New Jersey Turnpike Authority v. PPG Industries, Inc. , 197 F.3d 96 ( 1999 )

Opinions of the United
1999 Decisions States Court of Appeals
for the Third Circuit
11-22-1999
NJ Turnpike Auth v PPG Ind Inc
Precedential or Non-Precedential:
Docket 98-6309
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Filed November 22, 1999
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 98-6309
NEW JERSEY TURNPIKE AUTHORITY,
Appellant
v.
PPG INDUSTRIES, INC; NATURAL PRODUCTS REFINING
COMPANY; F.S.F. COMPANY; ALLIED-SIGNAL, INC;
MUTUAL CHEMICAL COMPANY OF AMERICA;
OCCIDENTAL CHEMICAL CORPORATION; MAXUS
ENERGY CORPORATION; OCCIDENTAL PETROLEUM
CORPORATION; OXY-DIAMOND ALKALI CORPORATION;
CHEMICAL LAND HOLDINGS, INC.; MARTIN DENNIS
COMPANY; GEORGE M. BREWSTER & SONS, INC.;
FELHABER CORPORATION; MOHAWK CONSTRUCTORS,
INC.; MOHAWK CONSTRUCTORS II, INC.; REID
CONTRACTING COMPANY, INC.; KLEVENS
CORPORATION; HORN CONSTRUCTION COMPANY, INC.;
NEW JERSEY MANUFACTURERS INSURANCE COMPANY;
THE TRAVELERS INSURANCE COMPANY;
UNITED STATES FIDELITY GUARANTY COMPANY;
AMERICAN MUTUAL LIABILITY INSURANCE COMPANY;
JOHN DOE GENERATORS; JOHN DOE OPERATORS;
JOHN DOE OWNERS; JOHN DOE TRANSPORTERS;
JOHN DOE AFFILIATES
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(Docket No. 93-cv-02037)
District Court Judge: Honorable John W. Bissell
Argued July 13, 1999
Before: BECKER, Chief Judge, ROTH, and RENDELL,
Circuit Judges
(Filed November 22, 1999)
Ross A. Lewin, Esq. (ARGUED)
Jamieson, Moore, Peskin &
Spicer, P.C.,
300 Alexander Park
Princeton, NJ 08543-5276
Warren B. Kasdan, Esq.
Schwartz, Tobia, Stanziale,
Rosensweig & Sedita, P.A.
22 Crestmont Road
Montclair, NJ 07042
Attorneys for New Jersey
Turnpike Authority
George E. McGrann, Esq. (ARGUED)
Sweeney, Metz, Fox, McGrann &
Schermer, L.L.C.,
11 Stanwix Street
Pittsburgh, PA 15222
Joseph F. Lagrotteria, Esq.
St. John & Wayne
Two Penn Plaza East
Newark, NJ 07105
Attorneys for PPG Industries, Inc.
David W. Field, Esq. (ARGUED)
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, NJ 07068
Attorneys for Allied-Signal, Inc.
2
Thomas E. Starnes, Esq. (ARGUED)
Andrews & Kurth, L.L.P.
1701 Pennsylvania Ave., N.W.
Suite 200
Washington, D.C. 20006
Lori A. Mills, Esq.
William L. Warren, Esq.
Drinker, Biddle, & Reath, L.L.P.
105 College Road East,
P.O. Box 627
Princeton, NJ 08542-0627
Attorneys for Occidental
Chemical Corporation and Maxus
Corporation
OPINION OF THE COURT
RENDELL, Circuit Judge.
In this CERCLA and Spill Act case, the appellant, the
New Jersey Turnpike Authority ("Turnpike") seeks to hold
the appellees liable for contribution for the contamination
of a number of sites along the Turnpike with chromate ore
processing residue, or COPR, under standard theories of
liability and under an alternative liability theory. We
conclude that the Turnpike has not produced sufficient
evidence to survive appellees' summary judgment motion
under either CERCLA or the Spill Act or under an
alternative liability theory, and will affirm the District
Court's order on this basis.
I. Factual and Procedural Background
This case is the latest of a series of legal actions
attempting to affix liability against these appellees for COPR
contamination in New Jersey in both the state and federal
courts. The instant litigation centers around seven different
sites along the New Jersey Turnpike that the Turnpike
alleges have been contaminated with COPR. In this action,
the Turnpike relies largely upon prior investigations and
3
actions of other parties, and the records made in
connection with those cases, to prove liability of appellees
for contribution for the sites in question.
The New Jersey Department of Environmental Protection
("NJDEP") has denoted these areas as site numbers, 7, 20,
21, 56, 131, 192, and 201.1 According to the Turnpike,
these seven sites, among others, received COPR, directly or
indirectly, from appellees from the early 1950s to the mid
1970s. A. at 46a-47a.
The three appellees, Allied-Signal ("Allied"), PPG
Industries ("PPG"), and Occidental and Maxus Corporation
("Occidental") involved in this appeal, or their corporate
predecessors, were processors of chromium ore. A. at 30a,
34a. From the early 1900s until 1976, Allied, PPG, and
Occidental were the only companies in New Jersey
processing chromium. A. at 499a, 501a. Outside of their
plants, the next closest chromate chemical production
facility was in Glens Falls, New York. A. at 500a, 1057a.
Allied, PPG, and Occidental sold or gave the COPR
produced at their plants to contractors for construction fill
or other uses. A. at 962a, 903a, 923-38a, 1241a, 894a,
957a-960a, 897a, 922a, 981a. Neither the appellees nor the
Turnpike has kept records of COPR disposal or purchase.
A. at 903a, 1069a, 681a, 713a.
The NJDEP began investigating possible chromium
contamination at sites in New Jersey in the 1980s. 2 In
1988, the NJDEP issued a "Directive" to Allied-Signal, PPG,
and Occidental. The NJDEP stated that the Directive was
issued for the following purposes:
in order to notify [Allied, PPG, and Occidental] that the
Department, pursuant to the provisions of the [Spill
Act] has determined that it is necessary to remove or
arrange for the removal of certain hazardous
_________________________________________________________________
1. Earlier versions of the record below indicate that the Turnpike
initially
focused on site 198, but the parties appear to be in agreement that it is
site 192 that is at issue in this case.
2. The Turnpike was made aware of the presence of COPR at some of the
sites at issue in this case from the Director of the Hazardous Waste Task
Force of New Jersey in 1984. A. at 281a.
4
substances, and in order to notify [Allied, PPG, and
Occidental] that the Department believes them to be
responsible for the discharge of such hazardous
substances. A. at 499a.
The Directive put appellees on notice of 118 contaminated
sites, including four of the sites at issue here, Sites 7, 20,
and 21 in Jersey City, and Site 56 in Kearny. A. at 507-
12a. The Directive assigned collective responsibility for
these sites to Allied, PPG, and Occidental, because it could
not identify which company had discharged chromate waste
at these and other sites. A. at 502a. In 1990, Occidental
entered into an administrative consent order with the
NJDEP relating to 26 chrome-contaminated sites in Kearny,
including Turnpike sites 56 and 131. 339a-364a.
