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18 ELR 20364 | Environmental Law Reporter | copyright © 1988 | All rights reserved Jersey City Redevelopment Authority v. PPG Industries No. 85-2014 (D.N.J. September 3, 1987)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 Counsel for Defendant Sarokin, J.: Opinion Plaintiff Jersey City Redevelopment Authority is a municipal corporation of the State of New Jersey. Defendant PPG Industries, Inc. is a Pennsylvania corporation. Defendant Clif Associates is a New Jersey partnership, and is engaged primarily in the business of owning real estate. Defendant Lawrence Construction Company is a corporation engaged in the construction and management of warehouses and industrial buildings.[1] The Defendant A. Ambrosio & Sons Contracting, Inc. is also a New Jersey corporation. Findings of Fact The following shall constitute the findings of fact by the court in this matter, as required by Federal Rule of Civil Procedure 52(a). During the years 1954 through 1964, PPG, either directly or through a subsidiary, owned and operated a plant located on Garfield Avenue in Jersey City, which processed raw chromium ore. During the processing of the chromium ore a residue mud was produced which contained chromium. As a result of the process, large piles of this residue or waste mud existed at the Garfield Avenue property. During the period January 1958 until July 1963, it is estimated that 73,200 tons of waste mud were produced. During that period the waste mud was routinely removed by various contractors and utilized as fill material in various construction projects including public works projects. Among the contractors who utilized such material for fill purposes was the defendant Lawrence Construction Company. It is undisputed that as early as 1954 PPG was aware that there were potential health hazards associated with the processing of chromium ore. Employees who were exposed to the process within the plant sustained nasal perforations, skin ulcers, also known as chrome sores, and lung cancer. Those risks were set forth in a detailed report prepared in 1954 by the Industrial Hygiene Foundation of America, and said report was circulated to companies involved in this industry including PPG. Although not the sole reason for doing so, one of the reasons PPG decided to cease production and sell the plant was the health hazards associated with this antiquated plant. In July of 1963 PPG ceased production at the Garfield plant, and in 1964 sought purchasers. As stated above, Lawrence Construction had acquired fill from the property and utilized it prior to the time the property was available for sale. Clif Associates and Lawrence were related companies, and Clif Associates determined to place a bid for the purchase of said premises. Representatives of Lawrence and Clif were aware that the PPG plant had processed chromium ore, but were unaware of any of the specific health hazards as enumerated above, nor did they have any knowledge that the residue mud created or would create any health hazards. On July 13, 1964, PPG and Clif Associates entered into an agreement for the purchase of the Garfield Avenue site. Clif and Lawrence were aware of the presence or potential presence of chemicals at the premises, and the sales agreement specifically made reference to the presence of such chemicals on the property. Clif and Lawrence, as stated above, were aware that the plant processed chromium ore, and the sales agreement specifically referred to the property as a chrome chemical plant. In reference to PPG, although it was fully aware of the health risks to its employees, it had no specific knowledge that the residue mud posed any specific health risks other than that occasioned by direct exposure to whatever chrome might remain in the residue. That exposure might bring about chrome sores, but there was no reason to believe that the residue would cause either nasal perforations or lung cancer in its present form stored outside or being utilized for fill at other locations, because of its low concentration of hexavalent chromium. After the purchase of the premises Clif and Lawrence constructed several warehouse buildings on the property. In 1973 Lawrence and Clif became aware that chromium ore existed in the soil at the Garfield Avenue site based upon a report which they had received from Haller Testing Laboratories. This report was the outgrowth of an investigation of a swelling of subsurface fill materials that affected construction at the site and elsewhere. The report indicated and, therefore, conveyed to Lawrence and Clifthat these problems were being occasioned by the existence of chromium ore