ELR Citation: ELR 21149
No(s). 89-1031 (D.N.J. Mar 1, 1994)

The court holds that the current owner of an 80-acre contaminated site in Fords, New Jersey, attempting to recover its cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) from the site's former owner complied with the national contingency plan (NCP) in determining what type of actions to take, and that the current owner may recover a percentage of the total response costs attributable to the former owner's activities. The court first makes a series of findings of fact regarding the parties, the site, the parties' manufacturing activities at the site, the contamination, and the cleanup activities. Addressing one of the cleanup projects at the site, the court holds that the current owner's cleanup action constituted a removal action under CERCLA and the 1985 NCP. The action was a removal action, and not a remedial action, because, most significantly, an enormous quantity of contamination was leaking into a creek and groundwater. The court holds that the current owner's failure to consider the NCP during this activity is not fatal to its cost recovery claim, because substantial compliance with the NCP is what matters most, and the current owner's removal action substantially complied with the NCP. The court holds that the current owner need not have substantially complied with the NCP's preliminary assessment provisions, because those provisions are not pertinent to private-party cost recovery, and even if they were, the court finds the current owner in substantial compliance with these provisions. The current owner considered site management practices, aerial photos, historical records, and knowledge of persons familiar with the attributes and disposal of the hazardous waste at issue. The court holds that the current owner complied with the NCP in undertaking contaminated soil removal, because the owner had sufficient evidence to conclude that a removal action was appropriate, the owner adequately assessed cost effectiveness of excavation in light of the Resource Conservation and Recovery Act's land ban and its potential application to the materials at the site, and the owner maintained adequate records. The court also holds that the current owner complied substantially with the NCP's public notice requirements, satisfactorily considered and attained applicable or relevant and appropriate requirements, and complied with the NCP's documentation provisions.

Addressing other cleanup projects at the site, which the court finds governed by the 1990 NCP, the court holds that the current owner substantially complied with the NCP's removal site evaluation provisions by considering certain removal action factors involving polychlorinated biphenyls. Also, the current owner complied with the NCP's community relations provisions, which require consideration of alternative response actions and relative cost effectiveness, development of an occupational safety and health program, and documentation of activities and costs. The court holds that "necessary costs" of response include nonlitigation attorneys fees, investigatory expenses, consultants fees, monitoring and evaluation costs, and indirect costs associated with general operation of the response action. The court holds that the current owner proved its contribution claim under the New Jersey Spill Compensation and Control Act (NJSCCA), because it substantially complied with the NCP.

Next, the court apportions liability for the cleanup activities, holding the former owner liable to varying degrees depending on the activity, the site, and the type and extent of contamination. The court holds that the current owner is entitled to prejudgment interest on its remediation costs, but that it may receive such interest under either CERCLA or the NJSCCA, not both.

[A prior decision in this litigation is published at 25 ELR 21125.]

Counsel for Plaintiff
Aubrey M. Daniel III, Paul Mogin
Williams & Connolly
725 12th St. NW, Washington DC 20005
(202) 434-5000

Counsel for Defendant
Thomas H. Sear, Randy Paar
Anderson, Kill, Olick & Oshinsky
1251 Avenue of the Americas, New York NY 10020
(212) 278-1000