United States District Court, District of New Jersey, D
June 13, 2002
INTERFAITH COMMUNITY ORGANIZATION; LAWRENCE BAKER; MARTHA WEBB HERRING; MARGARET WEBB; REVEREND WINSTON CLARKE; MARGARITA NAVAS; HACKENSACK RIVERKEEPER, INC., CONSOLIDATED PLAINTIFF; WILLIAM SHEEHAN, CONSOLIDATED PLAINTIFF; PLAINTIFFS,
HONEYWELL INTERNATIONAL, INC.; W.R. GRACE & COMPANY; ECARG, INC.; W.R. GRACE, LTD.; RONED REALTY OF JERSEY CITY, INC.; RONED REALTY OF UNION, INC.; DEFENDANTS.
The opinion of the court was delivered by: Dennis M. Cavanaugh, United States District Judge
This matter comes before the Court on motion by Defendants Roned Realty
of Jersey City, Inc. and Roned Realty of Union, Inc. for summary judgment
as to all claims and cross-claims against them. The Court, having
carefully reviewed the submissions of all parties regarding this motion,
holds that Defendant's motion is granted in part and denied in part.
The facts in this matter are extensive and thus, this Opinion shall
only summarize the facts that are pertinent to the present motion. The
Court presumes that all parties of record are familiar with the prior
opinions in this matter, which discuss the factual background of this case
in greater detail. See Interfaith Community Organization v.
AlliedSignal, Inc., 928 F. Supp. 1339 (D.N.J. 1996) and Interfaith
Community Organization, et al. v. Honeywell International, Inc. et al.,
188 F. Supp.2d 486 (D.N.J. 2002).
The Site (Study Area 7)
The site in question consists of three sites called the Roosevelt
Drive-In Site, the Trader Horn Site and the Clean Machine Car Wash Site,
collectively referred to as Study Area 7. See Rule 56.1 Statement of
Undisputed Facts in Support of Roned Realty of Jersey City, Inc.'s and
Roned Realty of Union, Inc.'s Motion for Summary Judgment ("Roned 56.1
Statement"), ¶ 1; Defendant Honeywell International Inc.'s Response
to Rule 56.1 Statement of Undisputed Facts in Support of Roned Realty of
Jersey City, Inc.'s and Roned Realty of Union, Inc.'s Motion for Summary
Judgment (Honeywell's 56.1 Response"), ¶ 1. The present motion
addresses a dispute concerning the Trader Horn Site, a 1.2 acre parcel of
land located at 485 Route 440 that is adjacent to the Roosevelt Drive-In
Site and the Clean Machine Car Wash Site. Roned 56.1 Statement, ¶¶
2-3; Honeywell's 56.1 Response, ¶¶ 2-3. The Roned Defendants have no
connection to the Roosevelt Drive-In or Clean Machine Car Wash Sites.
Roned 56.1 Statement, ¶ 21; Honeywell's 56.1 Response, ¶ 21.
Mutual Chemical Company of America ("Mutual") owned and operated a
chromate chemical production facility (the "Facility") on West Side
Avenue and Route 440 in Jersey City, New Jersey until 1954. This Facility
extracted chromium from chromium ores to produce chromate chemicals.
Id., ¶ 46. The process generated chromium-bearing waste or chromium
ore processing residue ("COPR") that Mutual transported through a
pipeline onto Study Area 7. Roned 56.1 Statement, ¶ 4. In addition to
the chromium-bearing waste, Mutual apparently dumped unknown amounts of
other refuse at the Site. Additionally, Honeywell asserts that the State
of New Jersey granted it riparian rights to deposit COPR in to the
Hackensack River. Honeywell's 56.1 Response, ¶ 23.
This is an action brought by Plaintiffs Interfaith Community
Organization ("Interfaith"), Lawrence Baker ("Baker"), Martha Webb
Herring ("Herring"), Margaret Webb ("Webb"), Reverend Winston Clarke
("Clarke") and Margarita Navas ("Navas") (collectively the "Plaintiffs")
against Defendants Honeywell International, Inc. ("Honeywell"), Roned
Realty of Jersey City, Inc. ("Roned-JC") and Roned Realty of Union, Inc.
("Roned-Union") (together "the Roned Defendants") and W.R. Grace & Co.
("Grace USA"), ECARG, Inc. ("ECARG") and W.R. Grace, Ltd.
("Grace-England") (together "Grace Companies") (collectively the
"Defendants") seeking declaratory and injunctive relief mandating the
cleanup of environmental contamination at Study Area 7 (the "Site").
Interfaith Community Organization et al. v. Honeywell International,
Inc. et al., 188 F. Supp.2d 486, 489 (D.N.J. 2002).
