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D ock e t 98-6309

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. e du/thir dc ir c uit_1999/307Filed 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.

2Thomas 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, t he New Jersey Turnpike Authority ("Turnpike") seeks to hold the appellees liable for contribution for the conta mination of a number of sites along the Turnpike with chroma te ore processing residue, or COPR, under standard theorie s of liability and under an alternative liability theory . We conclude that the Turnpike has not produced suffici ent evidence to survive appellees' summary judgment mot ion under either CERCLA or the Spill Act or under an alternative liability theory, and will affirm the D istrict
Court's order on this basis.

I. Factual and Procedural Background

This case is the latest of a series of legal action s attempting to affix liability against these appelle es for COPR contamination in New Jersey in both the state and f ederal courts. The instant litigation centers around seve n different sites along the New Jersey Turnpike that the Turnpi ke alleges have been contaminated with COPR. In this a ction, the Turnpike relies largely upon prior investigatio ns and

3actions 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 Protecti on ("NJDEP") has denoted these areas as site numbers, 7, 20, 21, 56, 131, 192, and 201.1 According to the Turnpi ke, these seven sites, among others, received COPR, dir ectly 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 Corpor ation ("Occidental") involved in this appeal, or their co rporate predecessors, were processors of chromium ore. A. a t 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 t heir plants, the next closest chromate chemical producti on 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 constru ction fill or other uses. A. at 962a, 903a, 923-38a, 1241a, 89 4a, 957a-960a, 897a, 922a, 981a. Neither the appellees nor the Turnpike has kept records of COPR disposal or purch ase. 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-Sign al, PPG,
and Occidental. The NJDEP stated that the Directive was issued for the following purposes:

in order to notify [Allied, PPG, and Occid ental] that the Department, pursuant to the provisions of the [Spill Act] has determined that it is necessary t o remove or arrange for the removal of certain hazardo us

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1. Earlier versions of the record below indicate th at the Turnpike initially focused on site 198, but the parties appear to be i n agreement that it is
site 192 that is at issue in this case.

2. The Turnpike was made aware of the presence of C OPR at some of the
sites at issue in this case from the Director of th e Hazardous Waste Task Force of New Jersey in 1984. A. at 281a.

4substances, and in order to notify [Allied , PPG, and

Occidental] that the Department believes t hem to be responsible for the discharge of such haza rdous

substances. A. at 499a.

The Directive put appellees on notice of 118 contam inated sites, including four of the sites at issue here, S ites 7, 20, and 21 in Jersey City, and Site 56 in Kearny. A. at 507- 12a. The Directive assigned collective responsibili ty 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, Occi dental
entered into an administrative consent order with t he NJDEP relating to 26 chrome-contaminated sites in K earny, including Turnpike sites 56 and 131. 339a-364a. Occidental agreed, via this administrative consent order, to propose and implement remedial measures at all of t he Kearny sites listed. A. at 343a-347a.3 This order did not include an admission of liability or fault by Occid ental for the sites. A. at 343a, 362a, 495a. Occidental has s pent 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 h as been investigating and remediating over 55 sites in Huds on County. A. at 626-68a.

The NJDEP issued another Directive in 1989 that set forth the following as its "findings": 1) Allied ha d reported that it could not account for the disposition of al l 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 construct ion projects; 2) Occidental employees had reported that
chromate chemical waste had been used as fill in we tlands areas or in construction projects and roadway const ruction; and 3) during the late 50s and early 60s, PPG allow ed approximately 40 tons per day of chromate chemical production waste to be taken free of charge from th e PPG

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3. When the NJDEP identified Turnpike Site 201 as a new chrome site in 1996, Occidental agreed to treat the site as one co vered by the
administrative consent order. A. at 494a-95a.

5site. A. at 524-26a. The Directive also cited the t estimony of

PPG employees in prior cases that its waste was use d as fill in Jersey City, and was sold and used for fill in
construction and industrial sites. A. at 527a. Othe r NJDEP
Directives were issued that discussed how waste fro m the PPG and Allied plants were used as fill, and these
Directives also observed that both Allied and PPG h ad
entered into administrative consent orders with the NJDEP to determine remedial plans without admitting liabi lity. A. at 551-52a, 559-62a, 585-86a, 593-620a, 626a-34a, 6 35-

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., Je rsey 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 judgmen t in favor of PPG and Allied); Gertrude Settle v. PPG In dus., Inc. et al., Docket No. W-10654-92 (N.J. Super. Ct. Law Div. June 7, 1996) (order granting summary judgment in f avor of Allied); PPG Indus., Inc. v. Lawrence Constructi on 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 na med in
this suit.

