promise not to sue for any of the cleanup costs associated with ROD I, ROD II, and ROD III. The decree also includes "reopener provisions" which permit plaintiffs to reopen the case against the de minimis defendants under certain circumstances. See United States v. Rohm and Haas, 721 F. Supp. 666 (D.N.J. 1989).
A second consent decree required Rohm & Haas and Owens-Illinois, among others, to pay $ 52,519,375 plus interest
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.
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,
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"
, (2) there is a "release"
or threatened release of the hazardous substances from the facility, and (3) the release causes the incurrence of "response" costs.
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 Owens-Illinois to use the Lipari site. See, e.g., Ex. B-1, Lipari Dep. at Ex. O-1 (Letter Agreement dated Apr. 1, 1960).
It is also clear that the arranged disposal was of hazardous substances found at the Lipari landfill. Throughout its pleadings and supporting briefs in this matter, Owens-Illinois repeatedly denies dumping any hazardous materials at the Lipari site. However, in prior litigation, Owens-Illinois admitted dumping the following materials, among others, in the Lipari landfill: keytones, lead chromates, xylene, and 1, 1, 1 trichloroethane.
See Ex. C-3, Owens-Illinois Answers to Zee Interrogs. at 12 and attached rider. All of these materials are listed by or contain materials listed by the EPA as toxic pollutants at 40 C.F.R. § 302.4 pursuant to 33 U.S.C. § 1317(a).
Additionally, we note that Owens-Illinois only cursorily refutes USA-EPA's contention that lead and chromium were contained in their waste stream by stating that "there is no evidence in the Administrative Record that [Owens-Illinois] caused a release of lead and/or chromium in the Off-Site Areas." Owens-Illinois Opp. to USA-EPA Mot. for Summ. J. at 53-54. However, that statement is not accurate.
We feel that Owens-Illinois' admissions allow USA-EPA to successfully demonstrate that hazardous substances were present in the waste stream disposed by Owens-Illinois at the Lipari site. Deposition testimony from the current matter, cited by Owens-Illinois in support of their repeated denials of dumping hazardous substances at the site, are too vague and inconclusory to provide otherwise. See, e.g., Ex. B-9, Oliker Dep., at 146 ("As I remember, we were using trichloroethylene, and 1, 1, 1, trichloroethane replaced it at some time later. I don't know when."); Ex. B-4, Mecouch Dep., at 145 ("[Q.] Do you know the name trichloroethelyne? A. You could say any name. All I know is tri-something."); Ex. B-14, LaRosa Dep., at 55 ("At this point, I can say that the storage area contained some buff materials, some coating materials, some thinners, some lacquers, but as to their numbers or names, I can't give you that."). However, these depositions support the conclusion that some of the toxics Owens-Illinois "admitted" dumping at Lipari were in fact used at the Glassboro plant between 1958 and 1971. See, e.g., Ex. C-5, Mecouch Dep. at 91-92 (xylene); id. at 90-91 (lead and chromates); Ex. C-9, Oliker Dep. at 62-65 (keytones); id. at 61-62 (lead and chromates); Ex. C-4, Mecouch Dep. at 122-24 (keytones). Since Owens-Illinois admits that the Lipari Landfill was the only site used for its Glassboro waste disposal,
it reasonably follows that Owens-Illinois disposed of those listed substances at Lipari. Nonetheless, Owens-Illinois failed to properly refute the dumping of lead and chromium at the site. As a result, USA-EPA has sufficiently carried its burden on this point.
Additionally, we note that all of the substances which Owens-Illinois appears to have dumped at the Lipari site were found, at some level, in the off-site areas. Indeed, Owens-Illinois' own expert, in his report compiled from the administrative record, indicates the existence of lead,
and 1, 1, 1, trichloroethane
in the off-site areas. That these substances may have been detected at or below background levels or ARARs is not relevant for CERCLA § 107(a) liability. All that § 107(a) requires is that "the defendant has dumped his waste there and that the hazardous substances found in the defendant's waste are also found at the site." United States v. Wade, 577 F. Supp. 1326, 1333 (E.D. Pa. 1983), cited in Alcan-Butler Tunnel, 964 F.2d at 265. We will consider the off-site levels infra for the purpose of divisibility analysis.
The facts also show that Owens-Illinois' waste was disposed at a facility from which there was a release or threatened release of hazardous substances. Owens-Illinois does not dispute that Lipari is a facility within the meaning of CERCLA, nor that some hazardous substances have been released from the site. See Ex. C-1, Owens-Illinois Resp. to USA-EPA Req. for Admis. P 4, 5. As such, it is clear that this requirement of the statute is proven. Owens-Illinois' dispute as to responsibility and/or liability for any of the releases is irrelevant here.
