Chemical Maker Can Be Sued for Old Dumping

(CN) - One chemical manufacturer may sue another for dumping radiological materials into New Jersey's Raritan River 70 years ago, a federal judge ruled.

EPEC Polymers, a Texas-based Delaware corporation, and its predecessors in interest, Heyden Chemical Corp., Heyden-Newport Corp., and Tenneco Chemical Co., made chemicals on 185 acres of EPEC-owned land in Woodbridge Township, N.J. on the northern shore of the Raritan River.

NL Industries, a New Jersey lead smelting company based in Dallas, produced chemicals on land directly across the river, in the Borough of Sayreville, from 1935 until 1982.

In a 2012 federal complaint in New Jersey, EPEC claimed that from 1935 to 1947, NL and predecessors dumped into the river hazardous waste and byproducts, such as thorium - which EPEC did not produce onsite - uranium, and radium.

EPEC claimed the Army Corps of Engineers had dredged the river to widen and deepen it for shipping, and in the 1940s deposited dredge spoils in EPEC's 45-acre central wetlands area via agreement with Heyden.

Skipping forward nearly 65 years to "April 2009, EPEC performed a gamma surface survey" that "detected the presence of elevated levels of thorium in the soils," the complaint said.

EPEC claimed it spent more than $2 million on contamination and will continue to "incur significant costs related to the investigation and/or remediation," which is expected to include "the excavation, transportation, and disposal of soils and other material."

EPEC sought to hold NL liable for 1) common law trespass; 2) common law private nuisance; 3) several causes of action under the federal Comprehensive Environmental Response, Compensation, and Liability Act, as amended by the Superfund Amendments and Reauthorization Act of 1986, including cost recovery, contribution, and declaratory judgment; 4) declaratory judgments under federal and state law; 5) the New Jersey Spill Compensation Act; 6) negligence; 7) strict liability; and 8) common law indemnification.

NL moved to dismiss, but U.S. District Judge Michael Shipp partially denied the motion last week, tossing NL's argument that it does not own the only "facility" in question - the EPEC site itself.

"(T)he fact that a third-party in the form of the Army Corps may have removed the radiological materials from the riverbed and onto the EPEC site is irrelevant," Shipp wrote. "NL is strictly liable for damages that result from the discharge of the radiological materials into the river. The fact those materials were transported slightly further than NL may have anticipated when they allegedly discharged them into the Raritan River, due to strict liability, does not effect [sic] that analysis. Just as the flow of water due to gravity or erosion can transfer hazardous material from a facility onto adjacent land, so too can the actions of a third-party."

The court dismissed EPEC's trespass, contribution, and indemnification claims.

"Plaintiff has clearly alleged that NL both owned and possessed the radiological materials as they were being discharged into the Raritan River between 1935 and 1947," Shipp wrote. "The complaint also clearly alleges that NL had the requisite knowledge - actual knowledge that the discharge was occurring and presumed knowledge that its discharge could result in a release - and control over the discharge process. Because the operative event by which NL arranged for the disposal of its waste was the discharge of the radiological materials into the Raritan River, no further analysis is required."

EPEC has until Friday, June 7 to amend its complaint.

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