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T&E Indus. v. Safety Light Corp.

ELR Citation: 18 ELR 20926
Nos. No. 87-1088, 680 F. Supp. 696/27 ERC 1953/(D.N.J., 02/26/1988)

The court holds that the corporate successor to a company that released radium tailings at its plant site is liable to a subsequent innocent purchaser of the site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The site, located in Orange, New Jersey, had been a radium processing plant from approximately 1917 to 1926; although an intermediate purchaser of the site in 1943 knew of the radium tailings there, the intermediate purchaser constructed a building over the tailings and the present owner did not know of the tailings at the time of its purchase in 1974. The court first holds that federal application of New Jersey's entire controversy doctrine does not bar this action, even though a similar action had previously been brought in state court, since the CERCLA claim could not have been brought in state court. CERCLA §113(b) provides exclusive jurisdiction over CERCLA claims in federal district courts, and New Jersey's Environmental Rights Act and Spill Compensation and Control Act do not provide remedies essentially identical to CERCLA's in this case.

The court next holds that CERCLA's statute of limitations does not bar this claim. CERCLA's 1986 amendments created a period of limitations where none had previously existed, so for preexisting claims the period began to run when the amendment was enacted. The court holds that although CERCLA does not provide private parties with a cause of action to seek injunctive relief to clean up hazardous waste sites, courts' inherent equitable powers remain available for other forms of injunctive relief.

The court holds that "necessary costs of response" recoverable under CERCLA §107 may include the costs of plaintiff's president's time, if these costs otherwise meet the definition of response costs. However, the costs of relocating to a new facility are not recoverable, since CERCLA §101(24) requires a prior federal determination that such action is necessary. CERCLA does not authorize a private litigant's recovery of attorney fees and costs of litigation, though comparable costs may be recovered by the government under §104(b). Finally, the court holds that the site is a "facility" under CERCLA, and §101(14)(C)'s mining waste exclusion does not apply to radium tailings, since radionuclides have been designated as hazardous substances under CERCLA §101(14)(B) and (E).

Counsel for Plaintiff
Edward A. Zunz Jr.
Riker, Danzig, Scherer, Hyland & Perretti
Headquarters Plaza, One Speedwell Ave., Morristown NJ 07960
(201) 538-0800

Counsel for Defendant
Irvin M. Freilich, Albert G. Besser
Hanoch Weisman
4 Becker Farm Rd., Roseland NJ 07068-3788
(201) 535-5300