in the fill and required its removal. At that moment, if not before, although Lawrence/Clif was unaware of any health hazards posed by the chrome residue, they knew or had reason to believe that the residue could cause construction and, therefore, environmental problems. No other instances of problems with the residue mud being utilized for fill elsewhere had been brought to the attention of Lawrence and Clif. PPG had not advised or warned Lawrence and Clif of any potential hazards either to health or to the environment as the result of utilizing said residue for fill purposes. PPG knew, as stated above, that there were some minor health risks to direct exposure to chromium even in the residue, and knew or should have known, based upon their specialized knowledge, that the chrome might present environmental risks. Furthermore, it was certainly foreseeable that Lawrence would utilize the fill itself and permit others to use it, since that had been the practice while PPG was the owner of the property, and indeed PPG knew that Lawrence had utilized it in the past for that purpose even prior to the sale of the property. In fact, a representative of Diamond Shamrock, which was engaged in the same business, indicated he would only recommend the residue as subfill and never in a residential area. On November 25, 1974, plaintiff and defendant Ambrosio entered into an agreement for demolition and site clearance on the premises owned by the plaintiff, located on Ninth Street in Jersey City. Ambrosio demolished the buildings located at that site. As part of the demolition, it filled the basements of the buildings which were demolished with brick and other debris, and some fill material from an excavation from a nearby sewer project. The balance of the fill came from the Garfield Avenue property, the same having been purchased by Ambrosio from Lawrence. The court credits the Ambrosio witnesses with their version of this transaction. The court finds that the contamination which occurred on the Ninth Street property was a direct result of the acquisition of the fill from the Garfield Avenue site by Ambrosio. Although Ambrosio, likewise, was aware that Garfield Avenue had been used as a chrome processing plant, it had no reason to believe that the residue was a danger either to health or the environment. It too had utilized the fill in the past without complaint, and it certainly had no reason to engage in any chemical analysis of what appeared to be perfectly clean fill. In addition, the fill which it delivered was accepted and approved by a representative of the plaintiff, who was ignorant of any contamination in the same fashion as Ambrosio. The court finds that the fill delivered did not violate the specifications of or the agreement with the plaintiff. In May of 1982, the City of Jersey City advised PPG that there might be contamination at the Garfield Avenue site which had previously been owned by it. And in June of 1983, Lawrence/Clif was advised by the Department of Environmental Protection that hexavalent chromium had been discovered at Garfield Avenue. The presence of chromium was first discovered at the Ninth Street property on January 20, 1983, at which time plaintiff was still the owner of the property. Considerable concern arose at that time because the Ninth Street site was near a public library and a public school. Based upon samplings which were taken, high levels of chromium were found to exist and gave some evidence of migration. Although it appears that no significant or immediate health risks existed at that time, there can be no dispute that environmental risks existed, and that at least portions of the property were properly described as containing hazardous waste in accordance with the applicable standards. As a result, on August 4, 1983, the New Jersey Department of Environmental Protection required that the plaintiff take measures necessary to protect the public health and environment, and directed the submission of a plan delineating the extent of the contamination and for excavation and removal of the contaminated materials from the Ninth Street site. Pursuant to that direction from the DEP the plaintiff retained Dresdner Associates to prepare the plan as required by the DEP, and pursuant thereto on September 7, 1983, a draft plan was submitted which was thereafter substantially accepted. Thereafter, on November 3, 1983, plaintiff submitted to the DEP a plan prepared by Geo Engineering for excavation and removal of the contaminated soil from the Ninth Street site, and for decontamination of the adjoining firehouse to which the chromium had migrated. The contract for removal was awarded to the low bidder, Cecos