PPG INDUSTRIES, INC. v. UNITED STATES OF AMERICA et al

Filing 176

OPINION. Signed by Judge John Michael Vazquez on 11/26/2018. (dam, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

PPP INDUSTRIES, INC.,
Plaintiffs,
v.

Civil Action No. 12-3 526 (JMV) (MAH)

UNITED STATES OF AMERICA, UNITED
STATES DEPARTMENT OF COMMERCE,
WILBUR ROSS, SECRETARY OF
COMMERCE, in his official capacity, UNITED
STATES DEPARTMENT OF DEFENSE,

OPINION

Defendants.

John Michael Vazguez, U.S.D.J.
This case concerns responsibility for environmental cleanup costs. PPG Industries, Inc.
(“Plaintiff’ or “PPG”) alleges that Defendants must contribute to remediation costs associated with
a chemical plant facility. Specifically, Plaintiff seeks (1) cost recovery and contribution under the
Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42
U.S.C.

§ 9601 et seq.; (2) assistance in rernediation under the Resource Conservation and Recovery

Act (“RCRA”), 42 U.S.C.
U.S.C.

§ 6901 et seq.; and (3) relief under the Declaratory Judgment Act, 28

§ 2201 et seq. D.E. 16. Defendants are comprised of United States of America; United

States Department of Defense; United States Department of Commerce; and Wilbur Ross,
Secretary of Commerce, in his official capacity’ (collectively “Defendants” or “GovermTlent”).

Plaintiff originally brought this action against John Bryson, Secretary of Commerce, in his
official capacity; however, Wilbur Ross has since replaced Bryson. “An action does not abate

Much of the relevant activity occurred during World War I (“WWI”) and World War TI (“WWII”).
Both parties have moved for summary judgment pursuant to federal Rule of Civil Procedure 56.
D.E. 152, 153. The Court reviewed all submissions,2 and considered the motions without oral
argument pursuant to Fed. R. Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons that follow,
Plaintiffs motion for summary judgment is denied and Defendants’ motion for summary judgment
is granted.
I. REGULATORY BACKGROUND
In May of 1982, the City of Jersey City notified PPG that 902 Garfield Avenue (the “Site”)
in Jersey City, New Jersey, and a number of other Hudson County chromate sites,3 “may be a
danger to public health, safety and welfare” due to the Site’s pollution. D.E. 153-3 ¶j 4, 135 (“P1.
SOMF”). PPG notified the New Jersey Department of Environmental Protection (“NJDEP”) and
the United States Environmental Protection Agency (“EPA”). Id.

¶ 136.

Plaintiff then conducted

sampling to quantify and assess the contamination.

139.

Upon confirmation of

Id.

¶

when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to
hold office while the action is pending. The officer’s successor is automatically substituted as a
party.” Fed. R. Civ. P. 25(d). Therefore, Ross is substituted for Bryson.
2

Plaintiffs Amended Complaint is referred to as “Am. Compi.,” D.E. 16; Defendants’ Answer
and Counterclaim is referred to as “Def Ans.,” D.E. 19; Plaintiffs Answer to the Counterclaim is
referred to as “P1. Ans.,” D.E. 20; Defendants’ brief in support of its motion for summary judgn-ient
is referred to as “Def. Br.,” D.E. 152-2; Plaintiffs brief in opposition is referred to as “P1. Opp’n,”
D.E. 169; Defendants’ reply is referred to as “Def. Reply,” D.E. 174; Plaintiffs brief in support
of its motion for summary judgment is referred to as “P1. Br.,” D.E. 153-1; Defendants’ brief in
opposition is referred to as “Def. Opp’n,” D.E. 167; Plaintiffs reply is referred to as “P1. Reply,”
D.E. 175.

These include the following Jersey City, New Jersey properties: 800 Garfield Avenue (“Ten West
Property”), 816 Garfield Avenue (“Fishbein Property”), 86/90-100 Forrest Street (“Forrest Street
Avenue Properties”), 78-104 Halladay Street (“Halstead Properties”), and a property near Caven
Point Road (“Caven Point Property”) (collectively, the “Properties”).
2

contamination, Plaintiff engaged in numerous investigatory, removal, and response actions at the
Site and neighboring properties. Id.

¶

135, 140.

In July 1990, Plaintiff entered an Administrative Consent Order (“1990 Order”) with
NJDEP to settle alleged violations of New Jersey’s Spill Compensation and Control Act, N.J.S.A.
58:10-23.lla, and Water Pollution Control Act, N.J.S.A. 5$:1OA-l. D.E. 152-1

¶

125 (“Def.

SOMF”). In the 1990 Order, Plaintiff agreed to pay civil penalties and reimburse New Jersey for
all costs incurred in connection with the state’s investigation and remediation of chromite ore
processing discharges at the Site. Id.

¶

126. The order also required Plaintiff to perform a

“comprehensive suite of response activities” at the Site and other locations, including
“implementation of interim remedial measures,” “performance of a remedial investigation and
feasibility study,” “identification and implementation of remedial action to remedy the problems
associated with the hazardous substances discharged at the [Site],” “submission and
implementation of field sampling and quality assurance plans,” and “quarterly submissions of
progress reports.” Id.

¶

127.

In June 2009, Plaintiff New Jersey, and Jersey City settled a state court case, NJDEP v.
Honeywell mt ‘1, No. HUD-C-77-05 (N.J. Sup. Ct. 2009), by signing and filing a Partial Consent
Judgment (“2009 Judgment”). Id.

¶

128. The 2009 Judgment resolved PPG’s liability to New

Jersey and Jersey City for claims under CERCLA, RCRA, and other environmental laws. Id.

¶

12$. 130. However, it also required that Plaintiff continue to conduct remediation under the terms
of the 1990 Order. Id.

¶

131. In response, Plaintiff “has engaged in various cleanup activities,

including removal of contaminated soil from the Site, treatment of impacted groundwater, and

3

studies to further delineate contamination in soil and groundwater and detennine site restoration
measures.” Id.

¶ 132.

An additional consent decree was then agreed upon by Plaintiff Interfaith Community
Organization, Inc.; Graco Community Organization; and National Resources Defense Council
(“NRDC”) in April 2011 (“2011 Decree”). Id.

¶ 142; D.E.

159-29. The 2011 Decree, among other

requirements, further refined Plaintiffs obligations in excavating and removing all chromiumchemical contaminated waste, soil, and groundwater in the area. Id.

Plaintiff asserts that it

continues to remediate the Site and neighboring properties and has incurred $361 million in
remediation costs through December 2105. P1. SOMF

¶

143, 147.

II. PROCEDURAL HISTORY

Plaintiff filed its Complaint on June 12, 2012, D.E. 1, and its Amended Complaint on
October 31, 2012, D.E. 16. Defendants answered the Amended Complaint on December 19, 2012,
and counterclaimed as to allocation of response costs among liable parties. D.E. 19. Plaintiff
answered the counterclaims on January 7, 2013, asserting nine separate defenses. D.E. 20. The
parties then engaged in over four years of discovery. Defendants filed their motion for summary
judgment on February 28, 2018, D.E. 152, which Plaintiff opposed, D.E. 169, and Defendants
replied, D.E. 174. Plaintiff also filed its motion for summary judgment on february 28, 2018, D.E.
153, which Defendants opposed, D.E. 167, and Plaintiff replied, D.E. 175.
III.