Occidental agreed, via this administrative consent order, to
propose and implement remedial measures at all of the
Kearny sites listed. A. at 343a-347a.3 This order did not
include an admission of liability or fault by Occidental for
the sites. A. at 343a, 362a, 495a. Occidental has spent
more than $700,000 on investigation and remedial
measures at the Kearny sites, and over $47 million at the
non-Turnpike Kearny sites. A. at 1138a-41a. PPG has also
signed an administrative consent order whereby it has been
investigating and remediating over 55 sites in Hudson
County. A. at 626-68a.
The NJDEP issued another Directive in 1989 that set
forth the following as its "findings": 1) Allied had reported
that it could not account for the disposition of all its
chromate chemical waste, but that it had been used as fill
at offsite locations and had been stored at one of its
production sites and then used as fill in construction
projects; 2) Occidental employees had reported that
chromate chemical waste had been used as fill in wetlands
areas or in construction projects and roadway construction;
and 3) during the late 50s and early 60s, PPG allowed
approximately 40 tons per day of chromate chemical
production waste to be taken free of charge from the PPG
_________________________________________________________________
3. When the NJDEP identified Turnpike Site 201 as a new chrome site in
1996, Occidental agreed to treat the site as one covered by the
administrative consent order. A. at 494a-95a.
5
site. A. at 524-26a. The Directive also cited the testimony of
PPG employees in prior cases that its waste was used as fill
in Jersey City, and was sold and used for fill in
construction and industrial sites. A. at 527a. Other NJDEP
Directives were issued that discussed how waste from the
PPG and Allied plants were used as fill, and these
Directives also observed that both Allied and PPG had
entered into administrative consent orders with the NJDEP
to determine remedial plans without admitting liability. A.
at 551-52a, 559-62a, 585-86a, 593-620a, 626a-34a, 635-
664a.
This activity spawned a series of lawsuits in state and
federal courts seeking damages for personal injury and
property claims arising out of chrome ore residue, and the
courts in Hudson County, New Jersey, in particular, have
been the locus of a number of suits.4 See, e.g., Jersey City
Redevelopment Authority v. PPG Indus., Inc., Civ. A. No. 85-
2014, 1987 WL 54410 (D.N.J. Sept. 3, 1987), aff'd, 866
F.2d 1410-11 (3d Cir. 1988); Florence Trum, et al. v. Allied
Signal, et al., Docket No. W-14248-89 (N.J. Super. Ct. Law
Div. Feb. 11, 1993) (order granting summary judgment in
favor of PPG and Allied); Gertrude Settle v. PPG Indus., Inc.
et al., Docket No. W-10654-92 (N.J. Super. Ct. Law Div.
June 7, 1996) (order granting summary judgment in favor
of Allied); PPG Indus., Inc. v. Lawrence Construction Co., et
al., Docket No. L-195-93 (N.J. Super. Ct. Law Div. April 11,
1996) (consent order). The Hudson County litigation that is
relied upon most frequently by the Turnpike in this appeal,
Exxon v. PPG Indus., et al., was filed in 1990, and the
appellees, or their corporate predecessors, were named in
this suit.
In May 1993, the Turnpike filed suit in District Court,
alleging claims under CERCLA, the New Jersey Spill Act,
tort, contract, and quasi-contract claims, and a declaratory
judgment claim against numerous defendants, including
insurance companies, construction and trucking
companies, and corporations alleged to have produced
_________________________________________________________________
4. For example, Allied's counsel in this matter has handled
approximately fifteen cases on behalf of the corporation in the state and
federal courts in New Jersey. A. at 1285a.
6
COPR. Discovery efforts in this matter were sporadic at
best. In February, 1994, the Magistrate Judge entered a
case management order that indicated that discovery would
be conducted in phases, and that the first phase of
discovery would include document requests, interrogatories,
and depositions. The parties exchanged documents and
interrogatory answers shortly thereafter. For a period of at
least twelve months afterward, however, the Turnpike
sought no discovery from any defendant or third party on
the question of liability. We also note that there appeared to
be little or no discovery taken by any party for almost two
years.
On October 16, 1996, the Magistrate Judge issued an
order closing fact discovery at the request of Allied, so that
its dispositive motion could be filed. The Turnpike appealed
this decision to the District Court and received an
extension of time to pursue fact discovery on the issue of
liability through March 15, 1997, and on the subject of
damages through September 15, 1997. The Turnpike served
five deposition notices, and withdrew all but one. In sum,
the Turnpike did take one, one hour deposition in this case
in 1997, served written discovery requests on the appellees,
and it obtained from various sources 102 deposition
transcripts, but it concedes that it did not review all of
those transcripts. Allied, PPG, and Occidental moved for
summary judgment, as did the Turnpike. In support of its
motion for summary judgment, the Turnpike quoted and
utilized deposition testimony from prior actions and also
relied heavily on statements made in the NJDEP Directives
and the administrative consent orders that the appellees
had entered into with the NJDEP. The District Court heard
oral argument on the motions, and then ruled in favor of
Allied, PPG, and Occidental on the Turnpike's federal and
state law claims. This order became final upon dismissal of
all other claims.5
_________________________________________________________________
5. Judgment had been entered previously in favor of USF&G, Travelers
Insurance Co., and N.J. Manufacturers Insurance Co., and is not a
subject of this appeal. A. at 241-44a. Summary judgment was granted in
favor of appellees on May 15, 1998. On August 4, 1998, the District
Court entered an order: 1) dismissing all of the claims against the John
7
The focus of the District Court's opinion was the
Turnpike's assertion that an alternative liability theory
should be applied. In its opinion, the District Court noted
that the Turnpike had admitted it could not produce direct
evidence to prove CERCLA liability, and that it had instead
urged the Court to apply an alternative liability doctrine,
whereby the "burden would shift to the Generator
Defendants to prove that COPR originating from its plant
was not the source of the COPR detected on each site in
question." New Jersey Turnpike Authority v. PPG Industries,
Inc., 16 F. Supp. 2d 460, 468 (D.N.J. 1998). In examining
the Turnpike's alternative liability arguments, the District
Court noted that under any burden-shifting framework, a
plaintiff still had an initial burden of demonstrating that
two or more actors joined as defendants acted tortiously
toward that plaintiff, and that all culpable defendants were
joined in the action. See id. at 470 (citing Shackil v. Lederle
Laboratories, 561 A.2d 511 (N.J. 1989); McLaughlin v. Acme
Pallet Co. 658 A.2d 1314 (N.J. Super. Ct. App. Div. 1995)).
Without deciding the question of whether a theory of
_________________________________________________________________
Doe Defendants without prejudice; 2) stating that any and all claims by
the Turnpike against Natural Products Refining Co., F.S.F. Company,
Mutual Chemical Company of America, Oxy-Diamond Alkali Corporation,
Martin Dennis Company, George M. Brewster & Sons, Inc., Felhaber
Corporation, Reid Contracting Company, Inc., Klevens Corporation, Horn
Construction Company, and American Mutual Liability Insurance
Company were acknowledged by the Turnpike to be defunct, and
dismissing those claims; 3) dismissing counterclaims and cross claims
by the appellees with the exception of the counterclaims brought by
Occidental, which were "stayed and administratively terminated pending
disposition of any appeals from this Court's Order dated May 15, 1998."