Finally, the facts establish that the release or threatened release of hazardous substances from the Lipari site caused USA-EPA to incur response costs which were necessary and consistent with the NCP. Although Owens-Illinois contends that its waste was not the cause of USA-EPA's asserted costs, finding a causal connection between Owens-Illinois' wastes and USA-EPA's costs is not required by the statute. CERCLA "imposes no such causation requirement, but rather requires that the plaintiff . . . establish that the release or threatened release caused the incurrence of response costs; it underscores the difficulty CERCLA plaintiffs would face in the multi-generator context if required to trace the cause of the response costs to each responsible party." Alcan-Butler Tunnel, 964 F.2d at 264 (footnote omitted). See also id. at 266 (rejecting the argument that the government must prove that the emulsion deposited caused the release, and instead stating that "the Government must simply prove that the defendant's hazardous substances were deposited at the site from which there was a release and that the release caused the incurrence of response costs").
As noted, Owens-Illinois has conceded that a release or threatened release has occurred at Lipari. The remaining elements require us to determine whether that release or threatened release caused USA-EPA to incur response costs which were necessary and consistent with the NCP. The defendants have the burden of proving that the costs are not consistent with the NCP. United States v. Marisol, Inc., 725 F. Supp. 833, 845 (M.D. Pa. 1989). In this case, response costs were incurred by USA-EPA due to the release from the Lipari site. Among these costs which have yet to be recovered are
the costs of studying the off-site areas, such as sampling, remedial investigations, and feasibility study costs; costs of performing the remedial design for the off-site clean up remedy; direct and indirect EPA and U.S. Department of Justice costs not resolved by prior consent decrees; and interest.
Ex. A-2, Decl. of Ferdinand C. Cataneo at 9 P 22. It is clear that some, if not all, of these costs are consistent with the NCP. See, e.g., Hatco Corp. v. W. R. Grace & Co., 849 F. Supp. 931 (D.N.J. 1994) (assessment of cost effectiveness of expectation and removal costs was consistent with NCP). It is also clear that Owens-Illinois does not contend that all of the response costs incurred by USA-EPA were inconsistent with the NCP. Therefore, since Owens-Illinois has failed to carry its burden of proving inconsistency with the NCP, this facet of liability is met as well.
Because we find that the above elements necessary to establish Owens-Illinois' liability under CERCLA § 107(a) have been satisfied, we must necessarily move to a discussion of defenses to liability before we can grant either USA-EPA's or NJDEP's motion for partial summary judgment under CERCLA.
b. Defenses to Liability
Although liability may be established under § 107(a), affirmative defenses may be raised by defendants in a CERCLA action to avoid such liability.
Owens-Illinois, in its answer to the complaint, states several affirmative defenses to liability. See Owens-Illinois Ans. to Second Amend. Compl. USA-EPA, on the other hand, seeks to have all these affirmative defenses stricken. After discussing the standard for striking defenses, we will address each of them in turn.
The standard for striking defenses is governed by Rule 12(f) of the Federal Rules of Civil Procedure.
Rule 12(f) provides, in part: "Upon motion made by a party . . . the court may order stricken from the pleading any insufficient defense." Fed.R.Civ.P. 12(f). "All well-pleaded facts are taken as admitted on a motion to strike but conclusions of law or of fact do not have to be treated in that fashion. Matter outside the pleadings normally is not considered on a Rule 12(f) motion." 5A Wright & Miller, Federal Practice and Procedure: Civil 2d (Federal Practice) § 1380, pp. 655-656 (1990).
United States v. Kramer, 757 F. Supp. 397, 409 (D.N.J. 1991). Generally, such motions to strike are disfavored, but they are often granted where the insufficiency of the defense is clearly apparent. Id. (citing Wright & Miller, supra, § 1381, at 672-78). These motions, when granted, save "time and expense which would otherwise be spent in litigating issues which would not affect the outcome of the case." Marisol, 725 F. Supp. at 836 (citing United States v. Geppert Bros., Inc., 638 F. Supp. 996, 998 (E.D. Pa. 1986)).
With respect to defenses in CERCLA actions, this circuit has made it clear in its jurisprudence that non- § 107(b) defenses are not available to defeat CERCLA liability. As noted by one court:
In keeping with this broad liability scheme, the only substantive affirmative defenses under CERCLA are those found in section 107(b). The exclusivity of section 107(b) defenses is explicitly discussed in section 107(a) which provides for liability 'notwithstanding any other provision or rule of law, and subject only to the defenses set forth in subsection (b) of this section.' As a result of this unequivocal intent, a strong majority of courts have held that liability under CERCLA section 107(a) is subject only to the limited defenses provided in section 107(b)."