International Inc., and pursuant to DEP's authorization the work proceeded, commencing on December 27, 1983, and finishing on January 17, 1984. The court finds that in selecting the contractors to do the study and the work, that the plaintiff acted properly and reasonably, and retained a highly qualified and competent consultant. The work which was actually performed at the site included fencing of the site, sampling of soil and groundwater, sampling of dust at the adjoining school and library, and ultimately excavation and removal of material at the site, and decontamination and waterproofing of the adjoining firehouse. In respect to the chromium contamination at the site, the DEP required that excavation and removal occur wherever the chromium contamination was above 100 parts per million. Although defendants contend that that standard may have been arbitrary and unsupported or unnecessary, the court finds that it was fair and reasonable, and that no evidence has been presented to indicate that the DEP would have accepted any different standard which would have reduced the amount of soil to be removed. On February 22, 1984, the Department of Environmental Protection advised the plaintiff that the chromium contamination was sufficiently mitigated and that construction could resume at the adjoining townhouses. As a result of the foregoing, substantial expenses were incurred by the plaintiff: $527,960.50 was expended for excavation and removal of the material to a hazardous waste landfill in Niagra Falls, New York; $39,562.50 was expended for new fill; $3,888.34 for the the installation of bentonite panels on the firehouse walls; and $4,553.00 for the installation of fencing at Ninth Street. Dresdner Associates were paid $69,667.41 for supervision of the remedial work, and for investigative work related to this litigation on behalf of the plaintiff. As of December 15, 1986, plaintiff's counsel had expenses and fees of $64,232.47. These expenses total $709,864.22. In respect to the fees for the cleanup, defendants contend primarily that the appropriate procedures were not followed in order to determine the extent and location of the contamination, and that unnecessary and unreasonable expenses were incurred in the actual excavation and removal. Defendants urge that other alternatives which were less expensive were available to the plaintiff, and that had any of such alternatives been followed the expenses would have been greatly reduced. It is undisputed that the greatest concentration of hazardous material was within the boundaries of the former structure on the Ninth Street property and immediately adjacent to it. In respect to this particular area defendants contend that the contamination did not necessitate excavation to the depths which actually were reached. As to this dispute, the court, although recognizing that reasonable experts might differ, finds that it cannot and does not conclude that the removal of said material and disposal at a hazardous waste site was either unreasonable or unnecessary. On the other hand, the court does find that the remaining surface area which presented little or no evidence of hazardous waste did not require disposal at a hazardous waste site. The court finds that it would have been practical, feasible and cost effective to segregate this soil from that in the highly contaminated area and dispose of same at a non-hazardous waste site, thereby effecting a considerable saving. In this area there were 800 cubic yards of soil. Disposal at a hazardous waste site cost at that time $165 per cubic yard. Had this soil been delivered to a non-hazardous waste site the cost would have been $20 per cubic yard. The court finds that the difference of $116,000 (800 X 145) was an unnecessary and unreasonable expense. What remains then is for the court to determine which of the defendants, if any, are liable to the plaintiff and under what theories, for the sum of $593,864.22 -- the remaining expenses less $116,000. Conclusions of Law I. Count 1 -- CERCLA A. Lawrence/Clif The court concludes that Lawrence/Clif is a responsible party under § 107(a)(3) of CERCLA, 42 U.S.C. § 9607(a)(3). Based on the facts found by the court, Lawrence/Clif contracted with transporter (Ambrosio) for transport for disposal of hazardous substances owned by Lawrence/Clif to a facility owned by plaintiff. Furthermore, the court concludes that Lawrence/Clif has not established the affirmative defense to liability offered by § 107(b)(3), 42 U.S.C. § 9607(b)(3). An essential element of that defense is that the defendant "exercised due care with respect to the hazardous substance concerned, taking into consideration the