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WOODLAND PRIVATE STUDY GROUP v. NEW JERSEY

August 29, 1985

WOODLAND PRIVATE STUDY GROUP, MINNESOTA MINING AND MANUFACTURING COMPANY, and ROHM AND HAAS COMPANY, Plaintiffs,
v.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, ROBERT E. HUGHEY, individually and as COMMISSIONER OF ENVIRONMENTAL PROTECTION, and JOSEPH A. ROGALSKI, individually, and as ASSISTANT MANAGER, DIVISION OF WASTE MANAGEMENT, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendants



The opinion of the court was delivered by: BROTMAN

 INTRODUCTION

 The Minnesota Mining and Manufacturing Company ("3M") and Rohm and Haas Company ("R&H"), who together constitute the "Woodland Private Study Group," bring this action for injunctive and declaratory relief from alleged deprivations of their property without due process of law, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. The court's jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343. R&H and 3M name as defendants the New Jersey Department of Environmental Protection ("DEP"), Robert E. Hughey, individually and as Commissioner of the DEP, and Joseph A. Rogalski, individually and as Assistant Director, Division of Waste Management, DEP. The complaint alleges that defendants are coercing plaintiffs into complying with two DEP Directives and Notices of Violations ("Directives") issued on March 4, 1985, under authority vested in the DEP by the Spill Compensation and Control Act, N.J.S.A. 58:10- 23.11 et seq. ("Spill Act"). The Directives order R&H, 3M and others to contribute to the costs of a proposed state study of environmental damage at two sites in Woodland Township, Burlington County, New Jersey. Plaintiffs allegedly deposited hazardous wastes at these sites during the 1950's and 1960's.

 Presently before the court are several dispositive motions, and a request by Purex Industries Inc., ("Purex") to intervene as a party plaintiff. R&H and 3M ask the court to enjoin and declare unconstitutional provisions of the Spill Act which allegedly deny them a meaningful opportunity to challenge the DEP Directives. Defendants seek an order dismissing the complaint for failure to state a claim for which relief can be granted, pursuant to Fed. R. Civ. P. 12(b) (6). Alternatively, defendants request summary judgment pursuant to Fed. R. Civ. P. 56.

 The parties having presented, and the court having considered, material outside of the pleadings, defendants' motion will be treated as a request for summary judgment. Fed. R. Civ. P. 12(b). For the reasons stated below, the court finds that there exists no genuine issue as to any material fact and defendants are entitled to judgment as a matter of law. Accordingly, the court will grant defendants' motion for summary judgment and deny the petition for injunctive relief.

 FACTUAL BACKGROUND

 The New Jersey Spill Act was enacted on January 6, 1977, to protect the economy and the environment of New Jersey from discharges of petroleum and other hazardous substances. *fn1" This action arises under Section 7(a) of the Spill Act, which provides, in pertinent part,

 
Whenever any hazardous substance is discharged, [the DEP] may, in its discretion, act to remove or arrange for the removal of such discharges or may direct the dischargers to remove or arrange for the removal of such discharge. . . . Any discharger who fails to comply with such a directive shall be liable to [the DEP] in an amount equal to three times the cost of such removal.

 N.J.S.A. 58:10-23.11f(a).

 During the 1950's and 1960's, the Industrial Trucking Service Corporation ("Industrial Trucking") allegedly deposited wastes generated by 3M, R&H, Hercules, Inc., the Manhattan Soap Company (corporate predecessor to Purex), Standard Oil of Ohio ("SOHIO"), and possibly other various manufacturing concerns, at two dump sites in Woodland Township, Burlington County, New Jersey. Affidavit of Gerard Burke, Deputy Director, Office of Regulatory Services, DEP ("Burke Affidavit"), at paras. 2-3. Both sites are now essentially devoid of vegetation. They are littered with rusted and corroded drums, broken glassware, and black resinous materials. Sampling conducted by the DEP has revealed the presence of volatile organics and pesticides at both sites, and ground water contamination at the site near New Jersey Route 72. Affidavit of Russell Trice, Site Manager, Division of Waste Management, DEP at para. 2. The United States Environmental Protection Agency ("EPA") has included both sites on the National Priority List of hazardous sites in need of immediate cleanup under CERCLA. The hazardous nature of these sites and the possibility of severe groundwater contamination has also made them priority targets of cleanup efforts by the DEP under the Spill Act.

 On August 4, 1983, Industrial Trucking notified the DEP of possibly hazardous discharges at the Woodland dump sites. *fn2" Following such notification, plaintiffs and the DEP entered into extensive negotiations as to the scope of a Remedial Investigation/Feasibility Study ("RI/FS"). R&H and 3M sought primary responsibility for preparing the study, with the DEP to exercise an oversight role. Burke Affidavit at paras. 4-6. The parties allegedly arrived at a tentative agreement consistent with the companies' desire to manage the RI/FS. Complaint at 3. On February 16, 1984, the DEP informed them that a change in agency policy would bar them from controlling the selection of a contractor to perform the RI/FS. The DEP announced that it would require allegedly responsible parties to deposit into a trust fund the full cost of the DEP's proposed RI/FS for the Woodland sites, plus a twenty percent contingency fee. The two companies refused to comply with the DEP's request. In April, 1984, R&H and 3M reiterated their offer to perform the RI/FS. Both firms pledged that the DEP and the companies involved would have equal representation on the oversight committee.

 On June 29, 1984, the DEP issued Administrative Order No. 69 ("AO69"), an agency policy directive which stated that the DEP would henceforth maintain oversight control for all RI/FS work. By issuing AO69, the DEP hoped to insure the continued trust of the public as to the impartiality of the RI/FS process. Complaint, Exhibit C.

