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BOROUGH OF SAYREVILLE v. UNION CARBIDE CORP.

April 10, 1996

THE BOROUGH OF SAYREVILLE, et al., Plaintiffs,
v.
UNION CARBIDE CORPORATION et al., Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 Currently before the court is a motion filed by the Government for judgment on the pleadings dismissing the Plaintiffs' claims for joint and several liability under section 107 of CERCLA contained in Count I of the Amended Complaint, derivative claims for declaratory relief relating to joint and several liability contained in Count III of the Amended Complaint and claims for declaratory relief relating to natural resource damages also contained in Count III of the Amended Complaint (the "Motion for Judgment"). *fn1" The Government seeks dismissal of Count I and certain claims in Count III with respect to itself and all Co-Defendants pursuant to Fed.R.Civ.P. 12(c). For the reasons set forth below, the Motion for Judgment is granted.

 Facts

 A. Background

 Sayreville is a municipal corporation formed under the laws of the State of New Jersey. Amended Complaint, P 5. *fn2" Mobil and Rhone-Poulenc are corporations incorporated under the laws of New York. Id., PP 6-7. Ruetgers-Nease is a corporation incorporated under the laws of Pennsylvania. Id. P 8. The Government has facilities and functions in the State of New Jersey. Id., P 19; Government Answer, P 19.

 This action concerns the cleanup of environmental contamination at a site of approximately thirty-five acres located at or around Jernee Mill Road in Sayreville, Middlesex County, New Jersey (the "Site"). Amended Complaint, P 32. Sayreville operated a solid waste landfill licensed by the State of New Jersey at the Site. Id. Hazardous substances defined under CERCLA were found at the Site causing the Site to be placed on the National Priorities List ("NPL") on 1 September 1983 by the United States Environmental Protection Agency ("EPA"). Id., PP 33-34. In response to releases and threatened releases of hazardous substances at the Site, the EPA authorized the State of New Jersey Department of Environmental Protection ("NJDEP") to remediate the Site. Id., P 34.

 On or about 7 August 1989, NJDEP issued a second directive ("Directive II") directing Rhone-Poulenc and other PRPs to arrange Phase 2 RI/FS by paying $ 632,899 to NJDEP. *fn4" Id., PP 39-40. Partial payments towards Directive II were made to NJDEP by Rhone-Poulenc without admission of liability or fault. Id., P 40. On or about 18 September 1989, NJDEP issued a third directive ("Directive III") directing the named PRPs to arrange Phase 2 RI/FS by paying $ 580,157.41, the unpaid balance of Directive II, or face possible sanctions including treble damage liability in a future cost recovery action by NJDEP. *fn5" Id., PP 41-42. In October and November 1989, certain Plaintiffs paid $ 171,867 to NJDEP in settlement of Directive III without admission of liability or fault. Id., P 43. Directive III was later settled by Rhone-Poulenc without admission of liability or fault. Id.

 In 1990, B & V Waste Science and Technology Corp., NJDEP's contractor for the RI/FS, issued a Final Remedial Investigation Report reporting the presence of hazardous substances on and off the Site. Id., PP 45-46. In August 1990, the EPA issued letters to Plaintiffs and others notifying them that they were PRPs for cleanup of the Site under section 107(a) of CERCLA, 42 U.S.C. § 9607. Id., P 50. On 28 September 1990, the EPA issued a Record of Decision ("ROD") selecting a cleanup plan for the Site with an estimated cost of $ 16.5 million for the first operable unit of cleanup and reserving for future decision whether a second operable unit of cleanup will be required. Id., P 51. Plaintiffs allege a second operable unit of cleanup could potentially exceed $ 50 million. Id.

 In April 1991, NJDEP issued a fourth directive ("Directive IV") directing Plaintiffs and other PRPs to pay $ 16.5 million to fund the cleanup in the ROD. *fn6" Id., P 52. Directive IV provided that if the named PRPs did not comply with its terms, NJDEP would undertake the cleanup work and seek treble damage recovery from the Plaintiffs and other PRPs. Id., P 53. On 26 November 1991, Plaintiffs settled Directive IV by entering into a second Administrative Consent Order and Agreement ("ACO II") with NJDEP, in which the EPA concurred. Id., P 54. In ACO II, Plaintiffs agreed to perform cleanup of the Site but without admission of liability or fault and with reservation of all rights against non-settling PRPs. Id. Plaintiffs have since entered into a number of PRP agreements implementing the cleanup under ACO II. Id., P 55. Under the PRP agreements, Plaintiffs agreed to allocate the cleanup costs while reserving their rights to obtain indemnification, contribution and restitution from non-signatories to ACO II. Id.

 Plaintiffs allege that to date they have incurred response costs in excess of $ 1 million for the RI/FS and in excess of $ 500,000 in furtherance of ACO II remediation of the Site. Id., P 56. Plaintiffs also allege they have never been administratively or judicially adjudicated to be liable for cleanup at the Site. Id., P 57.

 B. Procedural History

 On 23 November 1994, Plaintiffs filed a complaint initiating this action and on 7 December 1994 filed the Amended Complaint. In Count I of the Amended Complaint, Plaintiffs seek to hold the Government and Co-Defendants jointly and severally liable under section 107(a) of CERCLA, 42 U.S.C. § 9607(a), for response costs incurred or to be incurred at the Site and for natural resource damages. Id., PP 59-71. In Count II, Plaintiffs seek contribution under section 113(f) (1) of CERCLA, 42 U.S.C. § 9613(f) (1), which provides for the equitable allocation of response costs by the court. Id., PP 72-73. In Count III, Plaintiffs seek declaratory relief under section 113(g) (2) of CERCLA, 42 U.S.C. § 9613(g) (2), and 28 U.S.C. §§ 2201-02 relating to joint and several liability, liability for natural resource damages and liability for contribution. Id., PP 74-79. The remaining counts of the Amended Complaint contain claims for cost recovery and contribution under the New Jersey Spill Compensation and Control Act, N.J.S.A. § 58:10-23.11 et seq., ...


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