United States District Court, District of New Jersey, D.
April 4, 2000
LENOX INCORPORATED, ATLANTIC CITY ELECTRIC COMPANY, & AMERICAN CYANAMID COMPANY, PLAINTIFFS,
REUBEN SMITH RUBBISH REMOVAL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Irenas, District Judge.
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.
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
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.
"[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).
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).
In the present motion, Keefe does not dispute that plaintiffs have
established each of the elements of their prima facie case under §
107(a).*fn3 Nor does Keefe
assert one of the defenses to liability potentially available under
42 U.S.C. § 9607 (b). Rather, Keefe asks this Court to enter summary
judgment on his behalf because, even if he were found liable under §
107(a), as a matter of equity he should not be made to bear any of
plaintiffs' response costs.
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
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;
6. the degree of cooperation by the parties with the
Federal, State or local officials to prevent any harm
to the public health or the environment.
In the instant motion, Keefe argues that "as a matter of law, under the
facts and circumstances of this case, [his] equitable share [of the
response costs] should be zero." (Def.'s reply, 7). Keefe argues that
plaintiffs have not produced any evidence that hazardous substances were
deposited on the property after he bought it, that the condition of the
property deteriorated during the time he owned it, or that plaintiffs'
remediation costs have increased as a result of his actions. (Id. at 9).
In support of these assertions, Keefe cites to the deposition testimony
of David R. Perry, an environmental consultant who was retained by
plaintiff Lenox, Inc. to investigate possible remedies at the Site. (Pl.'s
Ex. C, dep. of D. Perry, 26:17-20, 35:1-10). At his November 6, 1998
deposition, Mr. Perry gave the following testimony:
Q: Is there anything based upon the investigation and
materials you reviewed that indicated that site
conditions had gotten any worse from the time the
landfill stopped accepting waste in 1980?
Q: Was there anything in which you reviewed would
indicate anything which occurred in that nine years
was going to make the remedy more expensive?
(Id. at 96:10-97:1). In light of Mr. Perry's deposition testimony, Keefe
argues that it would be inequitable for the Court to require him to pay a
portion of the response costs: "[p]ut another way the plaintiffs are
asking Mr. Keefe to pay money to clean-up their own mess." (Def.'s
Plaintiffs offer several arguments in response to Keefe's
characterization of their claims. First, plaintiffs argue that Keefe has
misrepresented Mr. Perry's testimony. Plaintiffs point out that Mr. Perry
was asked whether he found any evidence that the Site had worsened during
the relevant period based upon his review of three specific documents
(two 1989 environmental reports prepared by another consulting firm and
an August 18, 1989 transcript of a public meeting). (Pls.'s brief in
opp., 4-5, n. 6). According to plaintiffs, Mr. Perry was not offering an
opinion as to whether or not conditions had deteriorated during that
time, only whether those three documents indicated that conditions had
deteriorated. (Id.). In addition, plaintiffs have attached a recent
affidavit from Mr. Perry in which he states that it was beyond the scope
of his investigation to determine whether or not conditions at the Site
had actually gotten worse. (Aff. of D. Perry, ¶ 5).
Plaintiffs also contend that, contrary to Keefe's assertions, hazardous
wastes were deposited at the Site while Keefe was the owner. In a
deposition taken on December 14, 1999, Keefe indicated that quantities of
a chemical waste known as "fly ash" were dumped at the Site in 1982,
after he acquired ownership. (Pls.'s Ex. B, 83:13-20).*fn4 In response,
Keefe argues that he should not be held liable for this contamination
because the "fly ash" was dumped by Atlantic Electric, one of the
plaintiffs in this matter, without his knowledge or consent. (Def.'s
Plaintiffs also argue that Keefe should pay a percentage of the
response costs because he was aware of the environmental danger posed by
the Site at the time he purchased it, yet he took no steps to remedy that
danger. Plaintiffs point to several portions of Keefe's deposition
testimony and note that: (1) Keefe was aware that the former owner of the
Site had operated it as a sanitary landfill (Def.'s Ex. C); (2) he was
aware that the former owner had also operated a landfill known as
"Price's Pit" which Keefe described as a "wellknown, infamous hazardous
waste disposal site" (Pls.' Ex. B, 69:20-23); (3) he knew that the Site
had not been properly closed pursuant to state law and that it might cost
"a million dollars to properly close" the Site (Id. at 77:1-10,
75:14-22); (4) despite this knowledge, he did not fence in the landfill
or take any other steps to prevent further dumping (Id. at 81:20-82:18,
84:19-86:7); (5) he refused to comply with the 1991 NJDEP Directive that
ordered him to remove hazardous substances from the Site (Id. at
136:21-137:6); (6) he failed to enter in the Administrative Consent Order
with the NJDEP (Id. at 142:23-25); and (7) as a result of his failure to
act to remediate the Site, the NJDEP authorized plaintiffs to seek treble
damages against Keefe under the New Jersey Spill Act. (Pls.' Ex. F).