In May 1993, the Turnpike filed suit in District Co urt, alleging claims under CERCLA, the New Jersey Spill Act, tort, contract, and quasi-contract claims, and a de claratory judgment claim against numerous defendants, includi ng insurance companies, construction and trucking companies, and corporations alleged to have produce d

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4. For example, Allied's counsel in this matter has handled approximately fifteen cases on behalf of the corpor ation in the state and federal courts in New Jersey. A. at 1285a.

6COPR. Discovery efforts in this matter were sporadi c at

best. In February, 1994, the Magistrate Judge enter ed a case management order that indicated that discovery would be conducted in phases, and that the first phase of discovery would include document requests, interrog atories, and depositions. The parties exchanged documents an d interrogatory answers shortly thereafter. For a per iod of at least twelve months afterward, however, the Turnpik e sought no discovery from any defendant or third par ty on the question of liability. We also note that there appeared to be little or no discovery taken by any party for al most two

years.

On October 16, 1996, the Magistrate Judge issued an order closing fact discovery at the request of Alli ed, 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 i ssue of liability through March 15, 1997, and on the subjec t of damages through September 15, 1997. The Turnpike se rved five deposition notices, and withdrew all but one. In sum, the Turnpike did take one, one hour deposition in t his case in 1997, served written discovery requests on the a ppellees, 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 move d for summary judgment, as did the Turnpike. In support o f its motion for summary judgment, the Turnpike quoted an d utilized deposition testimony from prior actions an d also relied heavily on statements made in the NJDEP Dire ctives and the administrative consent orders that the appe llees
had entered into with the NJDEP. The District Court heard oral argument on the motions, and then ruled in fav or of Allied, PPG, and Occidental on the Turnpike's feder al and state law claims. This order became final upon dism issal of
all other claims.5

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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 judg ment was granted in favor of appellees on May 15, 1998. On August 4, 19 98, the District Court entered an order: 1) dismissing all of the cl aims against the John

7The 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 Cou rt 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 d octrine, 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 sit e in question." New Jersey Turnpike Authority v. PPG Ind ustries, Inc., 16 F. Supp.2d 460, 468 (D.N.J. 1998). In exam ining the Turnpike's alternative liability arguments, the District Court noted that under any burden-shifting framewor k, a plaintiff still had an initial burden of demonstrat ing that two or more actors joined as defendants acted torti ously toward that plaintiff, and that all culpable defend ants were joined in the action. See id. at 470 (citing Shacki l 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 o f

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Doe Defendants without prejudice; 2) stating that a ny and all claims by the Turnpike against Natural Products Refining Co., F.S.F. Company, Mutual Chemical Company of America, Oxy-Diamond Alk ali Corporation, Martin Dennis Company, George M. Brewster & Sons, I nc., Felhaber Corporation, Reid Contracting Company, Inc., Kleven s Corporation, Horn Construction Company, and American Mutual Liability Insurance Company were acknowledged by the Turnpike to be def unct, and dismissing those claims; 3) dismissing counterclaim s and cross claims by the appellees with the exception of the counterc laims 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) certificatio n, 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 inheren t in the District Court's August 4, 1998 order were cured by the 54(b ) certification, and that we therefore have jurisdiction to consider thi s 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, 53 5 (3d Cir. 1983).

8alternative liability is applicable to cases brough t 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 cas e. See id. at 470-71. The District Court noted that the Turnpike was not a proper "innocent" party to be aided by an alterna tive liability doctrine, as it was also potentially liab le for the COPR contamination at its sites under CERCLA, and t hat the Turnpike, rather than the appellees, was in a b etter position to uncover evidence relating to causation. 6 See id. For these reasons, the District Court declined to a pply 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 eit her CERCLA or the Spill Act. The District Court noted t hat the Turnpike had not produced sufficient competent evid ence to demonstrate that Allied or PPG's facility had de posited COPR on any of the sites at issue, and that the Tur npike had not produced sufficient evidence against Occide ntal as to sites 7, 20, 21 and 192. See id. at 472. The Dis trict Court then took a closer look at the evidence produ ced by the Turnpike against Occidental with respect to sit es 56, 131, and 201 and concluded that the Turnpike could not produce adequate evidence against Occidental with r espect 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 evide nce to survive summary judgment on its Spill Act claims, a nd it also addressed and denied the Turnpike's other stat e law

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6. The District Court made the following comments a s to proof of
causation:

[O]ne of the primary justifications for in voking the alternative liability doctrine -- to provide redress f or injuries that would

not be remedied otherwise -- is plainly absent he re. The alleged damage
here -- the environmental harm -- is alrea dy being addressed in ongoing NJDEP proceedings, which have alre ady secured the agreement of Occidental to address three o f the seven sites in question.

