The opinion of the court was delivered by: Dennis M. Cavanaugh, U.S. District Judge.
Before the Court are several motions that shall be addressed in this Opinion. First, Defendants W.R. Grace & Company and W.R. Grace, Ltd. have moved for summary judgment as to all cross-claims asserted against them by Defendant Honeywell International, Inc. Second, W.R. Grace & Co. has moved for summary judgment on Counts Two and Twelve of its Third Amended Cross-Claims against Honeywell International, Inc. Third, Honeywell International, Inc. has cross-moved against W.R. Grace & Co. to have Counts Two and Twelve of W.R. Grace & Co.'s Third Amended Cross-Claims dismissed. Fourth, Ecarg, Inc. has moved for partial summary judgment on Counts Three and Twelve of its Third Amended Cross-Claims against Honeywell. Fifth, Honeywell has also cross-moved against Ecarg, Inc. to dismiss Counts Three and Twelve of Ecarg, Inc.'s Third Amended Cross-Claims. Sixth, the Grace Defendants have moved for summary judgment on Count Five of its Third Amended Cross-Claims. Seventh, Honeywell International, Inc. has filed a motion for summary judgment seeking to dismiss the Grace Defendants Third Amended Cross-Claims. Eighth, Ecarg, Inc. seeks to have this Court apply a portion of its June 13, 2002 Opinion as law of the case to dismiss certain cross-claims by Honeywell International, Inc. against Ecarg, Inc. Ninth, Honeywell International, Inc. has requested that this Court reconsider its June 13, 2002 Opinion in part. Tenth, consolidated plaintiffs William Sheehan and Hackensack Riverkeeper, Inc. have moved for a stay of any further proceedings in the consolidated Hackensack Riverkeeper, Inc. et al. v. Honeywell Int'l, Inc. et al., Civil Action No. 00-1451 (DMC), to which Honeywell International, Inc. responds by cross-moving for dismissal or in the alternative, additional discovery.
For the reasons stated in this Opinion, the Court holds that Defendants W.R. Grace & Co. and W.R. Grace, Ltd.'s motion for partial summary judgment as to Honeywell International, Inc.'s cross-claims is granted. W.R. Grace & Co.'s motion for partial summary judgment and Honeywell's cross-motion regarding Counts Two and Twelve of the Grace Defendants' Third Amended Cross-Claims are denied. Ecarg, Inc.'s motion for partial summary judgment and Honeywell's cross-motion regarding Counts Three and Twelve of the Grace Defendants' Third Amended Cross-Claims are denied. The Grace Defendants' motion for partial summary judgment on Count Five of its Third Amended Cross-Claims is denied. Honeywell International, Inc.'s motion for summary judgment is granted in part and denied in part. Ecarg's application to have this Court apply its June 13, 2002 reasoning to dismiss certain cross-claims against Ecarg, Inc. is denied. Honeywell's request that this Court reconsider its June 13, 2002 Opinion in part is granted and upon reconsideration, this Court reverses itself in part. Hackensack Riverkeeper, Inc. and William Sheehan's motion for a stay of any further proceedings in Hackensack Riverkeeper, Inc. et al. v. Honeywell Int'l, Inc. et al., Civil Action No. 00-1451 (DMC) is granted. Honeywell International, Inc.'s cross-motion for dismissal of the Hackensack Riverkeeper matter and in the alternative, for additional discovery, is denied.
The facts in this matter are extensive and thus, this Opinion will only summarize the facts that are pertinent to the presently pending motions. The Court presumes that all parties of record are familiar with the prior opinions in this matter. See Interfaith Cmty. Org. v. AlliedSignal, Inc., 928 F. Supp. 1339 (D.N.J. 1996); Interfaith Cmty. Org. et al. v. Honeywell Int'l, Inc. et al., 188 F. Supp.2d 486 (D.N.J. 2002); Interfaith Cmty. Org. et al. v. Honeywell Int'l, Inc. et al., 204 F. Supp.2d 804 (D.N.J. 2002), also available at 2002 WL 1301351 (D.N.J. 2002).
The Site *fn1 in question consists of three parcels of land known as the Roosevelt Drive-In Site, the Trader Horn Site and the Clean Machine Car Wash Site, collectively referred to as Study Area 7. The present motions address the Roosevelt Drive-In Site and Clean Machine Car Wash Site, both owned at present by Ecarg, Inc. *fn2 None of the three Grace entities in this case are connected to the Trader Horn Site, presently owned by Roned Realty of Jersey City, Inc.