Finally, plaintiffs argue that the equitable apportionment of response
costs is not an issue the Court can properly consider on a motion for
summary judgment. See Pls.' brief, 5 ("Summary judgment is simply not the
forum in which to determine a party's equitable allocation or to address
objections to a particular component of a plaintiffs damages.") While the
Court sees no statutory bar to addressing the allocation of response
costs on a motion for summary judgment, the Court finds that summary
judgment is not appropriate at this time. First, it would be difficult to
designate each party's equitable share of the costs before each party's
liability was conclusively established. See Grand Street Artists v. Gen.
Elec. Co., 28 F. Supp.2d 291, 295 (D.N.J. 1998)(holding that "[o]nce
liability is established," each party's share of the response costs is
apportioned according to those equitable factors the court deems
omitted); see also Town of New Windsor v. Tesa Tuck, Inc.,
919 F. Supp. 662, 674 (S.D.N.Y. 1996)("[T]his sort of allocation of
costs, relating to the equitable determination of the amount of damages
attributable to each defendant, is more appropriately addressed when
liability has been established. . . ."). Second, there are genuine issues
of material fact as to defendant's alleged failure to prevent further
dumping at the Site and his lack of involvement in the remediation of the
Site. See Farmland Indus., Inc. v. Colorado & Eastern R.R. Co., Inc.,
922 F. Supp. 437, 442 (D.Colo. 1996)("Because allocation of cleanup costs
can be based on many equitable factors on which there may be much
competing evidence leading to material issues of fact, the issue of
contribution may not always be suited to disposition by summary
judgment.")(citing Environmental Transp. Sys. Inc. v. ENSCO, Inc.,
969 F.2d 503, 509-510 (7th Cir. 1992)). Accordingly, Keefe's motion for
summary judgment as to plaintiffs' claims for contribution under CERCLA
§ 113(f), 42 U.S.C. § 9613(f), is denied.
Keefe also moves for summary judgment as to plaintiffs' claims for
contribution under the New Jersey Spill Compensation and Control Act
("Spill Act"), N.J.S.A., N.J.S.A. 58:10-23.11 et seq. The Spill Act is
the "New Jersey analog to CERCLA." New Jersey Turnpike Auth., 16 F.
Supp.2d at 476. "Like CERCLA, the Spill Act prohibits the discharge of
hazardous substances and provides for the clean up and removal of such
spills." Id. The Act provides that:
Any person who has discharged a hazardous substance,
or is in any way responsible for any hazardous
substance, shall be strictly liable, jointly and
severally, without regard to fault, for all cleanup
and removal costs no matter by whom incurred.
N.J.S.A. 58:10-23.11g.c.(1). The Act further provides that:
Whenever one or more dischargers or persons cleans up
and removes a discharge of a hazardous substance,
those dischargers and persons shall have a right of
contribution against all other dischargers and persons
in any way responsible for a discharged hazardous
substance or other persons who are liable for the cost
of the cleanup and removal of that discharge of a
N.J.S.A. 58:10-23.11f.a.(2). The regulations which implement the Act
define persons "in any way responsible" to include, among others, owners
of facilities from which a discharge has occurred. N.J.A.C. 7:1E-1.6.
In resolving contribution claims under the Spill Act, a court may
allocate the costs of cleanup among liable parties using such equitable
factors as the court determines to be appropriate. N.J.S.A.
58:10-23.11f.a.(2). Here, Keefe asks this Court to "exercise discretion
in determining whether to really impose Spill Act responsibilities" upon
him. (Def.'s reply, 8). Essentially, Keefe repeats his arguments
regarding contribution under CERCLA. He asks this Court to decide, as a
matter of law, that even if he were "technically" liable for the costs of
remediating the Site, he should not be assigned an equitable share of
those costs. (Id.). Largely for the reasons set forth in Section III
above, the Court will deny Keefe's motion for summary judgment with
respect to this claim. Because Keefe's liability has not yet been
established and because genuine issues of fact remain as to his alleged
failure to prevent further dumping at the Site and to participate in the
Site's remediation, Keefe's motion is premature.