characteristics of such hazardous substance, in light of all relevant facts and circumstances. As discussed further in connection with Lawrence/Clif's liability for negligence under Count 7, the court concludes that Lawrence/Clif has not acted with due care with respect to the chromium mud residue. The court holds Lawrence/Clif liable under Count 1. B. Ambrosio The court concludes that Ambrosio is not a responsible party under § 107(a) of CERCLA, 42 U.S.C. § 9607(a). Plaintiff alleges that Ambrosio is a responsible party under § 107(a)(4), which holds liable any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance. This section holds liable a transporter of hazardous waste only if that waste is transported to one of three specified destinations: 1) a disposal facility; 2) a treatment facility; 3) a site selected by the transporter. Ambrosio accepted hazardous substances for transport to Ninth Street, a destination that falls within none of the statutory categories. Ninth Street, a residential development site, is neither a disposal facility nor a treatment facility.[2] Furthermore, the Ninth Street site was selected by plaintiff, not by Ambrosio. By contrast, courts imposing liability on transporters under § 107(a)(4) have explicitly found that the transporter selected the disposal site. See United States v. Conservation Chemical Co., 619 F. Supp. 162, 191 [16 ELR 20193] (W.D. Mo. 1985); United States v. Northeastern Pharmaceutical & Chemical Co., 579 F. Supp. 823, 846-47 [14 ELR 20212] (W.D. Mo. 1984) (holding liable a transporter who had independently contracted with the owner of the site where the waste was to be disposed). Commentators have echoed the view that § 107(a)(4) was intended to impose liability on transporters who select dump sites. See D. Stever, Law of Chemical Regulation & Hazardous Waste § 607[1][a], at 6-89 (1987); Frost, CERCLA for the Contractor, in R. Cushman & B. Ficker, Hazardous Waste Disposal and Underground Construction Law 213, 230 (1987). The court finds Ambrosio not liable under Count 1.[3] II. Count 3 -- Abnormally dangerous activity A. PPG and Lawrence/Clif The court imposes strict liability upon PPG and Lawrence/Clif for engaging in the abnormally dangerous activity of distributing hazardous substances. The court's conclusion is based on its application of the standards set forth in the Restatement (Second) of Torts § 520, as adopted by the New Jersey Supreme Court in Department of Environmental Protection v. Ventron, 94 N.J. 473, 491-92 [13 ELR 20837] (1983). First, it is undisputed that the chromium in the concentrations found constituted a hazardous waste posing a high degree of risk to the environment and a potential although lesser risk to individuals. Second, there is a likelihood that the harm to the environment could be great, particularly if it migrated and entered either ground water or the drinking water supply. Third, the risk could not be eliminated by others subjected to it through the exercise of reasonable care, and only those with specialized knowledge of the risks and of the chromium's existence could protect against it. Fourth, the activity of both defendants was inappropriate to the place where it was carried on -- it was foreseeable for both PPG and for Lawrence/Clif to anticipate the utilization of said fill in residential areas. Finally, although the fill served some limited utilitarian purpose, its limited value is far outweighed by its dangerous attributes and the risks that it posed to the environment. Therefore, the court concludes that the distribution of the chromium residue was abnormally dangerous, and that these defendants are strictly liable as a result. PPG contends that it cannot be strictly liable because its generation and distribution of the chromium waste was not a proximate cause of plaintiff's injuries. The court rejects this argument. First, it was foreseeable to PPG when it conveyed Garfield Avenue to Lawrence/Clif that Lawrence would sell chromium-contaminated landfill to other parties. Second, PPG's liability is not relieved by the actions of any intervening parties. As stated, Lawrence/Clif's sale of fill to Ambrosio, though ten years later, was foreseeable. Lawrence's negligence in distributing the fill with its independently gained knowledge of the environmental risks does not relieve PPG of its responsibility. A party engaging in an abnormally dangerous activity should not benefit from the fortuitous negligence of an intervening actor. Additionally, Ambrosio's transportation of the fill to Ninth Street, without knowledge of its chromium content, does not break the causal chain between PPG's actions and plaintiff's injury. Lawrence/Clif contends that it cannot be held liable under this theory because it did not generate the chromium waste and is simply an "innocent landowner." This argument fails. First, Ventron makes plain that "disposal" not merely generation -- of toxic waste is an abnormally dangerous activity. See 94 N.J. at 492-93. Second, Lawrence/Clif is not an innocent landowner, as that concept was employed in Ventron, 94 N.J. at 493, and Department of Environmental Protection v. Exxon, 151 N.J. Super. 