STANDARD OF REVIEW
A moving party is entitled to summary judgrn ent where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

The parties dispute the amount of ptiblic comment and participation that occurred in conjunction
with these subseqtient remedial efforts. E.g., Def. $OMF ¶J 133-145; P1. RESP ¶J 133-145.
Because the Court finds other issues dispositive, it does not reach the public comment arguments.
4

Fed. R. Civ. p. 56(a). A fact in dispute is material when it “might affect the outcome of the suit
under the governing law” and is genuine “if the evidence is such that a reasonable jury could return
a verdict for the nomnoving party.” Anderson v. Liberty Lobby, Inc., 477 U.s. 242, 248 (19$6).
Disputes over irrelevant or unnecessary facts will not preclude granting a motion for summary
judgment. Id. “In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the nonmoving
party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.”
Marino v. Inthis. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (emphasis added) (quoting
Anderson, 477 U.S. at 255)). In other words, a court’s role in deciding a motion for summary
judgment is not to evaluate the evidence and decide the truth of the matter but rather “to determine
whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett. 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,
the burden shifts to the nonmoving party to “go beyond the pleadings and by [his] own affidavits,
or by the depositions, answers to intenogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at
250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the
court may grant summary judgment.” Messa

Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d

i.

523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).

5

Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
IV. FACTUAL BACKGROUND5

Many of the actual facts are not disputed. Instead, the parties primarily battle over the
justifiable or reasonable inferences that are to be drawn from those facts. As a result, when
reviewing the factual background, the Court makes express findings as to whether an alleged
inference is justifiable or not. The Court also indicates where factual matters are in dispute.
A. The Parties

Plaintiff PPG is a Pennsylvania corporation that was the owner and operator of a chrornite
ore processing plant at the Site, from July 1954 to June 1962, before selling its buildings, property,
and equipment in 1964. P1. SOMF

¶J

1-2. Plaintiff purchased the Site from Natural Products

Refining Company (“NPR”) in 1954. Id.

¶IJ

14-15. NPR had owned and operated the Site since

1910. Id.3.
NPR’s operations at the Site involved converting chrome ore to chromium chemicals, such
as sodium bichromate, which is used in dying cloth and tanning leather. P1. SOMF ¶ 8; Def. RESP

¶ 10; Def.

SOMF

¶ 4.

The production process created a residue, a “mud” or “sludge,” which NPR

The factual background is derived from the following information: Plaintiffs Amended
Complaint, D.E. 16; Defendants’ Answer to Plaintiffs Amended Complaint, D.E. 19; Defendants’
statement of undisputed material facts (“Def. SOMF”), D.E. 152-1; Plaintiffs response to this
statement (“P1. RESP”), D.E. 169-1; Plaintiffs statement of undisputed facts (“P1. SOMF”), D.E.
153-3; Defendants’ response to this statement (“Def. RESP”), D.E. 168; Plaintiffs supplemental
statement of undisputed material facts (“P1. Supp. SOMf”), D.E. 169-2; and Defendants’ response
to this supplemental statement (“Def Supp. RESP”), D.E. 174-1.
6

partially stockpiled and partially recycled. P1. SOMF

¶ 9. The stockpiled material, or “waste,”

contained hazardous substances. Id. NPR stockpiled some of this hazardous waste on the Site.
Id. Plaintiff alleges that Defendant United States (through specific agencies, the successors of

which are listed as the other Defendants in this action) exercised substantial control of the Site
during WWI and WWII and directed management of this waste. Id.
Defendants dispute this assertion. Def. RESP

¶ 6; Am. Compl. ¶ 3.

¶ 6. Plaintiffs allege that Defendants’ involvement

in the Site’s production and storage of hazardous waste makes Defendants liable to Plaintiffs for
the cleanup costs associated with this waste. Am. Compl.

¶1 3.

B. The Government’s Involvement in the Chromium Chemical Industry

During WWI and WWII (collectively the “Wars”), the chromium chemicals industry in the
United States consisted of five producers, including NPR, and six plants, including the Site. P1.
SOMF ¶J 19-20. The companies produced chrome chemicals for both the Government and civilian
consumption during the Wars. Id.

¶ 21. During the Wars, the Government designated chromium

chemicals as critical “war material”
by the Government

—

—

products manufactured for direct military or other war use

and implemented a number of controls. Id.

¶ 22, n.2.

1. Price Controls

During WWI, the Government tasked the War Industries Board (“WIB”) with stimulating
and expanding the production of war material. Id.

¶ 26, Def. RESP ¶ 26. The Government fixed

prices for raw materials in the chromium industry in order to prevent competitive bidding and
afford the WIB greater control over the industry. Id.

¶ 23,

27. The Government maintains that

this was a “voluntary” pricing scheme that sought cooperation from impacted businesses. Def.
RESP

¶

23. However, The National Defense Act of 1916 authorized Government seizure of

manufacturing plants (including chromium chemical plants) that did not comply with the

7

Government’s directives or “voluntary” pricing. P1. SOME ¶ 24.6 Viewing this evidence in a light
most favorable to PPG. as to the Government’s motion, the Court finds that the “voluntary” pricing
was not in fact voluntary due to the potential penalty of seizure.
During WWII, chromium ore and chromium chemicals remained critical and essential war
materials. Id.

¶ 38. The Government created a number of new agencies to regulate war materials,

such as the Office of Production Management (“OPM”) to assess the Government’s war material
needs; the Metals Reserve Company (“MRC”) to control the purchase and stockpile of war
materials; the Office of Price Administration (“OPA”) to control the price of all material deemed
necessary for the war effort; the Defense Supplies Corporation (“DSC”) to provide subsidies for
domestic materials production; and later the War Production Board (“WPB”) to control the pricing,
production, allocation, and supply of all war material, including both raw ingredients and finished
products. Id.

¶J 33, 35, 36.

During WWII, in November 1942, the OPA passed Maximum Price Regulation 258
(“MPR 258”), giving MRC the authority to set a ceiling price on chrome ore. Id.

¶ 39. As a result,

MRC immediately raised the price of chrome ore by $2.00 per ton, the OPA ceiling. Id.

¶ 40. The

Government became the only source of chrome ore, “having purchased all available ore and
prohibiting private industry imports, giving the producers no choice but to buy from the
Government.” Id.

¶ 42. MPR 258 also prohibited chrome producers, such as NPR, from raising

their prices of chromium chemicals to account for the increased price of raw materials. Id.

¶ 43.

MRC later reduced the price of chrome ore by S2.00 per ton in mid-1943, but an amendment to

Plaintiff also points to the following facts. Bernard Barnch, a chairman of the WIB, later stated
in a lecture at the Army War College that the fixed prices “were not fair.” Id. ¶J 25, 29, 30.
Baruch added that the Government did not have regulatory authority to fix unfair prices, and had
any contractor challenged the pricing scheme and created a written record of being forced to
comply under duress, “it would have been. very serious.” Id. ¶ 3 1.
6

.