In Count III of their Amended Complaint, plaintiffs' assert a claim
against Keefe for treble damages pursuant to section 58:10-23.11f.a.(3)
of the Spill Act. That section provides that the NJDEP may, in
its discretion, authorize any persons who have entered into agreement
with the NJDEP to cleanup a contaminated site and who seek contribution
for the costs of that cleanup, to "collect treble damages from any
contribution defendant who has failed or refused to comply with any
directive." By letter dated December 27, 1994, the NJDEP authorized
plaintiffs to seek treble damages from Keefe because he neither complied
with the NJDEP's November 7, 1991 Directive nor entered into the
Administrative Consent Order (ACO) with the NJDEP.*fn5 (Pls.' Ex. F).
Defendant argues that, even if his motion for summary judgment as to
plaintiffs' Spill Act contribution claims is denied, plaintiffs' claim for
treble damages should be dismissed because he has a "good faith" defense
to such claims. N.J.S.A. 58:10-23.11f.a.(3) provides that a contribution
defendant may avoid treble damages where he had "good cause" for failing
to enter the settlement agreement with the NJDEP or where principles of
"fundamental fairness" would be violated. In In re Kimber Petroleum,
110 N.J. 69, 539 A.2d 1181, 1188 (1988), the New Jersey Supreme Court
held that a defendant could show "good cause" where the defendant had "an
objectively reasonable basis for believing that [the NJDEP's] directive
was either invalid or inapplicable to it."
In this case, Keefe states that he did not believe that the Directive
applied to him because "[f]rom [his] perspective [sic] the pollution was
caused by [the former owner of the Site] and not by him." (Def.'s brief,
13). Keefe also states that he "does not have the resources of major
companies like [plaintiffs]" and he "objectively felt that cleaning up
this waste was the responsibility of the polluters — not himself."
In response, plaintiffs argue that, by definition, Keefe's "feelings"
are subjective, not objective. They also note that Keefe did not
challenge the NJDEP's directive at the time it was issued. In addition,
plaintiffs have attached an excerpt from a December 14, 1999 deposition at
which Keefe testified that he did "nothing" in response to the
Directive. (Pls.'s Ex. B, 136:21-137:6). Plaintiffs also cite to Keefe's
testimony that he did not sign the Administrative Consent Order because
he found it "ludicrous to hold a person responsible for actions of
another who has had no direct involvement in the problem." (Id. at
The Court finds plaintiffs' arguments persuasive. Based on the record
currently before this Court, it appears that Keefe did not abide, by the
NJDEP directive or sign the ACO because he felt that it was "unfair" for
him to pay for the cleanup because he did not, himself, deposit any
hazardous waste on the land. Because Keefe has not proffered sufficient
evidence from which the Court can conclude that this belief was
"objectively" reasonable, the Court will not dismiss plaintiffs' claims
for treble damages at this time.
In paragraph 110 of their Amended Complaint, plaintiffs estimate the
total cost of the Site's remediation at $6,979,846. Plaintiffs include in
this amount $1.5 million for past EPA and NJDEP oversight costs and
$450,000 in future NJDEP oversight costs.
As part of his motion for summary judgment, Keefe asks the Court to
"strike" plaintiffs' claims for the $1.5 million in past oversight
costs. Keefe claims that plaintiffs have settled the NJDEP's claims for
all past oversight costs for $60,000 and that the EPA has never demanded
payment for any past oversight costs. (Def.'s brief, 10). Keefe argues
that the EPA has not been involved in the Site's remediation for over ten
years and "it is highly unlikely
that they are suddenly going to come out of the woodwork and start
demanding money to cover costs they expended over ten years ago." (Id.)
Plaintiffs argue that past oversight costs are recoverable in a
contribution action, that the EPA incurred such costs and that plaintiffs
remain liable for such costs. (Pls.'s brief, 14). In addition, they argue
that Keefe has offered no evidence that the EPA has forgiven or will
forgive these oversight costs.
To the extent that Keefe seeks to dismiss plaintiffs' claims for the
EPA's past oversight costs under CERCLA, his motion is granted. The Third
Circuit has held that the government may not recover from private parties
the cost of government oversight of the remedial activity performed by a
private party. U.S. v. Rohm and Haas Co., 2 F.3d 1265, 1278 (3d Cir.
