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United States v. Lightman

June 30, 1999

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JEROME LIGHTMAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge:

HONORABLE JEROME B. SIMANDLE

This matter is before the court on the motion of a subgroup of members of the Joint Defense Group ("JDG") *fn1 comprised of defendant Scott Paper Company ("Scott Paper") and third-party defendants Synthane- Taylor Corporation ("Synthane-Taylor"), Kiwi Brands, Inc. ("Kiwi"), Whiting-Paterson Company, Inc. ("Whiting-Paterson"), Wilmington Chemical Company ("Wilmington Chemical"), Stauffer Chemical Company ("Stauffer Chemical"), Quaker Chemical Corporation ("Quaker Chemical"), B&W Coatings/The Grow Group ("B&W") and FMC Corporation ("FMC") (collectively "the JDG Subgroup"), for summary judgment dismissing the cross-claims and/or third-party claims of defendant Stepan Company ("Stepan") for contribution under Section 113 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9613, for past and future response costs Stepan has incurred at the Ewan and D'Imperio Superfund Sites. For the reasons set forth below, the court grants the JDG Subgroup's motion in part and denies it in part.

BACKGROUND

This is a civil action to identify the parties that should bear the costs of cleaning up environmental contamination at the Ewan and D'Imperio Superfund Sites as the result of illegal dumping of hazardous waste at the sites by the Lightman Drum Company ("LDC") during the mid-1970's.

Lightman Drum Company

In a separate Opinion and Order of today's date, the court has granted the JDG's motion for partial summary judgment in favor of the JDG and against LDC and Jerome Lightman declaring LDC and Lightman severally liable for contribution to the JDG under Section 113 of CERCLA for past and future response costs at the Ewan and D'Imperio Superfund Sites. The history of LDC's disposal activities at the Ewan and D'Imperio Sites is summarized as follows.

LDC began operation as a business buying and selling reconditioned 55-gallon drums in the late 1950's or early 1960's. (Gladstone Certification ("Gladstone Cert."), Ex. 1, pg. 3, A-1 and A-3; Ex. 10, A-1 and A-3.) In April of 1974, LDC moved its operation from Philadelphia to a new location in the vicinity of Berlin, New Jersey. (Gladstone Cert., Ex. 1, pg. 3, A-2; Ex. 10, A-2.)

LDC's reconditioned drum business consisted of removing empty drums from customer locations, selling them directly to a drum reconditioner, and selling reconditioned drums to its customers. (Gladstone Cert., Ex. 1, pgs. 3-4, A-4 through A-6; Ex. 10, A-4 through A-6.) Though empty drums received by LDC for reconditioning may have contained a waste residue, LDC did not begin removing drums filled with waste until 1972. (Gladstone Cert., Ex. 1, pg. 5, A-8; Ex. 10, A-8.)

The founder and president of LDC was Marvin ("Mike") Lightman. He was in charge of LDC operations during his lifetime. (Gladstone Cert., Ex. 1, pg. 6, A-12 and A-13; Ex. 10, A-12 and A-13.) It was principally he who made arrangements for drum waste disposal at the various disposal locations utilized by LDC. (Gladstone Cert., Ex. 1, pg. 6, A-14; Ex. 10, A-14.)

Jerome Lightman is the son of Mike Lightman. Between 1970 and 1978, Jerome Lightman served as Vice-President of LDC. (Gladstone Cert., Ex. 1, pgs. 6-7, A-15 & A-16; Ex. 10, A-16.) As Vice-President, Jerome Lightman served LDC as a truck driver, and maintained oversight responsibilities of the LDC yard. (Gladstone Cert., Ex. 1, pg. 7, A-17 and A-18; Ex. 10, A-17 and A-18.) Jerome Lightman also supervised operations for Mike Lightman when Mike Lightman was not available and made disposal decisions at such times, some of which occurred during the relevant time period ("RTP") in this litigation. (Gladstone Cert., Ex. 2, pg. 237, line 23 through pg. 238, line 10.) Jerome Lightman assumed the responsibilities previously undertaken by his father after his father became ill in 1976. Mike Lightman died in September, 1978. (Gladstone Cert., Ex. 1, pgs. 7-8, A-19 through A-22; Ex. 10, A-19 through A-22.)

Generally, the RTP in this litigation runs from the Fall of 1974 to December 31, 1976, during which time LDC allegedly disposed of hazardous waste at the Ewan Property Superfund Site ("Ewan Site") in Shamong Township, Burlington County, and the D'Imperio Property Superfund Site ("D'Imperio Site") in Hamilton Township, Atlantic County. More specifically, the JDG contends that the RTP for the D'Imperio Site runs from October 1974 through December 1976 and that the RTP for the Ewan Site runs from March 1975 through October 1975, while Stepan contends that the RTP for the D'Imperio Site runs from December 1974 through December 1976 with use suspended from May 1975 through October 1975 and that the RTP for the Ewan Site runs from April 1975 through October 1975.

