                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                     No. 10-3045
                                    _____________

                             MONTVILLE TOWNSHIP
                         A New Jersey Municipal Corporation,
                                                 Appellant,
                                        v.

             WOODMONT BUILDERS LLC; DAVID MANDELBAUM;
               NATHAN MANDELBAUM; RONALD G. TARGAN;
             RICHARD W. KORALEK; POST, BUCKLEY, SCHUH &
                           JERNIGAN, INC.

                                  _______________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                                  (D.C. No. 03-cv-2680)
                     District Judge: Hon. Dickinson R. Debevoise
                                    _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 24, 2011

      Before: CHAGARES, JORDAN and GREENAWAY, JR., Circuit Judges.

                                 (Filed: June 30, 2011)
                                   _______________

                              OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Montville Township, New Jersey (the “Township”) appeals the decision of the

United States District Court for the District of New Jersey granting summary judgment to
David and Nathan Mandelbaum (the “Mandelbaums”) on the Township’s claims that

they are liable under the Comprehensive Environmental Response, Compensation, and

Liability Act of 1980 (“CERCLA”), 42 U.S.C. §§ 9601-75, and the New Jersey Spill

Compensation and Control Act (the “Spill Act”), N.J. Stat. Ann. § 58:10-23.11-23.11(2),

for the costs to remediate environmentally hazardous substances located on 100 acres of

land (the “Property”) that the Township purchased in 1999. The Township contends that

summary judgment was inappropriate because there is a genuine issue of material fact as

to whether the Mandelbaums, as part owners of the Property from 1970 to 1999, engaged

in fruit farming or timber harvesting activities that dispersed existing hazardous

substances from already contaminated to uncontaminated parts of the Property.1 We

disagree and will affirm.

I.     Background

       Because we write solely for the parties, we assume familiarity with the facts and

procedural history of this case. In 1970, the Mandelbaums acquired their interest in the

Property. Prior to that acquisition, the Property had been operated as a commercial apple

and peach orchard, and the activities associated with that use allegedly resulted in

fertilizers and pesticides contaminating the soil with hazardous substances, including

DDT. In 1999, the Township purchased the Property from a group of individuals that

included the Mandelbaums. After discovering the Property’s soil was contaminated with

       1
         This appeal concerns only the grant of summary judgment to the Mandelbaums
on the CERCLA and Spill Act claims brought by the Township against them. The
Township’s claims against all other captioned parties have been disposed of and are not
the subject of this appeal.

                                             2
hazardous substances, the Township engaged in a voluntary cleanup of the Property and

brought the claims at issue here against the Mandelbaums, among others.

       After several stages of proceedings before both the District Court and us, the

Mandelbaums successfully moved for summary judgment on the Township’s claims.2

The District Court concluded that “[t]he Township … produced no evidence that the

Mandelbaums engaged in excavations that moved, dispersed, or spread the contaminants

that were in the soil when they took possession of the Property … .” (App. at A-17.) The

Court then turned to what it took to be the Township’s main claim against the

Mandelbaums, that they “continued to operate an orchard during the 29 years in which

they owned the Property, and that operation resulted in the addition of the contaminants

at issue in this case … to the soil … .” (App. at 17.) The Court considered such

allegations highly implausible in light of the record (App. at 19), and thus held that “[n]o

reasonable juror could hold that the Mandelbaums disposed of hazardous materials on the

Property based on the Township’s evidence.” (App. at 17.) Accordingly, the Court ruled

in favor of the Mandelbaums on the Township’s CERCLA and Spill Act claims.

       The Township timely appealed that decision. However, on appeal, the Township

acknowledges that the Mandelbaums are not responsible for the introduction of

hazardous material into the Property’s soil; instead, it claims that the harvesting of fruit




       2
       The District Court’s opinion also concerns the Township’s claims against other
defendants that are not before us now on appeal.

                                              3
or timber during the time the Mandelbaums were owners of the Property contributed to

the spreading of the contaminants.3

II.    Discussion4

       Because the Township has conceded that the Mandelbaums were not responsible

for introducing hazardous substances into the Property’s soil, summary judgment for the

Mandelbaums would be improper only if there were a genuine dispute of material fact

bearing on whether already-present containments were spread throughout the Property’s

soil by activities conducted during the time the Mandelbaums owned the Property. The

Township contends that such a dispute exists based on the following evidence: an

unsigned 1988 federal tax form listing “fruits” as the principal product of the Property

(the “Tax Form”); an Application for Farmland Assessment (the “Application”)

submitted by David Mandelbaum in 1989 to the State of New Jersey indicating that the

whole Property was used for not only “Fruit Crops” but also “Annual Harvest of

Woodland Products”; a letter from the State of New Jersey in reply to the Application


       3
        In its reply brief, the Township says that it “never alleged that the Mandelbaum
Defendants were responsible for the initial introduction of hazardous constituents onto
the Subject Property,” rather that the Mandelbaums “contributed to the spreading of the
hazardous constituents that were already present in the soil.” (Reply Brief at 1-2.)
       4
         The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367(a). We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of
an order granting summary judgment and “may affirm the order when the moving party is
entitled to judgment as a matter of law, with the facts viewed in the light most favorable
to the non-moving party.” Kossler v. Crisanti, 564 F.3d 181, 186 (3d Cir. 2009) (en
banc). “Where the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks
omitted).
                                             4
indicating that a “Woodland Management Plan” was required for the Property;

documents concerning the Woodland Management Plan for the Property; and various

statements by David Mandelbaum during his deposition to the effect that the Property

was used for growing Christmas trees.5

       As the District Court rightly concluded, however, that evidence would not permit a

reasonable finder of fact to conclude that a dispersal of hazardous substances occurred

during the time the Mandelbaums were owners. The Township has produced no

evidence, through documents or expert opinion or otherwise, that timber harvesting

operations on the Property would have resulted in the spreading of hazardous substances.

