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Stephen Voellinger and Thomas v. Electro-Coatings

June 29, 2011

STEPHEN VOELLINGER AND THOMAS KENNEDY, PLAINTIFFS-RESPONDENTS,
v.
ELECTRO-COATINGS, INC. A/K/A EC INDUSTRIES, INC., DEFENDANT-APPELLANT, AND THE ESTATE OF JOHN PERSIC, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-593-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 25, 2011

Before Judges Fisher, Sapp-Peterson and Simonelli.

Plaintiffs Stephen Voellinger and Thomas Kennedy, as well as another individual,*fn1 were partners in an entity that owned contaminated property in Woodbury Heights; the three were also the only shareholders in Aeroplating, Inc., which operated a metal plating business on the property from 1980 to 1990.

Because of their obligation to clean up the contamination, plaintiffs filed this action in 2004, seeking contribution from defendant Electro-Coatings, Inc. (ECI),*fn2 which owned the property and operated a metal plating business there from 1969 until 1980, when it sold its business assets to Aeroplating. Plaintiffs' action was based on the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24, as well as the common law torts of negligence, trespass, and nuisance. ECI obtained dismissal of the common law claims,*fn3 but the judge rejected ECI's argument that the Spill Act claim should be dismissed on laches grounds; this argument was renewed at trial and again rejected. At the trial's conclusion, the judge determined, for reasons contained in a written decision, that ECI released certain chemicals -- trichloroethylene (TCE) and tetrachloroethylene (PCE) -- into the environment during its period of ownership and, as a result, was liable for twenty-five percent of future remediation costs and $448,012 of the remediation costs already incurred.

ECI appealed, arguing that: (1) the judge's finding that ECI released TCE and PCE into the environment was not supported by adequate, substantial, and credible evidence; and (2) the judge mistakenly declined to dismiss the action pursuant to the doctrine of laches. Because we agree with ECI's first argument, we need not reach the second.

By way of background, Aeroplating was criminally investigated and ultimately pled guilty to manslaughter in connection with the 1985 death of a sewer worker exposed to chemicals emanating from Aeroplating's place of business. That same year, the Division of Criminal Justice seized Aeroplating's records, which remained in the Division's possession long after the criminal proceeding was concluded. In fact, plaintiffs never sought or demanded the return of the documents until 2007, by which time they could not be found. We recently affirmed an order entered in favor of the Division that dismissedplaintiffs' claim for damages based on the loss of these records. Voellinger v. Dow, __ N.J. Super. __ (App. Div. 2011).

At the trial in the matter at hand, plaintiffs sought to establish that ECI used and discharged into the environment TCE and PCE while conducting its plating operations between 1969 and 1980.*fn4 In part because of the loss of the records seized by the Division of Criminal Justice, plaintiffs were unable to provide documentary proof as to the particular solvents ECI used.*fn5

Plaintiffs' witnesses were also unable to provide direct evidence that ECI released or discharged TCE or PCE into the environment. Consequently, in seeking to prove their case, plaintiffs relied entirely on circumstantial evidence and expert testimony, which surmised the general time frame during which the contaminants were dispersed into the environment.

In support of their claim, plaintiffs relied on the testimony of James Peterson, of Princeton Geoscience, Inc., which plaintiffs hired in 2000. Peterson sampled the property's six monitoring wells, and prepared four reports, which asserted the concentrations of PCE, TCE and TCA were highest "in the immediate vicinity of the building" on the property. The only compound found at the "downgradient locations" was TCE, which was concentrated more near the building than the wells. In his third and fourth reports, Peterson also theorized about the origin of TCE, TCA and PCE on the property. Relying on his discussions with plaintiff Voellinger -- that Aeroplating had only used TCA, that ECI's plating operation used the same degreaser, and that, historically, the plating industry used PCE, TCE and TCA in the seventies and eighties -- he concluded that TCE and PCE spills originated from ECI's plating operations.*fn6

Peterson also conducted an investigation over a six-week period in 2006 that "focus[ed] on the area beneath the [Aeroplating] building." He testified about these findings, asserting that numerous soil samples revealed "an area of overlapping sources of TCA and PCE and TCE contamination." He asserted "[t]he area where they overlap coincides with the degreaser," and then, testified that extending to the north of the degreaser is additional PCE and TCE contamination, which is in an area "formerly occupied by the plating lines, some of the plating equipment" and that TCE was the only compound found in a well located about 550 feet from the degreaser. Peterson also testified that the concentrations of TCE, PCE and TCA "diminish thousand[-]fold or are not detected" in the "west southwest[,] or upgradient" from the degreaser, which effect was caused by the downgradient direction of the groundwater flow that migrated the solvents to the northeast. He also claimed that the lack of "upgradient concentration" indicated that TCE, PCE and TCA "didn't flow there from somewhere else," and came from a source located on the property. Given the high concentration of the compounds under the degreaser, and their northeasterly migration in the groundwater, Peterson opined that the likely source of the contamination was the degreaser used by both Aeroplating and ECI.

Gil Oudijk, a geologist, testified on plaintiffs' behalf on the subject of forensic hydrogeology. Oudijk found that TCE and PCE deposits, or "plumes," on the property were older than the TCA deposits and that soil samples established that TCE and PCE were present at lower depths than TCA, in a different layer in the ground. Oudijk testified that if TCA had been discharged before TCE and PCE, then TCA would have been "dragged down with the TCE and PCE" due to the solubility of all three compounds, and would have been present in soil samples taken from the lower depth that contained only TCE and PCE. He also testified that the relative ages of TCA, TCE and PCE were supported by custom in the plating industry: "TCE and PCE were used more readily in the sixties and seventies, as opposed to the eighties." In his report, he asserted that the national production of TCE and PCE decreased as production of TCA increased because TCE was a suspected carcinogen.

Extrapolating from his opinion about the relative ages of TCE, PCE and TCA, Oudijk opined about the migration rates of the solvents using what were referred to as "fate and transport calculations" -- in essence, a formula to determine the migration rate of any given chemical, into which are inputted certain variables to arrive at a date the chemical first interacted with the environment. In this manner, Oudijk sought to fix the rate at which TCE, PCE and TCA migrated through the groundwater. Certain variables at the property were inputted into the formula, such as, most importantly, ...


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