Interfaith is a not-for-profit corporation incorporated under the laws
of the State of New Jersey. Amended Complaint, ¶ 19. Interfaith
alleges its interest in chromium contamination in Hudson County and at
the Site arose from its (1) inability to locate non-chromium contaminated
land in Hudson County upon which it could construct six hundred units of
affordable single-family housing and (2) the discovery that member
churches were built on land contaminated with chromium. Id., ¶¶
20-21; Affidavit of Reverend Geoffrey Curtiss ("Curtiss Aff."), ¶¶
4-5. The remaining individual Plaintiffs are members of Interfaith that
reside and work in the vicinity of the Site, frequently drive by the Site
and sometimes shop in stores near the Site. Amended Complaint, ¶
Honeywell is incorporated under the laws of the State of Delaware.
Id., ¶ 38. Mutual, a prior subsidiary of Honeywell, owned and
operated a chromate chemical production facility across the street from
the Site from approximately 1905 to 1954. Id. The Site was used during
this time to dispose of COPR from the chromate plant. In 1954, Allied
Chemical and Dye Corporation acquired Mutual and sold the Site to Amy Joy
Realty Corporation for the construction of a drive-in movie theater. Id.
Between March 1955 and 1999, Allied Chemical and Dye Corporation
underwent corporate reorganization and eventually came to be known as
Honeywell International, Inc. See Interfaith Community Organization,
188 F. Supp.2d at 490.
Grace-USA is a corporation formed under the laws of the State of
Connecticut. Amended Complaint, ¶ 41. Grace-England is a direct
subsidiary of Grace-USA with a registered office in London, England. Id.
ECARG is a New Jersey corporation and a subsidiary of W.R. Grace & Co.
Id. Grace-USA and Grace-England were the sole stockholders of Grace
Retail Corporation ("Grace Retail"), which acquired two parcels of land
constituting the largest portion of the Site (the Roosevelt Drive-In Site
and the Clean Machine Car Wash). Id., ¶ 42. In November 1986, the
Channel Acquisition Company ("Channel") acquired Grace Retail and
pursuant to a letter agreement, Grace Retail was to distribute some of its
assets, including its portion of the Site, to Grace-USA and
Grace-England. Id., ¶ 43. This transfer, however, never occurred.
Id. Nevertheless, Grace-USA and Grace-England were unaware that the
transfer did not occur and acted as owners of the parcels until October
14, 1994. Id. On October 14, 1994, then-owner Channel conveyed the
parcels to ECARG. Id., ¶ 44.
Roned Realty of Jersey City, Inc. and Roned Realty of Union, Inc. are
corporations incorporated under the laws of the State of New Jersey since
1979. Id., ¶ 45; Declaration of Edward Navlen ("Navlen Decl."),
¶¶ 2-3. The Trader Horn Site is owned by Roned-JC as evidenced by
quitclaim deed recorded on August 30, 1995. Fourth Declaration of Michael
J. Caffrey, Exhibit 70; Roned 56.1 Statement, ¶ 15; Honeywell 56.1
Response, ¶ 15; Second Declaration of Edward Navlen, Exhibit A.
Roned-Union never owned any portion of the Trader Horn Site. Roned 56.1
Statement, ¶ 15; Honeywell 56.1 Response, ¶ 15; Declaration of
Edward Navlen ("Navlen Decl."), ¶¶ 6-7. At present, the Trader Horn
Site is occupied by a retail store.
Each Roned entity was formed for the purposes of owning Trader Horn
properties in particular locales. Roned-Union was formed to own properties
in Union County, whereas Roned-JC was created to own properties in Jersey
City, New Jersey. Navlen Decl., ¶ 5. The Roned
that they have taken no part in contaminating the Trader Horn Site.
Potential Health Risks of Chromium
The chromium found at the Site is primarily trivalent and hexavalent
chromium. Both forms raise environmental and human health concerns, but
hexavalent chromium is the more toxic chromium compound. Airborne
chromium and chromium compounds are categorized as carcinogenic by
Environmental Protection Agency ("EPA") standards, but other
organizations, such as the National Toxicity Institute, consider all
compounds containing chromium to have carcinogenic potential. See Risk
Assessment for Chromium Sites in Hudson County, New Jersey, 3-16, 3-17
(April 1989), attached as Exhibit 45 to Plaintiff's Memorandum in
Opposition to [Honeywell International, Inc.]'s Motion to Dismiss
Plaintiff's Amended Complaint and in Support of Plaintiff's Cross-Motion
for Partial Summary Judgment on the Issue of Standing. Hexavalent
chromium can also cause non-carcinogenic ailments by penetrating human
skin to cause or exacerbate allergic and irritative effects on the
respiratory system, kidneys, and skin. Id. at 3-5, 3-19, 3-20, 3-22.
Plaintiffs filed a complaint (the "Complaint") on May 3, 1995. At a
status conference held on July 27, 1995, Plaintiffs were granted leave to
amend the Complaint. The Amended Complaint was filed on August 2, 1995.