The order was accompanied by correspondence stating that the order
was issued to ensure finality prior to appeal, and that no 54(b)
certification was necessary. We questioned whether this court had
jurisdiction in the absence of a 54(b) certification, and counsel sought a
54(b) certification from the District Court. A 54(b) certification was
entered by the District Court and presented to this court at argument.
We conclude that any jurisdictional defects inherent in the District
Court's August 4, 1998 order were cured by the 54(b) certification, and
that we therefore have jurisdiction to consider this appeal. See
Instructional Systems, Inc., 35 F.3d 813, 818 n.9 (3d Cir. 1994); Feather
v. United Mine Workers of America, 711 F.2d 530, 535 (3d Cir. 1983).
8
alternative liability is applicable to cases brought under
CERCLA, the District Court found that even if this theory
could apply, the Turnpike had not demonstrated that
alternative liability should be applied to this case. See id. at
470-71. The District Court noted that the Turnpike was not
a proper "innocent" party to be aided by an alternative
liability doctrine, as it was also potentially liable for the
COPR contamination at its sites under CERCLA, and that
the Turnpike, rather than the appellees, was in a better
position to uncover evidence relating to causation. 6 See id.
For these reasons, the District Court declined to apply the
doctrine of alternative liability to the Turnpike's claims.
The District Court also concluded that the Turnpike's
evidentiary proffers were not sufficient in and of themselves
to establish a question of material fact, under either
CERCLA or the Spill Act. The District Court noted that the
Turnpike had not produced sufficient competent evidence
to demonstrate that Allied or PPG's facility had deposited
COPR on any of the sites at issue, and that the Turnpike
had not produced sufficient evidence against Occidental as
to sites 7, 20, 21 and 192. See id. at 472. The District
Court then took a closer look at the evidence produced by
the Turnpike against Occidental with respect to sites 56,
131, and 201 and concluded that the Turnpike could not
produce adequate evidence against Occidental with respect
to these sites to survive summary judgment under
CERCLA. See id. at 472-75. The District Court also found
that the Turnpike had not produced sufficient evidence to
survive summary judgment on its Spill Act claims, and it
also addressed and denied the Turnpike's other state law
_________________________________________________________________
6. The District Court made the following comments as to proof of
causation:
[O]ne of the primary justifications for invoking the alternative
liability doctrine -- to provide redress for injuries that would
not be
remedied otherwise -- is plainly absent here. The alleged damage
here -- the environmental harm -- is already being addressed in
ongoing NJDEP proceedings, which have already secured the
agreement of Occidental to address three of the seven sites in
question.
16 F. Supp.2d at 471.
9
claims. The Turnpike argues on appeal that the District
Court erred by 1) failing to consider evidence that would
link Allied, PPG, and Occidental to the COPR found at the
Turnpike sites; 2) refusing to shift the burden of proving
causation to the defendants under an alternative liability
theory; and 3) exercising supplemental jurisdiction over the
Turnpike's state law claims, where the claims presented
novel and complex issues of state law.
The District Court had subject matter jurisdiction over
this case pursuant to 28 U.S.C. S 1331 and 42 U.S.C.
S 9613(b). We have jurisdiction pursuant to 28 U.S.C.
S 1291. Our review of the District Court's grant of summary
judgment is plenary. See United States v. USX Corp., 68
F.3d 811, 819 (3d Cir. 1995).
II. Discussion
A. CERCLA
Both CERCLA, 42 U.S.C. S 9601, and the Superfund
Amendments and Reauthorization Act ("SARA"), were
enacted to provide for liability and remediation of
hazardous substances in the environment and for cleanup
of inactive hazardous waste sites. Section 107 of CERCLA
assigns liability to four categories of "potentially responsible
parties" or PRPs for costs of removal or remediation or
hazardous waste. 42 U.S.C. S 9607(a). A PRP includes: 1)
the current owner or operator of a facility; 2) any person
who owned or operated the facility at the time of the
disposal of a hazardous substance; 3) any person who
arranged for disposal or treatment, or arranged for
transport for disposal or treatment of hazardous
substances at a facility; and 4) any person who accepts or
accepted hazardous substances for transport to sites
selected by such person. See New Castle County v.
Halliburton NUS Corp., 111 F.3d 1116, 1120 (3d Cir. 1997).
In order to prove CERCLA liability under section 107, a
plaintiff must prove: 1) that the defendant is a PRP; 2) that
hazardous substances were disposed of at a "facility"; 3)
that there has been a "release" or "threatened" release of
hazardous substances from the facility into the
10
environment; and 4) that the release or threatened release
has required or will require the plaintiff to incur"response
costs." See 42 U.S.C. S 9607(a); United States v. CDMG
Realty Co., 96 F.3d 706, 712 (3d Cir. 1996). A section 107
cost recovery action may only be pursued by an innocent
party that has undertaken hazardous waste cleanup, and
section 107 imposes strict liability and joint and several
liability on PRPs for costs associated with cleanup and
remediation. Id. at 1120-21. In order to prove a case where
a CERCLA plaintiff asserts that a PRP has "arranged" for
the transportation or disposal of hazardous substances, our
prior case law is clear that such a plaintiff "must simply
prove that the defendant's hazardous substances were
deposited at the site from which there was a release and
that the release caused the incurrence of response costs."
See United States v. Alcan Aluminum Corp., 964 F.2d 252,
266 (3d Cir. 1992).
Section 113 of SARA provides for recovery by way of
contribution by one PRP from another PRP. See 42 U.S.C.
S 9613(f)(1). A section 113 contribution action allows a PRP
to recover a portion of its expenditures when that PRP
believes that it has assumed a share of the costs that is
greater than its equitable share under the circumstances.
See New Castle County, 111 F.3d at 1121-22; see also In re
Reading Co., 115 F.3d 1111, 1119 (3d Cir. 1997). A section
113 plaintiff must demonstrate that the defendants are
liable or potentially liable under 107; the elements for both
claims are essentially the same.7See 42 U.S.C. S 9613(f)(1);
Prisco v. A & D Carting Corp., 168 F.3d 593, 603 (2d Cir.
_________________________________________________________________
7. Under Section 113(f)(1), once a contribution plaintiff has demonstrated
section 107 liability, it must then demonstrate that apportionment is
feasible. See New Castle County, 111 F.3d at 1122; United States v.
Colorado & Eastern Railroad Co., 50 F.3d 1530, 1536 (10th Cir. 1995).
A court "may allocate response costs among liable parties using such
equitable factors as the court determines are appropriate." See 42 U.S.C.
S 9613(f)(1). In any given case, a court may consider several factors or a
few, depending on the totality of the circumstances and equitable
considerations. See New Castle County, 111 F.3d at 1122-23; 50 F.3d at
1536 (discussing approaches to apportioning contribution claims under
S 113(f)(1)). We will not discuss the apportionment question, given that
we find that the Turnpike has not demonstrated CERCLA liability on the
part of the appellees.
11
1999); Bedford Affiliates v. Sills, 156 F.3d 416, 427 (2d Cir.
1998); Redwing Carriers, Inc. v. Saraland Apts. , 94 F.3d
1489, 1496 (11th Cir. 1996); see also CDMG Realty Co., 96
F.3d at 712. However, section 113 does not "in itself create
any new liabilities; rather, it confirms the right of a
potentially responsible person under section 107 to obtain
contribution from other potentially responsible persons."
