Citigroup, Others Dodge Environmental Suit
(CN) - The federal government cannot sue Bristol Meyers Squibb, Citigroup, and others for releasing dangerous chemicals into New Jersey waters, costing tens of millions, a federal judge ruled.
Since the 1950s, the operations of the Pechiney Plastic Packaging Inc. (PPPI) and others at a manufacturing plant in Washington, N.J. has led to the creation of the Pohatcong Valley Groundwater Contamination Superfund Site in parts of Washington Borough, Washington Township, Franklin Township, and Greenwich Township in Warren County, N.J.
The federal government sued Pechiney under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) in 2009, seeking to recover more than $17 million in costs stemming from the release of hazardous substances at the site.
U.S. Magistrate Judge Tonianne Bongiovanni summarized the history of the site's sullying in an unpublished opinion on Sept. 27, 2013.
The New Jersey Department of Environmental Protection first found heightened levels of volatile organic contaminants trichloroethylene and tetrachloroethylene aka perchloroethylene at the site in the late 1970s.
Later, after the department installed water lines for a municipal supply to Washington and Franklin Townships, the U.S. Environmental Protection Agency (EPA) placed the site on the National Priorities List, and conducted an investigation of threats to both public health and the environment. The study also looked at the groundwater and soil contamination in three areas.
By the end of 2011, the government's estimation of past and future costs of the hazardous substance release had risen to over $24 million, plus more than $2 million in accrued interest.
More than three years after filing suit, the government moved to amend its complaint to add as defendants six of the facility's current or former owners - Bristol Meyers Squibb Co., Myset Investment Co., Citigroup Inc., MRC Holdings Inc., Rexam Beverage Can Co., and Albea Americas Inc. - as well as the property itself; and to recover enforcement costs in February 2013.
Judge Bongiovanni partially denied the motion Sept. 27, finding that the request to add new defendants is untimely and prejudicial to Pechiney and requires too much extra discovery, placing "an unwarranted burden on the court," which has scheduled trial to begin next summer.
"While there would certainly be an overlap with the discovery already produced, the new companies will be entitled to conduct both paper discovery and depositions of their own," Bongiovanni's unpublished ruling states.
That "would involve information dating back for over half of a century," she added.
The court also tossed aside the claim that the government could not assert CERCLA claims against the six additional companies until spring 2012.
"First, even if true, the U.S. offers no explanation as to why it waited nearly a year after receiving the allegedly critical discovery from PPPI to move to amend to add the six companies," Bongiovanni wrote. "While the court appreciates the complexity of this case and the fact that the U.S. would have needed some time to have reviewed the discovery provided by PPPI before it would have been in a position to move to amend, the court finds the delay at issue here unreasonable.
"Second, the court remains unconvinced that the U.S. could not have moved to amend earlier," the judge continued. "As PPPI notes, in February 2004 it identified for the U.S. the corporate structure and history of the prior owners and operators of the Washington Facility when it provided the U.S. with information that had been requested pursuant to Section 104(e) of CERCLA. As such, as early as February 2004, the U.S. had access to information forming the basis of its claims against many of the proposed corporate defendants."
The judge also refused to add the property as a defendant, but granted the demand for enforcement costs.