The opinion of the court was delivered by: Thompson, U.S.D.J.
This matter comes before the Court upon Plaintiffs Litgo New Jersey, Inc., and Sheldon Goldstein's Motion to Certify Issues for Appeal [docket # 385]. The United States Defendants  and the Sanzari Defendants  oppose the motion, and the Sanzari Defendants alternatively cross-move to certify their own issues for interlocutory appeal . The Court has decided the matter upon consideration of the parties' written responses, without oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons set forth below, Plaintiffs' motion and the Sanzari Defendants' cross-motion are both denied.
The Court presumes that all parties are familiar with the procedural history and facts of this case and therefore provides only a brief overview. The primary issue in this case 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 initially allocated under § 113
the CERCLA-recoverable costs as follows: 65% to Plaintiffs, 32% to the
Sanzari Defendants, and 3% to the United States Defendants.*fn1
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 costs. 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.
Following the June 10 Opinion, Plaintiffs and the Sanzari Defendants filed motions asking the Court to reconsider its Opinion on liability and the equitable allocation of costs. In an Opinion filed on January 7, 2011, the Court rejected Plaintiffs' arguments that Plaintiff Goldstein could not be liable as a current operator pursuant to § 113 of CERCLA and that the Court should have held a separate hearing on the equitable allocation of costs. We also rejected the argument from both movants that the Court should have allocated an orphan share to Columbia Aircraft.
In addition, both movants also set out a number of reasons why they believed that the Court's equitable allocation of costs was misguided. The Court rejected most of those arguments, but after reconsidering the equitable issues, particularly the Sanzari Defendants' exercise of due care, the Court modified the equitable allocation of CERCLA-recoverable costs as follows: 70% to Plaintiffs; 27% to the Sanzari Defendants; and 3% to the United States Defendants.
While the motions for reconsideration were being briefed, the Plaintiffs and the Commissioner reached a settlement agreement and applied for a consent decree on October 22, 2010 . The United States Defendants and the Sanzari Defendant objected to the Consent Decree, arguing that certain of its provisions were ambiguous and that it could be interpreted so as to contravene the June 10 Opinion and excuse Plaintiffs from their share of the liability. The Court heard oral argument on the motions for reconsideration and the application for a consent decree on January 3, 2011, and after filing its Opinion on the motions for reconsideration, the Court conducted a conference call on February 24, 2011. Pursuant to these meetings, the Plaintiffs and the Commissioner agreed to accept a modification to the Consent Decree proposed by the United States Defendants, and in return, the United States Defendants dropped their objections. The revised settlement agreement is currently being re-published in the New Jersey Register for a thirty-day comment period, after which time the parties will re-apply for a consent decree. In addition, Plaintiffs agreed to dismiss their RCRA claim for injunctive relief against the United States, subject to reopener if the United States pursues Plaintiffs for future cleanup of the site.
Finally, the parties have agreed to participate in an informal process to determine Plaintiffs' recoverable past costs under CERCLA and the Spill Act. Representatives of the parties will meet to review Plaintiffs' costs, and the parties will inform the Court if they are able to reach an agreement on the total amount of recoverable costs. The Court has indicated its intent to proceed with a damages hearing if the parties are not able to reach an agreement.
Plaintiffs now move to certify four issues for interlocutory appeal, pursuant to 28 U.S.C. § 1292(b): (1) whether the Court erred in finding Plaintiff Goldstein liable as a current operator under § 107(a)(1) of CERCLA; (2) whether the Court's equitable allocation of CERCLA-recoverable costs was an abuse of discretion; (3) whether the Court's equitable allocation of costs under the Spill Act was an abuse of discretion; (4) whether the Court was wrong to dismiss Plaintiffs' RCRA claim against the Sanzari Defendants; and (5) whether the Court was wrong to dismiss Plaitiffs' Closure Act claim against the Sanzari Defendants.