The opinion of the court was delivered by: LECHNER
This is an action brought by plaintiffs Interfaith Community Organization ("Interfaith"), Lawrence Baker ("Baker"), Martha Webb Herring ("Herring"), Margaret Webb ("Webb"), Reverend Winston Clarke ("Clarke") and Margarita Navas ("Navas") (collectively the "Plaintiffs") against defendants AlliedSignal, Inc. ("AlliedSignal"), Roned Realty of Jersey City, Inc. and Roned Realty of Union City, Inc. (together "Roned") and W.R. Grace & Co. ("Grace-U.S.A."), ECARG, Inc. ("ECARG") and W.R. Grace, Ltd. ("Grace-England") (together "Grace Companies") (collectively the "Defendants") seeking declaratory and injunctive relief, civil penalties and an award of costs for the cleanup of environmental contamination at the Roosevelt Drive-In site in Jersey City, New Jersey (the "Site"). An amended complaint (the "Amended Complaint") was filed on 2 August 1995. Jurisdiction is alleged pursuant to 42 U.S.C. § 6972(a) and 33 U.S.C. § 1365(a).
Currently before the court is a motion to dismiss filed by AlliedSignal (the "AlliedSignal Motion to Dismiss") and a second motion to dismiss filed by Grace Companies (the "Grace Companies Motion to Dismiss") (collectively the "Dismissal Motions").
Roned joined the AlliedSignal Motion to Dismiss. For the reasons set forth below, the Dismissal Motions are granted as to Counts II and III and denied as to Count I.
Baker is a member of the Monumental Baptist Church and lives within two miles of the Site. Id., P26. From March 1973 through May 1990, Baker worked approximately one-half mile from the Site. Id. From the summer of 1991 through the middle of 1993, Baker worked as a security guard on property adjoining the Site. Id. His current employment requires him to go to the Jersey City Authority gas pumps located on property adjacent to the Site once or twice a month. Id.
Herring and Webb are members of the Monumental Baptist Church and live within one-quarter mile from the Site. Id., PP 28, 30. For a period of time, the length of which is not ascertainable from the Amended Complaint, Herring and Webb worked at the Valley Fair store located on the Site. Id. From 1970 to 1980, Herring and Webb shopped at the Valley Fair store regularly. Id. Herring and Webb allege their current proximity to the Site includes shopping for groceries two or three times a week at the Pathmark store located approximately one block from the Site (the "Parkmark Store"). Id.
Clarke is an individual member of Interfaith and lives less than one-quarter mile from the Site. Id., P 32. Clarke alleges his current proximity to the Site includes shopping for groceries at the Pathmark Store daily. Id. In August 1991, Navas moved into a condominium located less than one-quarter mile from the Site. Id., P 34. Eight months later, in April 1992, Navas was diagnosed with sarcoidosis which she is concerned may be caused by the chromium waste near her home. Id. Navas also alleges her current proximity to the Site includes shopping at the Parkmark Store four or five times a week. Id., P 35.
AlliedSignal is a corporation incorporated under the laws of the State of Delaware. Id., P 38. Mutual Chemical Company of America ("Mutual") owned and operated a chromate chemical production facility from approximately 1905 to 1954 in Jersey City, Hudson County, New Jersey. Id.; Gracer Cert., Exh. A at 1.
On or about 12 August 1954, Allied Chemical and Dye Corporation ("Allied/Dye") acquired all the stock of Mutual. Amended Complaint, P 38. In December 1954, Mutual sold the Site to Amy Joy Realty Corporation for the construction of an outdoor theater. Id. On or about 23 February 1955, Allied/Dye filed an application for a Certificate of Dissolution of Mutual (the "Certificate"). Id. The New Jersey Secretary of State issued the Certificate five days later. Id.
On or about 1 March 1955, Allied/Dye executed a merger agreement with the Dissolution Trustees for Mutual; Allied/Dye agreed to exonerate, indemnify and save harmless Mutual against all liability. Id. After the merger, Mutual became the Mutual Chemical Division of Allied/Dye. Id. Approximately three years later, the merged company changed its name to Allied Chemical Corporation. Id. On or about 27 April 1981, Allied Chemical Corporation changed its name to Allied Corporation and in 1985, the company combined with Signal Companies, Inc. to form AlliedSignal. Id.
Grace-U.S.A. is a corporation incorporated under the laws of the State of Connecticut. Id., P 41. Grace-England is a direct subsidiary of Grace-U.S.A. with a registered office in London, England. Id. ECARG is a corporation incorporated under the laws of the State of New Jersey. Id. Roned Realty of Jersey City and Roned Realty of Union City are corporations incorporated under the laws of the State of New Jersey. Id., P 45.
Grace-U.S.A. and Grace-England were the sole stockholders of Grace Retail Corporation ("Grace Retail"), which acquired two parcels of land constituting the largest portion of the Site. Id., P 42. In November 1986, the Channel Acquisition Company ("Channel") acquired Grace Retail and pursuant to the letter agreement, Grace Retail was to distribute some of its assets, including its portion of the Site, to Grace-U.S.A. and Grace-England. Id., P 43. This transfer, however, never occurred. Id. Nevertheless, Grace-U.S.A. and Grace-England were unaware the transfer did not occur and acted as owners of the parcels until 14 October 1994. Id. On 14 October 1994, then-owner Channel conveyed the parcels to ECARG.
