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UNITED STATES v. ROHM & HAAS CO.

September 26, 1996

UNITED STATES OF AMERICA, Plaintiff, and NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Intervenor,
v.
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 several motions: (1) plaintiff United States of America's ("USA-EPA") motion for partial summary judgment on liability based on the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. ; (2) plaintiff-intervenor New Jersey Department of Environmental Protection's ("NJDEP") similar motion based on the New Jersey Spill Compensation and Control Act (Spill Act), N.J.S.A. § 58:10-23.11 et seq. ; and (3) defendant Owens-Illinois, Inc.'s ("Owens-Illinois") cross-motion for summary judgment on liability and divisibility of harm. The court, having considered the submissions of the parties, and for the reasons set forth below: (1) grants in part and denies in part plaintiff's motion for partial summary judgment; (2) grants in part and denies in part plaintiff-intervenor's motion for partial summary judgment; and (3) denies defendant's motion for summary judgment.

 BACKGROUND

 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.

 After discovering and investigating the contamination at the Lipari site, the EPA issued several "Records of Decision" ("RODs") requiring various clean-up responses, costs of the third ROD being the subject of the present motions. On August 3, 1982, the EPA issued its first ROD ("ROD I"), which required, inter alia, the installation of a containment system designed to reduce the flow of leachate and contaminated groundwater from the landfill. On September 30, 1985, the EPA issued its second ROD ("ROD II"), requiring the installation of a pump and treatment system designed to remediate the "on-site" contamination. On July 11, 1988, the EPA issued its third ROD ("ROD III"), requiring remedial actions to address the continuing "off-site" contamination from the landfill and to provide a permanent solution for the problems at the site.

 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. The original complaint named Rohm & Haas Company, Inc. ("Rohm & Haas"), Owens-Illinois, CBS Records, Inc., Almo Tank Cleaning and Maintenance Corp., Cenco, Inc., Manor Health Care Corporation and Marvin Jonas, Inc., as defendants. In January of 1986, NJDEP intervened pursuant to Section 104(c) of CERCLA, 42 U.S.C. § 9604. In March of 1986, some of the defendants filed a third-party complaint against John Cucinotta, Joseph Cucinotta, Marvin Jonas, American Packaging Corp., AT&T Technologies, Inc., Continental Can Co., Crown Cork & Seal Co., Essex Chemical Corp., Firestone Tire and Rubber Co., the Borough of Glassboro, the Township of Mantua, NL Industries, Inc., Leski, Inc., NVF Co., Technitrol, Inc., and Nick Lipari. On July 28, 1988, the United States filed an amended complaint naming Triangle Publications, Inc., The Glidden Company, E.I. DuPont de Nemours & Co., Allied Paper, Inc., Owens-Corning Fiberglass Corp., SPS Technologies, Inc., The Gilbert Spruance Company, Betz Laboratories, Inc., and Hercules, Inc. as additional defendants.

 According to the suit, defendants Rohm and Haas and Owens-Illinois are waste generators responsible for a large portion of the contamination at the Lipari site. Defendant Marvin Jonas is a waste hauler who allegedly disposed of waste at the Lipari site. The other defendants were waste generators considered to be de minimis contributors of waste to the Lipari site, meaning that their volumetric contribution to the contamination at the site was small in comparison with the contributions of the other defendants.

 A second consent decree required Rohm & Haas and Owens-Illinois, among others, to pay $ 52,519,375 plus interest *fn1" in exchange for the promise of the United States and the State of New Jersey not to sue or take administrative action in connection with the clean-up measures ordered in ROD I, ROD II, and two components of ROD III. Some of the cleanup measures ordered in ROD III are not covered by the agreement.

 In a third consent decree, Rohm & Haas agreed to perform the bulk of the off-site, ROD III remedies in exchange for the government's compromise of their claims against them. This decree, the government contends, reflects a "rough sort of 'allocation' of liability for the universe of previously unsettled matters . . . ." USA-EPA Br. in Supp. of Mot. for Summ. J. at 4. Indeed, this court found the allocation reasonable. See Opinion and Order (May, 17, 1995) at 20.

 Soon thereafter, both USA-EPA and NJDEP filed motions for summary judgment in this court against Owens-Illinois based upon CERCLA and the Spill Act, respectively. Owens-Illinois responded with its own cross-motion for summary judgment based upon the principles of divisibility as applied by United States v. Alcan Aluminum Corp., 964 F.2d 252 (3d Cir. 1993), on remand, 892 F. Supp. 648 (M.D. Pa. 1995), aff'd, No. 95-7570 (3d Cir. Aug. 22, 1996). These are the motions presently before the court.