16 F. Supp.2d at 471.

9claims. The Turnpike argues on appeal that the Dist rict

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 li ability theory; and 3) exercising supplemental jurisdiction over the Turnpike's state law claims, where the claims prese nted 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 cle anup of inactive hazardous waste sites. Section 107 of C ERCLA assigns liability to four categories of "potentiall y responsible parties" or PRPs for costs of removal or remediatio n or hazardous waste. 42 U.S.C. S 9607(a). A PRP include s: 1) the current owner or operator of a facility; 2) any person who owned or operated the facility at the time of t he disposal of a hazardous substance; 3) any person wh o arranged for disposal or treatment, or arranged for transport for disposal or treatment of hazardous substances at a facility; and 4) any person who acc epts or accepted hazardous substances for transport to site s 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 10 7, a plaintiff must prove: 1) that the defendant is a PR P; 2) that hazardous substances were disposed of at a "facilit y"; 3)

that there has been a "release" or "threatened" rel ease of hazardous substances from the facility into the

10environment; 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. C DMG Realty Co., 96 F.3d 706, 712 (3d Cir. 1996). A sect ion 107 cost recovery action may only be pursued by an inno cent 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 ca se where a CERCLA plaintiff asserts that a PRP has "arranged " for the transportation or disposal of hazardous substan ces, our prior case law is clear that such a plaintiff "must simply prove that the defendant's hazardous substances wer e deposited at the site from which there was a releas e 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 all ows a PRP to recover a portion of its expenditures when that PRP
believes that it has assumed a share of the costs t hat is greater than its equitable share under the circumst ances. See New Castle County, 111 F.3d at 1121-22; see als o 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 element s for both claims are essentially the same.7See 42 U.S.C. S 96 13(f)(1); Prisco v. A & D Carting Corp., 168 F.3d 593, 603 (2 d Cir.

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7. Under Section 113(f)(1), once a contribution pla intiff has demonstrated section 107 liability, it must then demonstrate tha t 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 p arties using such equitable factors as the court determines are appro priate." See 42 U.S.C. S 9613(f)(1). In any given case, a court may consid er 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 contrib ution claims under S 113(f)(1)). We will not discuss the apportionment question, given that we find that the Turnpike has not demonstrated CERC LA liability on the part of the appellees.

111999); Bedford Affiliates v. Sills, 156 F.3d 416, 4 27 (2d Cir.

1998); Redwing Carriers, Inc. v. Saraland Apts. , 9 4 F.3d 1489, 1496 (11th Cir. 1996); see also CDMG Realty C o., 96 F.3d at 712. However, section 113 does not "in itse lf create any new liabilities; rather, it confirms the right of a potentially responsible person under section 107 to obtain contribution from other potentially responsible per sons." New Castle County, 111 F.3d at 1121. The Turnpike i s 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 PR Ps by virtue of their having arranged for disposal and tr ansport of the COPR at the seven sites. See 42 U.S.C. S 9607(a )(3).

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8. We note at the outset that the Turnpike is seeki ng recovery primarily of litigation costs; we express no view as to what they could recover in this action. In the course of discovery, the Turnpi ke summarized its damage claim as follows: IAG, Ltd. $ 99,810.36 " insurance archeology"
services

r elated to a dismissed declaratory j udgment action against

the

T urnpike's insurers

SMC Environmental $ 850,699.95 m anagement services for Services Group l itigation, unspecified
as to the sites

Louis Berger $ 184,089.13 u nspecified as to
activities or
& Associates s ites where costs
incurred

Sills, Cummis $ 801,960.33 l egal fees and costs

Wolff & Samson $ 19,899.11 l egal fees and costs

Schwartz, Tobia, $ 255,108.40 l egal fees and costs and Stanziale,

R-1105 Sarria $ 40,379.51 t o erect a fence around
Site 20 as
Construction a n interim remedial

measure

Rutgers University $ 31,700.00 u nspecified Paulus, Sokoloski $ 85,729.84 unspecified& Sartor

TOTAL $ 2,358,376.63

12Although the Turnpike acknowledges that in setting forth

its proofs, it is required to prove the link descri bed in our decision in Alcan, it also argues that this require ment is not all that exacting, due to the remedial purpose of C ERCLA and less stringent notions of proof and causation underlying a CERCLA claim. See Alcan, 964 F.2d at 2 66- 69. The Turnpike also argues that in analyzing its arguments under the statutory elements of section 1 13, we should look to the entire eastern spur of the Turnp ike as the "facility" in question. We cannot accept either of these
contentions.