464, 482-85 (Chancery Div. 1977). Lawrence/Clif, acting with knowledge that the fill contained chromium and that the fill had caused structural problems, contracted for its distribution.[4] The court holds liable PPG and Lawrence/Clif under Count 3. B. Ambrosio The court concludes that Ambrosio did not engage in an abnormally dangerous activity for which it can be held responsible for plaintiff's injuries. Even assuming that Ambrosio's transportation of the fill without knowledge of its contamination is deemed an abnormally dangerous activity, the court, following Kenney v. Scientific, Inc., 204 N.J. Super. 228, 261 [15 ELR 20403] (Law Div. 1985), holds that Ambrosio's strict liability extends only for the period it possessed and controlled the material. Plaintiff was not harmed by the chromium while Ambrosio was transporting it. The courtfinds Ambrosio not liable under Count 3. III. Counts 4 (Trespass) and 6 (Nuisance) Plaintiff, at oral argument, admitted that its trespass and nuisance claims were subsumed in its claims for abnormally dangerous activity (Count 3) and negligence (Count 7). The court, given its rulings on Counts 3 and 7, does not consider Counts 4 and 6. IV. Count 7 -- Negligence A. PPG and Lawrence/Clif The court concludes that the negligence of both PPG and Lawrence/Clif caused plaintiff's injuries. PPG acted negligently in conveying Garfield Avenue to Lawrence/Clif without properly advising Lawrence of the potential risks of chromium contamination. The court has found that PPG knew, at the time of the sale, that there were major health risks associated with the inhalation of chromium and some minor health risks from direct exposure to chromium even in the residue. Moreover, PPG knew or should have known, based on their specialized knowledge, that the chromium in the soil might present environmental risks. Furthermore, PPG knew that Lawrence/Clif would use the fill itself and sell it to others -- PPG had sold Garfield Avenue fill in the past, including sales to Lawrence itself. Given these facts, PPG was under a duty to advise the purchaser of the property, at a minimum, or the potentiality of such risk even if it was unable to specify it.[5] PPG's breach of its duty proximately caused plaintiff's injury. As stated above, PPG plainly should have foreseen that Lawrence/Clif would sell chromium-contaminated fill to others. As explained in connection with Count 3, Lawrence/Clif's negligence does not relieve PPG of liability. PPG should not benefit from the fact that Lawrence/Clif gained independent knowledge of the fills' environmental hazards and failed to act thereupon. That Ambrosio actually transported the fill from Garfield Avenue to Ninth Street does not alter this conclusion. Lawrence/Clif acted negligently in distributing chromium-contaminated fill without warning the purchaser. Lawrence/Clif, at the time it sold fill to Ambrosio, knew that the fill contained chromium and knew that the fill had caused problems with its foundations. Under these circumstances, Lawrence/Clif had a duty to Ambrosio -- extending to plaintiff, a foreseeable user of the contaminated soil -- to at least notify that the fill contained chromium. Without this knowledge, neither Ambrosio nor plaintiff, its customer, could evaluate whether to risk use of this fill. Furthermore, Lawrence/Clif's breach of this duty was a proximate cause of the contamination at Ninth Street. The court holds liable PPG and Lawrence/Clif under Count 7. B. Ambrosio The court has found that Ambrosio bought fill from Lawrence/Clif and transported that fill to Ninth Street, without knowledge that the fill contained chromium residue. Ambrosio's knowledge that Garfield Avenue at one time was a chrome processing plant created no independent duty to test the fill for potential chromium contamination. The court concludes, therefore, that Ambrosio did not act negligently in transporting the fill. The court finds Ambrosio not liable under Count 7. V. Count 8 -- Breach of contract The court concludes that Ambrosio did not breach its contract with plaintiff. First, Ambrosio delivered "clean fill" to plaintiff. Clean fill had an accepted meaning which did not require chemical analysis