September 16, 2003
MORTON INTERNATIONAL, INC.; VELSICOL CHEMICAL CORPORATION; NWI LAND MANAGEMENT CO.; FRUIT OF THE LOOM, INCORPORATED,
A.E. STALEY MANUFACTURING COMPANY; AIRCO INDUSTRIAL GASES, A/K/A AIR REDUCTION COMPANY, INC., F/K/A AIRCO, INC.; ALLIED CHEMICAL CORPORATION; ALUMINUM COMPANY OF AMERICA (ALCOA); AMERICAN CYANAMID COMPANY; ARMSTRONG WORLD INDUSTRIES, INC.; ARSYNCO, INC.; BAILEY CONTROLS CO., F/K/A BAILEY METER COMPANY; BECTON-DICKINSON & CO., INC.; BELFORT INSTRUMENT CO.; BELMONT METALS, INC., F/K/A BELMONT SMELTING & REFINING WORKS, INC.; CANADIAN GYPSUM COMPANY, LTD.; CANRAD, INC., (C/O CANRAD PRECISION INDUSTRIES, INC.); CIBA-GEIGY CORPORATION; COLUMBIA UNIVERSITY; CONOPCO, INC., (CHEESEBOROUGH PONDS U.S.A. CO. DIVISION); COSAN CHEMICAL CORP.; CROUSE HINDS SEPCO CORPORATION, F/K/A CONNECTICUT INTERNATIONAL; CROWN ZELLERBACH CORP., A/K/A JAMES RIVER CORPORATION OF NEVADA; CURTISS-WRIGHT; D.F. GOLDSMITH CHEMICAL & METAL CORPORATION; DAY & BALDWIN, F/K/A C-P PHARMACEUTICALS, INC.; DIAMOND SHAMROCK CHEMICALS COMPANY, A/K/A OCCIDENTAL ELECTROCHEMICALS CORPORATION; DOW-CORNING CORPORATION; DURA ELECTRIC LAMP CO., INC.; DURACELL, INC., (AS SUCCESSOR TO MALLORY BATTERY CO., INC.); E.I. DUPONT DE NEMOURS & CO.; EASTERN SMELTING & REFINING CORP.; EAGLEHARD MINERALS AND CHEMICALS CORPORATION; ENVIRONMENTAL CONTROL SYSTEMS; EXXON CORPORATION; FEDERAL AVIATION ADMINISTRATION; GARFIELD BARING CORPORATION, F/K/A GARFIELD SMELTING & REFINING CO.; GENERAL ELECTRIC COMPANY; GENERAL COLOR CO., INC.; GENERAL SIGNAL CORPORATION; GILMARTIN INSTRUMENT CO.; HARTFORD ELECTRIC SUPPLY COMPANY, INC.; HENKEL CORPORATION; HOFFMAN-LAROUCHE, INC.; HUDSAR, INCORPORATED; INMAR ASSOCIATES, INC.; INMAR REALTY, INC.; INTERNATIONAL NICKEL, INC.; J.M. NEY COMPANY; K.E.M. CHEMICAL COMPANY; KOPPERS, A/K/A BEAZER EAST, INC.; MAGNESIUM ELEKTRON, INC.; MARVIN H. MAHAN; MALLINCKRODT CHEMICAL, INC.; MARISOL, INC.; MERCK & CO., INC.; MERCURY ENTERPRISE, INC., F/K/A MERCURY INSTRUMENT SERVICE; MINNESOTA MINING AND MANUFACTURING COMPANY; MOBIL OIL CORPORATION; MT. UNION COLLEGE; M.W. KELLOGG CO.; NATIONAL LEAD COMPANY, (GOLDSMITH BROTHERS DIVISION); NEPERA, INC.; NEW ENGLAND LAMINATES CO., INC.; NEW JERSEY INSTITUTE OF TECHNOLOGY, F/K/A NEWARK COLLEGE OF ENGINEERING; NEW YORK CITY TRANSIT AUTHORITY; NORTHEAST CHEMICAL CO., (NORTHEAST CHEMICAL & INDUSTRIAL SUPPLY CO., INC.); OCCIDENTAL CHEMICAL CORPORATION, (AS SUCCESSOR TO DIAMOND SHAMROCK CHEMICAL CO., FORMERLY DIAMOND SHAMROCK CORPORATION); OLIN CORPORATION, F/K/A OLIN MATHIESON CHEMICAL CORPORATION; PEASE & CURREN, INC.; PFIZER, INC.; PSG INDUSTRIES, INC., F/K/A PHILADELPHIA SCIENTIFIC GLASS, INC.; PHILLIPS & JACOBS, INC.; PUBLIC SERVICE ELECTRIC & GAS, (PSE&G); PURE LAB OF AMERICA; RANDOLPH PRODUCTS COMPANY; RAY-O-VAC DIVISION OF ESB, INC., (ESB, INC.); REDLAND