First, we find that the Turnpike has misconstrued t he nature of the proof required of a plaintiff under C ERCLA. It is true that as a CERCLA plaintiff, the Turnpike ne ed not prove causation in the traditional sense of the wor d for the appellees to be found liable. However, the statute and our case law require some connection between the action s of the appellees and the COPR contamination at the sit es in question.9 We therefore agree with the District Cou rt in this
matter that in order to fulfill CERCLA's "causation " requirements, the Turnpike must offer some proof th at Allied, PPG, and Occidental deposited, or caused th e disposal of, COPR at each of the sites at issue in this case. See Alcan, 964 F.2d at 266. Some courts, in describ ing this evidentiary burden, have termed it a "nexus" requir ement. See, e.g., General Elec. Co. v. AAMCO Transmissions , Inc., 962 F.2d 281, 286 (2d Cir. 1992). Therefore, we agr ee that the burden that CERCLA requires is not an onerous o ne, but we also observe that the Turnpike must neverthe less produce sufficient evidence to meet it.

Second, the Turnpike also argues that the eastern s pur of the New Jersey Turnpike is the "facility" in que stion, and
that the sites at issue here can be considered the

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9. In the District Court's words:

While it is not necessary for [the Turnpik e] to . . . trace the

cause of the response costs to each Generator De fendant, it is not enough that it simply prove that each Generator D efendant produced COPR
and that COPR was found at each of the sit es in question and ask the trier of fact to supply the link.

16 F. Supp.2d at 469.

13environmentally impacted portions of the overall "f acility"

for the purposes of determining whether the appelle es are liable.10 However, allowing the "facility" to be th e entire eastern spur, where the Turnpike's claim seeks cost s relating to seven specific sites, would result in a n unwarranted relaxation of the "nexus" required. If the Turnpike seeks contribution for contamination at th e sites, it may not merely prove deposits occurred along the "eastern spur."

B. Spill Act

The Spill Act is the New Jersey environmental prote ction 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 fo r any hazardous substance, shall be strictly lia ble, jointly and severally, without regard to fault, fo r all cleanup and removal costs, no matter by whom incur red.

N.J.S.A. S 58:10-23.11g(c)(1).11

In this appeal, the Turnpike also argues that the S pill Act should receive an expansive construction, for its s trict liability scheme includes any person who is "in any way responsible for any hazardous substance," and the S pill 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 rem otely responsible for causing contamination will be deeme d a

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10. Section 101(9) of CERCLA defines a facility as "A) any building, structure, installation, equipment, pipe or pipelin e (including any pipe into a sewer or publicly owned treatment works), we ll, pit, pond, lagoon, impoundment, ditch, landfill, storage container . . . or B) any site or

area where a hazardous substance has been deposited, sto red, disposed of, or placed, or otherwise come to be located [in that si te 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 c ost of the cleanup").

14responsible party under the Act."12 See In re Kimb er

Petroleum Corp., 539 A.2d 1181, 1189 (N.J. 1988); S tate Dept. of Environmental Protection v. Ventron, 468 A .2d 150, 165-66 (N.J. 1983). However remote a party's respon sibility under the Spill Act may be, the statute nevertheles s requires some degree of particularity; one cannot b e "responsible" for a hazardous substance without hav ing
some connection to the site on which that substance was deposited. In other words, like CERCLA, the Spill A ct places a burden on the Turnpike to demonstrate some connec tion or nexus between the COPR at the sites in question and the appellees in this case.13 See Marsh, 703 A.2d at 93 1; Kimber, 539 A.2d at 1182.

C. Alternative Liability

The Turnpike argues that it produced sufficient evi dence to survive summary judgment apart from the applicat ion 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 princ iples of alternative liability on the basis of the evidence that it produced of the appellees' COPR production and disp osal. Although general tort law principles require a plai ntiff to bear the burden of proving causation, see Restateme nt (Second) of Torts, S 433B(1) (1965), courts have fa shioned exceptions to this rule in situations in which plai ntiffs would be otherwise unable to recover, such as alter native liability, market share liability, and enterprise l iability. See, e.g., Doe v. Cutter Biological Inc., 971 F.2d 375 ( 9th Cir. 1992); Smith v. Cutter Biological, Inc., 823 P.2d 7 17 (Haw.

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12. As the owner and operator of the sites in quest ion at the time of the contamination at issue in this case, the Turnpike i s a responsible party under the Spill Act. See Marsh v. NJDEP, 703 A.2d 9 27, 931-33 (N.J. 1997).