The records of the Jersey City Assessor's Office list a Roned Realty Corp. as the owner of another parcel of the Site. Id., P 45. It is unclear if the owner is either Roned Realty of Jersey City or Roned Realty of Union City. Id.
B. Chromium Contamination at the Site
Mutual owned and operated a chromate chemical production facility (the "Facility") on West Side Avenue and Route 440 in Jersey City, Hudson County, New Jersey. Gracer Cert., Exh. B, P 3. Operations at the Facility ended in 1954. Id. The Facility extracted chromium from chromium ores to produce chromate chemicals. Amended Complaint, P 46. The process generated chromium-bearing waste which Mutual transported through a pipeline onto the Site. Id. In addition to the chromium-bearing waste, Mutual dumped unknown amounts of other refuse at the Site. Id. By 5 December 1953, waste at the Site was in a pile covering an area of approximately ten acres and measuring from ten to thirty feet high. Id. Between 1952 and 1954, Mutual sold chromium-bearing waste from the Site to be used as fill. Id.
Groundwater flow at the Site moves from east to west, from Route 440 toward the Hackensack River, Id., P 48. Plaintiffs allege pollutants leach into the groundwater and are carried from the Site and discharged into the Hackensack River. Id. Drainage ditches lined with a layer of polyvinyl chloride, a layer of another geotextile and gravel are located at the northern and southern edges of the Site leading to the Hackensack River. Id., P 47. Plaintiffs further allege that at high tide water from the Hackensack River enters the drainage ditches and chromium is washed from the drainage ditches into the Hackensack River. Id.
C. NJDEP Administrative Consent Order
In 1983, AlliedSignal informed the New Jersey Department of Environmental Protection ("NJDEP") that the Site was contaminated with chromium-bearing waste. Id., P 61. In 1983, sampling and analysis were conducted at the Site by a contractor hired by the Grace Companies. Id., P 67. The Grace Companies have not taken action to cleanup the portion of the Site they own. Id. In 1987 and 1988, Roned completed an Interim Remedial Action on its portion of the Site, placing a one-foot soil cover and asphalt cover over parts of the Site. Id., P 69. Roned has taken no further action to cleanup the portion of the Site it owns. Id.
On 2 December 1988, NJDEP issued a Directive entitled In re Hudson County Chromate Chemical Production Waste Sites and Allied-Signal [sic] Inc.; PPG Industries Inc.; Occidental Chemical Corp.; and Maxus Energy Corp., Respondents. Id., Exh. A at 1. The Directive was issued to notify the captioned respondents NJDEP determined it was necessary to remove, or arrange for the removal of, certain hazardous substances, namely chromium-bearing waste, from several locations including the Site. Id.
AlliedSignal contends it performed an Interim Remedial Measure ("IRM") at the Site pursuant to the Directive. AlliedSignal Brief at 3. The Directive ordered AlliedSignal to undertake IRMs at several locations where Mutual's waste had allegedly been deposited, including the Site. The Directive provided that AlliedSignal "shall" submit an interim remedial work plan, and upon receipt of NJDEP approval, "immediately" commence implementation of IRMs designed to prevent the discharge of chromium-bearing waste. The Directive also required AlliedSignal to conduct periodic monitoring and maintenance of the IRMs.
On 17 June 1993, AlliedSignal entered into an Administrative Consent Order ("ACO") with NJDEP. Id., P 64. The ACO requires AlliedSignal to conduct a remedial investigation and feasibility study ("RI/FS") for eighteen locations, including the Site.
Id. The ACO establishes a process for conducting RI/FS at the Site and selecting an appropriate remedial action. Id., P 63. AlliedSignal has committed $ 10 million to conduct RI/FSs for the eighteen locations included in the ACO, including the Site. Id. The ACO requires AlliedSignal spend $ 50 million plus the difference between $ 10 million and any lower amount spent on the RI/FS for remediation of the Site. Id., P 64. If the remediation cost for all eighteen locations exceeds this set amount, AlliedSignal has agreed to implement remediation in full unless it disagrees with the appropriateness of the remedies selected. Id.; Gracer Cert., Exh. B, P 35. Plaintiffs allege AlliedSignal has not committed itself specifically to remediate the Site. Id.
Plaintiffs filed a complaint (the "Complaint") on 3 May 1995. On 10 July 1995, Defendants filed the Dismissal Motions with supporting briefs. At a status conference held on 27 July 1995 (the "27 July 1995 Status Conference"), Plaintiffs were granted leave to amend the Complaint. See 27 July 1995 Minutes of Proceedings ("27 July 1995 Minutes"). Plaintiffs were told to make all changes to the Complaint they considered appropriate in light of the arguments set forth in the Dismissal Motions. Plaintiffs acknowledge they amended the Complaint "in response to Defendants' motions." Plaintiffs Brief at 1.
At the 27 July 1995 Status Conference, Defendants were told to resubmit the Dismissal Motions pursuant to Local Rule 12N. See 27 July 1995 Minutes. Defendants were permitted to refile the same moving papers and, if so inclined after ...