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Jersey City Redevelopment Auth. v. PPG Indus.

Citation: 17 ELR 20763
No. No. 85-2014, 655 F. Supp. 1257/(D.N.J., 03/17/1987) Defendants' motions for summary judgment

In this action brought by the Redevelopment Authority to recover cleanup costs for a site contaminated with chromium waste, the court holds that PPG, the generator and former owner of the facility that generated the waste, is not a covered person under § 107(a) of CERCLA. While it was foreseeable that the waste might be sold as fill material by the current owner of the facility, PPG did not "arrange for" the disposal of the waste at the site owned by plaintiff. In selling its facility to the current owner, PPG did not specifically transact with regard to the waste. The court next holds that the current facility owner and the party that ultimately sold the waste to plaintiff's excavator are covered persons under § 107(a) since each satisfies the necessary elements set out in that section. The court rejects their argument that the sale of the waste as fill does not constitute an arrangement for disposal of a hazardous substance because it was made without knowledge of the waste's hazardous nature on the ground that there is a triable factual issue as to whether both parties knew or should have known of the hazardous nature prior to the sale contract. Moreover, such lack of knowledge cannot remove the defendants from the purview of § 107(a). The court then holds that a triable issue exists as to whether both parties had the necessary lack of knowledge regarding the contamination of the fill to utilize the affirmative defense set forth in § 107(b)(3).

The court also holds that plaintiff has not stated a cause of action under the New Jersey Spill Act. The statute does not empower private individuals to partake in removal and cleanup operations, nor does it provide for such individuals to seek recovery of response costs from other private parties. With respect to plaintiff's common law claims, the court holds that defendant PPG is not liable in trespass for its sale of the facility since it did not arrange directly for the entry of waste onto plaintiff's site and did not have the necessary connection to the alleged primary trespasser. PPG is also not liable in trespass for its generation of the waste since damages sought under this theory are recoverable under plaintiff's other counts. The court also holds that plaintiff has raised a triable private nuisance claim under New Jersey law against both the generator and current owner of the facility that generated the waste. The court holds, too, that plaintiff does not have standing to sue on a public nuisance theory since it has not sustained special damage "over and above that suffered by the general public." Finally, the court holds that plaintiff's punitive damages claims raise a triable issue as to defendants' intent and denies plaintiff's request for attorneys fees.

Counsel for Plaintiff
Steven T. Singer
Schwartz, Tobia & Stanziale
22 Crestmont Rd., Montclair NJ 07042
(201) 746-6000

Counsel for Defendant
Gail H. Allyn
Pitney, Hardin, Kipp & Szuch
163 Madison Ave., CN 1945, Morristown NJ 07960-1945
(201) 267-3333