13. A similar interrelation exists between the cont ribution and the direct cost recovery provisions of the Spill Act as is fou nd in CERCLA. N.J.S.A. S 58:10-23.11f(a)(2) provides:

In an action for contribution, the contrib ution plaintiffs need

prove only that a discharge occurred for which t he contribution

defendant or defendants are liable pursuant to [S 58 :10-23.11g(c)(1)].

151991); 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 198 4); 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 th ere is uncertainty as to which one has caused it, the burd en is upon each such actor to prove that he has not cause d the harm." Restatement (Second) of Torts,S 433B(3). The case that effectively established the doctrine of altern ative 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 plain tiff 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 injur ed plaintiff, the court required each of the hunters t o prove that the shot that injured the plaintiff did not co me from his gun. The justification for the imposition of al ternative liability is to hold wrongdoers responsible for the ir conduct, and not to allow them to "escape liability merely b ecause the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of t hem 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 an y burden shifting occurs. Some courts have set forth the fol lowing test for alternative liability: 1) all defendants m ust have acted tortiously; 2) the plaintiff must have been h armed 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 whi ch 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 a ctors has acted tortiously and that the harm has resulted fro m the conduct of some one of them. On these issues the pl aintiff

16has still the burden of proof." Restatement (Second ) of Torts,

S 433B(3), cmt. g.

The Turnpike argues for the application of alternat ive liability to both the New Jersey Spill Act claim an d its CERCLA claims. While New Jersey courts have not recognized wide-ranging alternative liability or ot her collective liability theories, see Shackil, 561 A.2 d at 520; cf. James v. Bessemer Processing Co., Inc., 714 A.2d 89 8, 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 applic ation of market share liability to injuries caused by vaccin es, the
Shackil court indicated that it would not be averse to recognizing market share liability in other factual situations, "perhaps one where its application woul d be consistent with public policy and where no other re medy
would be available." 561 A.2d at 529. We do believe it is clear that the New Jersey courts have recognized th at the burden shifting of an alternative liability theory does not eliminate the requirement that a plaintiff establis h some
"reasonable connection" between a defendant and the ultimate harm that a plaintiff suffers, and that al l 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 medic al malpractice case must demonstrate that: 1) plaintif f is blameless; 2) the injury bespeaks negligence on the part of one or more of the defendants; 3) all potential def endants must be before the court).14

The applicability of alternative liability in the c ontext of
federal environmental statutes has been food for sc holarly thought rather than the subject of judicial opinion . See,

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14. As the Shackil court recognized, the requiremen t that all potential defendants be joined for alternative liability to a pply has been relaxed
in "market share" products liability cases, where a pl aintiff need only join a "substantial share" of the defendants who might h ave produced or supplied the product in question. See 561 A.2d at 5 16-17.

17e.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, 1 991 U. Ill. L. Rev. 1135 (1991); Thomas C.L. Roberts, Allocatio n of Liability Under CERCLA: A "Carrot and Stick" Formul a, 14 Ecology L.Q. 601, 616-23 (1987); Ora Fred Harris, J r., Toxic Tort Litigation and the Causation Elements, Is ther e 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 Eart h Ethic, 20 Envtl. L. 891 (1990); see also Developmen ts in the Law -- Toxic Waste Litigation, Liability Issues in CERCLA Cleanup Actions, 99 Harv. L. Rev. 1511, 1520-33 (Ma y 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). H owever, a few courts have recognized the applicability of a lternative liability theories under the Resource Conservation and Recovery Act, or RCRA. See, e.g., Aurora National B ank v. Tri Star Marketing, 990 F. Supp. 1020 (N.D. Ill. 19 98); Zands v. Nelson, 797 F. Supp. 805, 812-13 (S.D. Cal . 1992).15

The applicability of alternative liability to a CER CLA action has not been specifically addressed in feder al case

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15. The Zands court set forth the following rule fo r alternative liability

in its particular case: 1) where plaintiff identifies a period of time during which contamination occurred; 2) where owners of th e property or operators of a gas station are strictly liable for the contamination of

the property that occurred during their period of owner ship 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 becaus e more than one person owned the property and operated the gas stat ion during the period of known contamination; 5) the Court will sh ift the burden to each of the owner/operator defendants to show the c ontamination did not occur during the period of the defendant's owne rship or operation. See 797 F. Supp. at 817-18.