In Count I of the Amended Complaint, Plaintiffs allege that Defendants
violated section 7002(a)(1)(B) of the Resource Conservation and Recovery
Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B), because the chromium-bearing
waste at the Site presents an imminent and substantial endangerment to
health or the environment. Amended Complaint, ¶¶ 71-74. The remaining
counts of Plaintiff's Amended Complaint have been dismissed. See
Interfaith Community Organization v. AlliedSignal, Inc., 928 F. Supp. 1339,
1341, 1351, 1353 (D.N.J. 1996).
On or about May 17, 1996, the Roned Defendants filed an answer to the
Amended Complaint along with various cross-claims. On January 3, 1997,
the Roned Defendants amended their cross-claims.
The Grace Defendants filed their Third Amended Cross-Claims on October
4, 2000 seeking relief under RCRA, CERCLA, the New Jersey Spill
Compensation and Control Act and common law. The Grace Defendants
cross-claim against the Roned Defendants was asserted in its original
Answer and Cross-Claim and seeks contribution from the Roned Defendants
under New Jersey law. Honeywell has also asserted cross-claims against
the Roned Defendants seeking injunctive relief under RCRA and declaratory
relief and contribution under CERCLA, the New Jersey Spill Act, the New
Jersey Joint Tortfeasors Contribution Law.
I. Summary Judgment Standard.
Summary judgment eliminates unfounded claims without recourse to a
costly and lengthy trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986). Under Federal Rule of Civil Procedure 56(c), summary judgment is
proper where "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 judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden
of showing that no genuine issue of material fact exists rests initially
on the moving party. See Celotex, 477 U.S. at 323. A litigant may
discharge this burden by exposing "the absence of evidence to support the
nonmoving party's case." Id. at 325. However, this effort requires more
than "simply show[ing] that there is some metaphysical doubt as to
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). In evaluating a summary judgment motion a court
must view all evidence in the light most favorable to the nonmoving
party. See Matsushita Elec. Indus. Co., Ltd., 475 U.S. at 587; Abraham v.
Raso, 183 F.3d 279, 287 (3d Cir. 1999) (citing Boyle v. County of
Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998)); Goodman v. Mead Johnson
& Co., 534 F.2d 566, 573 (3d Cir. 1976). The Court's role is not "to
weigh the evidence and determine the truth of the matter, but to
determine whether there is a genuine issue of fact for trial." Anderson,
477 U.S. at 248-49; Abraham, 183 F.3d at 287.
Once the moving party has made a properly supported motion for summary
judgment, the burden shifts to the non-moving party to "set forth
specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). The substantive law determines which facts are material. Id. at
248. "Only disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of summary
judgment." Id. No issue for trial exists unless the non-moving party can
demonstrate sufficient evidence favoring it, such that a reasonable jury
could return a verdict in that party's favor. See id. at 249.
II. Roned Realty of Union, Inc.
A review of the submissions of counsel in connection with the present
motion shows that Roned-Union does not have any connection or interest in
the Trader Horn Site or Study Area 7 that would permit this Court to
impose liability upon it for environmental harm. See Brief in Support of
Roned Defendants' Motion for Summary Judgment On All Claims at 8-9;
Plaintiff's Brief in Opposition to Roned Defendants' Motion for Summary
Judgment on All Claims at 2-9 (focusing on Roned-JC); Brief of Defendant
Honeywell International Inc. in Opposition to the Roned Defendants'
Motion for Summary Judgment on All Claims at 1 (noting that Honeywell
opposes the Roned Defendants' motion "only so far as it applies to
defendant Roned Realty of Jersey City, Inc."). Accordingly, this Court
holds that Roned-Union, as well as all claims and cross-claims against
it, are dismissed as a matter of law pursuant to Rule 56 of the Federal
Rules of Civil Procedure. The remaining issues discussed in this Opinion
shall focus on the remaining Roned entity, Roned Realty of Jersey City,
III. Interfaith's RCRA Claim Against Roned-JC.
Under RCRA, liability can be established by meeting the requirements of
a four-part analysis that looks to whether Roned-JC; "(1) has contributed
or is contributing to, (2) the past or present handling, storage,
treatment, transportation, or disposal of, (3) any solid or hazardous
waste that, (4) presents an imminent and substantial endangerment to
health or the environment." Interfaith Community Organization,
188 F. Supp.2d at 502 (citing 42 U.S.C. § 6972(a)(1)(B) and 3 S. Cooke, The
Law of Hazardous Waste, § 15.01[a] at 15-6 (2001)). For the
purposes of this motion, the Court will assume that prong three of the
above analysis is met; that is, that chromium, in some instances
hexavalent chromium, contained in the chromium ore processing residue
located on Study Area 7 is a form of solid or hazardous
waste as defined
by RCRA. See, e.g., Interfaith Community Organization, 188 F. Supp.2d at
502-03 (finding that chromium waste is a form of hazardous and solid
waste under RCRA); U.S. v. Power Engineering Co., 10 F. Supp.2d 1145,
1157-58 (D.Colo. 1998), affirmed by 191 F.3d 1224, 1231 (10th Cir.
1999), cert. denied, 529 U.S. 1086 (2000) (finding that hexavalent
chromium is clearly a form of hazardous waste and also a form of solid
waste under RCRA and Colorado regulations); Steel Manufacturers Ass'n v.
