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United States v. Sensient Colors

October 30, 2007

UNITED STATES OF AMERICA, PLAINTIFF,
v.
SENSIENT COLORS, INC., DEFENDANT.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

MEMORANDUM OPINION & ORDER

This matter is before the Court on a motion by Defendant Sensient Colors, Inc. ("Sensient")to dismiss the Complaint of Plaintiff United States of America ("United States") pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. For the reasons expressed below, Defendant's motion will be denied.

FACTUAL BACKGROUND

According to the Complaint, from approximately 1922 to 1988, in Camden, New Jersey, Defendant owned a six acre site (the "Site") on which it operated a facility which manufactured inorganic and organic pigments and dyes. (Complaint ¶¶ 6, 8.) During those years, Defendant disposed on the Site hazardous substances, as defined by Section 101(14) of the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601(14).*fn1 (Id.at ¶ 9.)

Beginning in March 1988, the United States Environmental Protection Agency ("EPA") initiated investigations at the Site. (Id. at ¶ 11.) The investigations revealed thousands of tanks, vats, drums, cylinders, and other containers. (Id.) Hazardous substances as defined by Section 101(14) of CERCLA existed at the Site. (Id.) These hazardous substances included benzene, diethylamine, sodium perchlorate, xylene, toluene, mercury, aniline, and hydrolic acid. (Id.) Many of these hazardous substances were acutely toxic, chronically toxic, poisonous, corrosive, flammable, shock-sensitive, and ignitable. (Id.)

During the EPA's initial investigations, the Site was unsecured, and trespassed upon by children and adults. (Id. at ¶ 15.) Children from the nearby Pleasant Gardens housing development utilized the Site as a playground and were observed playing in contaminated areas and making contact with contaminated materials. (Id.)

From approximately April 1998 to July 1998, the EPA conducted removal activities, including securing the Site and detonating or removing highly reactive and shock-sensitive hazardous substances at the Site. (Id. at ¶ 12.) From approximately September 1998 to December 1999, the EPA conducted further removal activities, including securing the Site, stabilizing, removing, and disposing of (off-Site) thousands of drums, bags, and small containers of hazardous substances, as well as sampling dust containing lead, chromium, and cadmium from the floors of the buildings at the Site, and decontaminating Site buildings. (Id. at ¶ 13.)

In October 1998 and August 1999, the EPA conducted investigations at the Site, including detailed screening of surface soils there, and found elevated levels of lead and other hazardous substances. (Id. at ¶ 14.) In March 2000, the Agency for Toxic Substances and Disease Registry issued a health consult for the Site. (Id. at ¶ 16.) The health consult concluded that because the existence of lead in the soil at the Site exposed children and adults to unacceptable levels of lead, the cleanup level adopted by the EPA was protective of public health. (Id.)

In approximately November and December of 2001, the EPA excavated the upper one foot of soil from areas of known surface soil contamination at the Site. (Id. at ¶ 17.) The excavation uncovered dye and pigment waste, stained soil, and burned hydrocarbon sludge and coal tar. (Id.) Post-excavation sampling and screening indicated that the extent of hazardous substances in soils at the Site was greater than previously known, and included lead, chromium, cadmium, mercury, benzo(a)pyrene, and other polynuclear (a/k/a polycyclic) aromatic hydrocarbons. (Id.) The Toxicity Characteristic Leaching Procedure analysis revealed that lead was leaching at concentrations exceeding the regulatory limit for hazardous waste. (Id.)

This leachable lead was threatening the contamination of groundwater in an aquifer used as a source of drinking water for local New Jersey communities. (Id.) Groundwater from the Site flows into the Potomac-Raritan Magothy aquifer, which is designated a sole-source aquifer, and could have created a significant hazard to public health if contaminated, since it is the sole drinking water source for the area. (Id. at ¶ 18.)

From March 2002 until December 2006, the EPA performed soil removal activities at the Site, including mitigating the public's direct and contact exposure with hazardous substances in the soil, and mitigating the threat of contamination of New Jersey drinking water. (Id. at ¶ 19.) During this time, the EPA conducted subsurface investigations at the Site, which revealed a greater than realized extent of soil contamination. (Id.)

Accordingly, the EPA expanded its removal activities at the Site. Those removal activities included: consolidation of contaminated soil from previous excavations; clearing and grubbing; demolition of various structures, including a garage, sheds, concrete pads, slabs and foundations, paved surfaces, timber pilings, and above-ground and below-ground tanks and vaults; removal and replacement of sewer pipe; installation of dewatering trenches and sumps; excavation of contaminated surface and subsurface soil; study and selection of on-site treatment technologies; stockpiling and on-site treatment of excavated soil; transportation and off-site disposal of treated soil; pre and post-excavation investigations, including sampling and screening; additional excavation necessary to meet cleanup criteria; backfilling with imported clean soil; installation of high density polyethylene liners between areas of clean backfill and contaminated soils; decontamination of paved surfaces and a building; revegitation, and reconstruction of wetlands, including installation of a drainage structure, grading, soil preparation, planting, and seeding. (Id. at ¶ 20.)

The EPA removed approximately 125,094 tons of contaminated soil from the Site. (Id. at ¶ 21.) In cleaning up the Site, the United States incurred over sixteen million dollars in response costs, within the meaning of Section 101(25) of CERCLA, 42 U.S.C. § 9601(25).*fn2 (Id.) In June 2004, the United States sent to the Defendant a notice of potential liability and demand for reimbursement of response costs in connection with the Site. (Id. at ...


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