New Castle County, 111 F.3d at 1121. The Turnpike is a
PRP, as the current owner and operator of the sites, and its
action against other PRPs is properly characterized as a
section 113 action. See id. at 1120-22.8
The Turnpike argues that all three appellees are PRPs by
virtue of their having arranged for disposal and transport of
the COPR at the seven sites. See 42 U.S.C. S 9607(a)(3).
_________________________________________________________________
8. We note at the outset that the Turnpike is seeking recovery primarily
of litigation costs; we express no view as to what they could recover in
this action. In the course of discovery, the Turnpike summarized its
damage claim as follows:
IAG, Ltd. $ 99,810.36 "insurance archeology"
services
related to a dismissed
declaratory
judgment action against
the
Turnpike's insurers
SMC Environmental $ 850,699.95 management services for
Services Group litigation, unspecified
as to the sites
Louis Berger $ 184,089.13 unspecified as to
activities or
& Associates sites where costs
incurred
Sills, Cummis $ 801,960.33 legal fees and costs
Wolff & Samson $ 19,899.11 legal fees and costs
Schwartz, Tobia, $ 255,108.40 legal fees and costs
and Stanziale,
R-1105 Sarria $ 40,379.51 to erect a fence around
Site 20 as
Construction an interim remedial
measure
Rutgers University $ 31,700.00 unspecified Paulus,
Sokoloski $ 85,729.84 unspecified
& Sartor
TOTAL $2,358,376.63
12
Although the Turnpike acknowledges that in setting forth
its proofs, it is required to prove the link described in our
decision in Alcan, it also argues that this requirement is not
all that exacting, due to the remedial purpose of CERCLA
and less stringent notions of proof and causation
underlying a CERCLA claim. See Alcan, 964 F.2d at 266-
69. The Turnpike also argues that in analyzing its
arguments under the statutory elements of section 113, we
should look to the entire eastern spur of the Turnpike as
the "facility" in question. We cannot accept either of these
contentions.
First, we find that the Turnpike has misconstrued the
nature of the proof required of a plaintiff under CERCLA. It
is true that as a CERCLA plaintiff, the Turnpike need not
prove causation in the traditional sense of the word for the
appellees to be found liable. However, the statute and our
case law require some connection between the actions of
the appellees and the COPR contamination at the sites in
question.9 We therefore agree with the District Court in this
matter that in order to fulfill CERCLA's "causation"
requirements, the Turnpike must offer some proof that
Allied, PPG, and Occidental deposited, or caused the
disposal of, COPR at each of the sites at issue in this case.
See Alcan, 964 F.2d at 266. Some courts, in describing this
evidentiary burden, have termed it a "nexus" requirement.
See, e.g., General Elec. Co. v. AAMCO Transmissions, Inc.,
962 F.2d 281, 286 (2d Cir. 1992). Therefore, we agree that
the burden that CERCLA requires is not an onerous one,
but we also observe that the Turnpike must nevertheless
produce sufficient evidence to meet it.
Second, the Turnpike also argues that the eastern spur
of the New Jersey Turnpike is the "facility" in question, and
that the sites at issue here can be considered the
_________________________________________________________________
9. In the District Court's words:
While it is not necessary for [the Turnpike] to . . . trace the
cause
of the response costs to each Generator Defendant, it is not
enough
that it simply prove that each Generator Defendant produced COPR
and that COPR was found at each of the sites in question and ask
the trier of fact to supply the link.
16 F. Supp.2d at 469.
13
environmentally impacted portions of the overall "facility"
for the purposes of determining whether the appellees are
liable.10 However, allowing the "facility" to be the entire
eastern spur, where the Turnpike's claim seeks costs
relating to seven specific sites, would result in an
unwarranted relaxation of the "nexus" required. If the
Turnpike seeks contribution for contamination at the sites,
it may not merely prove deposits occurred along the
"eastern spur."
B. Spill Act
The Spill Act is the New Jersey environmental protection
act that resembles CERCLA in its purpose, although it sets
forth a distinct strict liability scheme. The Spill Act
provides:
Any person who has discharged a hazardous
substance, or is in any way responsible for any
hazardous substance, shall be strictly liable, jointly
and severally, without regard to fault, for all cleanup
and removal costs, no matter by whom incurred.
N.J.S.A. S 58:10-23.11g(c)(1).11
In this appeal, the Turnpike also argues that the Spill Act
should receive an expansive construction, for its strict
liability scheme includes any person who is "in any way
responsible for any hazardous substance," and the Spill Act
is supposed to be construed liberally to effectuate its
purposes. See N.J.S.A. S 58:10-23.11x. The Supreme Court
of New Jersey has determined that a party "even remotely
responsible for causing contamination will be deemed a
_________________________________________________________________
10. Section 101(9) of CERCLA defines a facility as "A) any building,
structure, installation, equipment, pipe or pipeline (including any pipe
into a sewer or publicly owned treatment works), well, pit, pond, lagoon,
impoundment, ditch, landfill, storage container . . . or B) any site or
area
where a hazardous substance has been deposited, stored, disposed of, or
placed, or otherwise come to be located [in that site or area]." 42 U.S.C.
S 9601(9).
11. See also N.J.S.A. S 58:10-23.11f(a)(2) (setting forth private right of
contribution for cleanup costs against persons "in any way responsible
for a discharged substance who are liable for the cost of the cleanup").
14
responsible party under the Act."12 See In re Kimber
Petroleum Corp., 539 A.2d 1181, 1189 (N.J. 1988); State
Dept. of Environmental Protection v. Ventron, 468 A.2d 150,
165-66 (N.J. 1983). However remote a party's responsibility
under the Spill Act may be, the statute nevertheless
requires some degree of particularity; one cannot be
"responsible" for a hazardous substance without having
some connection to the site on which that substance was
deposited. In other words, like CERCLA, the Spill Act places
a burden on the Turnpike to demonstrate some connection
or nexus between the COPR at the sites in question and the
appellees in this case.13 See Marsh, 703 A.2d at 931;
Kimber, 539 A.2d at 1182.
C. Alternative Liability
The Turnpike argues that it produced sufficient evidence
to survive summary judgment apart from the application of
an alternative liability theory, but it also argues that the
District Court erred by failing to shift the burden of proof
to Allied, PPG, and Occidental via common law principles of
alternative liability on the basis of the evidence that it
produced of the appellees' COPR production and disposal.
Although general tort law principles require a plaintiff to
bear the burden of proving causation, see Restatement
(Second) of Torts, S 433B(1) (1965), courts have fashioned
exceptions to this rule in situations in which plaintiffs
would be otherwise unable to recover, such as alternative
liability, market share liability, and enterprise liability. See,
e.g., Doe v. Cutter Biological Inc., 971 F.2d 375 (9th Cir.
1992); Smith v. Cutter Biological, Inc., 823 P.2d 717 (Haw.
_________________________________________________________________
12. As the owner and operator of the sites in question at the time of the
contamination at issue in this case, the Turnpike is a responsible party
under the Spill Act. See Marsh v. NJDEP, 703 A.2d 927, 931-33 (N.J.
