ELR Citation: ELR 20120
No(s). 95-0947 (D.N.J. Aug 16, 1996)

The court holds that a potentially responsible party (PRP) seeking to recover its landfill remediation costs from other PRPs may not maintain a cost recovery action under §107 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The court first holds that plaintiff PRP may proceed only under the contribution provision in §113(f)(1) and it may not seek to impose joint and several liability against defendant PRPs. The court then holds that as a PRP, plaintiff may not maintain a cost recovery action under the New Jersey Spill Compensation and Control Act. The legislative history and the text of the Act's 1992 amendment, when measured against the right of contribution under CERCLA §113(f), support reading the Spill Act to limit a liable party or PRP to a suit for contribution. To hold otherwise would fail to appreciate the statutory scheme of the Spill Act, frustrate the objectives of the amendment, and threaten to produce an irreconcilable conflict with CERCLA. The court next holds that New Jersey's statute of limitations does not bar plaintiff's common-law strict liability claim against defendants for producing "abnormally dangerous" materials that were disposed of at the landfill. Defendants did not prove as a matter of law that plaintiff should have known six years before the date the statute of limitations began to run that other parties may have been responsible for the contamination. The court, however, dismisses plaintiff's claim because there is no common-law right of contribution among joint tortfeasors in New Jersey. The court also dismisses without prejudice plaintiff's strict liability claim under the Joint Tortfeasors Contribution Act (JTCA), because plaintiff has not produced or alleged the existence of a money judgment, a necessary element in establishing a prima facie case under the JTCA. Plaintiff's cleanup agreement with the U.S. Environmental Protection Agency is not a money judgment, because it does not prevent the agency from instituting an action against defendants, and it was not the product of a formal judicial proceeding. The court next holds that plaintiff may not recover for defendants' alleged unjust enrichment, because as the landfill's owner and as the successor-in-interest to the company that permitted municipal and industrial wastes containing hazardous substances to be dumped at the landfill, it had an independent duty under CERCLA and the Spill Act to remediate the site. Finally, the court holds that defendants do not have a cognizable contribution claim against the third-party defendants because they cannot allege that they have paid to plaintiff more than their respective pro rata shares, as their liability to plaintiff has not yet been determined. Thus, the court stays the claims against the moving third-party defendants pending a subsequent determination as to contribution under CERCLA or the Spill Act, and as to whether any orphaned shares should be allocated among them.

Counsel for Plaintiff
Alan V. Klein
Saul, Ewing, Remick & Saul
103 Carnegie Ctr., Ste. 302, Princeton NJ 08540
(609) 452-3100

Counsel for Defendants
Keith N. Leonard
Leonard, Tillery & Sciolla
704-H E. Main St., Moorestown NJ 08057
(609) 273-6679