1999 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"NJ Turnpike Auth v PPG Ind Inc" (1999). 1999 Decisions. Paper 307.

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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. A11/12, 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 1311a12a. 

 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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