.

$

MPR 25$ allowed MRC to add freight charges for shipment of chromium ore from the Government
stockpile. Id.

¶ 45.

Given the evidence, for the purposes of this motion, the Court therefore finds

that the Government controlled the supply of chromium ore, the price of raw materials (ore), and
the price of finished products (chromium chemicals) at NPR’s facility during the relevant time
periods.
2. Labor Controls

Towards the end of WWI, in April 191$, President Wilson established the National War
Labor Board (“WLB”) to prevent war-time labor disputes from disrupting military production. Id.

¶ 6$.

During WWII, around 1945, the WLB commandeered a Diamond Alkali plant in response

to a labor strike. Id.

¶

69; D.E. 157-4 at 5. Seizures of plants, resulting

from

labor unrest or

management noncompliance, developed into a major U.S. Army domestic function throughout
WWII. Id.

¶ 70.

In 1944, the Government sent field inspectors to NPR’s facility and noted that “the labor
situation has improved very little.” Id.

¶

75; D.E. 154-16 at 1, 2-3.

In speaking with NPR

management, the Government recognized that the “plant has been operating only six days a week
because [NPR] can not [sic] affor[d] to pay double time labor for Sunday operation and still operate
within the OPA price ceilings.” Id.

¶

124, 126; D.E. 154-16 at 1, 2-3. The Government also

noted that NPR had “not been able to obtain additional labor.” Id. Consequently, NPR and its
employee’s union applied for “approval of wage or salary rate adjustment” to the WLB in
December 1943. D.E. 157-$ at 5. The WLB denied this application. Id.
In february 1944, NPR’s employee’s union filed a strike notice. Id.

¶ 73; D.E.

157-$ at 2.

The WLB held a preliminary hearing on the matter, with a WLB representative from the Chemical
Bureau participating. P1. SOMF ¶ 73; D.E. 157-7 at 4. Although unclear why, NPR’s union later

9

withdrew its complaint in March 1944. D.E. 157-8 at 1, 2. The record does

not

indicate that

NPR’s employees definitively received the wage increase that they had sought. If a wage increase
occurred, it apparently would have needed Government support. P1. SOMF ¶ 76; Def. RESP

¶ 76

(explaining that the WPB figured that the support of the support of the Army, Navy and itself
“should assure [the Wage Labor Board’s] approval” of a wage resolution between a company and
a union). There is no evidence that the Government ever seized NPR’s plant as a result of this
labor dispute or any other time.
3. Production Controls
During the beginning of WWI, in approximately 1915, Germany halted its supply of a

critical raw material in the production of potassium bichromate which led to an increased demand
for sodium bichromate. Id.
bichromate. Id.

¶ 10. In March

1933, NPR patented new ways to produce sodium

¶ 11. The new patent described two alternative modifications to chromium

processing in order to increase production: (1) adding a second “leach process” to rework
chromium waste for a 90-95% chrome chemical recovery from the ore (thereby decreasing the
amount of waste produced by the facility); and (2) simply adding more “lime and soda ash” to the
process for a 60-70% chrome chemical recovery from the ore (thereby increasing the amount of
waste produced by the facility). Id.

¶ 12-13. Plaintiff alleges that Defendants “demanded” that

NPR utilize the second method and that NPR did so. Id.

¶ 13. Defendants argue that they only

“proposed” that NPR utilize the second method and that there is no evidence that NPR did in fact
switch to this different process. Def. RESP

¶ 13. Plaintiff presents no evidence to support its

claim that the Government demanded the increase, thus the Court finds that the Government
requested it for purposes of the current motion. The evidence concerning production increases is
discussed below.

10

4. Subsidies

During WWII, at a meeting on February 7, 1944, the Government and a number of military
agencies addressed an increasing chrome chemicals shortage as war production demands
amplified. P1. SOMF

¶ 85, 87-88; Def. RESP ¶ 87. The WPB Chemicals Bureau recognized that

“(1) production costs had increased 30% since 1941; (2) labor shortages were frequent; and (3) no
additional source of production existed.” Id. One of the five major producers of chrome chemicals
even warned of a complete shutdown if it did not receive any assistance or relief. PL SOMF

¶ 86.

Therefore, given that “85% of the [chromium chemical] product was for military use,” the
Government contemplated that “[p]ossibly the Army and Navy could subsidize the job.” Id.

¶J

$8, $9. Further, afler visiting the NPR facility in March 1944, the Government noted that NPR
was operating at a loss and eliminating the reworking of sludge seemed to be the only viable
method of increasing production at the plant. P1. SOMF

¶ 96.

The Government proposed two subsidies: (1) the Government would supply facilities with
higher grade ore in enough qualities to increase production, and/or (2) the Government would
purchase waste sludge from the facilities to eliminate the rework of chrome ore. Id.

¶ 94, D.E.

154-9 at 8. While other producers participated in the first subsidy, that is, the Government supply

of higher-grade ore, NPR did not. D.E. 152-23, Exs. 95, 96. The parties dispute whether the
parties entered into the second proposal, that is, whether the Government purchased waste sludge
from NPR.
Typically, facilities would rework the sludge that its manufacturing process created. P1.
SOMF ¶J 9. By running the sludge back through the manufacturing process again (or “reworking”
it), the facilities were able to recover more chromium chemicals (finished product) from the same
amount of chromium ore (raw material). Id.

¶

12. However, by reworking the sludge, facilities

11

exerted time and energy on a manufacturing process that was less efficient than simply discarding
the sludge and starting a new process with fresh raw material. Id.

¶J 12-13. Therefore, the second

proposal would allow facilities to increase production btit also create more waste, and the
Government would agree to purchase some of the additional waste. Id.

¶ 91. If implemented,

MRC would “take title to the low[-]grade sludge, ostensibly of some value either for later chemical
retreatment or for metallurgical use, but probably of use mainly to cover up the subsidy.” Def
RESPJ$7.
The Government maintains that the sludge-purchase subsidy never occurred. Def. RE$P

¶] $8, $9. The Government cites an April 12, 1944 letter from Jesse Jones, the Secretary of
Commerce, to Donald Nelson, the Chairman of the War Production Board, whereby Jones stated
that “the plan for the purchase of a sludge.
the present scope of the [MRC] program

.

.

.

from one producer of chrome chemicals falls outside

.