1997).
13. A similar interrelation exists between the contribution and the direct
cost recovery provisions of the Spill Act as is found in CERCLA. N.J.S.A.
S 58:10-23.11f(a)(2) provides:
In an action for contribution, the contribution plaintiffs need
prove
only that a discharge occurred for which the contribution
defendant
or defendants are liable pursuant to [S 58:10-23.11g(c)(1)].
15
1991); Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069, 1077
(N.Y. 1989) (applying market share liability theory); Minnich
v. Ashland Oil Co., Inc., 473 N.E.2d 1199 (Ohio 1984);
Sindell v. Abbott Laboratories, 607 P.2d 924, 933, 937 (Cal.
1980) (discussing reasons for applying market share rather
than enterprise liability theory). The general rule for
alternative liability is: "Where the conduct of two or more
actors is tortious, and it is proved that harm has been
caused to the plaintiff by only one of them, but there is
uncertainty as to which one has caused it, the burden is
upon each such actor to prove that he has not caused the
harm." Restatement (Second) of Torts,S 433B(3). The case
that effectively established the doctrine of alternative
liability is Summers v. Tice, 199 P.2d 1 (Cal. 1948). In
Summers, two hunters discharged their guns in the
direction of the plaintiff, and at trial, the plaintiff was able
to establish that both hunters were negligent, but the
plaintiff could not identify the shot that hit him. As a
response to the problem of proof faced by the injured
plaintiff, the court required each of the hunters to prove
that the shot that injured the plaintiff did not come from
his gun. The justification for the imposition of alternative
liability is to hold wrongdoers responsible for their conduct,
and not to allow them to "escape liability merely because
the nature of their conduct and the resulting harm has
made it difficult or impossible to prove which of them has
caused the harm." Restatement (Second) of Torts, S 433B(3)
cmt. f.
The application of an alternative liability theory does
place certain requirements on a plaintiff before any burden
shifting occurs. Some courts have set forth the following
test for alternative liability: 1) all defendants must have
acted tortiously; 2) the plaintiff must have been harmed by
the conduct of at least one of the defendants, and therefore
plaintiff must bring all possible defendants before the court;
and 3) the plaintiff must be unable to identify which
defendant caused the injury. See Abel v. Eli Lilly & Co., 343
N.W.2d 164, 173 (Mich. 1984). Alternative liability applies
"only where it is proved that each of two or more actors has
acted tortiously and that the harm has resulted from the
conduct of some one of them. On these issues the plaintiff
16
has still the burden of proof." Restatement (Second) of Torts,
S 433B(3), cmt. g.
The Turnpike argues for the application of alternative
liability to both the New Jersey Spill Act claim and its
CERCLA claims. While New Jersey courts have not
recognized wide-ranging alternative liability or other
collective liability theories, see Shackil, 561 A.2d at 520; cf.
James v. Bessemer Processing Co., Inc., 714 A.2d 898, 908-
10 (N.J. 1998) (discussing difficulties of proving medical
causation in toxic tort cases, and the caution New Jersey
courts have utilized in analyzing novel models of
causation), they have not been entirely hostile to alternative
liability-based approaches. In rejecting the application of
market share liability to injuries caused by vaccines, the
Shackil court indicated that it would not be averse to
recognizing market share liability in other factual
situations, "perhaps one where its application would be
consistent with public policy and where no other remedy
would be available." 561 A.2d at 529. We do believe it is
clear that the New Jersey courts have recognized that the
burden shifting of an alternative liability theory does not
eliminate the requirement that a plaintiff establish some
"reasonable connection" between a defendant and the
ultimate harm that a plaintiff suffers, and that all culpable
actors be joined as defendants. See id. at 516, 520-21; see
also Estate of Chin v. St. Barnabas Medical Center , Nos. A-
11/12, 1999 WL 543286 (N.J. July 28, 1999) (stating that
plaintiff seeking to shift burden of proof in medical
malpractice case must demonstrate that: 1) plaintiff is
blameless; 2) the injury bespeaks negligence on the part of
one or more of the defendants; 3) all potential defendants
must be before the court).14
The applicability of alternative liability in the context of
federal environmental statutes has been food for scholarly
thought rather than the subject of judicial opinion. See,
_________________________________________________________________
14. As the Shackil court recognized, the requirement that all potential
defendants be joined for alternative liability to apply has been relaxed
in
"market share" products liability cases, where a plaintiff need only join
a "substantial share" of the defendants who might have produced or
supplied the product in question. See 561 A.2d at 516-17.
17
e.g., John Copeland Nagle, CERCLA, Causation, and
Responsibility, 78 Minn. L. Rev. 1493 (June 1994); John W.
Mill, Agricultural Chemical Contamination of Ground Water:
An Econ. Analysis of Alternative Liability Rules, 1991 U. Ill.
L. Rev. 1135 (1991); Thomas C.L. Roberts, Allocation of
Liability Under CERCLA: A "Carrot and Stick" Formula, 14
Ecology L.Q. 601, 616-23 (1987); Ora Fred Harris, Jr., Toxic
Tort Litigation and the Causation Elements, Is there any
Hope of Reconciliation?, 40 Sw. L.J. 909, 913 (1986); James
M. Olson, Essay, Shifting the Burden of Proof: How the
Common Law Can Safeguard Nature and Promote an Earth
Ethic, 20 Envtl. L. 891 (1990); see also Developments in the
Law -- Toxic Waste Litigation, Liability Issues in CERCLA
Cleanup Actions, 99 Harv. L. Rev. 1511, 1520-33 (May
1986); Paul J. Dickman, Student Article, Leaking
Underground Storage Tanks: The Scope of Regulatory
Burdens & Potential Remedies under RCRA and CERCLA ,
21 N. Ky. L. Rev. 619 (Spring 1994); Melinda H. Van der
Reis, Comment, An Amendment for the Environment:
Alternative Liability and the Resource Conservation and
Recovery Act, 34 Santa Clara L. Rev. 1269 (1994). However,
a few courts have recognized the applicability of alternative
liability theories under the Resource Conservation and
Recovery Act, or RCRA. See, e.g., Aurora National Bank v.
Tri Star Marketing, 990 F. Supp. 1020 (N.D. Ill. 1998);
Zands v. Nelson, 797 F. Supp. 805, 812-13 (S.D. Cal. 1992).15
The applicability of alternative liability to a CERCLA
action has not been specifically addressed in federal case
_________________________________________________________________
15. The Zands court set forth the following rule for alternative liability
in
its particular case: 1) where plaintiff identifies a period of time during
which contamination occurred; 2) where owners of the property or
operators of a gas station are strictly liable for the contamination of
the
property that occurred during their period of ownership or operation; 3)
where plaintiff joins as defendants all persons who owned the property
or operated the gas station for at least a portion of the time during
which
the contamination occurred; 4) but where plaintiff cannot prove which
owner or operator "caused" the contamination because more than one
person owned the property and operated the gas station during the
period of known contamination; 5) the Court will shift the burden to
each of the owner/operator defendants to show the contamination did
not occur during the period of the defendant's ownership or operation.
See 797 F. Supp. at 817-18.