MINERALS LIMITED; RHONE-POULENC, INC., F/K/A ALCOLAC CHEMICAL COMPANY/GUARD CHEMICAL COMPANY; ROYCE ASSOCIATES, F/K/A ROYCE CHEMICAL; RUTGERS, THE STATE UNIVERSITY; SCIENTIFIC CHEMICAL PROCESSING, INC.; SCIENTIFIC CHEMICAL TREATMENT CO., INC.; SCIENTIFIC, INC.; SEAFORTH MINERAL & ORE CO.; SPARROW REALTY, INC.; STATE UNIVERSITY OF NEW YORK AT BUFFALO, (S.U.N.Y.A.B.); SYLVANIA/GTE; TENNECO, INC.; TRANSTECH INDUSTRIES, INC.; UEHLING INSTRUMENT CO., INC.; UNION CARBIDE CORPORATION; UNIVERSAL OIL PRODUCTS CO.; UNIVERSITY OF ILLINOIS; UNIVERSITY OF MINNESOTA; VAR-LAC-OID CHEMICAL COMPANY, INC.; W.A. BAUM CO., INC.; WAGNER ELECTRIC COMPANY; WESTERN MICHIGAN UNIVERSITY; WESTINGHOUSE ELECTRIC CORPORATION; JOHN DOE 1-100; GEROLD C. THOMPSON, ESQ.; GEORGE VAN CLEVE, ESQ.; THE CONNECTICUT LIGHT AND POWER COMPANY, F/K/A HARTFORD ELECTRIC LIGHT COMPANY; GTE OPERATIONS SUPPORT INCORPORATED; ALLIEDSIGNAL, INC.; BEAZER EAST, INC.; JERSEY CITY MANAGEMENT, INC.; MICHAEL RODBURG, SITE DEFENDANTS LIASION COUNSEL; ASHLAND CHEMICAL CO., A DIVISION OF ASHLAND OIL, INC.; BASF CORPORATION, AND AS SUCCESSOR TO WYANDOTTE CHEMICAL CORP., A/K/A INMONT CORPORATION; FMC CORPORATION MORTON INTERNATIONAL, INC., APPELLANT
On Appeal from the United States District Court for the District of New Jersey District Court Judge: Honorable Katherine S. Hayden (D.C. No. 96-cv-03609)
Before: Fuentes, Smith, and Greenberg,
The opinion of the court was delivered by: Fuentes, Circuit Judge:
This appeal challenges the grant of summary judgment to one defendant, Tennessee Gas Pipeline Co. ("Tenneco"), in an action seeking contribution toward environmental cleanup costs. These costs have been or will be incurred by plaintiff-appellant Morton International, Inc. ("Morton") in regard to the Ventron/Velsicol Superfund Site in Wood Ridge, New Jersey (the "Site" or "plant"). Morton and three other plaintiffs, who are not parties to this appeal, sought contribution under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9601 et seq., the New Jersey Spill Compensation and Control Act ("Spill Act"), N.J.S.A. 58:10-23.11 et seq., and common law.
Morton argues that Tenneco should be responsible, under the "arranged for" provision of CERCLA Section 107(a)(3), for some of the cleanup costs because it arranged for the processing of mercury at the facility for many years, resulting in the release of hazardous waste into the environment. Because we agree with Morton that material factual issues remain with respect to whether Tenneco (1) owned or possessed prime virgin mercury, (2) had knowledge of the environmental hazards of mercury processing at the plant, (3) had control over the hazardous waste disposal practices at the plant, and (4) shipped its own "dirty mercury" to the plant, we will remand for further proceedings consistent with this opinion.
