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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 defendant Stepan Company ("Stepan") to strike the expert reports of Fluor Daniel GTI, Inc. ("FDGTI"), *fn1 which was retained by the members of the Joint Defense Group ("JDG") *fn2 "to analyze the potential impact of Stepan waste streams on subsurface conditions and to provide an evaluation of overall site environmental issues at the D'Imperio and Ewan Superfund Sites located in Hamilton and Shamong Townships, New Jersey, respectively." (Aronson Certification ("Aronson Cert."), Ex. B, at 3.) Also before the court is Stepan's motion to strike the July 20, 1998 letter of Dr. Maureen Leahy, one of the authors of the FDGTI reports, which the JDG submitted as part of its opposition to Stepan's motion to strike the FDGTI reports. For the reasons set forth below, the court denies both motions.

BACKGROUND

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

In connection with this litigation, the JDG retained FDGTI "to analyze the potential impact of Stepan waste streams on subsurface conditions and to provide an evaluation of overall site environmental issues" at the Ewan and D'Imperio Sites. (Aronson Cert. at 3.) In order to perform these tasks, FDGTI reviewed information provided by the JDG's counsel, including:

remedial investigation reports, site inspection reports, feasibility studies, design documents, monitoring reports, remedial activity documentation, site photographs, correspondence, regulatory documents, waste manifest documents, and laboratory reports prepared by various consultants and regulatory agencies. (Id. at 4.)

FDGTI also reviewed "documents relating to Stepan's manufacturing processes" and conducted a site inspection of both the Ewan and D'Imperio Sites on October 10, 1996. (Id.)

Based on its analysis, FDGTI formulated the following opinions:

1. Stepan waste constituents are present in the groundwater contaminant plume at both the D'Imperio and Ewan sites. These constituents include: benzene, ethyl benzene, chromium, sodium, and toluene. An additional Stepan waste constituent, cumene, has been identified in the Top of the Cohansey zone at the Ewan Site. Total xylenes and m-xylene have also been identified at the D'Imperio and Ewan sites, respectively. Sodium and ammonium xylene sulfonates were the primary hydrotropes produced by Stepan in the 1970's.

2. Surfactant, hydrotrope, and sulfone wastes originating from Stepan were either directly discharged in liquid form or as leakage from containerized waste at the D'Imperio and Ewan sites. Many of Stepan's wastes including drop acid, demister acid, and scrubber acid, were extremely acidic.

3. The presence of high iron levels (>50,000 ug/l) at both sites indicates that anaerobic conditions prevail in the source areas and further downgradient at both the Ewan and D'Imperio sites. Under such anaerobic conditions, within a reasonable degree of scientific certainty, biodegradation or mineralization of the surfactant, hydrotrope, and sulfone wastes generated by Stepan would not occur.

4. Furthermore, within a reasonable degree of scientific certainty, biodegradation of Stepan's wastes did not occur since upon release into the environment, the acidic nature of these wastes would have been extremely toxic to microorganisms. This toxicity would have suppressed and/or inhibited the natural biodegradation of the organic compounds within Stepan's wastes. In addition, the toxicity of the Stepan waste would have inhibited biodegradation of other organic compounds release at the two sites.

5. Stepan's acidic waste would not have been rapidly neutralized at the D'Imperio and Ewan sites since native soils are themselves acidic and would therefore have a low capacity for neutralizing acidic material. In addition the low clay content at both sites is indicative of low cation exchange capacities thereby providing little neutralizing capacity. Furthermore, free calcium and magnesium carbonates which do not provide neutralizing capacity are likely not prevalent at the two sites given the acidic nature of the native soils.

6. Waste streams generated by Stepan between 1974 and 1977 would be considered hazardous waste by the regulations enacted by EPA. The xylene sulfones waste stream would carry the hazardous waste codes of F003, D001, D002, and D007. The mixed sulfonic waste stream would carry the hazardous waste codes of D002 and D003. Also, minor waste streams may have been generated by Stepan including: toluene, sulfone/toluene distillation bottoms, and waste cumene.

7. It is within a reasonable degree of scientific certainty that Stepan wastes have resulted in facilitated transport of other organic and inorganic compounds due to enhanced solubilization and migration caused by surfactant and hydrotrope dumping at the D'Imperio and Ewan sites. This is evidenced by the greater extent of groundwater contamination at both sites than that predicted by advective, retarded contaminant transport alone. Consequently, more extensive remediation is required to address the expanded size of the groundwater contaminant plumes at both the D'Imperio and Ewan site. (Id. at 1-2.)

On June 5, 1998, Stepan moved to strike the FDGTI Reports. Stepan argues that "[t]he opinions expressed in the FDGTI Reports are speculative because they are based on the assumed presence of Stepan wastes at the Sites and were developed without any consideration of the chemical nature, volumes, concentrations or impacts on the Sites of the co-disposed wastes generated by others." (Stepan's Br. In Support of Motion to Strike the FDGTI Reports at 4.)

In support of its argument that the FDGTI Reports should be struck because FDGTI failed to adequately evaluate and consider the co- disposed wastes generated by other defendants, including the members of the JDG, Stepan referred to and quoted extensively from the deposition testimony of Dr. Maureen Leahy, one of the authors of the FDGTI Reports. For example, Stepan claims that Dr. Leahy "testified that she did not review any information regarding any wastes generated by any member of the JDG." (Id. at 8)(citing Aronson Cert., Ex. F, at 49-52.)

Stepan also claims that Dr. Leahy "testified that she did not know whether the chemical nature of Stepan's wastes was different from wastes generated by members of the JDG, or whether the impact of Stepan's wastes on the transport of other chemicals in the environment was different from the impact of the wastes generated by members of the JDG." (Id.) In support of contention, Stepan quoted at length from Dr. Leahy's deposition testimony as follows:

Q: Was the chemical nature of the wastes generated at Stepan's Fieldsboro facility different than the chemical nature of the wastes generated from any of the facilities of member companies of the JDG?

A: I don't have the information to answer that question.

Q: Would the impact on the transport of chemicals in the environment at the D'Imperio site of Stepan's chemicals be different than the impact on the transport of chemicals in the environment of ...


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