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United States v. Kramer

November 19, 2008

UNITED STATES OF AMERICA, PLAINTIFF,
v.
HELEN KRAMER, ET AL., DEFENDANT.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF,
v.
ALMO ANTI-POLLUTION SERVICES CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

I. INTRODUCTION

This is an extensively litigated Superfund case in which the vast majority of parties have settled and the lone claims remaining are those asserted by certain settling parties against Alumax Mill Products, Inc. ("Alumax"), the sole non-settling Defendant. Presently before the Court are three motions: (1) the Settling Work Defendants' motion for summary judgment as to Alumax's liability as a covered party under the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA") and the New Jersey Spill Compensation and Control Act (the "Spill Act") [Docket Item 1616]; (2) the Settling Work Defendants' motion for summary judgment on the issue of whether certain settling Defendants' response costs are consistent with the National Oil and Hazardous Substances Pollution Contingency Plan (the "NCP") as a matter of law [Docket Item 1603]; and (3) Alumax's motion to strike the Settling Work Defendants' expert report and for summary judgment [Docket Item 1659]. For the reasons set forth below, the Court will: (1) grant the Settling Work Defendants' motions for summary judgment as to Alumax's liability under CERCLA and the Spill Act; and (2) deny Alumax's cross-motion for summary judgment.

II. BACKGROUND

A. The Helen Kramer Landfill and Consent Decrees

This case arises out of consolidated actions brought by the United States and the State of New Jersey pursuant to section 107(a) of CERCLA, 42 U.S.C. § 9607(a), to recover costs incurred at the Helen Kramer Landfill (or "Landfill") in Mantua, New Jersey. The Helen Kramer Landfill is "a major Superfund site at which the federal government and the State of New Jersey . . . incurred substantial costs . . . to remedy conditions at the landfill and its environs." United States v. Kramer, 953 F. Supp. 592, 595 (D.N.J. 1997).

The scope of the governmental remedial efforts, the resultant cost recovery lawsuits, and eventual settlement among direct and third-party defendants have been described in multiple lengthy opinions by this Court, and are reviewed herein only to the extent necessary to address the issues raised in the motions presently before the Court. See, e.g., id.; United States v. Kramer, 19 F. Supp. 2d 273 (D.N.J. 1998). In brief summary:

The Helen Kramer Landfill in Mantua Township, New Jersey, was declared a federal Superfund site and placed upon the national priorities list by the U.S. Environmental Protection Agency pursuant to the Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"), 42 U.S.C. § 9601, et seq. The United States undertook the Remedial Investigation and Feasibility Study, the Remedial Design, and remedy construction, which was largely completed in 1994. These remedial costs, together with enforcement costs and prejudgment interest to January, 1998, have amounted to approximately $123 million. The United States commenced suit in 1989 to recover all response and remedial costs under Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), and the government had by 1997 filed a Third Amended Complaint against the Direct Defendants alleged to be generators and transporters of hazardous substances deposited at the Landfill. After extensive litigation and settlement efforts, the United States and Direct Defendants reached agreement upon a proposed Consent Decree to resolve the United States' claims against all viable Direct Defendants and a wide majority of the Third-Party Defendants.

Similarly, the State DEP commenced suit in 1989 and reached substantial agreement with a subgroup of the Settling Defendants to enable operation and maintenance functions at the Site to be transferred to these settling parties in 1997. The Site had been turned over to the NJDEP for oversight and maintenance on May 11, 1994. Kramer, 19 F. Supp. 2d at 276-77. The Court approved of and entered the federal and state Consent Decrees in an Opinion and Order dated September 3, 1998. Id. at 289.

Pursuant to the terms of the Consent Decrees, the Settling Work Defendants (along with the other Settling Defendants) have paid settlement funds as reimbursement for the Government's response costs into the Helen Kramer Landfill Superfund Site Qualified Settlement Fund Trust (the "QSF Trust"). (U.S. Consent Decree ¶ 4.) Additionally, the Settling Work Defendants have made payments to the Helen Kramer Landfill Superfund Site Environmental Remediation Trust (the "ER Trust"), which was established not for reimbursement of past costs, but in order to fund future studies and investigations at the Landfill for the EPA. (Id.)