There is simply no evidence in the record whatsoever that use of the Property for

harvesting timber would cause or necessitate the spreading of hazardous substances. A

mere assertion that timber was harvested on the Property and therefore hazardous

substances were dispersed, without some evidence explaining why, is insufficient to

prevent summary judgment. See Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d

Cir. 2005) (holding that a party opposing summary judgment “must present more than

just bare assertions, conclusory allegations or suspicions to show the existence of a

genuine issue” (internal quotation marks omitted)).

       The only meaningful evidence in the record regarding the link between hazardous

substances and any type of operation on the Property is evidence that the operation of an

       5
         The Township also cites to the Site Investigation Report for the Property but it
does so with erroneous page numbers, a practice that pervades its briefing. However, that
piece of evidence is irrelevant to our inquiry here. That the Property is contaminated by
hazardous substances does not, in itself, prove that the Mandelbaums contaminated it.

                                             5
orchard on the property introduced, not spread, hazardous materials in the Property’s soil.

But the Township has conceded that the Mandelbaums were not responsible for

introducing hazardous materials. Thus, even if the Township could prove that fruit was

harvested on the Property during the Mandelbaums’ ownership of it, such proof would

not constitute evidence that the activity resulted in the spreading of hazardous materials,

which would attribute liability to the Mandelbaums.

       Assuming for the sake of argument, however, that proof of operation of an orchard

could constitute evidence of the spreading of hazardous substances on the Property, the

evidence on which the Township relies does not create a genuine issue of material fact

that such activity occurred when the Mandelbaums owned the Property. Although the

District Court addressed the evidence on that point in response to what it believed to be

an argument by the Township that the Mandelbaums were responsible for introducing

hazardous materials into the Property’s soil, the Court arrived at its conclusion through

thoughtful and thoroughly persuasive reasoning on why a reasonable fact finder could not

rely on the Township’s evidence to conclude that the Mandelbaums operated an orchard

on the Property. The Court noted that the unauthenticated Tax Form is not reliable

evidence regarding activity that occurred on the Property when the Mandelbaums owned

it6 and that the Application suggests nothing more than the extremely unlikely

proposition that the Mandelbaums used the entire Property for fruit farming for only one



       6
        The Township has failed to put forth any evidence that the preparer of the Tax
Form had a personal basis to know the truth of the statement in the form that the principal
product of the Property was fruit.

                                             6
year, despite the startup and related costs that would be involved in such a conversion. In

light of the unrebutted evidence that the Property was used for timber harvesting during

the time the Mandelbaums owned it,7 and given the Township’s refusal or inability

(despite a court order) to produce any of the Mandelbaums’ Applications for Farmland

Assessment from other years, documents which the Township asserts would show the

Mandelbaums had declared that the Property was used for production of fruit crops, we

conclude, as the District Court did, that no reasonable jury would find the Tax Form’s

and Application’s oblique references to fruit farming to be anything but a mistake. There

is, in short, no sound basis on this record to conclude that the Property was used for

harvesting of fruit during the period in which the Mandelbaums owned it.

III.   Conclusion

       For the foregoing reasons, we will affirm the District Court’s grant of summary

judgment for the Mandelbaums on the Township’s CERCLA and Spill Act claims.8


       7
         The State of New Jersey appears to have interpreted the Application as indicating
use of the Property for forestry purposes; a Woodland Management Plan existed for the
Property, a plan which would only be necessary if the Property was used for forestry
operations; and there is testimonial evidence from David Mandelbaum that the Property
was used for growing Christmas trees.
       8
         Liability under CERCLA can attach to those who cause “not only the initial
introduction of contaminants onto a property but also the spreading of contaminants due
to subsequent activity.” United States v. CDMG Realty Co., 96 F.3d 706, 719 (3d Cir.
1996). Liability under the Spill Act, however, is narrower and attaches only to those who
“cause[] a hazardous material not previously present to enter the waters or land.” White
Oak Funding, Inc. v. Winning, 775 A.2d 222, 225 (N.J. Super. Ct. App. Div. 2001); see
also New Jersey Dept. of Envtl. Protection v. Dimant, 14 A.3d 780, 788 (N.J. Super. Ct.
App. Div. 2011) (holding that Spill Act liability attaches only to activities that include the
“use or discharge of a substance and its contamination of the surrounding area”). Thus,
summary judgment is proper on the Township’s Spill Act claims too.

                                              7