 DISCUSSION

 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).

 Finally, "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 at 276 (1986) (citations omitted).

 B. Liability of Owens-Illinois and Divisibility of Harm

 Both plaintiff USA-EPA and plaintiff-intervenor NJDEP have filed motions for summary judgment on liability under section 107 of CERCLA, 42 U.S.C. § 9607. NJDEP has also filed a similar motion under section 23.11g of the Spill Act, N.J.S.A. § 58:10-23.11g. In response, defendant Owens-Illinois has filed its own motion for summary judgment based on divisibility of harm. The different statutory frameworks require different analysis. Therefore, the court will address liability under each in turn.

 1. Liability Under CERCLA

 USA-EPA, in its motion for summary judgment, *fn2" claims that Owens-Illinois falls within the class of persons liable under CERCLA § 107, and thus seeks summary judgment on liability and declaratory judgment for future response costs. USA-EPA also seeks to have all stated affirmative defenses stricken. Owens-Illinois, on the other hand, seeks summary judgment in that a clear basis for divisibility is apparent from the facts. This court finds that Owens-Illinois does fall within the class of persons liable for removal and response costs under CERCLA § 107, but denies both parties' motions to the extent that there is a genuine issue of material fact with respect to divisibility.

 a. Statutory Framework

 
"Congress enacted CERCLA in December 1980 'to provide for liability, comprehensive cleanup, and emergency response for hazardous substances released into the environment and the cleanup of inactive hazardous waste disposal sites.' Pub.L. No. 96-510, Stat. 2767 (1980) (purpose clause). Congress was aware when it enacted CERCLA that the costs of cleanup would exceed the Fund established by section 221 of the statute. . . . Thus, dollars expended by the federal and state governments to clean up hazardous waste sites are, whenever possible, to be recovered from responsible parties through the liability scheme . . . set forth in section 107 . . . . Section 107 imposes liability on present site owners and operators, owners and operators at the time of disposal, and specified categories of generators and transporters of hazardous substances.

 United States v. Kramer, 757 F. Supp. 397, 410 (D.N.J. 1991) (citations omitted) (quoting Kelley v. Thomas Solvent Co., 714 F. Supp. 1439, 1445 (W.D. Mich. 1989)).

 CERCLA's statutory framework 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). Those falling within the scope of this section can be held liable for "all costs of removal or remedial action" and "any other necessary costs of response incurred . . . consistent with the national contingency plan [NCP]," id., but only if (1) they are also found to have disposed of the hazardous substances at a "facility" *fn3" , (2) there is a "release" *fn4" or threatened release of the hazardous substances from the facility, and (3) the release causes the incurrence of "response" costs. *fn5" Id. ; United States v. Alcan Aluminum Corp. (Alcan-Butler Tunnel), 964 F.2d 252, 258-59 (3d Cir. 1992), on remand, 892 F. Supp. 648 (M.D. Pa. 1995), aff'd, No. 95-7570 (3d Cir. Aug. 22, 1996).

 Significant in CERCLA's liability framework is the imposition of strict liability on those parties responsible for disposal of hazardous materials. Alcan-Butler Tunnel, 964 F.2d at 259. See also 42 U.S.C. § 9601(32) (imposing the strict liability standard found under the Clean Water Act, 33 U.S.C. § 1321). As a result, CERCLA includes no quantitative requirement in its definition of "hazardous substance." Alcan-Butler Tunnel, 964 F.2d at 259. See also 42 U.S.C. § 9601(14). CERCLA's plain meaning, legislative history, and jurisprudence support this conclusion. See Alcan-Butler Tunnel, 964 F.2d at 260; Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 669 (5th Cir. 1989); City of New York v. Exxon Corp., 744 F. Supp. 474, 483 (S.D.N.Y. 1990).

 As such, to support a finding of liability under CERCLA, we must determine whether Owens-Illinois (1) arranged for disposal, (2) of its hazardous substances, (3) at a facility from which there has been a release of hazardous waste or such a release is threatened. If so, we must also determine whether the release or threatened release (4) caused USA-EPA to incur response costs which were necessary and consistent with the NCP.

 The facts show that Owens-Illinois arranged for the disposal of waste from its Glassboro plant. Indeed, in its answers to interrogatories from a prior action involving the Lipari site, Owens-Illinois admitted "causing waste . . . to be deposited at [Lipari] . . . from approximately 1958 to December 1969 . . . ." See Ex. C-3, Owens-Illinois Answers to Zee Interrogs. at 12. In addition, various letters attached as exhibits indicate the existence of an arrangement by ...


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