18
law, and we will not decide the issue here, because we find
that the Turnpike has not produced sufficient evidence to
survive summary judgment, even if alternative liability were
to apply. In so stating, we do not reject the concept of
alternative liability in the context of these statutes out of
hand; rather, we find that we have not been presented with
a factual setting in which such a theory is tenable. The
Turnpike has not met its initial burden of proving that the
appellees have each directed their actions in such a
manner toward the Turnpike sites at issue, such that the
application of some form of an alternative liability theory
would be appropriate.16 The Turnpike urges that its highly
circumstantial evidence is enough, but we conclude that it
presents probabilities rather than proof. It is to this
evidence that we now turn.
D. Evidence
The record reveals that COPR waste was found at the
three appellees' chemical processing sites, and that the
appellees made contracts with various trucking and hauling
companies to remove the wastes. What is contested here is
whether reliable evidence ties the COPR of the particular
defendants to the seven Turnpike sites at issue in this case.
The Turnpike relies upon NJDEP Directives, expert reports,
and deposition testimony from other cases.17 We note at the
outset that the only evidence in all of the material supplied
that even begins to link appellees with the sites in question
_________________________________________________________________
16. Our concurring colleague would require that, under an alternative
liability theory, plaintiff merely had to show that defendants generated
this specific sort of hazardous waste in the relevant area. We do not
subscribe to this statement of plaintiff's burden under our case law,
which, as we have discussed, requires a "connection." Our colleague
notes that in Summers v. Tice, only a showing of negligence was
required; however, the factual connection there was clear -- both
hunters were shooting in plaintiff's direction.
17. The Turnpike relied upon and argued the significance of the
Administrative Consent Orders in the District Court, but they neither
rely upon nor cite to these orders on appeal. See Nagle v. Alspach, 8
F.3d 141, 143 (3d Cir. 1993); Lunderstadt v. Colafella, 885 F.2d 66, 78
(3d Cir. 1989).
19
is the depositions in previous cases, and they relate solely
to sites 7 and 20.
We find the Directives and the proffered expert report to
be of little probative value, because they contain no
evidence regarding the responsibility of these appellees for
COPR deposits at the sites in question. The Turnpike relies
upon a collection of facts that could be summarized as "if
it is there, it must be theirs." The Turnpike urges that the
conceded large scale production of COPR by the appellees,
the need for its local disposal, the proximity of the
appellees' production facilities to the sites at issue, and the
use of this material as fill over the years, combine to create
a question of material fact as to whether these appellees
bear responsibility and must pay contributions to the
Turnpike for depositing COPR at the sites in question. For
example, the Turnpike argues that since sites 56, 131, and
201 are close to Occidental's former processing plant, it is
liable for those sites, and since site 21 is close to PPG's
plant, PPG should be held accountable for the COPR
contamination there.18 Although these facts might serve as
corroboration if there were other proofs of the actual
involvement of the appellees with disposal at the sites in
question, they provide no proof whatsoever that they did in
fact dispose of their COPR at the sites in question. The
expert report commissioned by the Turnpike from Louis
_________________________________________________________________
18. Site 192 is close to an Occidental facility in Newark, but it is not
clear from the record that this particular facility even produced COPR.
As for the other sites located in Kearny for which the Turnpike seeks to
hold Occidental accountable, namely, 56, 131, and 201, an internal
memo by Occidental concedes that chrome in properties surrounding the
plant in Kearny is probably a result of scattering ore and from the fact
that "for many years chrome wastes were dumped indiscriminately on
our own property and anywhere else that seemed to be a likely spot. . . .
[b]eginning July 17, 1965, the mud trucking contract was awarded to
Disch, who sold the mud for fill in both highway and building
construction." A. at 917a. While there is some evidence that Disch sold
to highway construction projects, nothing in the record links Occidental
to the Turnpike via Disch. Although Disch was deposed in Route 440
Vehicle Corp. d/b/a Bob Ciasulli Acura v. James G. Nicholas, et al., No.
86-5064 (D.N.J.), only one page of that testimony is proffered as part of
the record before us, and it reveals nothing about where Disch
distributed or sold the waste.
20
Berger and Associates is even less helpful, since it paints a
generalized contamination scenario at the Turnpike
locations, again lacking in a link to one or more of the
appellees, and also lacking in certainty as to the precise
nature of the contamination. The report indicates that
sources other than COPR-contaminated constructionfill
might be at work at some of the sites in question, and it
draws no conclusions as to which appellee is accountable
for the contamination at a particular site.19
We also note that, notwithstanding the urgings of the
Turnpike to the contrary, we are not convinced that even if
probative, the Directives would constitute admissible
evidence. Rule 803(8)(C) provides for admissibility in civil
actions of "factual findings resulting from an investigation
made pursuant to authority granted by law, unless the
sources of information or other circumstances indicate lack
of trustworthiness." The Turnpike contends that the
Directives are the result of a government investigation and
_________________________________________________________________
19. Site 7: The report states that it could not provide conclusive
information "to determine whether the chromiumfill was present at the
site" prior to or during turnpike construction. A. at 385a. Also, the
report indicates that the chromium present could be the result of
railroad beds north of the site, and that in general, it was difficult to
know what activity was most likely to have caused the transportation of
chromium fill to the site. A. at 408a.
Site 20: The major historical land uses identified at this site were
railway and roadway transportation. A. at 385a. Thefill used could be
due to either the Turnpike construction or the railroad embankments on
this site, or to the presence of a lumber yard in this area or other
construction. A. at 419a, 445a-46.
Site 21: The report notes that chromium fill might have been present
prior to the Turnpike construction, as part of a railroad embankment
traverses this site. A. at 385a, 429a, 446a.
Site 56: The report concludes that chromiumfill was most likely
transported to the site for the Turnpike authority subsequent to the
actual roadway construction work. A. at 385a, 446a.
Site 131: The report concludes that it does not appear that the
Turnpike construction was involved in the transportation of fill to this
location, although chromium may have been brought to the site via the
maintenance or creation of an access road at this site. A. at 385a, 446a.
21
are therefore admissible. Appellees challenge the Directives
as nothing more than a form of notice pleading used to
serve notice of potential liability for costs of clean up, and,
although the factual findings set forth within the Directives
are presumably the result of the NJDEP's own
investigations, appellees urge that they are not the result of
an adversarial process. See, e.g., Kimber, 539 A.2d at 1185.
We think that the appellees have the better argument and
the findings contained in the Directives have not been
shown to be admissible as evidence.20
The Turnpike also relies on deposition testimony from
other litigation as evidence of a link between the sites and
the appellees but, as noted above, this testimony is helpful
-- if at all -- only as to sites 7 and 20. The Turnpike
explains that it has had access to depositions from a range
of prior cases involving appellees and has produced
excerpts from some of these cases in the record before us,
but in support of its arguments as to sites 7 and 20, it
relies primarily on excerpts from depositions taken in the
Hudson County case of Exxon v. PPG Indus., et al.