E.P.A., 27 F.3d 642, 645 (D.C. Cir. 1994) (electric arc furnace dust is
considered to be a form of hazardous waste by the EPA because, in part,
it contains hexavalent chromium); 40 C.F.R. § 261.24 (Under RCRA, the
EPA has classified waste that contains five parts per million (ppm) or
more of chromium as hazardous). The "has contributed or is contributing
to" the "past or present handling, storage, treatment, transportation, or
disposal of" requirement under RCRA presents an interesting issue with
regard to Roned-JC because all of the active dumping of COPR on the Site
occurred many years prior to Roned-JC's assuming possession of the Trader
Horn Site. Roned-JC argues that the mere fact that it is the record owner
of the Trader Horn Site is insufficient to make it liable under RCRA
because it never generated or transported any COPR onto the Trader Horn
Site. Roned-JC further argues that upon taking possession of the site, it
merely moved its business into the pre-existing commercial space, which
was operated at the time as a men's clothing store. On this basis,
Roned-JC argues that it could not have known that an environmental danger
was created by the Trader Horn Site's contaminated condition. Navlen
Decl. ¶¶ 7-9. In contrast, Plaintiff Interfaith contends that
Roned-JC has contributed and is presently contributing to the handling,
storage or disposal or hazardous chromium waste by its "studied
indifference" to the Trader Horn Site's condition after learning of the
environmental threat. Interfaith claims that Roned-JC should have taken
specific measures to clean up the Trader Horn Site after learning that it
was contaminated to abate the harm. Roned-JC responds that by permitting
Honeywell to enter onto the Trader Horn Site and conduct remedial
efforts, Roned, in effect, took such measures, and thus was not
`indifferent' to the Trader Horn Site's condition.
This Court agrees with Roned-JC that it has taken no active role in
contributing to the contamination of the Trader Horn Site. However, RCRA
is a comprehensive statutory scheme and as such, courts have imposed RCRA
liability on parties that have contributed to the handling or disposal of
hazardous waste by "passive inaction" or "studied indifference." See
U.S. v. Price, 523 F. Supp. 1055, 1071 (D.N.J. 1981),
affirmed, 688 F.2d 204 (3d Cir. 1982). In light of Congress'
guiding instruction that RCRA's use of the phrase "contributing to" should
be interpreted liberally, this Court adopts the reasoning in Price as
persuasive and holds that passive inaction or studied indifference can
create liability under RCRA. Furthermore, RCRA is not primarily targeted
at punishing environmentally unsound acts, but rather at reducing "the
generation of hazardous waste and . . . ensur[ing] the proper treatment,
storage and disposal of that waste which is nonetheless generated, `so as
to minimize the present and future threat to human health and the
environment.'" Meghrig v. KFC Western, Inc., 516 U.S. 479,
483 (1996) (citing_42 U.S.C. § 6902(b)).
As such, this Court finds Roned-JC's potential culpability to be
irrelevant. The record is clear that Roned-JC is aware that COPR
the Trader Horn Site and that the COPR may, in some form or
fashion, be causing further damage to the land and surrounding
environment. Accordingly, this Court finds that a genuine issue of
material fact exists as to whether Roned-JC is contributing to the
further contamination of the Trader Horn Site by permitting the chromium
ore processing residue on the Trader Horn Site to continue harming the
In light of this Court's finding that an issue of fact exists as to the
`contributing to' prong of the analysis for RCRA liability, this Court
need not proceed further and discuss the remaining portions of the
conjunctive RCRA analysis. However, this Court will note that as
similarly discussed in this Court's March 12, 2002 Opinion, a genuine
dispute of material fact exists as to whether any of the chromium residue
on the Trader Horn Site is being released and causing an "imminent and
substantial endangerment to health or the environment." See Interfaith
Community Organization, 188 F. Supp.2d at 503-04;
42 U.S.C. § 6972(a)(1)(B). Accordingly, Roned-JC's
motion for summary judgment of Plaintiffs' RCRA claim (Complaint-Count I)
IV. Honeywell's Cross-Claims Against Roned-JC.
Defendant Honeywell has asserted five cross-claims against the Grace
Defendants and the Roned Defendants. See Honeywell's Second Amended
Cross-Claims, ¶¶ 33-73. This section of the Court's Opinion will
address each of Honeywell's cross-claims as they apply to Roned-JC.
A. Honeywell's cross-claim under RCRA.
Count Five of Defendant Honeywell's Second Amended Cross-Claims seeks
injunctive relief under RCRA against Roned-JC for contributing to the
past or present storage or disposal of hazardous/solid waste by "failing
to exercise due care in handling, storing, transporting, treating, and
for disposal of waste containing chromium at the Site and refusing to
assist in and intentionally interfering with Honeywell's investigation
and remediation of waste containing chromium at the [Trader Horn] Site."
