ELR Citation: ELR 20654
No(s). 94-5451 (DMC) (D.N.J. May 10, 2002)

The court holds that a company failed to meet its burden of proving the divisibility of response costs at a New Jersey Superfund site and, thus, is responsible for all of the response costs associated with one phase of remediation at the site. The company argued that the response costs are divisible because it only delivered lead waste to the site and lead waste is incapable of producing the volatile organic compounds (VOCs) that contaminated the site's groundwater. The court first holds that the company is responsible for the $6,766,744 in response costs for the soil and sludge remedy, and the U.S. Environmental Protection Agency (EPA) is granted summary judgment of the issue of divisibility. Although the company's divisibility argument possesses some merit, EPA has withdrawn all costs that appear to be potentially divisible. The Agency devised two different remedies for the site, one that addressed the soil and sludge contamination and another that addressed the groundwater contamination. The costs sought from the company all address soil and sludge response costs, which were focused on the investigation, design, and remediation of lead waste produced by the company. Further, the company does not point to any specific costs that are arguably divisible. Instead, the company makes generalized assertions concerning the fact that its waste stream is unique and nonvolatile. However, EPA's response costs for the soil and sludge were directed toward lead decontamination, and the mere presence of the company's lead slurry required special remedial measures. Consequently, the company is responsible for the $6,766,744 in response costs for the soil and sludge remedy, and EPA is granted summary judgment of the issue of divisibility.

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

Counsel for Defendant
John J. Dugan
Wolf, Block, Schorr & Solis-Cohen
1940 E. State Hwy., No. 70, Cherry Hill NJ 08003
(856) 424-0657

Cavanaugh, J.