and the specifications did not require chemical analysis. Furthermore, plaintiff's representative accepted the fill. Additionally, the court concludes that Ambrosio did not breach its contract with plaintiff in any other manner. The court finds Ambrosio not liable under Count 8. VI. Counts 9 (Fraud) and 10 (Misrepresentation) The court has found that Ambrosio did not know and had no reason to know that the fill it delivered to Ninth Street was contaminated. Therefore, the court finds Ambrosio not liable under Counts 9 and 10. VII. Count 11 -- Indemnification The court, based on its ruling that Ambrosio is not liable to plaintiff under any theory, finds that defendants International Fidelity Insurance Co. and The Hartford are not liable under Count 11 as guarantors of Ambrosio's performance. VIII. Damages The court has found that plaintiff has incurred $593,864.22 in recoverable damages -- the expenses incurred in the cleanup minus $116,000 found to be unnecessary and unreasonable. The court must allocate responsibility for these damages between the responsible defendants, PPG and Lawrence/Clif. Furthermore, the court addresses defendants' contention that plaintiff, as a responsible party under CERCLA, must share in the costs of cleanup. Plaintiff, as owner and operator of the Ninth Street site, is a responsible party under §§ 107(a)(1), (2) of CERCLA. However, CERCLA grants the court authority to "allocate response costs among liable parties using such equitable factors as the court determines are appropriate." Superfund Amendments and Reauthorization Act, Pub. L. No. 99-499, § 113(f)(1), 100 Stat. 1613, 1647 (1986).[6] Furthermore, the general trend in the common law is toward a comparative fault approach to allocation of damages. See Note, Developments in the Law -- Toxic Waste Litigation, 99 Harv. L. Rev. 1458, 1538 & n. 117 (1986); see also Restatement (Second) of Torts 886A comment h (stating that allocation by fault is a fairer and more equitable method, though more difficult to administer, than allocation by equal shares). The court, comparing the fault of plaintiff (a landowner without knowledge of chromium contamination) and defendants (parties who distributed landfill with knowledge that it contained chromium and with knowledge that chromium caused certain health or environmental problems), allocates damages equally between Lawrence/Clif and PPG. The court believes it would be inequitable to diminish plaintiff's recovery under these circumstances. Imposition of CERCLA strict liability upon an unknowing landowner is unnecessary and unfair where knowing generators and distributors are available.[7] As between PPG and Lawrence/Clif, the court finds no justification for distinguishing between the parties' responsibilities -- each had knowledge that the fill contained chromium, and that the chromium caused either health or environmental problems. The Court, therefore, dismisses the first count of PPG's cross claim against Lawrence/Clif and the first count of Lawrence's cross claim against PPG. The second count of Lawrence/Clif's cross claim alleges that PPG intentionally concealed material information concerning chromium hazards upon the sale of Garfield Avenue. Lawrence/Clif seeks indemnification, claiming that its liability to plaintiff was caused by PPG's knowing concealment. The court finds, as a matter of fact, that PPG did not knowingly conceal information from Lawrence/Clif. The court has found, however, that PPG acted negligently in failing to disclose information to Lawrence/Clif concerning the hazards of chromium. The court concludes that Lawrence/Clif is not entitled to indemnification based on PPG's negligence. First, Lawrence/Clif's cross claim is plead only as to intentional fraud, not negligence. Second, Lawrence/Clif distributed the fill with independently gained knowledge of environmental risks; Lawrence presented no evidence to indicate that the additional knowledge concerning health risks would have changed its course of action. The court dismisses the second count of Lawrence/Clif's cross claim. Therefore, the court imposes joint and several liability upon defendants PPG and Lawrence/Clif. Conclusion The growing knowledge regarding hazardous waste has and will undoubtedly impose liability on companies who acted in good faith and without any knowledge that they were manufacturing or creating a hazardous substance. In this case, however, we do not have such a situation. As to PPG, it knew that chromium was a carcinogenic chemical, and that employees who were exposed to it through inhalation could sustain serious injury, and those who were exposed to it directly could sustain minor injury. The