Honeywell's Second Amended Cross-Claims, ¶ 72. In relief, Honeywell
seeks attorneys' fees, interest and an injunction directing Roned-JC to
abate the environmental harm created by the Trader Horn Site's
contamination. For the reasons stated in Part III of this Opinion,
supra, Roned-JC's motion for summary judgment as to Honeywell's RCRA
claim is denied.
B. Honeywell's contribution cross-claim under CERCLA.
Honeywell generally denies that it is liable to Interfaith under RCRA,
but insofar as Honeywell might possibly be found liable to Interfaith,
Honeywell has sought contribution from the remaining defendants. Count
One of Honeywell's Second Amended Cross-Claims seeks contribution under
section 113(f) of CERCLA. In relief, Honeywell, seeks all past and future
response costs, attorneys' fees and interest.
The Comprehensive Environmental Response, Compensation, and Liability
Act ("CERCLA") was enacted in 1980 to eliminate unsafe hazardous waste
sites. See H.R. Rep. No. 1016, Part I, 96th Cong., 2d Sess. 1, 17-22,
reprinted in 1980 U.S. Code Cong. & Admin. News 6119, 6119-25. "Amended
in 1986 by the Superfund Amendments and Reauthorization Act of 1986
("SARA"), Pub.L. No. 99-499, 1986 U.S. Code Cong. & Admin. News (100
Stat.) 1613, CERCLA authorizes the [Environmental Protection Agency
("EPA")] to clean up hazardous waste sites itself and creates a
`Superfund'" to pay for the EPA's activities. United States v. Aceto
Agricultural Chemicals Corp.,
872 F.2d 1373, 1377 (8th Cir. 1989);
26 U.S.C. § 9507; 42 U.S.C. § 9604-05. The 1986 SARA amendments to
CERCLA also added section 113(f), which permits private parties to file
contribution suits under CERCLA. See also Keytronic Corp. v. United
States, 511 U.S. 809, 816 (1994).
Section 113(f) of CERCLA provides as follows:
Any person may seek contribution from any other
person who is liable or potentially liable under
section 9607(a) of this title, during or following
any civil action under section 9606 of this title or
under section 9607(a) of this title. Such claims
shall be brought in accordance with this section and
the Federal Rules of Civil Procedure, and shall be
governed by Federal law. In resolving contribution
claims, the court may allocate response costs among
liable parties using such equitable factors as the
court determines are appropriate. Nothing in this
subsection shall diminish the right of any person to
bring an action for contribution in the absence of a
civil action under section 9606 of this title or
section 9607 of this title.
A person who has resolved its liability to the
United States or a State in an administrative or
judicially approved settlement shall not be liable
for claims for contribution regarding matters
addressed in the settlement. Such settlement does
not discharge any of the other potentially liable
persons unless its terms so provide, but it reduces
the potential liability of the others by the amount
of the settlement.
(3) Persons not party to settlement
(A) If the United States or a State has obtained
less than complete relief from a person who
has resolved its liability to the United
States or the State in an administrative or
judicially approved settlement, the United
States or the State may bring an action
against any person who has not so resolved its
(B) A person who has resolved its liability to the
United States or a State for some or all of a
response action or for some or all of the
costs of such action in an administrative or
judicially approved settlement may seek
contribution from any person who is not party
to a settlement referred to in paragraph (2).
(C) In any action under this paragraph, the rights
of any person who has resolved its liability
to the United States or a State shall be
subordinate to the rights of the United States
or the State. Any contribution action brought
under this paragraph shall be governed by
42 U.S.C. § 9613(f). As described, section 113(f) permits private
parties, such as Honeywell, to recover its response costs in contribution
from any other `person' that is liable or potentially liable for
contaminating an applicable site under section 107(a) of CERCLA. Through
a contribution suit, a potentially responsible party who has incurred
expenditures in remedial efforts at an applicable site may recover any
response cost that exceeds its equitable share under the circumstances.
New Jersey Turnpike Authority, 197 F.3d at 104.
A section 113(f) contribution analysis begins with an assessment
whether a particular person or entity falls within the ambit of CERCLA's
"central liability provision," section 107(a). 3 S. Cooke, The Law of
Hazardous Waste, § 16.01 at 16-4 (2001); 42 U.S.C. § 9607(a).
The four categories of potentially liable parties are:
(1) the owner and operator of a vessel or a facility
[where hazardous substances are or may be released],
(2) any person who at the time of disposal of any
hazardous substance owned or operated any facility
at which such hazardous substances were disposed
(3) any person who by contract, agreement, or otherwise
arranged for disposal or treatment, or arranged
with a transporter for transport for disposal or
treatment, of hazardous substances owned or
possessed by such person, by any other party or
entity, at any facility or incineration vessel
owned or operated by another party or entity and
containing such hazardous substances [where such
hazardous substances are or may be released], and
(4) any person who accepts or accepted any hazardous
substances for transport to disposal or treatment
facilities, incineration vessels or sites [where
hazardous substances are or may be released].
