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Litgo New Jersey, Inc, and Sheldon Goldstein v. Bob Martin

January 7, 2011

LITGO NEW JERSEY, INC, AND SHELDON GOLDSTEIN, PLAINTIFFS,
v.
BOB MARTIN, IN HIS OFFICIAL CAPACITY AS THE
COMMISSIONER OF THE NEW JERSEY
DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thompson, U.S.D.J.

NOT FOR PUBLICATION

OPINION & ORDER

This matter has come before the Court on the Sanzari Defendants'*fn1 Motion for Reconsideration [docket # 360] and Plaintiffs' Motion for Reconsideration [361] of the Court's June 10, 2010 Memorandum Opinion & Order (hereinafter, "Opinion") [358 & 359]. The Court has decided the motions after considering the submissions of all the parties and after hearing oral argument on January 3, 2011. For the reasons set forth below, the Sanzari Defendants' motion is granted in part and denied in part, and Plaintiffs' motion is denied.

BACKGROUND

The Court presumes that all parties are familiar with the procedural history and facts of this case and therefore will not discuss them in detail at this time. It suffices to note that the primary issue in this matter is the presence of TCE and other hazardous substances at and emanating from the Litgo Property and the Defendants' alleged responsibility for these hazardous substances. Following a seventeen-day bench trial, on June 10, 2010, the Court entered findings of fact and conclusions of law regarding the parties' liability under CERCLA, RCRA, the New Jersey Spill Act, and the New Jersey Closure Act. The Court found that the United States Defendants, the Sanzari Defendants, and Plaintiffs are liable under CERCLA, that the Sanzari Defendants and Plaintiff Litgo are liable under the Spill Act, and that the United States Defendants and the Commissioner are liable under RCRA. The Court dismissed all claims brought under the Closure Act.

After making its determination on liability, the Court went on to consider how damages should be equitably allocated under § 113 of CERCLA and the Spill Act. The Court determined that, under § 113, the following allocation of CERCLA-recoverable costs was equitable: 65% to Plaintiffs, 32% to the Sanzari Defendants, and 3% to the United States Defendants.*fn2 The Court further found that Plaintiffs were responsible for 67% of costs recoverable only under the Spill Act, while the Sanzari Defendants were responsible for 33% of those same costs. Injunctive relief against the United States Defendants and the Commissioner is available under RCRA, but the Court deferred a determination of what injunctive relief would be appropriate until further argument could be heard on the subject. The Court did not set an amount of damages, as it had been decided at trial that the damages portion of the proceeding would be bifurcated and resolved after a determination on liability had been reached.

Plaintiffs and the Sanzari Defendants have now asked the Court to reconsider its Opinion on liability and the equitable allocation of costs. Both Plaintiffs and the Sanzari Defendants have set out a number of reasons why they believe that the Court's equitable allocation of costs is misguided. In addition, both argue that the Court was mistaken in its failure to allocate an orphan share to Columbia Aircraft. Plaintiffs further argue that the Court incorrectly concluded that Plaintiff Goldstein is liable as a current operator under § 113 of CERCLA and that the Court should have held a separate allocation hearing.

LEGAL STANDARD

A motion for reconsideration may be brought on three grounds: (1) an intervening change in controlling law, (2) evidence not previously available, or (3) to correct a clear error of law or prevent manifest injustice. North River Ins. Co. v. CIGNA Reins. Co., 52 F.3d 1194, 1218 (3d Cir. 1995). Reconsideration is an extraordinary remedy which is to be granted "very sparingly." Interfaith Cmty. Org. v. Honeywell Intern., Inc., 215 F. Supp. 2d 482, 507 (D.N.J. 2002).

The parties here do not argue that there has been an intervening change in controlling law or discovery of new evidence. Rather, their arguments rely on the contention that the Court has ignored key facts or elements of the law so as to result in manifest injustice. A motion for reconsideration on these grounds may focus only on those matters-factual or legal-which it believes the Court has overlooked. See L. R. Civ. P. 7.1(I). A motion for reconsideration is not an opportunity to raise new matters or arguments that could have been raised before the original decision was made. Bowers v. NCAA, 130 F. Supp. 2d 610, 613 (D.N.J. 2001). Nor is it an opportunity to ask the Court to rethink what it has already thought through. Oritani S & L v. Fidelity & Deposit, 744 F. Supp. 1311, 1314 (D.N.J. 1990). Thus, reconsideration may be granted only if there is a dispositive factual or legal matter that was presented but not considered which would have reasonably resulted in a different conclusion by the court. Champion Labs., Inc. v. Metex Corp., 677 F. Supp. 2d 748, 750 (D.N.J. 2010).

ANALYSIS

1. Goldstein's Liability as a Current Operator of a Facility

Plaintiffs argue that the Court was mistaken when it reached the legal conclusion that Goldstein is liable under CERCLA as a current operator of a facility. Plaintiffs contend that Goldstein's involvement in remedial activities at the Litgo Property is insufficient to make him a responsible party pursuant to 42 U.S.C. § 9607(a)(1). The Court agrees that, to the extent that liability under CERCLA is premised on a party's actions as a past operator according to 42 U.S.C. § 9607(a)(2), involvement solely in remedial activities is not sufficient to establish liability. However, CERCLA clearly distinguishes between past owners and operators of a facility and current owners and operators of a facility. Past owners and operators of a facility are liable under CERCLA only if they owned or operated the site "at the time of disposal of any hazardous substance." 42 U.S.C. § 9607(a)(2). The statute includes no such qualification for current owners or operators, establishing simply that "the owner and operator of a vessel or a facility" is a responsible party. 42 U.S.C. § 9607(a)(1). Plaintiffs do not challenge the proposition that Litgo, as the current owner of the facility, is strictly liable under CERCLA for environmental contamination on the property. Indeed, the fact that CERCLA imposes strict liability on current owners of a facility is a well established principle. See, e.g., New York v. Shore Realty Corp., 759 F.2d 1032, 1044 (2d Cir. 1985); Hercules Inc. v. E.P.A., 938 F.2d 276, 281 (D.C. Cir. 1991); see also General Elec. Co. v. Jackson, 610 F.3d 110, 114 (D.C. Cir. 2010) (CERCLA imposes strict liability on current owners, current operators, and arrangers). There is nothing in the structure or language of CERCLA which gives the Court any reason to believe that it should distinguish current operators from current owners in this regard.

The cases cited by Plaintiffs to support their proposition either discuss only the liability of past operators or are inapposite. Plaintiffs contend that ITT Corp. v. Borgwarner Inc.,is an example of a case where a district court rejected current operator liability based solely on participation in remedial activities. No. 05-CV-674, 2009 WL 2242904, at *4 (W.D. Mich. Jul. 22, 2009). However, the Court believes that a more appropriate interpretation of that case is that the district court found that the parties' "role in facilitating access to the . . . site for remediation activities," id., did not amount to the management or control of operations necessary for operator liability under United States v. Bestfoods, 524 U.S. 51 (1998).*fn3 In contrast, Plaintiffs have been involved with the property for two decades and were responsible for environmental compliance decisions and the decisions not to proceed with remediation. As stated in the Opinion, we believe the decisions to delay remediation may have increased the threat to the environment and public health. Plaintiffs also rely on Universal Paragon Corp. v. Ingersoll-Rand Co., in which a district court rejected the contention that a current operator could be liable when it had only directed remedial efforts. No. CO5-03100, 2007 WL 518828, at ...


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