.

and the Chemicals Division [of the WPB] was then

informed that [MRC] is without authority to buy products of this type.” Id.; D.E. 16$-i at 2. MRC
therefore formally rejected this subsidy plan as falling outside its “sphere of activities.” Id.
Plaintiff contends that a sludge-purchase subsidy did in fact occur. Pt. Br. at 22. Plaintiff
explains that by August 1944, a rail embargo further complicated the shipping of ore, causing all
new shipments of Transvaal ore7 to cease. Id. In late August 1944, WPB drafied a schedule of
anticipated shipments of both Transvaal ore and higher-grade ore to chrome producers. Id. In this
schedule, NPR was the only producer scheduled to receive solely Transvaal ore from July to
December of 1944, while all other producers were scheduled to receive stocks of higher-grade
ores. Id. Plaintiff claims that because NPR was still able to increase production by at least 500,000
pounds per month, and “was the only [producer] to exceed its quota” in December 1944, NPR

Transvaal ore is a lower-grade ore. Pt. SOMF ¶ 98.
12

must have implemented the more wasteful technique of chromium processing, i.e., NPR must have
stopped the reworking of the sludge. Id. at 22-23. Plaintiff continues that for NPR to have done
so, the Government must have subsidized the process by purchasing the excess sludge. Id. at 2223. Plaintiff speculates that a different governmental agency, the DSC, must have purchased the
sludge since MRC refused and the DSC was offering other subsidies. P1. Opp’n at 15.
However, the Government has produced documents showing that NPR was explicitly not
involved in D$C subsidies. Def. Reply at 5; D.E. 152-23, Ex. 95. On June 2, 1944, the DSC wrote
NPR to inform it of a subsidy whereby the DSC would reimburse chromium chemical producers
for unusual costs resulting from the use of a high-grade ore from June 1, 1944 through October 31,
1944. Id. NPR responded on June 8, 1944 that it had “no high[-]grade ore on hand.

.

.

nor do[esj

[it] anticipate the purchase of any,” effectively opting out of the subsidy. Def. Reply at 5; D.E.
152-23, Ex. 96. The DSC then conducted an internal audit of its high-grade ore subsidy on June
20, 1945 and noted subsidizing four of the five chrome chemical producers (all but NPR) from
June 1, 1944 to October 31, 1944. Def. Reply at 5; D.E. 152-23, Ex. 97. Further, on December
22, 1944, a government memorandum listed four types of active subsidies,8 and although it stated

that the chromium chemical industry was “[a]lmost entirely subsidized,” it did not list a sludge
repurchase program. Def. RESP

¶ 101; D.E.

158-20 at 1-2.

Additionally, Defendants point out that NPR’s quarterly production does not support the
conclusion that the Government entered into a sludge purchasing subsidy with NPR following the

8

The four subsidies were (1) “Direct out-of-pocket loss by the government purchasing agency in
transferring the material from government ownership to industry for use;” (2) “Waiver of import
duty or tariff;” (3) “Government agency construction of facilities for production or processing, but
not including loans of money to private parties for such construction;” and (4) “Use of government
equipment on rental basis and government services not included in cost of material, when known.”
D.E. 158-20 at 1.
13

February of 1944 meeting. Def. Reply at 4. Defendants note that “the increase in production in
the fourth quarter [October, November, and December] of 1944 was marginal and [NPR] ‘s
production in the third quarter [July, August, and September] of 1944 actually fell compared to
the first and second quarters [January through June].” Id. While an August 1944 embargo on
NPR’s ore may have accounted for the third quarter decrease in production, Defendants argue that
that a fourth quarter sludge purchase subsidy would have had more of an impact than a “marginal”
increase in production, and additionally, attributing this fourth quarter rebound to the adoption of
a sludge purchase subsidy specifically during this time period (October, November, and December
of 1944)

—

eight months after the February meeting where the proposal was discussed, and six

months after the government’s letter in April rejecting the sludge purchase subsidy

—

amounts to

nothing more than “sheer speculation.” Id.
Based on the evidence, for purposes of the motions, the Court finds that it is not a justifiable
or reasonable inference to conclude that the sludge-purchase subsidy occurred. While there is
evidence that the Government proposed potential subsidies (and some were implemented). there
is no evidence that the Government actually implemented the proposed subsidy as to purchasing
sludge. MRC refused to provide the subsidy because it was outside its authority, and there is no
evidence that DSC (or any other governmental entity) offered such a subsidy.
Plaintiff further alleges that the “WPB did control and direct disposal of NPR’s waste mud,
specifying that it would initially be stored outside, onsite at the producer’s plant.” P1. Opp’n at 21.
However, in support, Plaintiff cites only to a discussion between WPB members when they were
evaluating the feasibility of the proposed sludge-purchasing subsidy and one member asked,
“[h]ow would you stockpile something like that?”, to which another responded, “I would expect it
would be outdoor storage.” P1. SOMF

¶ 92.

As noted, the Court finds that there is insufficient

14

information to conclude (for purposes of the current motion) that the sludge-purchase subsidy
proposal ever materialized. Similarly, the Court does not find it to be a reasonable or justifiable
inference that WPB controlled and directed disposal of NPR’s waste mud from this single inquiry
and response

—

neither of which amounted to the Government directing NPR as to how to dispose

of the waste mud.
5. Plaintiff’s Additional Factual Allegations

Plaintiff makes a number of additional factual allegations, or related inferences, as to the
Government’s control of NPR’s facility that the Court will address before conducting its legal
analysis. Plaintiff alleges that NPR “lost complete control of its plant to the Government” and that
the Government “took control of all aspects of NPR’s operations including production, process,
labor and pricing.” P1. Opp’n at 7. The Court disagrees. During the Wars, the Government
controlled the price of raw materials (ore) and finished products (chromium chemicals), oversaw
labor disputes in the industry at large, and conferred with producers about production alternatives,
but NPR controlled the day-to-day operations at its Site. The facts do not indicate than any
Government employees were stationed at. or that the Government ever seized, NPR’s facility.
Plaintiff alleges that the Government conducted “many visits” to NPR’s facility. P1. Opp’n
at 8. However, the record only indicates one Government visit to NPR’s facility (sometime in the
two weeks leading up to March 1, 1944). P1. SOMF

¶ 96;

D.E. 153-li; D.E. 153-12. Plaintiff

alleges that because “video surveillance did not yet exist,” “there were no other means of
monitoring conditions at these facilities other than regular visits to and inspections of the chrome
plants.”

P1. Opp’n at 8.

Yet, as evidenced by the relevant exhibits, the parties frequently

corresponded via mail, specifically sending letters and reports back and forth regarding updates at
the Site. E.g., D.E. 152-23, Ex. 96. Additionally, Plaintiff argues that because the different

15

chromium

chemical plants were “very close in proximity to each other,” “visiting several plants

during one trip was easily accomplished by the Governrnent[.]” P1. Opp’n at 8. However, Plaintiff
fails to provide sufficient evidence to support this theory. For example, Plaintiff does not produce
information demonstrating that the Government visited other nearby facilities on certain dates,
much less that it was the Government’s practice to visit all facilities at the same time. Therefore,
given the evidence, the Court does not find it to be a justifiable or reasonable inference that the
Government conducted “many visits” to NPR’s facility.
At multiple times in its papers, Plaintiff defends its lack of evidentiary support to the
“Government’s destruction” of evidence.

E.g., Id.

However, Plaintiff has not brought any

spoliation claims. As best as the Court can discern, the Government destroyed much relevant
information relatively soon after WWII based on established protocol; the Court has been
presented with no evidence that the Government destroyed any information due to concerns over
potential environmental liability. further, nothing prevented NPR (or Plaintiff after it purchased
NPR) from preserving its documentary evidence. The nature of such lost evidence
it would have benefited PPG or the Government

—

—

and whether

requires pure speculation.

