ELR Citation: ELR 20243
No(s). 85-4386 (D.N.J. Sep 27, 1996)

The court holds that although a waste generator that disposed of toxic wastes at the Lipari landfill in Mantua Township, New Jersey, is liable under §107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for future response costs the U.S. Environmental Protection Agency (EPA) incurs at the landfill, there exist genuine issues of material fact as to the divisibility of the harm. The court first holds that the generator falls within the class of persons liable for removal and response costs under §107. The generator arranged for the disposal of hazardous substances that were found at the landfill. Moreover, the generator admitted in prior litigation to dumping materials listed by or containing materials listed by EPA as toxic pollutants. There is no dispute that the landfill is a facility from which there was a release or threatened release of hazardous substances, which caused EPA to incur response costs that were consistent with the National Contingency Plan. Although the generator contended that its waste was not the cause of EPA's response costs, CERCLA does not require that a causal connection exist between the generator's waste and EPA's costs. Turning to the generator's affirmative defenses to CERCLA liability, the court first refuses to preserve the generator's defenses for the damages and contribution phase of the litigation under CERCLA §113(f)(1). The generator failed to state a §113(f) cross-claim for contribution against EPA in its answer to the second-amended complaint. The court next holds that the generator's defense of failure to state a claim is legally insufficient and must be stricken because EPA has made out a prima facie case for liability under §107(a). The court then strikes the generator's equitable defenses of estoppel, waiver, laches, and unclean hands because they are inconsistent with CERCLA's explicit language and Congress' intent. The court holds that the generator's third-party defenses under §107(b)(3) also fail because they do not comport with §107(b)(3)'s requirement that the defendant establish that it took precautions against foreseeable acts or omissions of any third party and the consequences that could foreseeably result from those acts or omissions. Moreover, Congress did not intend the third-party defense to be used by parties found to have generator liability under §107(a). The court then holds that the generator cannot claim that it used due care or was not the cause of the harm because under §107(a)'s strict liability standard, causation is irrelevant once a prima facie case is proven. The court holds that the generator's affirmative defenses alleging EPA's and a state agency's failure to enforce environmental laws, comply with CERCLA, provide notice, and mitigate damages must fail as well. The court strikes the generator's defense challenging CERCLA's constitutionality and its retroactive application. The court holds that as a matter of law, the generator's statute-of-limitation's defense must also be stricken. The original complaint was filed before the Superfund Amendments and Reauthorization Act of 1986 added CERCLA's six-year statute of limitations. And even if the statute of limitations were applied retroactively, the initial complaint was filed well within six years. The court holds that the generator's defense alleging that test results and sample analyses were fraudulent is not viable. The defense, as stated, does not have the particularity required by Fed. R. Civ. P. 9(b) and is similar to the defense alleging failure to comply with CERCLA. The court next holds that because all the generator's affirmative defenses have been stricken, it will grant EPA's motion for a declaratory judgment on future response costs. The court, however denies both EPA's and the generator's motions for summary judgment on the issue of divisibility of harm. The generator failed to meet its burden of proving that its waste stream could not, when mixed with other hazardous wastes, contribute to the release and resultant response costs. And EPA failed to establish that a material issue of fact does not exist with respect to divisibility. Last, the court holds that the divisibility defense is not viable in the state agency's suit against the generator brought under the New Jersey Spill Compensation and Control Act. Unlike CERCLA, the Spill Act is clear that liability is strict and joint and several in all cases, without regard to fault. Thus, the court grants the agency's motion for summary judgment on liability and future costs.

[Another decision in this litigation is published at 27 ELR 20251.]

Counsel for Plaintiff
Joseph E. Hurley
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendants
Frank E. Ferruggia
McCarter & English
Four Gateway Ctr.
100 Mulberry St., Newark NJ 07101
(201) 622-4444