18law, and we will not decide the issue here, because we find

that the Turnpike has not produced sufficient evide nce to survive summary judgment, even if alternative liabi lity were to apply. In so stating, we do not reject the conce pt of alternative liability in the context of these statu tes out of hand; rather, we find that we have not been present ed 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 tha t the application of some form of an alternative liabilit y 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 tha t the appellees made contracts with various trucking and hauling companies to remove the wastes. What is contested h ere is whether reliable evidence ties the COPR of the part icular defendants to the seven Turnpike sites at issue in this case. The Turnpike relies upon NJDEP Directives, expert r eports, and deposition testimony from other cases.17 We not e at the outset that the only evidence in all of the materia l supplied that even begins to link appellees with the sites i n question

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16. Our concurring colleague would require that, un der an alternative liability theory, plaintiff merely had to show that defendants generated this specific sort of hazardous waste in the releva nt area. We do not subscribe to this statement of plaintiff's burden u nder our case law, which, as we have discussed, requires a "connection ." Our colleague notes that in Summers v. Tice, only a showing of ne gligence 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 signifi cance of the
Administrative Consent Orders in the District Court , but they neither rely upon nor cite to these orders on appeal. See N agle v. Alspach, 8 F.3d 141, 143 (3d Cir. 1993); Lunderstadt v. Colafe lla, 885 F.2d 66, 78 (3d Cir. 1989).

19is the depositions in previous cases, and they rela te solely

to sites 7 and 20.

We find the Directives and the proffered expert rep ort to be of little probative value, because they contain no evidence regarding the responsibility of these appe llees for COPR deposits at the sites in question. The Turnpik e 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 appe llees, the need for its local disposal, the proximity of t he appellees' production facilities to the sites at is sue, and the use of this material as fill over the years, combin e to create a question of material fact as to whether these app ellees bear responsibility and must pay contributions to t he Turnpike for depositing COPR at the sites in questi on. For example, the Turnpike argues that since sites 56, 1 31, and 201 are close to Occidental's former processing pla nt, 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 s erve as corroboration if there were other proofs of the act ual involvement of the appellees with disposal at the s ites in question, they provide no proof whatsoever that the y did in fact dispose of their COPR at the sites in question . The expert report commissioned by the Turnpike from Lou is

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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 2 01, an internal memo by Occidental concedes that chrome in properti es surrounding the plant in Kearny is probably a result of scattering ore and from the fact that "for many years chrome wastes were dumped indi scriminately on our own property and anywhere else that seemed to b e a likely spot. . . . [b]eginning July 17, 1965, the mud trucking contrac t was awarded to Disch, who sold the mud for fill in both highway an d building
construction." A. at 917a. While there is some evid ence that Disch sold to highway construction projects, nothing in the re cord links Occidental to the Turnpike via Disch. Although Disch was depos ed 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 i s proffered as part of the record before us, and it reveals nothing about where Disch
distributed or sold the waste.

20Berger and Associates is even less helpful, since i t paints a

generalized contamination scenario at the Turnpike locations, again lacking in a link to one or more o f the appellees, and also lacking in certainty as to the precise nature of the contamination. The report indicates t hat
sources other than COPR-contaminated constructionfi ll might be at work at some of the sites in question, and it draws no conclusions as to which appellee is accoun table for the contamination at a particular site.19

We also note that, notwithstanding the urgings of t he Turnpike to the contrary, we are not convinced that even if probative, the Directives would constitute admissib le evidence. Rule 803(8)(C) provides for admissibility in civil actions of "factual findings resulting from an inve stigation made pursuant to authority granted by law, unless t he
sources of information or other circumstances indic ate lack of trustworthiness." The Turnpike contends that the Directives are the result of a government investiga tion and

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19. Site 7: The report states that it could not pro vide 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 genera l, it was difficult to know what activity was most likely to have caused t he 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. The fill used could be due to either the Turnpike construction or the rail road embankments on this site, or to the presence of a lumber yard in t his 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 ra ilroad 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 app ear that the Turnpike construction was involved in the transport ation of fill to this location, although chromium may have been brought t o the site via the
maintenance or creation of an access road at this s ite. A. at 385a, 446a.

21are therefore admissible. Appellees challenge the D irectives

as nothing more than a form of notice pleading used to serve notice of potential liability for costs of cl ean 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 th e result of an adversarial process. See, e.g., Kimber, 539 A.2d at 1185. We think that the appellees have the better argumen t and the findings contained in the Directives have not b een shown to be admissible as evidence.20

The Turnpike also relies on deposition testimony fr om other litigation as evidence of a link between the sites and the appellees but, as noted above, this testimony i s helpful -- if at all -- only as to sites 7 and 20. The Turn pike 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 bef ore us, but in support of its arguments as to sites 7 and 2 0, 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 t hat they are probative and admissible. We have our doub ts regarding their admissibility and we disagree with the Turnpike's view of their value as evidence. In orde r for former testimony to be admissible under Rule 804(b) (1): 1) the declarant must be unavailable; 2) testimony mus t be taken at a hearing, deposition, or civil action or proceeding;

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20. 803(8)(C) does not preclude the introduction of opinions and conclusions in such reports so long as: 1) all stat ements in such a report must be based on factual investigation; 2) any port ion of the report that is admitted must be sufficiently trustworthy. See I n 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 l itigation. See 85 F.3d at 112. The party opposing the introduction of a pu blic report bears the "burden of coming forward with enough negative fact ors to persuade a court that a report should not be admitted." See id . at 113.

