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LENOX INC. v. REUBEN SMITH RUBBISH REMOVAL

April 4, 2000

LENOX INCORPORATED, ATLANTIC CITY ELECTRIC COMPANY, & AMERICAN CYANAMID COMPANY, PLAINTIFFS,
V.
REUBEN SMITH RUBBISH REMOVAL, ET AL., DEFENDANTS.



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

OPINION

This matter appears before the Court upon defendant Douglas Keefe's motion for summary judgment. For the reasons set forth below, this motion is granted in part and denied in part.

I.

This action revolves around the environmental contamination of the Delilah Landfill Superfund Site in Egg Harbor Township, New Jersey ("the Site"). Plaintiffs in this action seek contribution for the costs of the ongoing remediation of the Site. Defendant is the Site's current owner.

Defendant purchased the Delilah Landfill in January of 1981. In 1982, the United States Environmental Protection Agency ("EPA") conducted a preliminary assessment of the Landfill which indicated that it may have impacted groundwater quality in the surrounding areas. (Second Am. Compl., ¶ 98). On October 4, 1984, the Site was listed on the National Priorities List. (Id. at ¶ 99). Subsequently, the EPA authorized the New Jersey Department of Environmental Protection ("NJDEP") to assume control of the Site's remediation. (Id.)

In 1985, the NJDEP conducted an investigation of the Site and discovered a host of hazardous substances present in the soil and groundwater.*fn1 (Id. at ¶ 101). Based upon these findings, the NJDEP issued a Record of Decision ("ROD") which proposed a remedy for the Site including, inter alia, installation of a landfill cap. (Id. at ¶ 102). On or about November 7, 1992, the NJDEP issued a Directive to remedy the site to several parties including the present plaintiffs. (Id. at ¶ 103). In or around October of 1994, the NJDEP entered an Administrative Consent Order ("ACO") in which the present plaintiffs agreed to create a "soil cap" at the site. (Id. at ¶ 107). Plaintiffs currently estimate that the total cost of the investigation and remediation of the Site will be $6,979,846.*fn2 (Id. at ¶ 110).

In their Amended Complaint, plaintiffs seek contribution from Keefe under § 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. § 9613(f), and under the New Jersey Spill Act, N.J.S.A. 58:10-23.11g.c.(1). Plaintiffs also seek treble damages under the Spill Act, § 58:10-23.11f.a.(3), and assert common law claims for unjust enrichment and the creation of a constructive trust. Keefe moves for summary judgment as to all claims. Keefe argues, on equitable grounds, that because he did not own the Site at the time the majority of the hazardous substances were deposited, he should not be held liable for its cleanup. Furthermore, he argues that he has a good faith defense to plaintiffs' claim for treble damages and that plaintiffs' claim for $1.5 million in past oversight costs should be dismissed as speculative. Keefe also argues that this is not an appropriate case for the creation of a constructive trust because he was not unjustly enriched by plaintiffs' remediation of the Site. The Court will consider each issue in turn.

II.

"[S]ummary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III.

Under CERCLA, a private party who has incurred "response costs" for environmental cleanup may seek contribution from any person who is liable or potentially liable for depositing the hazardous wastes. 42 U.S.C. § 9613 (t). In order to recover under § 9613(t), plaintiff must first show that defendant is liable under CERCLA § 107(a), 42 U.S.C. § 9607 (a). If plaintiff succeeds in establishing defendant's liability under § 107(a), the Court then may apportion defendant's share of liability in an equitable manner. U.S. v. Compaction Sys. Corp., 88 F. Supp.2d 339, 354 (D.N.J. 2000).

To establish defendant's liability under § 107(a), plaintiff must show: (1) that the site in question is a "facility" as defined by CERCLA; (2) the defendant is a "responsible person" as defined by CERCLA; (3) there was a release of hazardous substances; and (4) such release has required the plaintiffs to incur response costs. New Jersey Turnpike Auth. v. PPG Indus. Inc., 16 F. Supp.2d 460, 467 (D.N.J. 1998).

42 U.S.C. § 9613 (f)(1) provides that in allocating contribution costs among liable parties, the Court may consider "such equitable factors as the court determines are appropriate." Although CERCLA itself provides no precise list of equitable factors for the Court's consideration, several courts have looked to the so-called "Gore factors" for guidance. American Cyanamid Co. v. Nascolite Corp., No. Civ.A. 92-CV-3394, 1995 WL 934871, at 6*-7 (D.N.J. March 31, 1995). The "Gore factors" were proposed as an amendment to CERCLA in 1980 by then Congressman Al Gore. Although the amendment was not passed, New Jersey courts have used the Gore factors to aid in the equitable allocation of contribution costs. (Id.). The Gore factors include:

1. the ability of the parties to demonstrate that their contribution to a discharge, release or disposal of a hazardous waste can be distinguished;

2. the amount of the hazardous waste involved;

3. the degree of toxicity of the hazardous waste involved;
4. the degree of involvement by the parties in the generation, transportation, treatment, storage, or disposal of the hazardous waste;
5. the degree of care exercised by the parties with respect to the hazardous waste concerned, taking into account the characteristics of such hazardous waste; and
6. the degree of cooperation by the parties with the Federal, State or local officials to prevent any harm to the ...

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