Lenox Inc. v. Reuben Smith Rubbish Removal

No. 97-5065 (JEI) (91 F. Supp. 2d 743) (D.N.J. April 4, 2000)

ELR Digest

The court grants in part and denies in part a Superfund site owner's motion for summary judgement in connection with claims brought against him by other potentially responsible parties (PRPs) of the site under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the New Jersey Spill Compensation and Control Act (Spill Act), and common law. The court first denies the owner's motion for summary judgment as to the PRPs' claims for contribution under CERCLA § 113(f). The owner argued that as a matter of equity he should not be made to bear any of the PRPs' response costs. However, it would be difficult to designate each party's equitable share of costs before each party's liability was conclusively established. Moreover, there are genuine issues of material fact as to the owner's alleged failure to prevent further dumping at the site and his lack of involvement in the remediation of the site. The court also denies the owner's motion for summary judgment as to the PRPs' claims for contribution under the Spill Act. Again, because the owner's liability has not yet been established and because genuine issue of fact remain as to his alleged failure to prevent further dumping at the site and to participate in the site's remediation, the owner's motion is premature. The court further holds that it will not dismiss the PRPs' claims for treble damages. Based on the record before the court, it appears that the owner did not abide by a directive issued by the New Jersey Department of Environmental Protection (NJDEP) or sign the department's administrative consent order because he felt that it was unfair for him to pay for the cleanup because he did not, himself, deposit any hazardous waste on the land. The owner, however, failed to provide sufficient evidence from which the court can conclude that this belief was objectively reasonable.

The court then holds that it will dismiss the PRPs' claims for the U.S. Environmental Protection Agency's (EPA's) past oversight costs under CERCLA. EPA cannot recover past oversight costs from the PRPs and, ipso facto, the PRPs cannot seek contribution for these costs from the owner. But to the extent that the owner seeks to dismiss the PRPs' claims for New Jersey's past oversight costs under the Spill Act, his motion is denied. The NJDEP may recover past oversight costs from the PRPs, thus, these costs are a proper element of the PRPs' contribution claim against the owner. Last, the court holds that the PRPs' state common-law claims for unjust enrichment and the creation of a constructive trust are preempted, by CERCLA. The court, therefore, dismissed these claims. Moreover, even if the PRPs' common-law claims were not preempted by CERCLA, they would be dismissed because several courts have held that unjust enrichment claims should be dismissed in CERCLA cases where, as here, plaintiffs have an independent duty to clean up the contaminated site.

The full text of this opinion is available from ELR (10 pp., ELR Order No. L-201).

Counsel for Plaintiffs
James E. Brandt
Sills, Cummis, Radin, Tischman, Epstein & Gross
One Riverfront Plaza, Newark NJ 07102
(201) 643-7000

Counsel for Defendants
Frederic P. Gallin
Methfessel & Werbel
1308 Pierce St., Rahway NJ 07065
(973) 242-6991

[30 ELR 20455]

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]