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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

OPINION

This matter is before the court on the motion of the members of the Joint Defense Group ("JDG") *fn1 for partial summary judgment declaring defendant Stepan Company ("Stepan") severally liable to the JDG under Section 113 of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9613, for past and future response costs the JDG has incurred at the Ewan and D'Imperio Superfund Sites, and on Stepan's cross-motion for summary judgment dismissing the JDG's contribution claims under § 113 of CERCLA. For the reasons set forth below, the court denies without prejudice the JDG's motion for partial summary judgment declaring Stepan severally liable to the JDG under § 113 for past and future response costs the JDG has incurred at the Ewan and D'Imperio Sites and denies Stepan's cross- motion for summary judgment dismissing the JDG's claims for contribution under § 113.

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. The Ewan Site is in Shamong Township, Burlington County, New Jersey; the D'Imperio Site is in Hamilton Township, Atlantic County, New Jersey.

Lightman Drum Company

LDC and Jerome Lightman have been determined to be responsible parties that transported and disposed of hazardous wastes at the D'Imperio and Ewan Sites, and they are severally liable to the JDG for contribution for past and future costs at those sites under § 113 of CERCLA, as set forth in a separate Opinion and Order of today's date.

LDC began operation as a business buying and selling reconditioned 55-gallon drums in the late 1950's or early 1960's. (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, at 237:23 through 238:10.) 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. (Gladstone 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, at 12:7-23; Ex. 9, at 94:23 through 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, at 14:10-24.) 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, at 251:3-5; 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, at 20:17 through 21: 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, at 237:23 through 238:10.) 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, at 238:22 through 240:11; 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, at 248:20-24.) There is no evidence that any of the LDC customers were aware that LDC was disposing of waste at unlicensed landfills. In fact, Jerome Lightman specifically denies advising any LDC customer of that fact. (Gladstone Cert., Ex. 2, at 248:25 through 249:3.)

Enforcement and Procedural History at the Ewan Site

The Ewan Site consists of approximately 43 acres of land located approximately two miles south of the Wharton State Forest. Surrounding land use is generally agricultural with single family residential developments. It appears to border both the Pinelands Agricultural and Protection Areas. The Site is within a mile of a down- gradient domestic potable water well. (Gladstone Cert., Ex. 13, pg. 1 of "Decision Summary for Operable Unit One.") The Ewan Site was proposed for inclusion on the National Priorities List ("NPL") in March 1985, and was formally added to the NPL in June 1986. (Id. at pg. 3.)

On June 11, 1990, the United States Environmental Protection Agency ("USEPA") issued an Administrative Order, Index No. II - CERCLA - 90114 (amended September 1, 1994) and Administrative Order, Index No. II - CERCLA-95-0107 under Section 106 of CERCLA to numerous potentially responsible parties, including the defendants herein. The Ordered generator parties, including Stepan and the JDG defendants, have been performing the remedy required at the Ewan Site by the OU-1 Record of Decision ("ROD") dated September 29, 1988 and the OU-2 ROD of September 29, 1989, and have thereby incurred response costs. (Gladstone Cert., Ex. 14.) Defendants LDC and Jerome Lightman have not contributed to response costs at the Ewan Site. (Id.)

Enforcement and Procedural History at the D'Imperio Site

The D'Imperio Site is located at the intersection of U.S. Route 322 (Black Horse Pike) and Cologne Avenue in Hamilton Township, Atlantic County. In the late 1970's, the Atlantic County Public Health Department informed the New Jersey Department of Environmental Protection ("NJDEP") of the existence of the D'Imperio Site. NJDEP performed a preliminary investigation at the Site, and informed the USEPA of the D'Imperio dump site area. (Gladstone Cert., Ex. 15, pg. 6, ΒΆ 5.) The actual dump area was approximately one and one-half acres in size. In September of 1983, the USEPA listed the D'Imperio Site on the NPL, and thereafter conducted a Remedial Investigation/Feasibility Study ("RI/FS") to delineate the nature, extent, and impact of contamination at the D'Imperio Site. (Id.) On March 27, 1985, the USEPA issued a ROD which embodied the USEPA selection of the remedy ...


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