1993). In Rohm, the Third Circuit found that the government's oversight
"is intended to protect the public interest rather than the interests of
those being overseen." Id. at 1273. Therefore, the Court refused to
presume that "Congress  intended a statute to create the dramatic and
unusual effect of requiring regulated parties to pay a large share of the
administrative costs incurred by the overseeing agency unless the
statutory language clearly and explicitly requires that result." Id. at
1273-74. The Court concluded: "We think it . . . likely that Congress
viewed EPA's overseeing of a private party's removal activities as
qualitatively different from EPA's actually performing removal activities
and intended for EPA to recover the costs of the latter but not the costs
of the former." Id. at 1277. Based on the Court's holding in Rohm, the
EPA cannot recover past oversight costs from plaintiffs and, ipso facto,
plaintiffs cannot seek contribution for these costs from Keefe.
To the extent that Keefe seeks to dismiss plaintiffs' claims for the
NJDEP's past oversight costs under the Spill Act, his motion is denied.
Contrary to the Third Circuit's opinion with respect to CERCLA, the New
Jersey Superior Court, Appellate Division, has held that past oversight
costs expended by the NJDEP are recoverable under the Spill Act.*fn6 E.I
du Pont de Nemours and Co. v. Dep. of Env. Protection and Energy,
283 N.J. Super. 331, 661 A.2d 1314 (App. Div. 199 5). In duPont, the
Appellate Division held that under N.J.S.A. 58:10-23.11g.c.(1), the NJDEP
had the "implied" power to "collect its oversight costs from those
entering into agreements or orders with [NJDEP] to remediate." Id. at
1320. Because the NJDEP may recover past oversight costs from
plaintiffs, these costs are a proper element of plaintiffs' contribution
claim against defendant Keefe. See N.J.S.A. 58:10-23.11f.a.(2). Assuming
that defendant is held liable for contribution for the costs of cleanup
and removal, the precise amount of the NJDEP oversight costs will be an
issue for the trier of fact.
In Counts IV and V of their Amended Complaint, plaintiffs assert claims
based on New Jersey common law. In Count IV, plaintiffs seek the creation
of a constructive trust. In Count V, plaintiffs assert a claim based on
Keefe's alleged unjust enrichment.
Under New Jersey law, a constructive trust may arise even though the
acquisition of the property was not wrongful "where the retention of the
property would result in the unjust enrichment of the person retaining
it." D'Ippolito v. Castoro, 51 N.J. 584, 242 A.2d 617, 619 (1968).
"Unjust enrichment" occurs where "an individual retains money or benefits
which in justice and equity belong to another." First Interregional
Advisors Corp., 218 B.R. 722, 730 (Bankr.D.N.J. 1997)(quoting Black's Law
Dictionary 1535 (6th ed. 1990)).
Plaintiffs claim that Keefe has been unjustly enriched in two ways.
First, plaintiffs claim that under the Sanitary Landfill Closure and
Contingency Fund Act, N.J.S.A. 13:1E-100, et seq., Keefe had an
obligation to close the landfill that was operated at the Site. The Act
Every owner or operator of a sanitary landfill shall
be jointly and severally liable for the proper
operation and closure of the facility, as required by
law, and for any damages, no matter by whom
sustained, proximately resulting from the operations
N.J.S.A. 13:1E-103. Plaintiffs argue that, in connection with the
remediation of the Site, they have performed Keefe's obligation to close
the landfill and have incurred substantial costs in doing so. They
contend that Keefe has been unjustly enriched to the extent of these
Second, plaintiffs claim that Keefe has been unjustly enriched because
the value of the Site has been substantially increased by plaintiffs'
ongoing cleanup efforts. Keefe paid $75,000.00 for the 48 acre property
in 1981. (Second Am. Compl., ¶ 156). Plaintiffs have attached an
appraisal of the property, dated October 1, 1999, which estimates its
current value at $1,150,000.00. (Pls.' Ex. A). Plaintiffs argue that this
substantial increase in value is attributable to their cleanup of the
Site and that it would be inequitable for plaintiff to retain the benefit
of their efforts.
As a result of this alleged unjust enrichment, plaintiffs ask the Court
to impose a constructive trust upon Keefe's "right, title and interest"
in the property. (Second Am. Compl., ¶ 159).
The Court will dismiss plaintiffs' claims in Count IV and V. Although
neither party has addressed the issue, the Third Circuit has held that
state common law claims surrounding the remediation of a contaminated
state are preempted by CERCLA. In In re Reading Company, 115 F.3d 1111
(3d Cir. 1997), a reorganized debtor and former railroad company sought
to enjoin plaintiffs from seeking contribution from it for environmental
cleanup liability. Although plaintiffs had brought suit under CERCLA,
they also asserted claims under New Jersey common law for contribution
and restitution. The district court held that plaintiffs' common law
claims were preempted by CERCLA. The Third Circuit affirmed.