Plaintiff states that “the Government supplied additional labor from POW camps and
foreign worker poois” and that “some of these laborers were sent to plants in and around Chicago,
Cleveland, and New York.” Id. at 14-15. From this, Plaintiff alleges, “{t]hus, there is no reason
to believe that available workers were not also provided to neighboring New Jersey plants. Nor
any reason to believe that NPR would have refused them.” The Court does not credit such
speculation absent some reliable basis to infer that NPR benefitted from such labor. Plaintiff also
alleges that since the Government directed one of its agencies to “make all effort” to increase
NPR’s production, the Government must have supplied labor to the facility. Id. at 15. Again, the

16

record does not include sufficient evidence to support this contention

—

or at least to draw a

justifiable inference of such fact. Given the evidence in the record, for the purposes of this motion,
the Court does not find it to be a reasonable or justifiable inference that the Government supplied
labor to NPR’s facility.
V.

ANALYSIS
The issue is whether PPG or the Government is entitled to summary judgment as to the

Government’s liability for cleanup costs under CERCLA, 42 U.S.C.
42 U.S.C.

§ 9601 et seq., and RCRA,

§ 6901 et seq. Am. Compl. ¶ 1. The Court analyzes each in turn.

A. CERCLA

Plaintiff argues that the Government is liable under CERCLA because the “government
qualifies as both an operator and as an arranger under CERCLA, requiring it to contribute to the
clean up of chromium wastes and other hazardous substances that were discharged” at the Site.9

P1. Br. at 38; P1. Opp’n at 29-39. Defendants argue that Plaintiff failed to “produce enough
evidence to support” that the Government is liable under CERCLA “on either operator or arranger
liability.” Def. Opp’n at 13; Def. Br. at 15-16.
1. CERCLA Overview

Congress enacted CERCLA, codified as 42 U.S.C.

§ 9601 et seq., “to promote the timely

cleanup of hazardous waste sites and to ensure that the costs of such cleanup efforts were borne
by those responsible for the contamination.” Burlington N. & Santa Fe Rv. Co. v. U,iited States,
556 U.S. 599, 602 (2009) (internal quotations omitted). “CERCLA provides two mechanisms that

CERCLA contains a provision waiving sovereign immunity for the United States. See 42 U.S.C.
§ 9620(a)( 1) (“Each department, agency, and instnimentality of the United States (including the
executive, legislative, and judicial branches of government) shall be subject to, and comply with,
this chapter in the same manner and to the same extent, both procedurally and substantively, as
any nongovernmental entity[.]”).
17

allow potentially responsible parties (“PRPs”) to recover costs they have expended to
decontaminate a polluted site:

§ 107(a) cost recovery claims and § 113(f) contribution claims.”

Agere Sys., Inc. v. Advanced Envtl. Tech. Corp., 602 F.3d 204, 216 (3d Cir. 2010). Section 107(a),
in part, allows private parties to hold PRPs responsible for “any other necessary costs of response
incurred by any other person” consistent with CERCLA. 42 U.S.C.

§ 9607(a)(4)(B); Agere Sys.,

Inc., 602 F.3d at 225. A Section 113(f) contribution claim allows a PRP to recover cleanup costs
from other PRPs following a civil action under CERCLA or an approved settlement. 42 U.S.C.

§

9613;b0 Agere Sys., Inc., 602 F.3d at 217-18 (describing CERCLA Section 107 and Section 113).
Here, Plaintiff is seeking recovery pursuant to both Sections 107(a) and 113(f) of CERCLA. Am.

Compi.

¶J 1, 62-74 (Count I seeking cost recovery under Section 107(a), and Count II seeking

contribution under Section 113(f)).
Under CERCLA, PRPs are:
(1) the owner and operator of a vessel or a facility,
(2) any person who at the time of disposal of any hazardous
substance owned or operated any facility at which such hazardous
substances were disposed of,
(3) any person who by contract, agreement, or otherwise arranged
for disposal or treatment, or arranged with a transporter for transport
for disposal or treatment, of hazardous substances owned or
possessed by such person, by any other party or entity, at any facility
or incineration vessel owned or operated by another party or entity
and containing such hazardous substances, and
(4) any person who accepts or accepted any hazardous substances
for transport to disposal or treatment facilities, incineration vessels
or sites selected by such person, from which there is a release, or a
10

Section 113(f)(1) provides for a right to contribution following a civil action under CERCLA,
stating that “[a]ny person may seek contribution from any other person who is liable or potentially
liable under section 9607(a) of this title, during or following any civil action under section 9606
of this title or under section 9607(a) of this title.” 42 U.S.C. § 9613. Section 113(f)(3)(B) provides
for a right to contribution after liability to a State or the United States has been determined in “an
administrative or judicially approved settlement.” 42 U.S.C. § 9613 (Section 1 13(f)(3)(B) referring
to 113(f)(2)).
18

threatened release which causes the incurrence of response costs, of
a hazardous substance[.]
42 U.S.C.

§ 9607(a)(1)-(4); Litgo New Jersey Inc. v. Comm’rNewJerseyDep’tofEnvtl. Prot., 725

f.3d 369, 379 (3d
Government. 42

Cir. 2013). The ten-n “person” under the statute includes the United States

u.s.c. § 9601(21).

Plaintiff alleges that the Government meets the definition of

both “operator” and “arranger.” P1. Br. at 43-54.
“CERCLA liability may be inferred from the totality of the circumstances; it need not be
proven by direct evidence. Particularly in cases where the issues date back to the 1 940s and direct
evidence is rare, the Court must rely upon circumstantial evidence.” United States v. Cornell
Dubilier Elecs., Inc., No. 12-5407 JLL, 2014 WL 4978635, at *8 (D.N.J. Oct. 3, 2014) (citing
Tosco Corp. v. Koch Indus., Inc., 216 F.3d 886, 892 (10th Cir. 2000)) (internal quotations omitted).
“When detenTlining CERCLA liability, ‘there is nothing objectionable in basing findings solely
on circumstantial evidence, especially where the passage of time has made direct evidence difficult
or impossible to obtain.’” Niagara Mohawk Power Corp. v. Chevron USA, Inc., 596 F.3d 112,
131 (2d Cir. 2010) (quoting Franklin County Convention Facilities Auth. v. Am. Premier

Underwriters, Inc., 240 F.3d 534, 547 (6th Cir. 2001)).
2. Operator Liability
The parties dispute the correct standard to determine whether a person is an “operator” for
CERCLA liability purposes. P1. Br. at 43; Def. Br. at 16. Under the statute, an operator is a person
who “controlled activities at such facility.” 42 U.S.C.

§ 960 1(20)(A). Plaintiff relies on the Third

Circuit definition in FMC Corp. v. US, Dep’t of Commerce, 29 f.3d 833, 843 (3d Cir. 1994),
while the Government points to the Supreme Court definition in United States v. Bestfoods, 524
U.S. 51, 65 (1998). Id.

