA but, in 1981, Judge Brotman concluded that the term as employed by the Resource Conservation and Recovery Act ("RCRA"), that section of the Code from which CERCLA borrows the definition, should be quite broadly applied. *fn7" United States v. Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981), aff'd, 688 F.2d 204 (3d Cir. 1982). Price stands for the proposition that "disposal," because its scope encompasses "leaking" -- "which ordinarily occurs not through affirmative action but as a result of inaction or negligent inaction[]" -- may include passive inaction within its RCRA definition. Id. HMAT has placed strong emphasis on Price because of the fact that CERCLA borrows its definition of "disposal" directly from RCRA.

 A recent Third Circuit case involving CERCLA liability in the context of operator as opposed to owner liability, however, casts doubt upon the issue of whether the scope of "disposal" under CERCLA is as broad as that recognized under RCRA. In addressing claims for contribution under CERCLA, Witco Corp. v. Beekhuis, 38 F.3d 682 (3d Cir. 1994), observed that

 
[CERCLA] delineates four classes of responsible parties upon whom liability is imposed: (1) the current owners or operators of a contaminated property, (2) owners or operators of the property at the time of hazardous waste disposal, (3) persons who arrange for disposal or treatment of hazardous substances at the property, and (4) persons who accepted hazardous substances for transport to the property.

 Id. at 689 (citing 42 U.S.C. § 9607(a)).

 A 1992 case from the Northern District of Illinois set forth a clear discussion of the meaning of "disposal" in the CERCLA context. U.S. v. Petersen Sand and Gravel, Inc., 806 F. Supp. 1346 (N.D.Ill. 1992) involved a recovery suit by the government against the operator of a contaminated site in which the defendant operator filed third-party contribution claims against seven other entities also allegedly responsible for the pollution. The United States adopted, inter alia, a theory of liability against defendant Petersen premised on the fact that defendant was an operator of the site "while passive disposal -- i.e., leaking and leaching of hazardous substances -- occurred." Id. at 1350. The issue before the court therefore became whether leaking and leaching constituted "disposal." The Petersen court lacked sufficient precedent from its own court of appeals on which to base its conclusions, and had to engage in a search for instructive case law beyond the Seventh Circuit. *fn8" Id.

 The Petersen court acknowledged the RCRA definition of "disposal" as adopted by CERCLA and noted that some courts have construed the term as requiring an actor -- thus an active concept -- while others have construed the constituent terms of "leaking" or "spilling" as having a passive component. Id. at 1351. The Petersen court was unpersuaded by either approach; instead it looked not only at the definition of ...


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