42 U.S.C. § 9607(a) (emphasis added). If a person or entity falls
within one of these four "covered person" categories, then they are
subject to liability under CERCLA. Aside from the covered person
requirement, a party seeking to establish CERCLA liability must also show
that the site in question is a "facility" from which a release or
threatened release of a hazardous substance causes a party to incur
response costs to remediate the potential environmental harm.
42 U.S.C. § 9607(a); New Jersey Turnpike Authority v. PPG Industries, Inc.,
197 F.3d 96, 103 (3d Cir. 1999); United States v. CDMG Realty Co.,
96 F.3d 706, 712 (3d Cir. 1996); SC Holdings, Inc. v. A.A.A. Realty, Co.,
935 F. Supp. 1354, 1361 (D.N.J. 1996). CERCLA imposes
strict, joint and several liability upon responsible parties. New
Jersey Turnpike Authority, 197 F.3d at 104.
Turning first to the `facility' requirement, Section 101(9) of CERCLA
defines the term "facility" as:
(A) any building, structure, installation, equipment,
pipe or pipeline (including any pipe into a sewer
or publicly owned treatment works), well, pit,
pond, lagoon, impoundment, ditch, landfill, storage
container, motor vehicle, rolling stock, or
(B) any site or area where a hazardous substance has
been deposited, stored, disposed of, or placed, or
otherwise come to be located; but does not include
any consumer product in consumer use or any vessel.
42 U.S.C. § 9601(9). Under this very broad definition, Study Area 7
constitutes a facility for the purposes of a CERCLA analysis because it
is a "site or area where a hazardous substance has been deposited,
stored, disposed of, or placed, or otherwise come to be located." Id.
Turning to the remaining requirements, Honeywell has incurred response
costs. With regard to the "covered person" and "release or threatened
release" requirement, this Court finds that a question of material fact
exists as to these two prongs of the CERCLA analysis. Roned-JC is
certainly the present owner of the Trader Horn Site. However, it is not
clear, as a matter of law, that there is a present release or threatened
release of a hazardous substance at the Trader Horn Site.
Because these threshold questions of liability are in dispute,
Roned-JC's motion for summary judgment on count one of Honeywell's
Second Amended Cross-Claims is denied.*fn1
C. Honeywell's contribution cross-claim under the New Jersey Spill
Count two of Honeywell's Second Amended Cross-Claims assert a
contribution claim under the New Jersey Spill Compensation and Control
Act, N.J. Stat. Ann. §§ 58:10-23.11 through 58:10-23.24. The Spill Act
is a CERCLA-like environmental statute that 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. Such person shall also be
strictly liable, jointly and severally, without regard
to fault, for all cleanup and removal costs incurred . . .
N.J. Stat. Ann. §§ 58:10-23.11g(c)(1). The Spill Act's contribution
provision, provides in pertinent part:
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
hazardous substance. In an action for contribution, the
contribution plaintiffs need prove only that a discharge
occurred for which the contribution defendant or
defendants are liable pursuant to the provisions of
subsection c. of section 8 of P.L. 1976, c. 141
(C.58:10-23.11g), and the contribution defendant shall
have only the defenses to liability available to parties
pursuant to subsection d. of section 8 of P.L. 1976, c.
141 (C.58:10-23.11g). In resolving contribution claims,
a court may allocate the costs of cleanup and removal
among liable parties using such equitable factors as the
court determines are appropriate.
N.J. Stat. Ann. § 58:10-23.11f(a)(2). To add a further dimension
to this analysis, N.J. Stat. Ann. § 58:10-23.11g(c)(3) provides
In addition to the persons liable pursuant to this
subsection, any person who owns real property acquired
on or after September 14, 1993 on which there has been a
discharge prior to the person's acquisition of that
property and who knew or should have known that a
hazardous substance had been discharged at the real
property, shall be strictly liable, jointly and
severally, without regard to fault, for all cleanup and
removal costs no matter by whom incurred. Such person
shall also be strictly liable, jointly and severally,
without regard to fault, for all cleanup and removal
costs incurred by the department or a local unit
pursuant to subsection b. of section 7 of P.L. 1976, c.
141 (C.58:10-23.11f). Nothing in this paragraph shall
be construed to alter liability of any person who
acquired real property prior to September 14, 1993.
N.J. Stat. Ann. § 58:10-23.11g(c)(3).
Roned-JC is the owner of the Trader Horn Site as evidenced by a 1995
deed. However, Roned-JC maintains that it has actually owned the Trader
Horn site since 1979 and that the 1995 deed was recorded to correct prior
errors in the recording process. Honeywell argues that this factual
dispute over the applicability of N.J. Stat. Ann. §
58:10-23.11g(c)(3) necessitates the denial of Roned-JC's motion. See
Second Declaration of Edward Navlen, ¶¶ 3-4, Exhibit A; Fourth
Declaration of Michael J. Caffrey, ¶¶ 3-4, Exhibits 70, 71.
