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ELF ATOCHEM NORTH AMERICA, INC. v. UNITED STATES

September 1, 1993

ELF ATOCHEM NORTH AMERICA, INC.
v.
UNITED STATES OF AMERICA, et al.



The opinion of the court was delivered by: BY THE COURT; J. CURTIS JOYNER

 JOYNER, J.

 September 1, 1993

 Elf Atochem brought this action pursuant to the Comprehensive Environmental Response Compensation and Liability Act of 1980, as amended, 42 U.S.C. §§ 9601-9675 (hereinafter "CERCLA"), the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, and the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11, et. seq. ("Spill Act") against the United States and Witco Corporation ("Witco"). *fn1" Plaintiff seeks contribution for costs it has and will incur in its cleanup of hazardous materials at a New Jersey Superfund site.

 Presently before the Court is Witco's motion for summary judgment *fn2" on Counts II-VI of Plaintiff's complaint *fn3" . Under Rule 56(c), this Court must consider whether the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact, and whether the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). We must determine whether the evidence can reasonably support a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). In making this determination, all reasonable inferences must be drawn in favor of the non-moving party. Id., 477 U.S. at 256, 106 S. Ct. at 2512.

 While the movant bears the initial burden of demonstrating the absence of genuine issues of material fact, the non-movant must then establish the existence of each element of its case. J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1531 (3rd Cir. 1990), citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The burden of persuasion always remains with the moving party. Summary judgment should not be granted if there remains any doubt as to whether a trial is necessary. Transtech Industries, Inc. v. A & Z Septic Clean, 798 F. Supp. 1079, 1082 (D.N.J. 1992).

 I. FACTS

 Before discussing the merits of Defendant's motion, we find it helpful to examine the underlying facts of the case viewed in the light most favorable to the Plaintiff.

 The site which is the subject of the complaint is located at Pittstown, Franklin Township, Hunterdon County, New Jersey. The site includes approximately five acres presently owned by Elf Atochem, *fn4" part of adjoining privately-owned proper-ties, and approximately two acres of undeveloped land owned by the State of New Jersey and designated as wetland.

 From approximately 1927-1959, several entities manufactured chemicals and pesticides at the Pittstown site. *fn5" Former corporate owners or operators include, among others, W.A. Allen Company (1927-1932), Lord Stiling Distilleries, Inc. (1933-1940), Elko Chemical Works ("Elko") (1942-1945), Pennsylvania Salt Manufacturing Company and Pennsalt Chemicals Corporation (collectively, "Pennsalt") (1945-1947), Associated Terminal, Inc. (1947-1971) and Clinton Chemical Company ("Clinton") (1953-1959). *fn6" Elf Atochem is the corporate successor to Pennsalt. Witco is the corporate successor to Clinton. *fn7"

 Elko and Pennsalt *fn8" both manufactured DDT under the control of the Government during their tenure at the site. Clinton principally produced anhydrous (dry) aluminum chloride. Clinton also produced dried copper sulfate, dried magnesium sulfate, and other materials.

 In 1983, having determined the Pittstown site was contaminated with hazardous substances, the United States Environmental Protection Agency ("EPA") listed the site on the National Priorities List ("NPL") authorized under § 105 of CERCLA. The EPA performed a Remedial Investigation and Feasibility Study (RI/FS) at the site. The Agency's responsiveness survey, a response to public comments and concerns, explains that the "primary contaminants of concern at the site" were pesticides and related chemicals. See EPA Responsiveness Summary (RS) 39, (Witco's Exhibit A). However the EPA also listed inorganic compounds, *fn9" which may have resulted from Witco's operations.

 In 1990 and 1991, the EPA notified Elf Atochem and Witco that the Agency considered them as potentially responsible parties, and sought settlement for response costs. Elf Atochem agreed to enter into a Judicial Consent Decree, which was entered in the United States District Court for the District of New Jersey. In the Consent Decree, Elf Atochem agreed to reimburse the EPA for $ 2,700,000 in response to costs already incurred, and to pay for the performance of necessary response actions in the future. Thus far, Plaintiff is the only party responsible for these costs, which the EPA has estimated will exceed $ 45,000,000. We now consider Defendant's motion for summary judgment with respect to each of Plaintiff's claims.

 II. CERCLA CLAIMS

 CERCLA was enacted in 1980 in response to public concern about the improper disposal of hazardous wastes. As the Third Circuit explained in United States v. Alcan Aluminum Corp., 964 F.2d 252, 258 (3rd Cir. 1992), Congress sought to achieve two goals: the EPA's prompt and effective response to hazardous spills, and that the party responsible for the spill bear the clean-up costs incurred.

 In 1986, Congress enacted the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), Pub.L. No. 99-499, 100 Stat. 1613 (1986), to clearly provide liable parties with a right of contribution from other Potentially Responsible Parties ("PRP"). Transtech Industries, Inc. v. A & Z Septic Clean, 798 F. Supp. 1079, 1085 (D.N.J. 1992). SARA includes § 113(F)(1) of CERCLA, which provides "any person may seek contribution from any person who is liable or potentially liable under section 107(a)..." 42 U.S.C § 9613(F)(1). Allocation of response costs is determined using "such equitable factors as the court determines are appropriate." 42 U.S.C § 9613(F)(1).

 Plaintiff's CERCLA action is one for contribution. See, e.g. Amoco Oil Co. v. Borden, Inc., 889 F.2d 664, 672 (5th Cir. 1989) (when one liable party sues another Potentially Responsible Person for its share of response costs incurred, the claim is one of contribution). Under § 9613(F), Plaintiff must first prove Defendant is a responsible party under § 107(a).

 Section 107(a) of CERCLA sets out what a plaintiff must prove to make out a prima facie case for the imposition of liability upon a party for clean-up costs. These four elements are:

 
(1) The defendant falls within one of the four listed categories of responsible parties *fn10 ...

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