evidence in this case does not indicate that PPG specifically knew that those risks could be transposed to the residue mud from its operation. However, those serious health risks were sufficient to alert PPG to the existence of some potential risks to health or the environment from the fill. It would have placed no great burden upon them to convey to any purchaser of either the property or the fill what they did know about the risks of chromium, so that those persons utilizing it could investigate further and make a judgment with the same knowledge that PPG possessed. The court accepts the contention of PPG that it did not "know" of any such risks, but that lack of specific knowledge did not relieve it of its duty to disclose what it did know. It knew that chromium posed a high risk of illness under certain circumstances. It, therefore, was not justified in assuming that no risk existed absent those circumstances. As to Lawrence, they began with no knowledge of the risks of chromium nor any reason to know of those risks. However, when they experienced problems with their building foundations and learned that they were related to the chromium ore in the fill, that coupled with their generalized knowledge about the PPG operation and that chemicals remained in the soil was sufficient to place them on notice that some risks lurked in the fill. Here again, Lawrence/Clif may not have been aware of the specific risks, but that would not justify their concluding that no risks existed. Indeed, they were advised that the fill had to be removed from their foundations and, therefore, they were alerted that the fill posed a risk to construction. Despite this knowledge Lawrence/Clif proceeded to dispose of the fill, and a portion of it found its way into the Ninth Street site and gave rise to the considerable expense which the plaintiff incurred. Although PPG argues that the health risks to its employees should not be transposed to the residue mud, and Lawrence/Clif argues that the construction problems should not be transposed to environmental hazards, both were aware of risks, and all that was required of them was to communicate what they knew to persons utilizing the fill. Having failed to do so, they should be held liable for the expenses incurred as a result of their actions and inaction. Plaintiff is directed to submit a proposed order of judgment; defendants shall submit any objection to the proposed order within ten days of its receipt. 1. Clif Associates and Lawrence Construction are related companies and shall be treated jointly for the purposes of this opinion. 2. Ninth Street became a "facility" once Ambrosio deposited the chromium mud on the premises. See 42 U.S.C. § 9601(9)(B). However, at the time Ambrosio accepted the fill for transport, Ninth Street was not a "facility" within the statutory definition, nor was it even a site for disposal or treatment of hazardous substances. 3. The court does not address Ambrosio's argument that it could not have "accepted" the chromium for transport because it did not know that the fill was contaminated. Even if Ambrosio were liable under CERCLA, the court would impose no damages upon them. In that event, the court, exercising its equitable powers under CERCLA and the common law to apportion liability, would place complete liability on PPG and Lawrence/Clif, defendants who acted with far greater knowledge than did Ambrosio. 4. Lawrence/Clif, similarly, is not a "hauler" as that term was used in Kenney v. Scientific, Inc., 204 N.J. Super. 228, 260-63 [15 ELR 20403] (Law Div. 1985). 5. Contrary to PPG's argument to the court, such a duty may be established without expert testimony. PPG's duty in this case is simply a version of the common law duty to act reasonably under the circumstances. 6. The question of the retroactive application of the Superfund Amendments to this case is moot, because courts interpreted CERCLA as originally enacted to provide for a right of contribution. See e.g. United States v. New Castle County, 642 F. Supp. 1258 [16 ELR 21007] (D. Del. 1986); Note, Developments in the Law -- Toxic Waste Litigation, 99 Harv. L. Rev. 1458, 1535-37 (1986). 7. The court does not believe that CERCLA prevents comparison of the fault of plaintiff, a responsible party under § 107, and PPG, a party liable only under common law. Even so, the court may place CERCLA liability completely on Lawrence/Clif, and then allocate damages between Lawrence/Clif and PPG, as joint and several tortfeasors under the common law. That Lawrence/Clif is also liable under CERCLA has no bearing on such an allocation. 18 ELR 20364 | Environmental Law Reporter | copyright © 1988 | All rights reserved |