The Turnpike offers these depositions, contending that
they are probative and admissible. We have our doubts
regarding their admissibility and we disagree with the
Turnpike's view of their value as evidence. In order for
former testimony to be admissible under Rule 804(b)(1): 1)
the declarant must be unavailable; 2) testimony must be
taken at a hearing, deposition, or civil action or proceeding;
_________________________________________________________________
20. 803(8)(C) does not preclude the introduction of opinions and
conclusions in such reports so long as: 1) all statements in such a report
must be based on factual investigation; 2) any portion of the report that
is admitted must be sufficiently trustworthy. See In re Complaint of
Nautilus Motor Tanker Co., Ltd., 85 F.3d 105, 112 (3d Cir. 1996) (citing
Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988); Clark v.
Clabaugh, 20 F.3d 1290, 1294 (3d Cir. 1994)). Four non-exhaustive
factors may be considered in determining whether a report is sufficiently
trustworthy: 1) the timeliness of the investigation; 2) the investigator's
skill and experience; 3) whether a hearing was held; and 4) possible bias
when reports are prepared with a view to possible litigation. See 85 F.3d
at 112. The party opposing the introduction of a public report bears the
"burden of coming forward with enough negative factors to persuade a
court that a report should not be admitted." See id. at 113.
22
and 3) the party against whom the testimony is now offered
must have had, or its predecessor in interest must have
had, an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination. See Kirk
v. Raymark Indus., Inc., 61 F.3d 147, 165 (3d Cir. 1995).21
The Turnpike has not even attempted to satisfy thefirst or
third requirement regarding the admissibility of the
depositions in this proceeding, and given the paucity of
information in the record before us as to the whereabouts
of these witnesses and the nature of the prior proceeding,
it is impossible for us to determine on our own that these
depositions are admissible. We do not rely solely on this
concern in assessing the import of this evidence, however,
because we view the testimony itself as so unreliable and
imprecise that it does not constitute evidence sufficient to
create a genuine issue of material fact to withstand
appellees' summary judgment motion, or to prove the
Turnpike's own summary judgment motion.
1. Evidence at Site 7 and its Connection with
Allied's COPR Production
The Turnpike points to testimony given by John Lesofski
in the Exxon case that he had obtained chrome fill from a
Reppenhagen, Inc. from the Allied facility and delivered it to
a large-scale sewer construction project in Jersey City,
where he witnessed backfilling of the pipeline. Giving the
Turnpike the benefit of reasonable inferences from their
assertions, the conclusion we can draw is that Lesofski
witnessed the backfill of the pipeline.22 Because there
appear to be at least 16 sites in the pipeline vicinity, his
testimony does not establish that Allied's fill went to Site 7.
_________________________________________________________________
21. Privity or a common property interest is not required to establish a
predecessor in interest relationship, rather, a shared interest in the
material facts and outcome of the case will create such an interest. See
Lloyd v. American Export Lines, Inc., 580 F.2d 1179, 1185-87 (3d Cir.
1978).
22. In addition, the evidence of Lesofski's testimony that has been
supplied in the record is not his deposition, but, rather a reference to
that testimony in one of the NJDEP Directives.
23
In the Exxon case, a trucker, Michael Pitsinos, testified
that he hauled fill material for Allied, and that he delivered
to the areas where sewage pipeline was being put down in
Jersey City. Site 7 is within the area considered to be a
Jersey City sewerage construction project. However, this
site does not consist of the entire sewerage project. Further,
it is not entirely clear that the material Pitsinos transported
was chrome: he described the material as "black sand, dirty
sand." which he contrasted with the "gray chrome" at
another site, which is referred to as the "Route 440" site. A.
at 1010a-18a. At no point did Pitsinos testify that he
hauled this material to a Turnpike site as part of a
construction project. At best, he testified that he
remembered bringing a load of "fill" -- what kind or its
origins are not clear -- to the Turnpike on behalf of Laffera
Construction and that he got stuck in the mud. A. at 1018a.23
2. Site 20 and Connection with PPG COPR Production
The Turnpike also points to other depositions from the
Exxon case to prove that PPG is accountable for the COPR
contamination at this site and indicates that the following
serves as evidence linking PPG to the COPR found at Site
20:
1. The Turnpike refers to the testimony of Richard J.
Samuelson, discussing the movement of residue and mud
off of the PPG property. However, the deposition testimony
is hearsay, if not double hearsay, for his knowledge is
based upon a statement by a Robert Widing, who testified
in another case that his knowledge was based upon a
statement made to him by a PPG agent, Worth Franklin. A.
at 1023-24, 1026, 1033.
_________________________________________________________________
23. There is a letter in the record from Allied's Director of
Environmental
Services to the NJDEP indicating that a site other than those involved in
this litigation was used for fill, but that neither the "make-up nor the
amount of the fill that was used" were known. A. at 887a. The letter also
indicates that New Jersey Highway Department may have used "the
material" for fill in the construction of the Turnpike. Id. Even if this
letter
could be construed as reliable evidence, the letter does not acknowledge
that the material to which it refers is COPR waste nor that it was
deposited at any of the sites involved in this litigation. A. at 1311a-
12a.
24
2. Richard Kordulak, who testified in his deposition from
the Exxon case that the PPG material was"distributed all
over the Caven Point area" and that chromium waste was
taken to the "Turnpike area, underneath the turnpike at
the end of Caven Point Avenue." A. at 1044a. However,
Kordulak's testimony also notes that the time period when
he witnessed four individuals receiving chromium waste
from the PPG site was from the late 1960s to the early
1980s, after PPG had closed its Garfield Avenue facility and
sold it to others, when the piles of COPR at the site were
gone. A. at 10sa-11sa. In other words, this testimony is
relevant to a time period after the events that the Turnpike
alleges caused the contamination at Site 20. A. at 972-73a.24
3. Testimony by Zygmunt Wozniak in the Exxon case
indicates that materials were moved from the PPG plant to
the Turnpike for construction, and that the dump trucks
returned to the site quickly. A. at 1040-41. However, PPG
has provided further deposition testimony indicating that
Wozniak never had any conversations at all with the
persons who actually transported the material; that he was
not certain that the trucks he saw at the Turnpike were the
same as the trucks he saw at the PPG plant; that he did
not recognize any of the people driving the dump trucks to
the Turnpike; and that some of the COPR fill used at the
Turnpike came from somewhere other than the PPG plant
and that at least some of his knowledge was based on
hearsay. A. at 4sa-10a.
Even giving the Turnpike the benefit of all reasonable
inferences from these evidentiary proffers, the testimony is
_________________________________________________________________
24. In a footnote in its reply brief, the Turnpike says that "Kordulak
testified, in no uncertain terms, that PPG's waste was delivered to Site
20 both during and after the time the PPG facilities was in operation and
that PPG's COPR remained on site as late as 1981. See also Jersey City
Redevelopment Authority v. PPG Indus., 65 F. Supp. 1257 (D.N.J. 1987)
(finding that PPG's COPR was being taken from the Garfield Avenue
facility in 1975)." The Turnpike notes that,"This testimony is in portions
of the transcript not provided to the Court by PPG." It then states, "We
would be pleased, if requested, to provide the Court with the entire
transcripts of Kordulak's and Wozniak's depositions." We note that this
evidence is not in the record before and it is not for the court to
request
the parties to augment their proof.
25
deficient in several respects: it is vague and imprecise, of
questionable reliability, and therefore not sufficiently
probative to create an issue for trial. See Anderson v.