19

In FMC, the facility at issue included a manufacturing plant, waste disposal bins, and
landfill areas. 29 F.3d at $36. During WWII, the WPB designated high tenacity rayon (“HTR”),
a rubber substitute, as one of the most critical products in the entire American war production
program, and consequently required the facility to convert from producing regular textile rayon to
HTR. Id. The WPD had the authority to seize non-compliant industries and took over other plants
that failed to meet production requirements, leaving the facility without a choice but to convert
production. Id. To implement the conversion and expansion at the facility, the government,
through the Defense Plant Corporation (“DPC”), leased government-owned equipment and
machinery to the facility, including fifly spinning machines, an acid spin bath system, piping,
slashing equipment, and waste trucks. Id. at $37. The government also contracted with a thirdparty engineer to design and install the equipment, keeping a DPC representative on-site to direct
the engineer. Id. The government then built and owned an adjoining plant that, through a pipeline,
delivered sulfuric acid to the facility. Id.
The government controlled the supply and price of the Facility’s raw materials, requiring
that such raw materials be purchased from the govermTlent directly or through the government’s
rating system. Id. Not only did the government provide workers to the facility, but it managed
and supervised the facility’s laborers, including at one point, positioning a full-time government
representative at the facility “to address problems at the facility concerning manpower, housing,
community services, and other related matters.” Id. A government representative also remained
on site with the authority “to promulgate niles governing all operations at the site and to remove
workers who were incompetent or guilty of misconduct.” Id. Minutes of a March 7, 1944 meeting
also indicated that it was “agreed on unanimously that a WPB Priority man was needed on the
[hjousing situation” at the facility. Id. at 845. Further, a letter from the Chairman of the WPB to

20

another high-ranking official on March 14, 1944 requested the immediate assignment of
representatives to address “preparations for manning the [facility],” so as “to meet the production
requirements.” Id.
The production of HTR generated sulfuric acid, carbon bisulfide, and zinc contaminated
waste. Id. at $38. The government was aware of this hazardous waste because its’s personnel
present at the facility witnessed the waste accumulating and knew that it was inherent in the
production of HTR. Id. at 387-38. The government pressured the plant to maximize production,
and was aware additional production would result in additional waste. Id.
As a result of this government involvement, the district court held the government liable
as an “owner, operator, and arranger” under CERCLA. Id. at $36 (citing FMC Corp. v. United
States Dep’t of Commerce, 786 F. Supp. 471 (E.D. Pa. 1992)). On appeal, the Third Circuit
affirmed this conclusion as to operator and as to arranger (as the Court was evenly split on the
arranger issue). Id. at 845-46.
In reviewing whether the government qualified as an operator, the FMC court looked to
the “actual control” test of Lansford-Coaldale Joint WaterAuth. v. Tonolli Corp., 4 F.3d 1209 (3d

Cir. 1993), whereby an entity was liable for another company’s environmental violations if the
entity “exercised ‘substantial control’ over the other corporation,” which, “[a]t a minimum,

.

require[d] ‘active involvement in the activities” of the other company. Id. (citing La;iford
Coaldale, 4 f.3d at 1222). The Circuit also cited United States v. New Castle Couniy, 727 F. Supp.
854 (D. Del. 1989), and the factors of “whether the person or entity controlled the finances of the
facility; managed the employees of the facility; managed the daily business operations of the
facility; was responsible for the maintenance of environmental control at the facility; and conferred

21

or received any commercial or economic benefit from the facility, other than the payment or receipt
of taxes.” Id. at $43 (citing New Castle County, 727 F. Stipp. at $69).
The court in FMC then found the following facts to be critical in its operator analysis:
The government determined what product the facility would
manufacture, controlled the supply and price of the facility’s raw
materials, in part by building or causing plants to be built near the
facility for their production, supplied equipment for use in the
manufacturing process, acted to ensure that the facility retained an
adequate labor force, participated in the management and
supervision of the labor force, had the authority to remove workers
who were incompetent or guilty of misconduct, controlled the price
of the facility’s product, and controlled who could purchase the
product.
Id. at $43. Accordingly, the Third Circuit found that “the leading indicia of control were present,

as the governinent determined what product the facility would produce, the level of production,
the price of the product, and to whom the product would be sold,” effectively “exert[ingj
considerable day-to-day control over [the Facility].” Id. at 843-44. The court in FMC concluded
that “when we consider ‘the totality of the circumstances presented’ we cannot reject the district
court’s ‘inherently fact-intensive’ conclusion that the government was an operator of the facility.”
Id. at $45.

In Bestfoods, the critical issue was “whether a parent corporation that actively participated
in, and exercised control over, the operations of a subsidiary may, without more, be held liable as
an operator of a polluting facility owned or operated by the subsidiary.” 524 U.S. at 55. The
Supreme Court recognized that a parent company could be derivatively liable under CERCLA for
the acts of its subsidiary by piercing the corporate veil. Id. at 62. The Besifoods Court continued
that the parent company could also be directly liable under CERCLA if it was in fact an operator
of the facility. Id. at 65. However, the Court held that “{t]o sharpen the definition for purposes of
CERCLA’s concern with environmental contamination, an operator must manage, direct, or
22

conduct operations specUlcally related to pollution, that is, operations having to do with the
leakage or disposal of hazardotts 1’aste, or decisions about compliance with environmental

regulations.” Id. at 66-67 (emphasis added).
The Supreme Court took issue with the “actual control” test for operator liability because
it looked to whether the parent controlled the stibsidia,y—not the critical question of whether the
parent controlled the facility. Id. at 67-68. The Court in Bestfoods added that the fact that
representatives of the parent company serve on the board of the subsidiary is not enough to impose
liability. Id. at 70. further, the Supreme Court observed that accepted norms of parental oversight
—

such as monitoring the subsidiary’s performance, supervising the subsidiary’s financial and

capital budget decision, and articulating the subsidiary’s general policies and procedures

—

were

not enough to impose operator liability. Id. at 7 1-72. Hence, the Bestfoods standard looks beyond
general control of a company and to specific control over pollution-related activity at a facility.
Id. at 66-67.

Plaintiff argues that the Bestfoods standard of operator liability is limited to the parentsubsidiary relationship. P1. Opp’n at 32. The Court disagrees. The Supreme Court did not limit
its holding in Bestfoods solely to the parent-subsidiary context. Therefore, to the extent that FMC
conflicts with Bestfoods, Bestfoods controls. Moreover, Plaintiff has not presented any persuasive
reasons as to why the definition should be so limited. In fact, several courts have applied the
Bestfoods definition of operator outside of the parent-subsidary context, including the Third
Circuit. SeeLitgo New Jersey Inc. v. Comm’rNewJersevDep’tofEnvtl. Frot., 725 F.3d 369, 381-

83 (3d Cir. 2013) (applying Bestfoods to determine whether an independent company, not the
parent company, was liable as an operator for its active remediation efforts at a facility). District
courts have also incorporated the Bestfoods operator liability standard outside of the parent-