22and 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 t he 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 thef irst or third requirement regarding the admissibility of th e depositions in this proceeding, and given the pauci ty of
information in the record before us as to the where abouts of these witnesses and the nature of the prior proc eeding, it is impossible for us to determine on our own tha t these depositions are admissible. We do not rely solely o n this concern in assessing the import of this evidence, h owever, because we view the testimony itself as so unreliab le and imprecise that it does not constitute evidence suff icient to create a genuine issue of material fact to withstan d 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 Leso fski
in the Exxon case that he had obtained chrome fill from a Reppenhagen, Inc. from the Allied facility and deli vered it to a large-scale sewer construction project in Jersey City, where he witnessed backfilling of the pipeline. Giv ing the Turnpike the benefit of reasonable inferences from their assertions, the conclusion we can draw is that Leso fski witnessed the backfill of the pipeline.22 Because t here appear to be at least 16 sites in the pipeline vici nity, his testimony does not establish that Allied's fill wen t to Site 7.

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21. Privity or a common property interest is not re quired to establish a predecessor in interest relationship, rather, a sha red 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 testimo ny that has been supplied in the record is not his deposition, but, rather a reference to that testimony in one of the NJDEP Directives.

23In the Exxon case, a trucker, Michael Pitsinos, tes tified

that he hauled fill material for Allied, and that h e delivered to the areas where sewage pipeline was being put do wn in Jersey City. Site 7 is within the area considered t o be a Jersey City sewerage construction project. However, this site does not consist of the entire sewerage projec t. Further, it is not entirely clear that the material Pitsinos transported
was chrome: he described the material as "black san d, dirty sand." which he contrasted with the "gray chrome" a t another site, which is referred to as the "Route 44 0" 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 o r its origins are not clear -- to the Turnpike on behalf of Laffera Construction and that he got stuck in the mud. A. a t 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 f ollowing 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 m ud off of the PPG property. However, the deposition te stimony is hearsay, if not double hearsay, for his knowledg e is based upon a statement by a Robert Widing, who test ified in another case that his knowledge was based upon a statement made to him by a PPG agent, Worth Frankli n. A. at 1023-24, 1026, 1033.

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23. There is a letter in the record from Allied's D irector 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 ha ve used "the material" for fill in the construction of the Turnp ike. 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 liti gation. A. at 1311a12a.

242. Richard Kordulak, who testified in his depositio n from

the Exxon case that the PPG material was"distribute d all
over the Caven Point area" and that chromium waste was taken to the "Turnpike area, underneath the turnpik e at
the end of Caven Point Avenue." A. at 1044a. Howeve r, Kordulak's testimony also notes that the time perio d when he witnessed four individuals receiving chromium wa ste
from the PPG site was from the late 1960s to the ea rly 1980s, after PPG had closed its Garfield Avenue fac ility and sold it to others, when the piles of COPR at the si te were gone. A. at 10sa-11sa. In other words, this testimo ny 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 pl ant to the Turnpike for construction, and that the dump tr ucks returned to the site quickly. A. at 1040-41. Howeve r, PPG has provided further deposition testimony indicatin g 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 tr ucks to the Turnpike; and that some of the COPR fill used a t the Turnpike came from somewhere other than the PPG pla nt and that at least some of his knowledge was based o n hearsay. A. at 4sa-10a.

Even giving the Turnpike the benefit of all reasona ble inferences from these evidentiary proffers, the tes timony is

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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 facilitie s was in operation and
that PPG's COPR remained on site as late as 1981. S ee 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 G arfield Avenue facility in 1975)." The Turnpike notes that,"This t estimony 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 Cour t 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.

25deficient in several respects: it is vague and impr ecise, of

questionable reliability, and therefore not suffici ently probative to create an issue for trial. See Anderso n v. Liberty Lobby, 477 U.S. 242, 249-50 (1986) (stating that summary judgment may be granted if evidence is "mer ely colorable" or is "not significantly probative"); Bl ackburn v. United Parcel Service, 179 F.3d 81, 95 (3d Cir. 199 9) (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 t o 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 appe llees acted in a tortious manner within the meaning of th ese statutes toward these sites such that an alternativ e liability theory would be appropriate.

