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Jersey City Redevelopment Auth. v. PPG Indus.

ELR Citation: 18 ELR 20364
Nos. No. 85-2014, (D.N.J., 09/03/1987) Joint & several liability

The court holds that two defendants that were responsible for the use of a landfill contaminated with chromium at a residential development site are jointly and severally liable for a municipal corporation's costs in excavating and removing the contaminated material. The court initially holds that plaintiff acted reasonably in selecting the contractors to perform a study and clean up the site and that the New Jersey Department of Environmental Protection set a reasonable cleanup standard for removal of the chromium contamination. The court holds that the expenses incurred by plaintiff to excavate soil in the area with the greatest concentrations of chromium were reasonable, but that the disposal at a hazardous waste site of soil from areas that showed little or no evidence of contamination was unnecessary and unreasonable.

The court holds that Lawrence/Cliff, the purchaser of the site of a former chromium plant that was the source of the contaminated fill material, is a responsible party under §107(a)(3) of the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA). Lawrence/Cliff contracted with a transporter to dispose of hazardous fill material from its property at a facility owned by plaintiff. Lawrence/Cliff has not established the affirmative defense in CERCLA §107(b)(3), since it did not exercise due care over the contaminated fill. The court holds that defendant Ambrosio, which purchased fill from Lawrence/Cliff for transport to a residential development site, is not a responsible party under CERCLA §107(a)(4), since the site was not a disposal or treatment facility and the site was not selected by the transporter. The court holds that PPG Industries, the former owner of the chromium plant, and Lawrence/Cliff are strictly liable for engaging in the abnormally dangerous activity of distributing contaminated fill material. PPG is not released from liability by the intervening acts of Lawrence/Cliff, since it was foreseeable when PPG sold the property that Lawrence/Cliff would sell the fill to others. Lawrence/Cliff is not an innocent landowner even though it did not generate the waste, since disposal itself is an abnormally dangerous activity and it knew that the fill contained chromium and had caused structural problems. The court holds that Ambrosio did not engage in an abnormally dangerous activity by transporting the waste without knowledge of its contamination. The court holds that PPG and Lawrence/Cliff are also liable in negligence. PPG sold its property to Lawrence/Cliff without full disclosure of the potential risks of chromium contamination and knew that Lawrence/Cliff would sell the fill to others. Lawrence/Cliff was negligent in selling the fill without warning the purchasers. The court holds that Ambrosio was not negligent, did not breach its contract with plaintiff, and is not liable for fraud or misrepresentation.

The court holds that plaintiff need not share in the cleanup costs even though it is a responsible party under CERCLA §107(a). The court, noting that CERCLA and the common law authorize it to allocate costs among responsible parties based on the equities of the case, holds that damages should be allocated equally between Lawrence/Cliff and PPG.

[A previous decision in this litigation is published at 17 ELR 20763.]

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