The Third Circuit held that CERCLA did not explicitly preempt state
common law claims. Id. at 1117. Nor did it create a comprehensive scheme
of regulation that left no room for state law supplementation. Id.
However, the Court found that there was an "actual conflict" between
CERCLA's settlement scheme and plaintiffs' common law claims for
contribution and restitution. Id. The Court held:
[W]hen Congress expressly created a statutory right of
contribution in CERCLA § 113(f),
42 U.S.C. § 9613(f), it made that remedy part of
an elaborate scheme aimed at the efficient resolution
of environmental disputes. Permitting independent
common law remedies would create a path around the
statutory settlement scheme, raising an obstacle to
the intent of Congress. We conclude therefore that
Conrail's common law claims are preempted by CERCLA
Id. In Continental Title Co. v. Peoples Gas Light and Coke Co., No. 96 C
WL 1250666 (N.D.Ill. March 18, 1999), plaintiff, the current owner of a
contaminated site, brought a CERCLA action against defendant, the former
owner of the site, for contribution costs under § 9613(f). Defendant
asserted a state law counterclaim for unjust enrichment. The Court
summarized defendant's claim as follows: "Defendant's theory is that
Plaintiff purchased the Site at a substantial discount, now seeks to
convert the contaminated property into a glorious residential complex at
Defendant's expense, and that Plaintiff will be unjustly enriched by its
retention of that benefit." Id. at *14. The Court, citing In re Reading
Co., concluded that defendant's claim for unjust enrichment was preempted
by CERCLA. Id.
The facts in Continental are similar to the facts presented here and
the Court agrees with the conclusion of that Court. Permitting the
present state law claims to proceed would circumvent the statutorily
created settlement scheme set forth in CERCLA, 42 U.S.C. § 9613(f).
Thus, the Court finds that plaintiffs state law claims for unjust
enrichment and the creation of a constructive trust are preempted by
Even if plaintiffs' claims were not preempted by CERCLA, they would be
dismissed. Prior to the Third Circuit's opinion in Reading, several
courts held that unjust enrichment claims should be dismissed in CERCLA
cases where, as here, plaintiffs' have an independent duty to cleanup the
contaminated site. For example, in Ciba-Geigy Corp. v. Sandoz Ltd., Civ.
A. No. 92-4491, 1993 WL 668325 (D.N.J. June 17, 1993), plaintiff
landowner brought a common law claim for restitution from the prior owner
of the Site for the costs it had incurred in cleaning up the Site. The
Court held that plaintiff was foreclosed from recovering on this common
law claim because it had an independent duty to cleanup the Site. The
Court adopted the reasoning of the district court for the Middle District
of Pennsylvania in Smith Land & Improvement Corp. v. Rapid American
Corp., 18 Envtl. L. Rep. 20769, 1987 WL 56461 (M.D.Pa. 1987), vacated on
other grounds, Smith Land & Improvement Corp. v. Celotex Corp., 851 F.2d 86
(3d Cir. 1988). In that case, the Pennsylvania district court held:
Just because the EPA chose the plaintiff to do the
cleanup work does not mean that the defendant was
enriched. The plaintiff continually argues that the
defendant was spared the cleanup costs. Yet the
plaintiff fails to realize that it was equally
responsible to clean its land.
Id. at 20771, 1987 WL 56461.
In this case, plaintiffs had an independent duty, pursuant to the NJDEP
Administrative Consent Order, to cleanup the Site. Therefore, even if it
were not preempted, plaintiffs' claim for unjust enrichment would be
dismissed.*fn7 See e.g., SC Holdings, Inc. v. A.A.A. Realty Co.,
935 F. Supp. 1354, 1372 (D.N.J. 1996) (holding that "in view of
plaintiffs independent obligation to perform remediation activities at the
 Site, its claim for unjust enrichment must be dismissed as a matter of
law."); Mayor and Council v. Klockner & Klockner, 811 F. Supp. 1039,
1058-59 (D.N.J. 1993)(same); Cooper Indus., Inc. v. Agway, Inc.,
987 F. Supp. 92, 104 (N.D.N.Y. 1997)(same).
For the reasons set forth above, Keefe's motion is granted in part and
denied in part. Keefe's motion for summary judgment as to plaintiffs'
claims under CERCLA and the Spill Act and for treble damages under the
Spill Act is denied. Keefe's motion as to plaintiffs' claim for $1.5
million in past oversight costs is granted to the extent that plaintiffs
seek to recover past EPA oversight costs under CERCLA. Finally, Keefe's
motion is granted with respect to Counts IV and V
of plaintiffs' Amended Complaint. Court will issue an appropriate order.