Liberty Lobby, 477 U.S. 242, 249-50 (1986) (stating that
summary judgment may be granted if evidence is "merely
colorable" or is "not significantly probative"); Blackburn v.
United Parcel Service, 179 F.3d 81, 95 (3d Cir. 1999) (citing
Philbin v. Trans Union Corp., 101 F.3d 957, 961 n.1 (3d Cir.
1996)) (noting that a hearsay statement that is not capable
of being admitted at trial should not be considered at
summary judgment stage); Armbruster v. Unisys Corp., 32
F.3d 768, 777 (3d Cir. 1994). In sum, we find that the
evidence produced by the Turnpike is insufficient to prove
the nexus required for the Turnpike to recover from the
appellees under either CERCLA or the Spill Act, nor is this
evidence sufficient to show that each of these appellees
acted in a tortious manner within the meaning of these
statutes toward these sites such that an alternative liability
theory would be appropriate.
We note, further, that we also concur with the District
Court's conclusion that the Turnpike may not be the
innocent plaintiff that in fairness should be permitted to
take advantage of alternative liability. As the District Court
noted, the Turnpike is a PRP in this case, and a joint
tortfeasor; as such, it may very well be inappropriate to
utilize an alternative liability theory, which is meant to
apply to wholly innocent plaintiffs, to shift the burden of
proof to its fellow tortfeasors in a contribution action.
We also note that the Turnpike clearly did not do all that
it could to prove causation such that a burden shifting
approach should be utilized in this matter.25 The Turnpike's
_________________________________________________________________
25. As the District Court noted:
Unlike in the traditional alternative liability scenario, the
lack of
proof of causation here is not due to the Defendant' conduct. In
fact,
[the Turnpike] is in a better position than the Defendants to
ascertain the source of the COPR at each site, because [the
Turnpike] is the present owner and operator of all seven sites
and
was the entity that contracted to receive the COPR that is the
source
of the contamination. See Blanks v. Murphy, 632 A.2d 1264 (App.
Div. 1993) (rejecting burden shifting because plaintiff was in a
better
position to determine the cause of its injury).
16 F. Supp.2d at 471.
26
lack of diligence clearly militates against a finding that
alternative liability should be applied here. The Turnpike
was made aware of the presence of COPR at some of the
sites at issue in 1984, yet did not file suit in this matter
until 1993, and the process of its fact finding in this case
has been less than impressive. A. at 271a. Cf. Larton v.
Blue Giant Equip. of Canada, Ltd., 599 F. Supp. 93, 95
(E.D. Pa. 1984) (declining to apply alternative liability
theory, in part because it was not apparent that plaintiff
could not identify the manufacturer through the exercise of
reasonable diligence); Abel, 343 N.W.2d at 173 (stating that
plaintiffs must "make a genuine attempt to identify the
tortfeasor responsible for the individual injury," and a
finding of a lack of diligence would preclude utilization of
alternative liability theory in future DES cases); Bixler v.
Avondale Mills, 405 N.W.2d 428, 431 (Minn. Ct. App. 1987)
(finding eleven year delay before filing suit made court
reluctant to adopt alternative liability theory).
The Turnpike has, quite simply, not done enough. The
Turnpike has, instead, asked us to rewrite the burdens that
a litigant must meet under the CERCLA and the Spill Act,
and the burden placed upon a plaintiff when alternative
liability is applicable, to make up for the shortcomings in
its proof. We will not do so. We will affirm the order of the
District Court.
E. Supplemental Jurisdiction
The Turnpike maintains for the first time on appeal that
the District Court should not have supplemental
jurisdiction over its state law claims, due to their
complexity. See 28 U.S.C. S 1367(c)(1). A district court's
decision to determine such claims is discretionary, and
where a party has failed to object to the district court's
exercise of this jurisdiction, in the absence of special
circumstances, the challenge is waived. See, e.g., Int'l
College of Surgeons v. City of Chicago, 153 F.3d 356, 366
(7th Cir. 1998); Doe by Fein v. District of Columbia, 93 F.3d
861, 871 (D.C. Cir. 1996). We find no exceptional
circumstances in this case, and hold that the Turnpike has
waived its objections to the District Court's exercise of
supplemental jurisdiction in this matter.
27
For the foregoing reasons, we will affirm the judgment of
the District Court.
28
BECKER, Chief Judge, Concurring.
I agree with the Court that the Turnpike failed to exercise
diligence in discovering evidence as to who shipped what
COPR to the various sites. However, I would ground the
affirmance of the summary judgment on this factor alone.
In my view, the Court's insistence that, in order to fulfill
CERCLA's causation requirements, the Turnpike "must
offer some proof that Allied, PPG, and Occidental deposited,
or caused the disposal of, COPR at each of the sites at the
issue in this case," is too strict a test under the governing
law of alternate liability.
I believe that the threshold requisites for alternate
liability are as follows. First, the plaintiff has to show that
it would be entitled to recover if it established causation. In
strict liability cases, this would require only a showing of
actionable harm. Second, the plaintiff should show that
each defendant did the thing that exposed it to liability. In
Summers v. Tice, both defendants were negligent. See 199
P.2d 1, 2 (Cal. 1948). By way of analogy, in CERCLA, the
requisite action would be generating the relevant kind of
hazardous waste in the relevant area regardless of fault.
Third, the plaintiff must join all the defendants who might
be responsible for the harm, so that it would be clear that
at least one of the defendants actually did cause the harm.
See Zands v. Nelson, 797 F. Supp. 805, 813 (S.D. Cal.
1992); Aurora Nat'l Bank v. Tri Star Marketing, Inc., 990 F.
Supp. 1020, 1031 (N.D. Ill. 1998).
I believe that the Turnpike's evidence may be sufficient to
meet this threshold test for the following reasons: (1) the
defendants produced large quantities of COPR; (2) no one
else produced COPR within 150 miles of Hudson County;
(3) the practice was to dispose of COPR locally; (4) the
defendants freely and indiscriminately disposed of COPR in
and around Hudson County; (5) the defendants' COPR was
used in various construction and development projects; (6)
the Turnpike was building the Turnpike and buyingfill
material at the same time as the defendants were disposing
of COPR as fill; (7) the defendants understood that COPR
was being used as fill in highway projects; (8) the seven
sites are in close proximity to the defendants' facilities. I
would nonetheless affirm the judgment because I believe
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that, in addition to the requirements set forth above,
alternate liability doctrine demands that the plaintiff
exercise diligence in determining the identity of the other
responsible parties, yet the Turnpike failed to do so.
I also take issue with the statement of the court that the
alternate liability theory is meant to apply to wholly
innocent plaintiffs. Consider the seminal alternate liability
case, Summers v. Tice, 199 P.2d 1 (Cal. 1948) The plaintiff,
after telling the defendants, with whom he was hunting
quail on an open range, that they all should remain in a
line, went up a hill and thus put himself at the tip of a
triangle the base of which was formed by the other hunters.
The plaintiff was in this position when he was shot. Despite
being far from an innocent plaintiff, he was able to recover.
See id. at 1. This result belies the Court's contention.
Moreover, a contributorily negligent plaintiff could surely
recover in a S 402(A) case where contributory negligence is
not a defense, and yet alternate liability applies.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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