B. Lancaster Facility's Hot Mill Waste Stream

In the sole remaining claims in the case, the Settling Work Defendants*fn1 have filed a claim for contribution against Alumax, a successor entity to Howmet Aluminum Corp. ("Howmet"), a company which arranged for the disposal of waste materials at the Helen Kramer Landfill. Alumax did not participate in the settlement and was not party to the Consent Decrees entered by the Court on September 3, 1998. The facts surrounding Howmet's waste disposal at the Landfill are set forth below.

During 1978 and 1979, Howmet owned and operated an aluminum processing facility located in Lancaster, Pennsylvania. (Stipulation ¶ 2.) This facility generated a hot mill process coolant waste stream (the "hot mill waste"). (Id. at ¶ 3.) Pursuant to an agreement between Howmet and a company called Jonas Waste Removal ("Jonas"), Jonas transported Howmet's hot mill waste from the Lancaster facility to the Helen Kramer Landfill, where the waste was sprayed on the roads at the Landfill for dust control. (Id. at ¶¶ 4-6.) Between 1978 and 1979, Jonas transported approximately 150,000 gallons of Howmet's hot mill waste to the Helen Kramer Landfill. (Id. at ¶¶ 7-8.) The parties have stipulated that Alumax is the successor to Howmet. (Id. at ¶ 1.)

While the parties appear to be in dispute as to whether two particular hazardous substances -- phenol*fn2 and chromium*fn3 -- were present in the hot mill waste stream, Alumax, in response to the Settling Work Defendants' Request for Admissions, has admitted that the Hot Mill Process Coolant generated by Alumax and transported by Jonas to the Kramer Landfill contained those particular chemical substances (except phenol) reported to be present above the analytical detection limits in the memorandum dated 3/27/78 from Pam Landis to John Hatch. These substances included copper (0.48 ppm) and zinc (1.22 ppm), which are listed as hazardous substances by the U.S. Environmental Protection Agency, 40 C.F.R. Part 300, Table 302.4. Zinc and copper are also included in the definition of hazardous substances in the New Jersey Spill Compensation and Control Act, N.J.S.A. § 58:10-23.11(b). (Third-Party Plaintiffs' Br. Ex. 3 ¶ 1.) Alumax does not dispute that copper and zinc are among the chemicals that were found in elevated concentrations at the Helen Kramer Landfill. (Third-Party Defendant's Br. Ex. A at 2.)

C. The Conestoga-Rovers & Associates Report

In support of their claims against Alumax, the Settling Work Defendants submitted an evaluation of the Howmet facility's liquid waste disposal at the Landfill, which was prepared by Frank A. Rovers of the firm Conestoga-Rovers & Associates ("CRA"). As the report indicates, CRA relied upon records maintained by Jonas in assessing Howmet's liquid waste disposal to the Landfill. (Third-Party Defendant's Br. Ex. A at 2.) The CRA report notes, as the parties have stipulated, that Jonas disposed of approximately 150,000 gallons of Howmet's hot mill waste stream at the Landfill between 1978 and 1979.*fn4 (Id.) The CRA report indicates that the Howmet facility's liquid waste contained the chemicals copper, chromium, aluminum, zinc, phenol, and cadmium, and that these chemicals "have been observed in the leachate from the Site at concentrations exceeding that of leachate from typical municipal solid waste (MSW) landfills," and that these concentrations required remediation. (Id. at 2, 6, Table 2.)

The CRA report articulates three opinions regarding the hot mill waste:

(1) The liquid waste disposed by Howmet Aluminum Co. contaminated the on-Site road materials which subsequently became part of the disposed waste volume at the Site.

(2) The contaminants disposed on the on-Site roads by Howmet Aluminum Co. are leached by rainfall and leachate with the contaminants contributing to the concentrations of chemicals migrating from the Site requiring remediation.

(3) The disposal of liquid waste by Howmet Aluminum Co. has contributed to both the volume and chemical character of the leachate at the Site which require remediation to control environmental impacts.

(Id. at 7.)

The Court heard oral argument on the parties' cross-motions for summary judgment at a hearing convened on November 7, 2008 and reserved decision.

III. DISCUSSION

A. Overview of Contribution Claims ...


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