The State of New Jersey, Department of Environmental Protection (herein the State), brought an action against Exxon Corporation and ICI America, Inc. (ICI). The State's complaint alleges that defendants violated N.J.S.A. 58:10-23.1 et seq. (sometimes herein, the act) and N.J.S.A. 23:5-28, and further created and/or continued to maintain a public nuisance. Subsequently, the State abandoned its claim under N.J.S.A. 23:5-28.
As to defendant ICI, the State seeks injunctive relief requiring to cease and correct the emanation of petroleum
products from its property at Constable Hook in Bayonne, New Jersey.
With regard to defendant Exxon, a stipulation of dismissal was previously filed with this court which requires that Exxon remedy the petroleum pollution problems which exist on its property at the Constable Hook section of Bayonne.
The State now seeks a summary judgment against ICI requiring it to cease and correct the emanation of petroleum products from its property, and ICI seeks a summary judgment against the State for a dismissal of the complaint.
For the purpose of bringing these cross-motions for summary judgment, the parties have entered into and filed a stipulation of facts which reads as follows:
1. Since 1898 Exxon and its predecessors in interest (hereinafter referred to as "Exxon") have owned a large tract of land (hereinafter the "Exxon property") in the Constable Hook section of the City of Bayonne.
2. Between 1965 and 1969 Exxon sold to ICI Organics Inc., the predecessor of ICI United States, Inc., in four separate transactions 34.95 acres of land (hereinafter the "ICI property"), retaining the bulk of the Exxon property for Exxon's continuing use.
3. Prior to the acquisition by ICI, Exxon had for about 70 years employed the Exxon property for refining, storing and transshipping of crude oil and refined petroleum products of the type in this issue in this case (hereinafter "oil").
4. Exxon continues to the present to employ 282.48 acres which it retained as a storage and transfer facility for oil.
5. During the course of their refining, storing and transfer operations, Exxon spilled, permitted to leak and intentionally discharged massive quantities of oil on and into the ground of the Exxon property, including that portion which is now the ICI property.
6. Other areas of Constable Hook have been similarly used by various owners for long periods of time for the storage, refining and transshipping of oil. These other users, in a manner similar to Exxon, discharged, spilled, and leaked massive quantities of oil on and into the lands of Constable Hook.
7. Because of the historic use of the Constable Hook area by the landowners for the refining, storage and distribution of oil, the soil to a considerable depth and the groundwaters of that area were seriously contaminated with oil long before ICI acquired its property.
8. The forces of nature, principally the rise, fall and lateral drainage movement of the subsurface groundwater, cause the oil in the soil to rise, fall and flow with the subsurface groundwater, with the result that oil migrates through, over and under large areas of Constable Hook, including the properties of Exxon, the City of Bayonne, the Lehigh Valley Railroad, ICI and many others. As a consequence, oil from these properties as well as from the ICI property reaches and enters the waters of the State of New Jersey in issue in this case.
9. The saturation of the Constable Hook area, including the ICI property, is extensive both in surface area and subsurface depth and has manifested itself in many forms, including heavy accumulations of oil in the storm water drainage systems serving Constable Hook.
10. The oil strata underlying the ICI property includes both crude oil and refined petroleum product, ranges in thickness from 7 to 18 feet, commences at various depths from 2 to 13 feet below the surface, and contains an estimated 7 million gallons of oil.
11. Since acquiring the property, ICI has conducted a manufacturing operation on the site which does not involve the utilization, storage, handling or transfer of oil, and ICI has never engaged in any activity which added oil to the condition which existed at the time the ICI property was purchased from Exxon.
The pleadings, the affidavits and the stipulation of facts indicate that there is no genuine issue of material fact. Therefore, the matter is ripe for summary judgment. Judson v. Peoples Bank & Trust Co. of Westfield , 17 N.J. 67 (1954).
ICI seeks a summary judgment on the ground that it has not committed any act causing a discharge of oil which is proscribed by N.J.S.A. 58:10-23.1 et seq. The State admits that this statute requires an act but contends that ICI has committed the very act which would fall within the proscription. Therefore, the threshold questions are what kind of an act is proscribed by N.J.S.A. 58:10-23.1 et seq. , and whether ICI has committed such an act so as to be brought within the proscription.
Admittedly, the plain language of the statute requires an act by the wrongdoer.*fn1 The act of "discharge" is defined in N.J.S.A. 58:10-23.3 as follows:
c. "Discharge" shall mean, but is not limited to, any spilling, leaking, pumping, pouring, emitting, emptying or dumping.
These verbs connote some activity, some human agency, even if that activity is accidental or unintentional. For example, the verb "leak" is defined as follows: "to enter or escape through a hole, crevice, or other opening usually by a fault or mistake." Similarly, "spill" means "to cause or allow to pour, splash, or fall out (as over the edge of a container) and be washed, lost or scattered." The verb "pump" denotes "to pour forth, eject, deliver force, or draw in the manner of a pump or one using a pump." Webster's Third New International Dictionary (1961).
The State argues that N.J.S.A. 58:10-23.3(c) is not limited to the verbs used in that section and that synonyms such as "exude" and "ooze" can be used for the verb "emitting." It maintains that the statute is not limited to activity set in motion by human behavior. The State contends that the Legislature intended to prohibit all activity and inactivity that would result in petroleum products finding their way into the waters of the State. Thus, the State asserts that in the present case the oil in question is exuding, oozing and/or being emitted from land owned and controlled by ICI and entering the waters of the State.
The court finds the State's reading of the statute to be erroneous. Although the term "discharge" in the statute is not limited in definition, one may not properly seek to expand the definition of discharge by employing words ...