ELR Citation: ELR 20930
No(s). 89-4246 (NHP) (D.N.J. Jan 23, 1995)

The court holds that a past owner of a contaminated site is not liable to the current owner under New Jersey environmental laws or §§107(a)(2) or 113(f) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) as a result of borings the past owner commissioned at the site. The site was part of a landfill before the past owner acquired it. While the past owner owned the site, it was vacant and not actively used. The court first holds that mere ownership of the site when contamination may have been leaching, leaking, or moving through its soil or groundwater is not enough to render the past owner liable under CERCLA for the disposal of hazardous substances. The court finds speculative the conclusions of the current site owner's expert witness that the borings contaminated clean soils with waste. But, even assuming that those conclusions are correct, under Tanglewood East Homeowners v. Charles-Thomas, Inc., 18 ELR 21348 (5th Cir. 1988), and its line of cases, the actions of the past site owner's site investigator fall short of that conduct accepted as being enough of a disturbance to constitute disposal. The court next holds that the current site owner lacks standing to assert a claim under the New Jersey Environmental Rights Act, N.J.S.A. 2A:35A-4(a), which requires the claimant to bring suit while the defendant's acts are either ongoing or imminent. In this case, any violation the past owner engaged in has long since ceased. The court dismisses the current site owner's New Jersey Spill Compensation and Control Act claim, because New Jersey courts would refuse to find that the borings were enough to cause a discharge under the Act. The current site owner failed to provide proof that the past owner actually caused contamination or even exacerbated any existing contamination at the site. The court also dismisses the current site owner's New Jersey Water Pollution Control Act claim, because "discharge" under that Act does not include the mere continued escape of contaminants into water. Finally, the court dismisses the current site owner's New Jersey Solid Waste Management Act claim, because the premise for liability under that Act—"disposal"—is essentially the same as the premise for CERCLA liability.

Counsel for Plaintiff
Martin Siegal, Beth D. Pollack
Farer, Siegal, Fersko
600 S. Avenue W., P.O. Box 580, Westfield NJ 07091
(908) 789-8550

Counsel for Defendants
William G. Harris, Hugh B. McCluskey
H.B. McCluskey/General Motors Bldg.
Nine Sylvan Way, Ste. 285, Parisippany NJ 07054
(201) 326-8887