23

subsidiary context, Virginia St. Fidelco, LL.C. v. Orbis Prod. Corp., No. 11-2057, 2016 WL
4150747, at *5 (D.N.J. Aug. 3, 2016) (McNulty, J.), and specifically applied it in the wartime
government control context, e.g., Exxon Mobil Corp. v. United States, 10$ F. Supp. 3d 486, 52223 (S.D. Tex. 2015); Litgo Ni, Inc. v. Bob Martin, No. 06-2891, 2010 WL 2400388, at *23
(D.N.J. June 10,2010) (Thompson, J.), on reconsideration in pctrt sub nom. Litgo New Jersey, Inc.
v. Martin, No. 06-2891, 2011 WL 65933 (D.N.J. Jan. 7, 2011), affd in part, rev’d in part sub nom.
Litgo New Jersey Inc. v. Comm ‘r New Jersey Dep ‘t ofEnvtl. Prot., 725 F.3d 369 (3d Cir. 2013);”
Coeitr D ‘Alene Tribe v. Asarco Inc., 280 F. Supp. 2d 1094, 1127 (D. Idaho 2003), modified in
part sub nom. United States v. Asarco Inc., 471 F. Supp. 2d 1063 (D. Idaho 2005).
Under Bestfoods, the government’s general wartime control over an industry is insufficient
to establish operator liability. “Bestfoods clearly requires more than general influence over the
economy or over a plant’s operations, even if the result could increase waste production,” as
“[c]ourts have repeatedly rejected arguments that similar procurement activities during wartime to
fill national defense needs are enough for operator liability.” Exxon, 108 F. Supp. 3d at 522-23.
“Bestfoods requires a direct nexus between the government’s activities and the decisions in the

“In Litgo, the district judge applied the Bestfoods standard to the United States in determining
whether it was liable as an operator under CERCLA for its relationship with plaintiffs aircraft
manufacturing facility during and after WWII. 2010 WL 2400388, at *6..7, 23. After recognizing
that “[t]he United States Defendants’ role in the operations of [plaintiffs aircraft manufacturing
facility] was limited to purchasing aircraft parts from the company and conducting periodic
inspections to ensure that the site was maintained in compliance with industry standards,” the
district court concluded that “[t]he United States Defendants did not manage, direct, or conduct
any of the day-to-day operations or manage, direct, or conduct any activities that had to do with
the leakage or disposal of hazardous wastes” at the facility. Id. at 24. As a result, Judge Thompson
found that the government was not an operator under either Bestfoods or FMC. Id. On appeal, the
Third Circuit stated, “we agree with the great majority of the District Court’s comprehensive and
thoughtftil consideration of this complex case, and will affinn its judgment in all respects save
two” (neither of which related to the district court’s operator liability analysis). Litgo, 725 F.3d at
399.
24

refineries’ waste leakage. disposal, or environmental compliance.” Id. at 524. “Direct and specific
federal government involvement in the waste-disposal matters at issue is required.” Id. at 523.
In Exxon, Exxon sued the United States for “operating” its oil refinery to produce critical
war material, high-octane aviation gas (“avgas”), during WWII and the Korean War. Id. at 490,
494. The government set price ceilings on avgas, “control[led] the type and amount of crude oil
and other raw materials sent to the two refineries,” “directed refineries to blend avgas in a way that
would allow increased overall production even if that method would reduce an individual
refinery’s yield,” and “directly reimbursed the refineries for any extraordinary expenditures they
undertook.” Id. at 495, 496, 498. The government also “had the authority to require oil companies
to produce certain goods,” and could “seize the refineries if the companies refused.” Id. at 495.
The government seized one of Exxon’s refineries in Ingleside, Texas, but did not seize either of
the refineries at issue. Id. The Southern District of Texas found that because “[n]othing in the
record indicates that the [the government and oil companies at issue] negotiated or specified how
the oil companies would manage waste disposal at the refineries,” the government was not liable
as an operator under Bestfoods. Id. at 525, 530.

The District of Idaho came to a similar conclusion in Coeitr D ‘Alene Tribe. 280 F. Supp.
2d at 1130. In Coeur D ‘Alene, mining companies asserted that the government was an operator
of their mining and milling facilities before and during WWII. Id. at 1125. The Court recognized
that “[t]he mining companies did voluntarily mine and mill during the war,” and they “did turn a
profit during World War II, but the profit was significantly reduced by the government’s control
over production, prices and operating costs.” Id. at 1128. The government controlled “the price
for the product via the premium price plan and quota system,” and also controlled the “wages for
mining and non-mining personnel” and “the length of the work week.” Id. at 1127.

25

The

government offered soldiers “deferments from military service to work in the [facilities],” and
restricted employees from taking outside employment. Id.
The facilities needed government approval for making capital improvements, purchasing
equipment, and purchasing chemicals. Id. They also had to submit monthly operating reports to
the government. Id. The government was also in control of security at the facilities and “required
changes” to comply with their security demands. Id. If certain conditions were not complied with,
the government threatened seizure of operations. Id. The government was also aware of the toxic
tailings that the facilities generated and of the disposal method for such tailings. Id. However, the
government did not make any “day-to-day decisions regarding the operation of the flumes and
chutes” transporting and disposing of the tailings in the waterways. Id. at 1128.
In conducting its operator liability analysis, the court in Coetir D ‘Alene first distinguished
its case from FMC, finding the following to be “significant differences” in the matters:
In the present case, the mining companies maintained actual control
over the mines and mills; the mining companies hired and fired and
supervised employees; the mining companies voluntarily decided to
mine for metals and to participate in the premium price plans and
quotas; the mining companies owned the equipment used in the
mines and mills; the government set the price for metals, but did not
control who could purchase the metals at the given prices; and the
mining companies controlled the mechanisms creating the tailings
and the disposal of the tailings.
Id. at 1130. Applying the Bestfoods standard, the Coeur D ‘Atene court found that “the government

did not manage, direct or conduct operations specifically related to pollution, that is, operations
having to do with the leakage or disposal of hazardous waste, or decision about compliance with
enviromnental regulations,” and therefore that the government was not liable as an operator under
CERCLA. Id. at 1129.

26

Additionally, courts in the District of New Jersey has recognized that mere
recommendations by the government that can be, and are, disregarded are insufficient for operator
liability.

U1?ited States v. Cornell-Dubilier Elecs., Inc., No. CIV.A. 12-5407 JLL, 2014 WL

4978635, at *8 (D.N.J. Oct. 3, 2014).

In Cornell-Ditbliner, “[g]overnment agents submitted

recommendations to [the polluting facility’s] management for the purpose of improving efficiency
and security at the facility,” however “there [wa]s no evidence that these recommendations were
ever carried out, and no evidence that the [g]overnrnent’s recommendations were treated as
imperatives.” Id.

Accordingly, Judge Linares concluded that “the record indicates that the

[g]overnrnent never exercised the kind of control over the [polluting] facility that is typically
associated with operator liability” under CERCLA. Id.
Here, the Government’s wartime, regulatory control over NPR’s chromium chemical
facility does not support a finding of operator liability. The Government controlled the supply and
price of NPR’s raw material as well as the price of its finished product. P1. SOMF

¶ 23, 27,

39,

43. The government participated in one of NPR’s labor disputes, once visited NPR’s facility, and
had the power to seize the facility due to labor unrest. Id.

¶ 68, 73, 75. The Government engaged

in discussions with NPR about how to increase production, and discussed the possibility of a
subsidy. Def. RESP

¶ 13.

