ELR Citation: ELR 21493
No(s). 90-2578 (D.N.J. Jul 30, 1992)

The court holds that potentially responsible parties (PRPs) that spent $13 million cleaning up the Kin-Buc Landfill in New Jersey may be entitled to contribution under Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) §113 from PRPs that settled their liability to the U.S. government. Plaintiffs cleaned up the site under a CERCLA §106 administrative order, and then sued 440 users of the site for response costs and contribution under CERCLA §§107 and 113. The court first holds that plaintiffs' claim is not a §107 cost recovery claim. Congress clearly enacted §113 to allow persons situated like plaintiffs to gain reimbursement for their cleanup expenditures from other PRPs. The point of §113(f)(1) is to share the costs among blameworthy parties. The court holds that plaintiffs' argument that their action is a §107 action because they voluntarily began their cleanup operation defies the meaning of "contribution"—absent a statutory provision to the contrary, a claim against one liable party by a party who voluntarily agreed to perform certain actions pursuant to a settlement agreement is still a claim for contribution. Further, since plaintiffs' cleanup actions were clearly the result of civil actions by the government, their argument that they acted voluntarily, privately, and in keeping with CERCLA's goals rather than as a result of government threats is facetious. The court next holds that even if the action were a §107 action, the Third Circuit's holding that the defenses in §107(b) extended to §113(f)(2) is not only controlling, but persuasive. The court thus rejects plaintiffs' claim that because they brought their action under §107(a), settling defendants' motion to dismiss based on §113(f)(2)'s contribution protection for settling parties must fail.

The court next rejects settling defendants' argument that §113(f)(2) provides them an absolute defense to plaintiffs' contribution claim. The argument conflicts with the language of the consent decree and the reasonable expectations of the parties entering into the consent decree, because the decree covers only U.S. actual costs of almost $5 million and absolves defendants only of liability for other remedial costs determined by the United States to have arisen between April and September 1987. The court holds that the decree's covenant to limit proceedings against the settling defendants for any future response costs that the United States incurs at the site only means that the United Staets will not take such action against the settling parties until after it makes all reasonable efforts to compel nonsettling PRPs to implement future response actions. It does not absolve defendants from all liability for the ongoing problems at the site. The court holds that settling defendants' interpretation of the consent decree also conflicts with the authorizing judge's interpretation of the decree as covering only the government's expenditures at the site and allowing nonsettling parties to seek contribution from the settling parties. Further, the interpretation conflicts with the policies behind CERCLA, because absolving settling defendants of responsibility for additional cleanup actions costing 10 times the amount for which they settled defies the goal of encouraging parties to unilaterally engage in cleanup operations.

Turning to one defendant's motion to strike the claims against it or, in the alternative, for summary judgment, the court first holds that the complaint does not violate Fed. R. Civ. P. 8(e). The case law consistently holds that a complaint must reach a level of outrageousness that far exceeds what is alleged here in order to warrant dismissal. While arguably lacking in detail, the complaint is clear and concise enough for defendants to understand the nature of the complaint and to be able to respond and defend themselves. The court next holds that dismissal under Fed. R. Civ. P. 16(f) is not warranted. Plaintiffs did not violate a magistrate's order requiring them to describe the hazardous substances that the movant allegedly generated or transported to the landfill. Rather, they responded to the order point by point, and because the same order limited their ability to discover the defendants' records, it was not unreasonable to respond as they did. They did not flagrantly violate or ignore the order or unreasonably delay or interfere with the expeditious management of trial preparation. The court next rejects the movant's argument that plaintiffs have no objective good-faith basis to believe that it is liable and that the complaint thus violates Fed. R. Civ. P. 11. The complaint is based on the facts that the movant settled a U.S. Environmental Protection Agency (EPA) claim for contribution for government cleanup expenditures at the site and that wastes plaintiffs allege to be hazardous were deposited at the site. Defendants' contention that the claim it settled with EPA was simply a payment of "nuisance money" is not enough to show a violation of Rule 11. Finally, the court holds that material issues of fact as to whether the movant has deposited hazardous waste at the site preclude summary judgment. One of the movant's own affidavits includes EPA-listed hazardous substances in a list of compounds that may be present in the movant's waste. Contradictory statements in the movant's supporting materials create enough questions to deny a motion for summary judgment. Moreover, summary judgment generally should not be granted before an opportunity for discovery.

[A subsequent decision in this case is published at 24 ELR 20036.]

Counsel for Plaintiff
Dante Romanini
Kozlov, Seaton, Romanini & Brooks
1940 Rte. 70 E., Ste. 200, Cherry Hill NJ 08003
(609) 424-8200

Counsel for Defendants
Steven L. Lapidus
Robinson, St. John & Wayne
Two Penn Plaza E., Newark NJ 07105
(201) 491-3300