Honeywell also argues that Roned-JC, as the owner of the Trader Horn
Site is a "person who has discharged a hazardous substance, or is in any
way responsible for any hazardous substance." A "person" under the Spill
public or private corporations, companies, associations,
societies, firms, partnerships, joint stock companies,
as well as individuals, and when used to designate the
owner of property which may be subject to this chapter,
includes this State, the United States, any other state
of the United States, and any foreign country or
government, and any political subdivisions or agents,
lawfully owning or possessing property in this State.
N.J.A.C. § 7:1E-1.6. Moreover, a "person responsible for a discharge"
1. Any person whose act or omission results or has
resulted in a discharge;
2. Each owner or operator of any facility, vehicle or
vessel from which a discharge has occurred;
3. Any person who owns or controls any hazardous
substance which is discharged;
4. Any person who has directly or indirectly caused a
5. Any person who has allowed a discharge to occur; or
6. Any person who brokers, generates or transports the
hazardous substance discharged.
N.J.A.C. § 7:1E-1.6. In addition, a "discharge" is defined as:
any intentional or unintentional action or omission,
unless pursuant to and in compliance with the conditions
of a valid and effective Federal or State permit,
resulting in the releasing, spilling, pumping, pouring,
emitting, emptying or dumping of a hazardous substance
into the waters or onto the lands of the State, or into
waters outside the jurisdiction of the State when damage
may result to the lands, waters or natural resources
within the jurisdiction of the State. This term does not
N.J.A.C. § 7:1E-1.6. Finally, a hazardous substance includes all
substances listed in Appendix A to N.J.A.C. § 7:1E-1.7, which
includes chromium and all chromium compounds.
These definitions, interpreted liberally, would appear to permit a
finding of liability against Roned-JC. However, the New Jersey Superior
Court, Appellate Division recently addressed the question of what
constitutes a "discharge" and a "person responsible for a discharge"
under the New Jersey Spill Act in White Oak Funding, Inc. v. Winning,
341 N.J. Super. 294 (App. Div.), certif. denied,
170 N.J. 209 (2001). In White Oak Funding, Inc., the Court
pointed out that a discharge "requires some act of omission of human
conduct which causes a hazardous material not previously present to enter
the waters or land." White Oak Funding, Inc., 341 N.J. Super. at 299 (citing
Atlantic City Municipal Utilities Authority v. Hunt,
210 N.J. Super. 76, 99-100 (App. Div. 1986)). The
Appellate Division further pointed out that "[l]iability does not result
from passive migration of a hazardous material that previously entered
the site" Id. This last quote appears to describe Roned-JC's
relationship to the potential harm at the Trader Horn Site. Said
differently, if Roned-JC is found responsible for any contamination at
the Trader Horn site, such contamination could only result from Roned's
passive inaction (i.e., failure to assist in remediating the harm). While
passive behavior can possibly support a finding of liability under federal
law, the N.J. Spill Act only imposes liability on non-passive
dischargers. Accordingly, the decision in White Oak Funding, Inc.
convinces this Court that Roned-JC's motion for summary judgment as to
Count Two of Honeywell's Second Amended Cross-Claims should be granted.
D. Honeywell's cross-claim for relief under New Jersey's Joint
Tortfeasors Contribution Law.
Count Three of Honeywell's Second Amended Cross-Claims seeks
contribution under the New Jersey Joint Tortfeasors Contribution Law,
N.J. Stat. Ann. § 2A:53A. As noted in the New Jersey Spill Act,
"[n]othing . . . [under the New Jersey Spill Act's contribution
provisions] shall affect the right of any party to seek contribution
pursuant to any other statute or under common law." N.J. Stat. Ann. §
58:10-23.11f(a)(2). However, in light of this Court's holding that
Roned-JC is entitled to summary judgment as to Honeywell's substantive
cross-claim under New Jersey law (the N.J. Spill Act), this Court holds
that Honeywell's claim for contribution under the New Jersey Joint
Tortfeasors Contribution Law should also be dismissed. Accordingly, this
Court finds that Roned-JC's motion for summary judgment on count three of
Honeywell's Second Amended Cross-Claims is also granted.
E. Honeywell's cross-claim for declaratory relief under New Jersey's
Uniform Declaratory Judgment Law, CERCLA and the Federal Declaratory
Count four of Honeywell's Second Amended Cross-Claims asserts a right
to declaratory judgment under CERCLA, 42 U.S.C. § 9613(g), the
Federal Declaratory Judgment Act, 28 U.S.C. § 2201 and 2202 and the
New Jersey Uniform Declaratory Judgment Law, N.J. Stat. Ann. §
2A:15-50. As discussed throughout this Opinion, Roned-JC and Honeywell
are each involved in an actual controversy against each other and the
other parties to this litigation. Additionally, Honeywell has shown that
its cross-claim against Roned-JC under CERCLA has sufficient merit to
survive a motion for summary judgment. Honeywell is under a present
obligation to fully remediate the contaminated condition of Study Area 7
and through this litigation, seeks to establish whether it has or has not
sufficiently done so. Taking all of these factors into consideration,
Honeywell could potentially be entitled to a declaratory judgment by this
Court to help define the rights and responsibilities of each of the
parties and eventually reach a final resolution to this matter should it
proceed to judgment. However, if a declaratory judgment were necessary in
this matter, it can only arise under the Federal Declaratory Judgment Act
and/or CERCLA. Honeywell is not entitled to seek declaratory judgment
under the New Jersey Uniform Declaratory Judgment Law because Honeywell's
substantive state cross-claim against Roned-JC is dismissed. As a
result, Roned-JC's motion for summary judgment on this count is denied as
to the Federal Declaratory Judgment Act and granted as to the New Jersey
Uniform Declaratory Judgment Law.
