UNITED STATES OF AMERICA v. ALSOL CORPORATION et al

Filing 30

OPINION fld. Signed by Magistrate Judge Cathy L. Waldor on 7/10/14. (sr, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA,
Plaintiff,
vs.
ALSOL CORPORATION, SB BUILDING
ASSOCIATES, LIMITED PARTNERSHIP,
SB BUILDING GP, L.L.C., UNITED
STATES LAND RESOURCES, L.P.,
UNITED STATES REALTY RESOURCES,
INC., LAWRENCE S. BERGER, and 3.60
ACRES OF LAND, More or Less, located at
Block 58, Lot 1.01, at 2 through 130 Ford
Avenue in Milltown, Middlesex County,
New Jersey,

Civil Action No. 13-cv-0380 (KSH)(CLW)
OPINION

Defendants.
WALDOR, Magistrate Judge,
This matter is before the Court upon the application of Plaintiff, The United States of
America (the “Government”) having filed a Motion to Strike the Jury Demand of Alsol
Corporation (“Alsol”), SB Building Associates, Limited Partnership, Sb Building GP, L.L.C.,
United States Land Resources, L.P., United States Realty Resources, Inc., Lawrence S. Berger,
and 3.60 Acres Of Land, More or Less, located at Block 58, Lot 1.01, at 2 through 130 Ford
Avenue in Milltown, Middlesex County, New Jersey, (collectively the “Defendants”) as set forth
in Defendants’ Answer to the Government’s Complaint.
The Government filed this civil action pursuant to Sections 107(a) and 107(l) of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended,
(“CERCLA”), 42 U.S.C. §§ 9607(a) and 9607(l), regarding the Michelin Powerhouse Superfund
Site (“Powerhouse Site”) and the Michelin Building 3 Vat Site located within Block 58, Lot 1.01,

at 2 through 130 Ford Avenue in Milltown, Middlesex County, New Jersey. See Complaint, Dkt
Entry No. 1, at ¶1.
The Complaint alleges, generally, that in May, 2004, in order to address the release or
threatened release of hazardous substances such as friable asbestos, arsenic, lead, and mercury at
the Powerhouse Site, the Environmental Protection Agency (“EPA”) determined that a CERCLA
removal action should be undertaken to mitigate the threats associated with the release of threat of
release of these hazardous substances. Id. at ¶¶74, 81-83. In November, 2004 the EPA notified
Alsol of its potential liability for the removal action at the Powerhouse Site, and offered Alsol the
opportunity to perform the necessary removal action or fund EPA’s performance of the removal
action at the Powerhouse Site. Id. at ¶84. By May 2007, Alsol had partially completed the removal
action, but the EPA has since been forced to incur approximately $3,036,390.43 in costs to
continue the removal of the hazardous substances at the Powerhouse site. Id. at 84-86, 91. The
Government therefore seeks recovery against the Defendants for response costs incurred by the
Government pursuant to Section 107(a) of CERCLA, 42 U.S.C. § 9607(a), in connection with the
release or threatened release of hazardous substances at or from the Sites; and recovery in rem of
all costs constituting the lien of the Government pursuant to Section 107(l) of CERCLA, 42 U.S.C.
§ 9607(l). Id.
Defendants Answered the Government’s Complaint denying the allegations contained
therein, and “request[ed] a trial by jury on all issues so triable.” Answer, Dkt Entry No. 21, p. 9.
The Government now moves to strike that demand pursuant to Fed. R. Civ. P. 39(a)(2),
asserting that Defendants have no right to a jury trial for two reasons: (1) Congress did not provide
a right to a jury trial in CERCLA cost recovery cases, and (2) the Seventh Amendment does not
provide a right to jury trial here because a CERCLA § 107 cost recovery action seeks equitable,

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not legal, relief. See Mem. in Supp. of Pl.’s Mot. to Strike Jury Demand, Dkt. Entry No. 26 at pp.
1-2.
Defendants oppose the motion arguing the Seventh Amendment’s right to a jury trial
applies to this case because the relief sought is legal in nature. See Def.’s Mem. in Opp., Dkt Entry
No. 28, at p. 6. Defendants argue that the equitable, restitutionary relief described by the Hatco
court, i.e. contribution for costs incurred, see Hatco Corp. v. W.R. Grace & Co.--Conn., 59 F.3d
400 (3d Cir. 1995) is distinct from the relief sought by the government here - the payment of money
damages measured by the Government’s loss. See Def.’s Mem. in Opp., at p. 6.
However, despite Defendants best efforts to distinguish the CERCLA action in Hatco from
the present action, the Hatco court makes clear that there is no right to a jury trial in cases brought
under either Sections 9607 or 9613. Hatco, 59 F.3d at 411-12 (“We are in agreement that a jury
trial is not available in a claim brought under section 9607” citing United States v. Northeastern
Pharmaceutical & Chem. Co., 810 F.2d 726 (8th Cir. 1987)). Significantly, the Hatco court noted
that “[sections 9607 and 9613] are intertwined, and there are practical difficulties with making a
distinction between them that would justify differing rulings on the availability of a jury trial.”
Hatco, 59 F.3d at 411. Therefore regardless of whether a CERCLA action is brought under section
9613 or 9607 as it is here, our circuit has made clear that CERCLA actions brought to recover
costs incurred in the cleanup of, or to prevent the release of, hazardous substances, sounds in equity
and a jury trial is therefore unavailable.
For the reasons set forth above, the Government’s motion to strike Defendants’ jury trial
demand in GRANTED.
SO ORDERED
s/ Cathy L. Waldor
CATHY L.WALDOR
UNITED STATES MAGISTRATE JUDGE

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