We note, further, that we also concur with the Dist rict Court's conclusion that the Turnpike may not be the innocent plaintiff that in fairness should be permi tted to take advantage of alternative liability. As the Dis trict Court noted, the Turnpike is a PRP in this case, and a jo int tortfeasor; as such, it may very well be inappropri ate to utilize an alternative liability theory, which is m eant to apply to wholly innocent plaintiffs, to shift the b urden of proof to its fellow tortfeasors in a contribution a ction.

We also note that the Turnpike clearly did not do a ll that it could to prove causation such that a burden shif ting approach should be utilized in this matter.25 The T urnpike's

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25. As the District Court noted:

Unlike in the traditional alternative liab ility scenario, the

lack of proof of causation here is not due to the Defendant' conduct. In fact, [the Turnpike] is in a better position tha n the Defendants to
ascertain the source of the COPR at each s ite, because [the Turnpike] is the present owner and operato r 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 beca use plaintiff was in a

better position to determine the cause of its inj ury).16 F. Supp.2d at 471.

26lack of diligence clearly militates against a findi ng that

alternative liability should be applied here. The T urnpike was made aware of the presence of COPR at some of t he sites at issue in 1984, yet did not file suit in th is matter until 1993, and the process of its fact finding in this case has been less than impressive. A. at 271a. Cf. Lart on v. Blue Giant Equip. of Canada, Ltd., 599 F. Supp. 93, 95 (E.D. Pa. 1984) (declining to apply alternative lia bility theory, in part because it was not apparent that pl aintiff could not identify the manufacturer through the exe rcise of reasonable diligence); Abel, 343 N.W.2d at 173 (sta ting 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 utili zation 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. Th e Turnpike has, instead, asked us to rewrite the burd ens that a litigant must meet under the CERCLA and the Spill Act, and the burden placed upon a plaintiff when alterna tive liability is applicable, to make up for the shortco mings in its proof. We will not do so. We will affirm the or der 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 thei r 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 sp ecial circumstances, the challenge is waived. See, e.g., Int'l College of Surgeons v. City of Chicago, 153 F.3d 35 6, 366 (7th Cir. 1998); Doe by Fein v. District of Columbi a, 93 F.3d 861, 871 (D.C. Cir. 1996). We find no exceptional circumstances in this case, and hold that the Turnp ike has waived its objections to the District Court's exerc ise of supplemental jurisdiction in this matter.

27For the foregoing reasons, we will affirm the judgm ent of

the District Court.

28BECKER, 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 a lone. In my view, the Court's insistence that, in order t o fulfill CERCLA's causation requirements, the Turnpike "must offer some proof that Allied, PPG, and Occidental d eposited, or caused the disposal of, COPR at each of the site s 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 alterna te liability are as follows. First, the plaintiff has to show that
it would be entitled to recover if it established c ausation. In strict liability cases, this would require only a s howing of actionable harm. Second, the plaintiff should show that each defendant did the thing that exposed it to lia bility. In Summers v. Tice, both defendants were negligent. Se e 199 P.2d 1, 2 (Cal. 1948). By way of analogy, in CERCLA , the requisite action would be generating the relevant k ind of hazardous waste in the relevant area regardless of fault. Third, the plaintiff must join all the defendants w ho might be responsible for the harm, so that it would be cl ear that at least one of the defendants actually did cause t he harm. See Zands v. Nelson, 797 F. Supp. 805, 813 (S.D. Ca l. 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 suffi cient to meet this threshold test for the following reasons: (1) the defendants produced large quantities of COPR; (2) n o one else produced COPR within 150 miles of Hudson Count y; (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 projec ts; (6) the Turnpike was building the Turnpike and buyingfi ll
material at the same time as the defendants were di sposing 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' fac ilities. I would nonetheless affirm the judgment because I bel ieve

29that, in addition to the requirements set forth abo ve,

alternate liability doctrine demands that the plain tiff exercise diligence in determining the identity of t he other responsible parties, yet the Turnpike failed to do so.

I also take issue with the statement of the court t hat the alternate liability theory is meant to apply to who lly innocent plaintiffs. Consider the seminal alternate liability case, Summers v. Tice, 199 P.2d 1 (Cal. 1948) The p laintiff, after telling the defendants, with whom he was hunt ing quail on an open range, that they all should remain in a line, went up a hill and thus put himself at the ti p 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 t o recover. See id. at 1. This result belies the Court's conten tion. Moreover, a contributorily negligent plaintiff coul d surely recover in a S 402(A) case where contributory negli gence is not a defense, and yet alternate liability applies.

A True Copy:

Teste:

Clerk of the United States Court of Appeal s for the Third Circuit

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