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September 26, 1996

ROHM AND HAAS COMPANY, et al., Defendants, v. JOHN CUCINOTTA, et al., Third Party Defendants.

The opinion of the court was delivered by: RODRIGUEZ

 RODRIGUEZ, District Judge

 This matter is before the court on plaintiff-intervenor State of New Jersey Department of Environmental Protection's ("NJDEP") motion for summary judgment dismissing the counterclaim of defendant, Owens-Illinois, Inc. ("Owens-Illinois"). The court, having considered the submissions of the parties, and for the reasons set forth below, grants plaintiff-intervenor's motion and dismisses the counterclaim.


 The Lipari landfill occupies approximately six acres in Mantua Township. Toxic wastes, in both solid and liquid forms, were dumped there beginning in 1958 and ending in 1971 when the site was closed by the State of New Jersey. The site is currently listed on the National Priorities List ($: NPL $:) promulgated by the Environmental Protection Agency ($: EPA $:) pursuant to section 105 of CERCLA, 42 U.S.C. § 9605.

 Pursuant to section 107 of CERCLA, 42 U.S.C. § 9607, the EPA initiated suit on September 10, 1985 to recover the costs of implementing these clean-up efforts. In January of 1986, NJDEP intervened pursuant to Section 104(c) of CERCLA, 42 U.S.C. § 9604. An amended complaint was filed by NJDEP on December 28, 1990.

 In its answer to NJDEP's amended complaint, Owens-Illinois included a counterclaim against NJDEP for recoupment of

any of the response costs incurred by the State in the past or in the future . . . pursuant to CERCLA, the New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et seq., the Uniform Contribution Among Joint Tortfeasor Act, N.J.S.A. 2A:53A-3 et seq., federal common law, or by way of restitution or other equitable relief, for any judgment entered against Owens-Illinois . . . .

 Owens-Illinois Answer to NJDEP First Am. Compl. at 18. NJDEP, in its answer to the counterclaim, denied any liability to Owens-Illinois. NJDEP also stated that the counterclaim failed to state a claim upon which relief can be granted, and, in the alternative, was barred under the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 et seq. NJDEP Answer to Owens-Illinois Countercl. at 2. Subsequently, in February of 1996, NJDEP filed a motion for summary judgment, claiming that Owens-Illinois' counterclaim was not only baseless and unsupported by both law and fact, but barred by the Eleventh Amendment, New Jersey law, and concepts of sovereign immunity. NJDEP Br. in Supp. of Mot. for Summ. J. at 1-2. It is this motion which is presently before the court.


 A. Standard of Review for Summary Judgment

 The entry of summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is "material" if, under the governing substantive law, a dispute about it might affect the outcome of the suit. Id. In determining whether a genuine issue of material fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 The moving party has the initial burden of demonstrating 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 the moving party has met this burden, the non-moving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324. The non-moving party may not rest upon mere allegations or denials of its pleadings. Id. "The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322.

 However, in deciding the motion, the court does not "weigh the evidence and determine the truth of the matter, but [instead] determine[s] whether there is a genuine issue for trial." Anderson, 477 U.S. at 248. If the non-movant has provided evidence exceeding the "mere scintilla" threshold in demonstrating a genuine issue of material fact, the court cannot weigh the evidence and credit the movant's interpretation of the evidence. This is so even if the movant's evidence far outweighs the non-movant's evidence. Credibility determinations are the province of the fact-finder. Big Apple BMW, Inc. v. BMW of North America, 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993).

 B. Viability of Counterclaim

 1. Contribution Under CERCLA

 CERCLA § 107(a) provides liability for any (1) current owner or operator of a facility, (2) owner or operator of a facility at the time hazardous substances were disposed there, (3) person who arranged for disposal or arranged for the transport of hazardous substances for disposal, or (4) any person who accepts any hazardous substances for transport or disposal, 42 U.S.C.A. § 9607(a) (West 1995), but only if (1) they are also found to have disposed of the hazardous substances at a "facility" *fn2" , (2) there is a "release" *fn3" or threatened release of the hazardous substances from the facility, and (3) the release causes the ...

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