Mutual Chemical Company of America ("Mutual") is a chromate chemical processing company that was originally formed in 1827 and expanded into Jersey City, New Jersey in or about 1905. Second Declaration of Michael J. Caffrey, Ex. 38 at 287. 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. Plaintiffs' Amended Complaint ("Amended Compl."), ¶ 46. The process generated chromium-bearing waste or chromium ore processing residue ("COPR") that Mutual transported through a pipeline onto Study Area 7.
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") *fn3 (together "the Roned Defendants") and W.R. Grace & Co. ("Grace USA") *fn4 , Ecarg, Inc. ("Ecarg") and W.R. Grace, Ltd. ("Grace-England") *fn5 (together "the Grace Defendants") (collectively the "Defendants") seeking declaratory and injunctive relief mandating the cleanup of environmental contamination at Study Area 7 (the "Site"). Interfaith Cmty. Org. et al. v. Honeywell Int'l, Inc. et al., 188 F. Supp.2d 486, 489 (D.N.J. 2002). Interfaith's complaint prompted Honeywell and the Grace Defendants to file various cross-claims against each other. The majority of the motions discussed in this Opinion pertain to these cross-claims.
Interfaith is a not-for-profit corporation incorporated under the laws of the State of New Jersey. Amended Compl., ¶ 19. The remaining individual Plaintiffs Baker, Herring, Webb, Clarke and Navas are concerned citizens living near Study Area 7. Plaintiffs are not directly involved in the present motions.
On September 4, 2001, Hackensack Riverkeeper, Inc. et al. v. Honeywell Int'l et al., Civil Action No. 00-1451 (DMC) was consolidated with the present matter. Consolidated Plaintiff Hackensack Riverkeeper, Inc. ("Hackensack Riverkeeper") is a not-for-profit public interest corporation formed under the laws of New Jersey in 1997. Hackensack Riverkeeper, et al. v. Honeywell et al., Civil Action No. 00-1451 (DMC), Second Amended Complaint ("Consolidated Plaintiffs' Compl."), ¶ 28. Hackensack Riverkeeper's purpose is to protect, preserve and restore the Hackensack River and its living resources and to increase public awareness of the lower Hackensack River watershed's viability as a natural and recreational resource. Consolidated Plaintiffs' Compl., ¶ 29. Hackensack Riverkeeper operates various ecological and recreational programs and activities on, around, and in connection with the Hackensack River. Id., ¶¶ 30-31. Study Area 7's COPR contamination, which Hackensack Riverkeeper maintains is also polluting the Hackensack River, adversely impacts on Hackensack Riverkeeper's ability to operate these activities and spread awareness of the Hackensack River's viability as a natural resource. Id., ¶ 32. Consolidated plaintiff William Sheehan ("Sheehan") is an employee of Hackensack Riverkeeper and a recreational user of the Hackensack River. Id., ¶¶ 33, 34.
Roned Realty of Jersey City, Inc. is a corporation formed under the laws of the State of New Jersey since 1979 and present owner of the Trader Horn Site. Amended Compl., ¶ 45; Declaration of Edward Navlen ("Navlen Decl."), ¶¶ 2-3; Fourth Declaration of Michael J. Caffrey, Exhibit 70; Second Declaration of Edward Navlen, Exhibit A. Roned-JC is not directly involved in the presently pending motions.
Honeywell is incorporated under the laws of the State of Delaware. Amended Compl., ¶ 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. The drive-in was completed in 1955. Id. In 1965, Amy Joy Realty Corporation subdivided the Site and leased a portion to Goodrich Associates for the construction of a commercial building. Diana Stores Corporation later joined this sublease. In preparing for construction in 1965, COPR was discovered on the Site. Diana Stores Corporation merged into Daylin, Inc. in 1969. Daylin, in turn, was acquired in 1979 by Grace-USA and Grace-England. McFarland Decl., ¶ 3. Grace-USA is a corporation formed under the laws of the State of Connecticut. Amended Compl., ¶ 41. Grace-England is a direct subsidiary of Grace-USA with a registered office in London, England. Id.
