ELR Citation: ELR 21036
No(s). 91-4842 (D.N.J. Jan 26, 1993)

The court dismisses claims by a New Jersey town against a missile manufacturer and the owner of property the manufacturer leased for injunctive relief and natural resource damages under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and cross-claims by the property owner against the manufacturer for private nuisance, unjust enrichment, and fraudulent concealment. The court first holds that the town's CERCLA claim for an injunction to compel the manufacturer and the property owner to take removal and remedial actions to address contamination at local water wells does not state a claim on which relief can be granted. The overwhelming weight of authority supports the conclusion that injunctive relief is not available under CERCLA §107. Moreover, Congress clearly indicated its intent to limit injunctive relief to the federal government. The court next holds that the town lacks standing to bring an action to recover natural resource damages under CERCLA §107(a)(4)(C). CERCLA differentiates between the United States and the states, on the one hand, and any other person, on the other. Under the Superfund Amendments and Reauthorization Act (SARA), only a "state official," specifically appointed by the governor, may be an "authorized representative" for purposes of bringing an action to recover for natural resource damages. The town is not a "state official," and it has not been designated as trustee by the governor of New Jersey.

The court holds that the town has stated a claim on which relief can be granted under the New Jersey Spill Compensation and Control Act. The town alleged that the defendants discharged hazardous substances into soil and groundwater within the town, injuring the groundwater aquifer and necessitating the expenditure of "substantial public funds" to clean up and remove the hazardous substances. The court holds that the statutory language clearly states an intent to provide a cause of action to private plaintiffs. The court denies the missile manufacturer's motion to dismiss the town's claims for private and public nuisance, trespass, tortious contamination, and tortious failure to remediate contamination although the town seeks the same remedy for these claims as for its strict liability claim. The manufacturer cites no authority for the proposition that a party cannot assert more than one cause of action or legal theory that seeks the same remedy, and Federal Rules of Civil Procedure 8 expressly permits a party to assert any and all alternative claims it may have. Moreover, the fact that the causes of action seek the same relief and involve the same factual predicate does not automatically make the causes of action duplicative.

The court also denies the manufacturer's motion to dismiss the town's claim under the New Jersey Environmental Rights Act seeking injunctive relief to restrain the defendants from further discharging hazardous substances and require them to remediate any contamination caused by the hazardous substances for which they are responsible. The statute that creates the right of action contains no requirement that a plaintiff must specifically plead that if the government has failed to act or that if the government has acted, its actions have been arbitrary, capricious, and unreasonable. Moreover, Federal Rules of Civil Procedure 8 only requires a short and plain statement of the claim. Also, a plaintiff is not precluded from bringing an action merely because a governmental agency has taken some action with respect to the matter, nor must the town wait until the government has completed all activity.

The court denies the manufacturer's motion under CERCLA §113(h) to dismiss cross-claims by the property owner that the manufacturer violated the Spill Act, the New Jersey Solid Waste Management Act, and the New Jersey Water Pollution Control Act by discharging hazardous substances that allegedly contaminated the local wells. All the cases involving dismissal under §113(h) involve actions against the U.S. Environmental Protection Agency (EPA) in which the plaintiff sought to enjoin or otherwise challenge a remedy pursued by EPA. Such is not the case here. The court also denies the manufacturer's motion to dismiss the property owner's cross-claims for private nuisance, public nuisance, negligence, fraudulent concealment, waste of property, trespass, and unjust enrichment based on their alleged duplication of the property owner's liability claim for the same reasons that it denied the manufacturer's motion to dismiss similar claims by the town. The court holds that the property owner sufficiently alleged the elements of a claim for public nuisance, because the property owner alleged interference with a public right—the right of all members of the community to uncontaminated water from the town's aquifer. And the property owner adequately alleged special injury—deprivation of the use and enjoyment of that portion of the aquifer located beneath its property. The court dismisses the property owner's claim for private nuisance, because private nuisance applies only to interference with adjoining land. The court holds that the property owner's claim for unjust enrichment fails to state a claim on which relief can be granted, because there has been no enrichment. The costs the property owner incurred resulted from its own decision to transfer its property. Under these circumstances, there will be no benefit conferred on the manufacturer.

The court holds that the property owner failed to plead its claim of fraudulent concealment with sufficient particularity, because it grouped all the defendants together in its count without specifying the precise misconduct associated with each defendant. Further, the property owner failed to delineate its attempts to investigate the action to be able to plead fraud with more particularity and has not alleged that necessary information is within the defendants' exclusive control. However, the court stays the dismissal of the claim for 30 days from the date of its order to allow the property owner to amend its claim. Finally, the court holds that the property owner stated a claim for relief for contribution of past and future costs that the missile manufacturer, as the alleged actual tortfeasor, caused the property owner to incur. Although the property owner erroneously labeled its claim as a common-law claim, the court holds that this mistake is not fatal to the count, because the allegations of the cross-claim provide the manufacturer with fair notice that the property owner is seeking a claim for contribution.

Counsel for Plaintiff
Dennis J. Krumholz
Riker, Danzig, Scherer, Hyland & Perretti
Headquarters Plaza, One Speedwell Ave., Morristown NJ 07962
(201) 538-0800

Counsel for Defendants
Robert J. Cash
Goldshore, Wolf & Lewis
2683 Main St., Trenton NJ 08648
(609) 896-1660