The opinion of the court was delivered by: Debevoise, Senior District Judge
Plaintiff, Reichhold, Inc. ("Reichhold"), commenced this action on January 31, 2003*fn1 requesting legal and declaratory relief against Defendants pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. §§ 9601-9675, as amended by the Superfund Amendments and Reauthorization Act of 1986, Pub.L. 99-499, 100 Stat 1613 (1986); and the New Jersey Spill Compensation and Control Act (the "Spill Act"), N.J. Stat. Ann. §§ 58:10-23.11 to 23.11(2).
Reichhold requests reconsideration or clarification of the August 13, 2007 Order (the "August Order") by which the Court dismissed "Plaintiff's claim for declaratory judgment relating to the Arthur Kill." Reichhold's claim for declaratory relief flows from its liability claims which seek recovery against Defendants for damages suffered and response costs incurred to correct and mitigate releases of hazardous substances from properties in or near Carteret, New Jersey (the "Site"). Reichhold seeks judgment against the Defendants for both principal and contributory liability, present and future.
The Court dismissed Reichhold's claim for declaratory relief to the extent it was based upon contribution liability because those claims are not yet ripe for adjudication; however, in crafting the August Order, the Court inadvertently left uncertain the status of the remainder of Reichhold's claim for declaratory relief. The Court has not dismissed all of Reichhold's claim for declaratory relief and has only dismissed the portion of the claim which is based upon contribution liability under CERCLA § 113(f). Reichhold's claims under CERCLA § 107(a) for judgment of principal liability for remediation expenses already incurred by Plaintiff, if successful, will establish future principal liability, and, therefore, Reichhold may be entitled to a declaratory judgment for principal liability under Section 107(a). Thus, the declaratory relief claim, to the extent it is based upon Section 107(a), is ripe for adjudication.
Because the August Order is unclear, it will be vacated and superceded by an Order dismissing only the claim for declaratory relief as it relates to contribution liability under CERCLA § 113(f).
Defendants vigorously oppose this motion, arguing that the August Order was decided and stated correctly because, they contend, no claim in this case is ripe for declaratory relief. In order to address Defendants' arguments, the following background and discussion are provided.
USMR owned real property in Carteret, New Jersey (the "Carteret Property"), and operated one of the world's largest secondary copper smelters and refineries from the turn of the century until approximately 1983. During USMR's ownership of the Carteret Property, slag and other metal contaminates may have been deposited throughout the western portion of the Carteret Property, which was later sold to Reichhold (the "Site"). Specifically, USMR stockpiled slag and other bulk material and operated a lead refining operation on the southern portion of the Site, which may have contributed to the contamination. It was believed that there was widespread contamination at the Site consisting of lead and other metals resulting from the slag stored and disposed of at or near the Site.
Reichhold acquired the Site from USMR in 1960 and 1962. While conducting operations on the Site, including constructing and operating a chemical manufacturing facility, filling or grading activities and other activities, Reichhold may have discharged hazardous substances onto the Site and moved existing hazardous substances on the Site to previously uncontaminated areas of the Site. During the time when Reichhold was conducting operations on the Site, USMR continued to operate its copper smelter on its portion of the Carteret Property (the "USMR property").
In 1986 and 1987, Reichhold sold the Site in two separate transactions. In 1986, the southern portion of the Site was sold to BTL (the "BTL Parcel") and in 1987, the remaining northern portion of the Site (the "Staflex Parcel") was sold to Denka Chemical Corporation ("Denka"). During Denka's ownership, hazardous substances may have been released on the Staflex Parcel and hazardous substances may have been moved to previously uncontaminated areas of the Site.
In the mid-1980s, Reichhold began cooperating with the New Jersey Department of Environmental Protection ("NJDEP"), which was concerned that there were hazardous substances at the Site. In the 1990s, Reichhold approached USMR regarding the alleged contamination on the Site and ...