V. The Grace Defendants Cross-Claim Pursuant to the New Jersey Joint
Tortfeasors Contribution Law Against the Roned Defendants.
Insofar as the Grace Defendants may be held liable in this matter, the
Grace Defendants have asserted a cross-claim for contribution "pursuant
to the statutory contribution laws of the State of New Jersey." See
Answer and Cross-Claims of Defendants W.R. Grace & Co.-Conn.,
W.R. Grace, Ltd. and ECARG, Inc. at 10; see also A0382.*fn2
out by the Roned
Defendants, this cross-claim appears to invoke the New
Jersey Joint Tortfeasors Contribution Law, N.J. Stat. Ann. § 2A:53A-3
et seq. It is noteworthy to mention that while this cross-claim was
asserted by the Grace Defendants in its original answer and cross-claim,
the Grace Defendants did not renew this cross-claim in any of its three
subsequent amended cross-claims. In any case, a review of the record
shows that while the Grace Defendants possessed an interest in the
Roosevelt Drive-In Site and the Clean Machine Car Wash, they never owned
an interest in the Trader Horn Site. See Brief In Support of Roned
Defendants' Motion for Summary Judgment on All Claims at 22; Fourth
Declaration of Michael J. Caffrey, Exhibit 70; Roned 56.1 Statement,
¶ 15; Honeywell 56.1 Response, ¶ 15; Second Declaration of
Edward Navlen, Exhibit A; Amended Complaint, ¶ 42. Roned-JC, on the
other hand, only possesses an interest in the Trader Horn Site and has
never possessed an interest in the Roosevelt Drive-In Site or the Clean
Machine Car Wash. Accordingly, this Court holds that Roned-JC's motion
for summary judgment of the Grace Defendant's cross-claim for
contribution is granted.
For the foregoing reasons, the Roned Defendants' motion is granted in
part and denied in part. Specifically, Roned-Union's motion for summary
judgment is granted and thus Roned-Union is dismissed from this case.
Roned-JC's motion for summary judgment as to Count One of Interfaith's
complaint is denied. Roned-JC's motion for summary judgment of
Honeywell's Second Amended Cross-Claims is denied as to Counts One and
Five, granted as to Counts Two and Three, and granted in part and denied
in part as to Count Four. Roned-JC's motion for summary judgment as to
the Grace Defendant's cross-claim for contribution is granted. An Order
accompanies this Opinion.
This matter having come before the Court on motion by Defendants Roned
Realty of Jersey City, Inc. and Roned Realty of Union, Inc. for summary
judgment [Docket Entry 194-1] as to all claims and cross-claims against
them; and the Court having reviewed the submissions in support of and in
opposition to the motion; and for the reasons discussed in the Opinion of
this Court filed this day; and for good cause shown,
IT IS ON THIS 13th DAY OF JUNE 2002;
ORDERED that the Roned Realty of Union, Inc.'s motion for summary
judgment of all claims and cross-claims against it is granted; and it is
ORDERED that Roned Realty of Union, Inc. is dismissed from this case;
and it is further
ORDERED that Roned Realty of Jersey City, Inc.'s motion for summary
judgment of Count One of Plaintiffs' Complaint by Interfaith Community
Organization, Lawrence Baker, Martha Webb Herring, Margaret Webb,
Reverend Winston Clarke and Margarita Navas is denied; and it is further
ORDERED that Roned Realty of Jersey City, Inc.'s motion for summary
judgment as to Counts One and Five of Defendant Honeywell International
Inc.'s cross-claims is denied; and it is further
ORDERED that Roned Realty of Jersey City, Inc.'s motion for summary
judgment as to Counts Two and Three of
Defendant Honeywell International
Inc.'s cross-claims is granted; and it is further
ORDERED that Roned Realty of Jersey City, Inc.'s motion for summary
judgment as to Counts Four of Honeywell International Inc.'s cross-claims
is denied as to the Federal Declaratory Judgment Act and CERCLA and
granted as to the New Jersey Uniform Declaratory Judgment Law; and it is
ORDERED that Roned Realty of Jersey City, Inc.'s motion for summary
judgment as to W.R. Grace & Company, ECARG, Inc. and W.R. Grace, Ltd.'s
cross-claim for contribution is granted.