The opinion of the court was delivered by: Dennis M. Cavanaugh, United States District Judge.
This matter comes before the Court on motion by Plaintiff The United
States of America*fn1, against Defendant Spaulding Composites Company,
Inc. ("Spaulding") seeking summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure as to the divisibility of costs and harm
at the Caldwell Superfund Site in Fairfield, New Jersey. Oral argument
was heard on this motion on May 3, 2002. After painstakingly reviewing
the detailed submissions both in support of and in opposition to the
present motion, this Court holds that the Government's motion for summary
judgment shall be granted.
Defendant Spaulding Composites, Inc. operated a manufacturing facility
in Clifton, New Jersey that produced mica products and a slurry waste
by-product containing lead. Between approximately 1958 and 1973, Caldwell
Trucking Company transported lead-containing wastes generated by
Spaulding and its predecessor-in-interest, Mycalex Corporation, and
deposited them at the Caldwell Trucking Superfund Site (the "Caldwell
Site"). Spaulding's waste was a "unique and well-defined by-product that
contained inorganic materials, primarily insoluble lead." See Steven P.
Goldberg Expert Report, dated 8/31/00. Counsel for Spaulding further
described the waste product as a lead frit*fn2 encapsulated in glass.
Oral Arg. Tr. at 14:23-25; 15:1-5. Notably, Spaulding's waste contained
no volatile organic compounds ("VOC"). In fact, Spaulding asserts that it
was incapable of producing VOCs and thus, it should not be responsible
for costs related to remediating VOC contamination.
The Nature and Type of Costs Sought in the Present Motion
The OU1 remedy required some of the following actions:
Excavation and off-site disposal of California List
Excavation, off-site treatment, and disposal of soils
with VOC concentrations.
In-situ stabilization of contaminated soils.
Placement of two feet of clean soil over the solidified
While the Caldwell Trucking PRP Group performed the OU1 remedy pursuant
to a consent decree, the EPA performed substantial OU1 work at the
Caldwell Site, such as:
Performance of a remedial investigation and feasibility
study to assess the contamination at the Caldwell Site.
Analysis of samples derived from the above-mentioned
remedial investigation and feasibility through the
Contract Laboratory Program.
Performance of remedial design for the OU1 remedy.
Review of EPA's OU1 remedial documents by the State of
Through this motion, the EPA seeks to recover its response costs in
performing remedial efforts on OU1. See Declaration of Jo-Ann Velez
("Velez Decl.") ¶ 23. The EPA has carefully crafted it's motion to
seek only those costs that they believe are incapable of division. In
sum, the Government seeks $6,766,744.22. Supplemental Certification of
Mark A. Gallagher in Support of Motion for Summary Judgment ("Gallagher
Supp. Cert."), ¶¶ 9-10; Velez Decl., ¶¶ 9; Oral Arg. Tr. at
12:24-25, 13:1-7, 18:11-16.
The EPA also claims to have contracted with private entities to perform
work addressing general and enforcement matters at the Site, rather than
soil (OU1) or groundwater (OU2) contamination specifically. These
independent contractors did the following work for the EPA:
Performance of searches for potentially responsible
Assessment of the Site's overall health risks.
Compilation and maintenance of EPA's Administrative
Records for the Site.
Compilation and maintenance of EPA's records regarding
the Site in EPA's records center.
Performance of miscellaneous tasks such as publishing
public notices, duplicating photographs, obtaining
permits, etc. . .
The Government also seeks to recover $223,621.99 in general enforcement
costs incurred by the EPA and $373,745.49 in costs incurred by the
Department of Justice in enforcing aspects of this litigation and
Defendant Spaulding's bankruptcy proceeding. See Oral Arg. Tr. at
The January 22, 1997 Holding
In January of 1997, District Court Judge William G. Bassler found
Spaulding liable under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a)
for "at least some" of the costs incurred by the EPA for cleaning the
Caldwell Site where Spaulding's waste was discovered. Judge Bassler
allowed Spaulding the "opportunity to develop a factual record in support
of its contention that the harm to the Site is divisible." U.S. v.
Spaulding Composites Co., No. 94-5451 (D.N.J. Jan. 22, 1997) (order
granting summary judgment in part). Id. According to the Government,
only two issues remained after the January 1997 Opinion:
1. Whether Spaulding can demonstrate that any portion
of the United States' costs are divisible and
should be apportioned to another party?
2. What is the amount of the United States response
A Summation of the Government's Costs
As mentioned during oral argument, the costs in this matter are a
"moving target" and as a result, somewhat difficult to pinpoint. See Oral
Arg. Tr. at 12:9-13. This flux is due to several factors. First, since
the filing of this motion, additional remedial and response costs have
been incurred. Supplemental Declaration of Richard J. Robinson, ¶¶
2-4; [Supplemental] Declaration of Virginia A. Curry, ¶¶ 2-4;
Gallagher Supp. Cert., ¶ 3. Second, pre-judgment interest has
continued to accrue which is recoverable under Section 107(a) of CERCLA,
42 U.S.C. § 9607(a). See Gallagher Supp. Cert., ¶ 5;
Supplemental Declaration of Anne Macaluso, ¶¶ 2-8. Furthermore, the
EPA has received reimbursements for some of its costs during the pendency
of this motion. Gallagher Supp. Cert., ¶¶ 3, 7; Supplemental
Declaration of Jo-Ann Velez ("Velez Supp. Dec."), ¶ 5-7.
Particularly, on December 21, 2001, the EPA received a payment of $50,000
under the terms of a Consent Decree in a matter entitled U.S. v. Baureis
Realty et al., 95-2732 (D.N.J.), a matter also before this Court. Velez
Supp. Dec., ¶ 5. A subsequent payment in that same matter was made
on February 11, 2002 in the amount of 1.6 million dollars. Id.
Furthermore, the settling parties in U.S. v. Carborundum Corp. et al.,
No. 94-1484 (D.N.J.), have made five payments in the amount of
$487,217.05. Velez Supp. Dec., ¶ 6. According to the EPA, 54.34
percent of the EPA's costs can be attributed to OU1 and general
enforcement costs, so the EPA subtracted 54.34% of these reimbursements
(totaling $2,137,217.05), or $1,161,363.74, from its total cost recovery
request. See id. These collected reimbursements have also resulted in a
reduction of the interest sought by the Government in the amount of
$64,934.73. Therefore, the amount to be subtracted from the Government's
total cost request is $1,226,298.48 ($1,161,363.74 $64,934.73).
As demonstrated above, the costs in this matter have frequently
changed. However, as of May 3, 2002, the following total costs were
sought by the Government:
OU1 Contract Costs sought = $1,451,563.69
as of the ...