In 1981, Daylin, Inc. ("Daylin") acquired two parcels of land constituting the largest portion of the Study Area 7 (the Roosevelt Drive-In Site and the Clean Machine Car Wash) (the "Site"). Id., ¶ 42; 56.1 Statement of Undisputed Facts in Support of W.R. Grace & Co.'s and W.R. Grace Ltd.'s motion for Summary Judgment on all Claims Asserted by Honeywell International, Inc. ("Grace's 56.1 Statement"), ¶ 1. At that time, Grace-USA and Grace-England were the sole stockholders of Daylin. In 1982, Daylin changed its name to the Grace Retail Corporation. McFarland Decl., ¶ 6. In November 1986, the Channel Acquisition Company ("Channel") acquired Grace Retail/Daylin and pursuant to a letter agreement, Grace Retail was to distribute some of its assets, including its portion of the Site, to Ecarg, Inc., a New Jersey corporation and a subsidiary of W.R. Grace & Co. formed in 1975, that presently holds formal title to the Roosevelt Drive-In and Clean Machine Car Wash sites. Amended Compl., ¶¶ 41-43; Declaration of Akos L. Nagy, ¶ 1; Grace 56.1 Statement, ¶ 3; Defendant Honeywell International Inc.'s Response to the Statement of Material Uncontroverted Facts of W.R. Grace & Co. and W.R. Grace Ltd. Regarding Their Motion for Summary Judgment on the Amended Cross-Claims of Honeywell ("Honeywell's 56.1 Response"), ¶ 3; Declaration of John A. McFarland ("McFarland Decl."), ¶ 8. It is undisputed that Grace-England never owned or operated the Site. Grace's 56.1 Statement, ¶ 4; Honeywell's 56.1 Response, ¶ 4; McFarland Decl., ¶ 12. Honeywell does assert, however, that while Grace-USA never formally held title to the site in question, it did act as an owner or operator along with Ecarg.
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). 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.
The Complaint and Cross-Complaints
Plaintiffs filed their Complaint on May 3, 1995. The Complaint was amended on August 2, 1995. In Count I of the Amended Complaint, Plaintiffs allege 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 Compl., ¶¶ 71-74. The remaining counts of Plaintiff's Amended Complaint have been dismissed. See Interfaith Cmty. Org. 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. Honeywell has also asserted cross-claims against the Roned Defendants seeking injunctive relief under RCRA, contribution under CERCLA, the New Jersey Spill Act, and the New Jersey Joint Tortfeasors Contribution Law, and declaratory relief.
In the consolidated matter (Civil Action No. 00-1451), Hackensack Riverkeeper and Sheehan filed a Second Amended Complaint on March 28, 2002 against Honeywell, Roned-JC, Grace-England, Grace-USA and Ecarg asserting violations of RCRA (Counts One and Two) and the Federal Water Pollution Control Act (Count Three). This amended filing prompted an exchange of amended cross-claims amongst the Defendants similar to those filed in the present matter.
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 Rule 56(c) of the Federal Rules of Civil Procedure, 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. 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. THE SUBSTANTIVE LAW UNDERLYING THE PRESENT MOTIONS.
The Court will structure this Opinion by first stating the applicable law involved in each of the pending motions. The Court will then analyze each pending motion separately.
A. Liability under Section 107 and Contribution under Section 113 of CERCLA.
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 Agric. Chems. 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 liability.
(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 Federal law. 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 Auth. v. PPG Indus., Inc., 197 F.3d 96, 104 (3d Cir. 1999).
A section 113(f) contribution analysis begins with an assessment of 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 of,
(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 Auth., 197 F.3d at 103; 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 Auth., 197 F.3d at 104.
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 aircraft, 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).
As this Court concluded in its June 13, 2002 Opinion regarding the motion for summary judgment as to Defendants Roned Realty of Union, Inc. and Roned Realty of Jersey City, Inc.,
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. See Interfaith Cmty. Org. et al. v. Honeywell Int'l, Inc. et al., 204 F. Supp.2d 804, 813 (D.N.J. 2002), also available at 2002 WL 1301351 * 9 (D.N.J. June 13, 2002).
Accordingly, it is the law of the case that the Site (Study Area 7) is a facility within the definition of CERCLA.
B. Contribution Under The New Jersey Spill Compensation and Control Act.
Count two of Honeywell's Second Amended Cross-Claims and Count Four of the Grace Defendants Third Amended Cross-Claims seek contribution under the New Jersey Spill Compensation and Control Act ("The Spill Act"). The Spill Act, N.J. Stat. Ann. §§ 58:10-23.11 through 58:10-23.24, 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, 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 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).
A "person" under the Spill Act includes:
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 ...