However, the Government never directly managed or conducted NPR’s operations
regarding pollution either the release and disposal of hazardous substances or the implementation
—

of environmental remediation. The Government never entered into the proposed sludge-purchase
subsidy. It never seized the plant. It never stationed its own employee at the facility or placed
him or her in control of waste-producing operations, waste disposal, or environmental remediation.
The Government never demanded a certain type of production process be utilized or specified how

27

the plant had to dispose of its waste. All of the Government’s actions in relation to NPR’s plant
are consistent with general wartime influence over an industry— not control over NPR’s pollutionspecific activities.
While the Court is applying the Bestfoods standard, the Court also disagrees with Plaintiffs
claim that the current facts are “almost identical” to those in FMC. P1. Opp’n at 31. To be sure,
certain facts are the same or very similar. Both cases concern the Government’s far-reaching
industry oversight during WWII, the Government’s control of the supply and price of raw
materials, the Government’s control over the distribution and price of the finished product, the
Government’s awareness that hazardous substances were a necessary byproduct of production, and
the Government’s authority to seize non-complying plants. On the other hand, there are also
material differences between the two cases. Critically, unlike in FMC, the Government did not
require NPR to convert its plant to produce a different product. The Government also did not
supply NPR with government equipment and machinery, much less contract with a third party to
manufacture the equipment and then maintain supervisory oversight as to the equipment’s
installation. Here, the Government did not build complementary facilities next to the Site. The
Government was also much less involved in labor decisions at the NPR plant as the Government
did not actively participating in the management or supervision of the labor force.

The

Government did not have a full-time representative at NPR’s plant to address manpower. housing,
and community services issues. The Government did not have a representative at NPR with
authority to promulgate niles governing all operations. Therefore, the Court finds the current case
factually distinguishable from FMC.
Plaintiff also relies heavily on the Government’s involvement in discussions about how to
increase production at NPR’s facility. E.g., P1. SOMF ¶ 13. However, as was the case in Cornell

28

Dubliner, these discussions only amounted to the Government recommending or proposing what

processes NPR could implement; NPR was still free to implement these processes or reject them.
Def. RESP

¶ 13. NPR remained in control of its facility and the decision-making regarding how

to produce chromium chemicals and how to dispose of its waste. Id. Indeed, NPR was flee to
reject the Government’s proposals and, on occasion, did so, such as its rejection of the highergrade ore subsidy.
For the foregoing reasons, the Court finds that there are no genuine issues of material fact
precluding summary judgment and that the Government is not liable to Plaintiff as an operator of
NPR’s Site under Bestfoods.
3. Arranger Liability

“[U]nder the plain language of the [CERCLA] statute, an entity may qualify as an arranger
under

§ 9607(a)(3) when it takes intentional steps to dispose of a hazardous substance.”

Bttrtington, 556 U.S. at 611. “{K]nowledge alone is insufficient.” Bttrlington, 556 U.S. at 612.

“Ownership or possession of the hazardous substance must be demonstrated.”
i’.

Morton

Int’l, Inc.

A.E. Stalev Mfg. Co., 343 F.3d 669, 677 (3d Cir. 2003). Further, arranger liability does not

attach “when the disposal occurs as a peripheral result of the legitimate sale of an unused, useful
product.” Burlington, 556 U.S. at 611. In addition to ownership or possession, the arranger also
must have “either control over the process that results in a release of hazardous waste or knowledge
that such a release will occur during the process.” iViorton, 343 f.3d at 677.
Here, the Government is not an arranger because it never took ownership or control over
the sludge. As discussed above, the parties discussed a subsidy whereby the Government would
purchase and take title to NPR’s toxic sludge, but the Government never did so. D.E. 152-23, Ex.

29

95. Plaintiff has produced no evidence that the Government took ownership of the sludge in any
capacity. This alone is enough to defeat arranger liability.
In addition, the Government did not have control over the process that resulted in a release
of hazardous waste at NPR’s facility. The Government made proposals as to how NPR should
conduct its processing so as to maximize output, but the decision to implement these proposals
was ultimately lefi to NPR. further, even if the Government was aware that a certain process
would increase the amount of pollution, knowledge alone is insufficient for arranger lability.
Therefore, there are no genuine issues of material fact and the Court finds that the
Government is entitled to summary judgment on Plaintiffs arranger theory of liability.
B. RCR4
“RCRA is a comprehensive environmental statute that governs the treatment, storage, and

disposal of solid and hazardous waste.” Meghrig v. KfC W, Inc., 516 U.S. 479, 483 (1996).
Unlike CERCLA, “RCRA is not principally designed to effectuate the cleanup of toxic waste sites
or to compensate those who have attended to the rernediation of environmental hazards.” Id.
“RCRA’s primary purpose, rather, is to reduce the generation of hazardous waste and to ensure the
proper treatment, storage. and disposal of that waste which is nonetheless generated, ‘so as to
minimize the present and future threat to human health and the environment.” Id. (citing 42
U.S.C.

§ 6902(b)) (emphasis added). Thus, under RCRA, district courts do not have the authority

to award a plaintiff “costs for past cleanup efforts.” United States v. Lane Labs-USA Inc., 427
F.3d 219, 230 (3d Cir. 2005) (citing Meghrig, 516 U.S. at 484). Instead, RCRA authorizes courts
to issue injunctions to alleviate imminent harms posed to human health and the environment, and
“costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or

30

substantially prevailing party, whenever the court detenTlines such an award is appropriate.” Litgo,
725 F.3d at 393.

RCRA provides, in relevant part, as follows:
[A]ny person may commence a civil action on his own behalf.
against any person. including the United States and any other
governmental instrumentality or agency,. who has contributed or
who is contributing to the past or present handling, storage,
treatment, transportation, or disposal of any solid or hazardous
waste which may present an imminent and substantial endangerment
to health or the environment[.]
.

42 U.S.C.

.

§ 6972(a)(1)(B). To prevail on its RCRA claim, a plaintiff must demonstrate that
(1) that the defendant is a person, including, but not limited to, one
who was or is a generator or transporter of solid or hazardous waste
or one who was or is an owner or operator of a solid or hazardous
waste treatment, storage, or disposal facility; (2) that the defendant
has contributed to or is contributing to the handling, storage,
treatment, transportation, or disposal of solid or hazardous waste;
and (3) that the solid or hazardous waste may present an imminent
and substantial endangenTlent to health or the environment.

Interfaith Crntv Org. v. Honeywell Int’l, Inc., 399 F.3d 248, 258 (3d Cir. 2005). “[T]he plain

language of [this provision] makes clear that liability should only be imposed on those who
actively manage or dispose solid or hazardous waste.” Interfaith crntv. Org. e. Honeywell Int’l,
Inc., 263 F. Stipp. 2d 796, 831 (D.N.J. 2003), aff’d, 399 F.3d 248 (3d Cir. 2005).
As discussed above, the Government was not an operator of the Site and never actively
managed or disposed of hazardous waste at the Site. There are no genuine issues of material fact
and the Government is entitled to summary judgment on Plaintiffs RCRA claim.

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VI. CONCLUSION
For the reasons set forth above, Plaintiffs motion for summary judgment is denied, and
Defendants’ motion for summary judgment is granted. An appropriate Order accompanies this
Opinion.

Date: November26, 2018

(QpJ1

I

John Michael VazueJkS.E1J.

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