Although it also used other disposal sites during the RTP, LDC admits that it disposed of waste at the Ewan and D'Imperio Sites during the RTP. (Gladstone Cert., Ex. 10, E-1, E-2 and G-1.) The JDG defendants were customers of LDC during the RTP, as was Stepan. (Cert., Exhibit "4", pg. 4.)

LDC's Waste Disposal Procedures

LDC obtained waste drums from its customers by hauling trailers to its customers' premises and loading the customers' waste drums onto the trailers. The tractor trailers were operated by truck drivers employed by LDC, who were sometimes accompanied by LDC laborers. (Gladstone Cert., Ex. 1, pgs. 8-10, A-23 & 24 and A-30; Ex. 10, A-23, A- 24 and A-30.) These LDC employees included Earl Emmons, Ed Hook, Lexington Ford, Jim McGroarty, Jim Smith, and Fred Ellsworth. (Gladstone Cert., Ex. 1, pgs. 9-10, A-25 through A-29; Ex. 10, A-25 through A-29.)

Typically, not more than 80 full drums were hauled on a single trailer, though sometimes empty drums were stacked on top of the full drums on the floor of the trailer. (Gladstone Cert., Ex. 8, pg. 12, lines 7-23; Ex. 9, pg. 94, line 23 through pg. 95-18; Ex. 10, B-3 and B- 4.)

When a pickup of waste drums was made at the premises of a waste drum customer, the trailer would typically be returned to the LDC yard. (Gladstone Cert., Ex. 10, B-6.) Sometimes drums were removed from the trailer and consolidated with drums on a different trailer to make a full load for disposal. (Gladstone Cert., Ex. 10, B-12.) This was accomplished by LDC employees, who stacked the drums in the LDC yard. (Gladstone Cert., Ex. 1, pg. 10, A-31 and A-32.) On other occasions, trailers were taken from the LDC yard to a disposal location without consolidating the drums onto other trailers. (Gladstone Cert., Ex. 8, pg. 14, lines 10-24.) Trailer loads of waste drums generally remained in the LDC yard from between one day and two weeks, although they would rarely remain at the yard longer than a week. (Gladstone Cert., Ex. 2, pg. 251, lines 3-5; Ex. 1, pg. 13, B-6 and b-7; Ex. 10, B- 6 and B-7.) On a few occasions, LDC drivers hauled waste directly from a customer to a disposal location. (Gladstone Cert., Ex. 1, pg. 16, B- 16; Ex. 10, B-16.)

Upon arrival at a disposal location, LDC employees had an incentive to save waste drums because LDC utilized such drums in its drum reconditioning business; therefore, LDC employees tried to save drums. (Gladstone Cert., Ex. 1, pg. 18, B-24 and B-25; Ex. 10, B-24 and B-25.) Drums were typically saved by pouring their contents out of the drum and onto the surface of the disposal site. (Gladstone Cert., Ex. 8, pg. 20, line 17 through pg. 21, line 2; Ex. 10, B-17.) On occasion, the contents of waste drums may have caused difficulty in disposal because of their chemical composition or physical state. (Gladstone Cert., Ex. 1, pg. 17, B-22 and B-23.) In such cases, LDC employees sometimes sacrificed entire drums, including their contents. (Gladstone Cert., Ex. 1, pg. 16, B-19; Ex. 10, B-19.) As indicated, numerous drums were sacrificed at the Ewan Site, whereas relatively few were sacrificed at the D'Imperio Site. (Gladstone Cert., Ex. 1, pg. 19, B-28 and B-30.)

Because Mike Lightman was in charge of LDC operations during the RTP, it was most often he who directed the drivers as to what disposal sites should be utilized. (Gladstone Cert., Ex. 2, pg. 237, line 23 through pg. 238, line 10.) In his absence, however, Jerome Lightman determined the disposal location to be used. The choice of a disposal site depended on the availability and accessibility of the sites being utilized, as well as the nature of the waste. (Gladstone Cert., Ex. 2, pg. 238, line 22 through pg. 240, line 11; Ex. 10, B-14.) Though landfill sites were licensed by the State of New Jersey during the RTP, neither the D'Imperio Site nor the Ewan Site was licensed. (Gladstone Cert., Ex. 2, pg. 248, lines 20-24.) There is no evidence that any of the LDC customers were aware that LDC ...


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