The parties dispute many of the facts central to this appeal, but the following facts are undisputed. From 1929 to 1974, a mercury processing plant was operated at the Site. The plant was the largest domestic producer of intermediate inorganic mercury compounds, including red and yellow oxides of mercury ("ROM" and "YOM"). The compounds were formulated, at least in part, using prime virgin mercury ("PVM"). In addition, the plant cleaned mercury that had been contaminated ("dirty mercury") and then converted it into intermediate compounds for some of its customers. The plant released harmful waste into the environment for decades.
The plant was owned by F.W. Berk & Company from 1929 to 1960. It was transferred to Wood Ridge Chemical Corporation (its parent company is Velsicol Chemical Corporation) in 1960, and then again to Ventron Corporation in 1968. The plant was closed in 1974. Sometime thereafter, Ventron merged into Thiokol, which then merged into Morton-Thiokol, which eventually became Morton.
The parties agree that Tenneco purchased ROM and YOM from the plant from 1963 until the early 1970's. The parties disagree, however, as to the nature of the transactions between Tenneco and the plant, Tenneco's knowledge of waste disposal by the plant, and whether Tenneco shipped "dirty mercury" to the plant for processing.
In the 1970's, the New Jersey Department of Environmental Protection commenced an action against Ventron, Velsicol, and other parties for cleanup and removal of mercury at the Site. Eventually, Velsicol and Morton were held strictly liable, jointly and severally, for the cleanup of the Site, and that judgment was upheld following numerous appeals and successive litigation. See Morton International, Inc. v. General Acc. Ins. Co. of America, 629 A.2d 831, 880 (N.J. 1993) (concluding that Morton's predecessors had intentionally discharged pollutants over a long period of time); State Department of Environmental Protection v. Ventron Corp., 468 A.2d 150, 161-62 (N.J. 1983) (finding defendants violated statute prohibiting the discharge of detrimental material into waters by intentionally permitting mercury-laden effluent to escape onto lands surrounding creek). After the enactment of CERCLA in 1980, and the listing of the Site on the National Priorities List, Morton, as the current owner of the Site, Velsicol, and various other entities were required to perform a remedial investigation/feasibility study for the Site. Since then, Morton has been funding the environmental efforts under various judicial orders.
C. The present litigation
Morton filed this action in 1996 seeking contribution from Tenneco and numerous other defendants under CERCLA, 42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act ("RCRA"), Pub. L. No. 94-580, § 1, 90 Stat. 2795 (1976), as amended 42 U.S.C. § 6901 et seq., the Spill Act, N.J.S.A. 58:10-23.11 et seq., and common law.*fn1 Morton argues that the "conversion" or "toll" agreements, whereby the plant processed the customers' PVM into ROM and YOM, and the "dirty mercury" processing agreements render the customerdefendants subject to CERCLA liability as "arrangers" under Section 107(a)(3), 42 U.S.C. § 9607(a)(3). Morton is trying to recover from other allegedly responsible parties some of the costs it has incurred and will continue to incur to clean up the Site.
Tenneco and the other defendants refuse to share responsibility for the cleanup costs. The defendants argue that Morton's characterization of the PVM transactions is inaccurate; these transactions were nothing more than straight purchases of finished products (ROM and YOM), which do not expose them to CERCLA liability. On April 11, 2000, Tenneco and the other defendants moved for summary judgment in an omnibus motion. The District Court denied their motion with respect to the CERCLA, Spill Act, and common law claims because of the varying, complex fact patterns and material factual disputes with respect to each defendant. The District Court granted the defendants' motion to dismiss Morton's RCRA claim.*fn2
Several months later, Tenneco filed a renewed motion for summary judgment — this time on its own behalf. Morton responded by incorporating by reference the briefings and evidence it had submitted in response to the omnibus summary judgment motion. After hearing oral argument on Tenneco's individual motion, the District Court ruled from the bench and granted summary judgment to Tenneco on all claims.
The District Court had jurisdiction over Morton's federal claims pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 9613. The District Court exercised pendent jurisdiction over Morton's state law claim pursuant to 28 U.S.C. § 1367. We have jurisdiction to hear this appeal from the final order of the District Court pursuant to 28 U.S.C. § 1291.*fn3
The District Court has asked us to "definitively address" the standard for "arranger liability" under CERCLA Section 107(a)(3) in this Circuit in order to properly resolve Morton's contribution claims against Tenneco and the other defendants in this case.*fn4
A. CERCLA "Arranger Liability" Standard
Congress enacted CERCLA in 1980 "in response to the serious environmental and health risks posed by industrial pollution." United States v. Bestfoods, ...
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