 R&H, 3M and the DEP continued negotiations concerning a possible compromise method of conducting the RI/FS throughout the remainder of 1984. In January of 1985, the companies reiterated their proposal for equal representation on the oversight committee. The DEP again rejected this proposal.

 On March 5, 1985, the DEP issued the two Directives which raise questions constituting the crux of this case. Complaint, Exhibits A, B. The Directives charge R&H, 3M and others with hiring Industrial Trucking to "dispose of vast quantities of hazardous waste, including hazardous substances." Directives para. 7. They also charge the companies with failure to notify the DEP of the discharges, in violation of N.J.S.A. 58:10-23.11e. Id. para. 18. The Directives required each firm to pay DEP a total of $880,000 within seven days of receipt of the Directives, in order to fund the costs of a RI/FS for both Woodland sites. The DEP also reserved the right to seek additional compensation and other relief. Id. para. 19. In the event that the allegedly responsible parties failed to make payment as directed, the DEP threatened to conduct the RI/FS itself, using monies from the New Jersey Spill Fund. The Directives state that the DEP would then sue the companies to recover all costs incurred in conducting the RI/FS. Failure to comply with the Directives would result in liability equal to three times the cost of conducting the RI/FS, N.J.S.A. 58:10-23.11f(a), and a first priority lien on all the plaintiffs' property, N.J.S.A. 58:10-12.11f(f). Id. at 4-5.

 On March 12, 1985, R&H and 3M notified DEP that they would refuse to comply with the Directives. The following day, Purex sent a letter to the DEP denying all liability for the wastes at the Woodland sites. On March 27, 1985, DEP entered into a Consent Order with Hercules, Inc. ("Hercules"), another recipient of the Directives, concerning the Woodland sites. Hercules agreed to provide $275,000 toward the costs of an RI/FS. At some time since then, a three-member committee composed of two DEP representatives and one Hercules representative selected a contractor to perform the RI/FS at a cost of approximately $1.76 million.

 On April 10, 1985, the DEP denied a request for an administrative hearing by R&H and 3M, as the Spill Act does not require pre-enforcement review. See In re Witco Chemical Co., Docket No. A-1161-81T2, slip op. (N.J. Super. Ct. App. Div. October 11, 1983). The DEP also informed the two companies that no Spill Fund monies would be used in financing the RI/FS, in order to avoid any possible preemption problem under CERCLA. *fn3" Instead, the DEP stated that it would be using funds derived from the Governor's Contingency Fund, and monies supplied through a Consent Order with Hercules, to initiate the RI/FS. The DEP threatened to seek sanctions against all responsible parties, but repeated its offer for them to join the RI/FS under the auspices of the DEP.

 On May 15, 1985, R&H and 3M filed a motion for temporary restraints against enforcement of the DEP Directives. The court granted the request and issued an order prohibiting the DEP from imposing its threatened sanctions until the court reached a decision on the merits of plaintiffs' application for injunctive and declaratory relief. On May 20, 1985, Purex moved to intervene in the action brought by plaintiffs.

 PUREX'S MOTION TO INTERVENE

 Purex moves for leave to intervene as a plaintiff as of right, in accordance with Fed. R. Civ. P. 24(a). In the alternative, Purex asks the court to grant permissive intervention pursuant to Fed. R. Civ. P. 24(b). For the reasons stated below, this court denies Purex's motion to intervene as of right, but grants its request for permissive intervention.

 Fed. R. Civ. P. 24(a) (2) authorizes intervention as of right upon timely application,

 
when the applicant claims an interest relating to the property or transaction which is the subject of the action and is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

 Jet Traders Investment Corp. v. Tekair, Ltd., 89 F.R.D. 560, 567 (D. Del. 1981).

 Purex's intervention motion, filed before defendants' responsive pleadings and less than one week after the filing of plaintiffs' original complaint, will cause no delay in these proceedings. See Donovan v. United States Steelworkers of America, 721 F.2d 126, 127 (3rd Cir. 1983), cert. denied sub nom., Valenta v. United States Steelworkers of America, 467 U.S. 1252, 104 S. Ct. 3535, 82 L. Ed. 2d 840 (1984). Purex has the necessary direct and substantial interest in the litigation, as being potentially jointly and severally liable with the other plaintiffs for all the cleanup costs at the Woodland sites. Purex's interest may as a practical matter be impaired as a direct result of this suit. See Jet Traders Investment Corp. v. Tekair, Ltd., supra, 89 F.R.D. at 568. If Purex is not permitted to join the suit, it asserts that it will be forced to present identical issues of law and fact to this court in a later action. *fn4"

 Purex may not intervene as of right because it fails to show that its interest would not be adequately represented by plaintiffs in this action. Although Purex's burden of showing this inadequacy of representation is minimal, Purex fails to meet even this lenient standard. See Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n.10, 30 L. Ed. 2d 686, 92 S. Ct. 630 (1972). Purex contends that it can make arguments that existing plaintiffs have not asserted; however, Purex has failed to present any new arguments in its complaint. *fn5"

 In the interests of fairness and judicial economy, the court will exercise its discretion to grant permissive intervention pursuant to Fed. R. Civ. P. 24(b). Purex's complaint raises issues of law identical to those presented by the plaintiffs. See New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 690 F.2d 1203, 1209-10 (5th Cir. 1982) (granting permissive intervention where the parties contest the validity of the same document). Purex's intervention will neither delay nor complicate these proceedings since it asserts claims identical to the plaintiffs' claims. See Nuesse v. Camp, 128 U.S. App. D.C. 172, 385 F.2d 694, 704 (D.C. Cir. 1967). Finally, because plaintiffs consent to the intervention and defendants do not object, no prejudice to the rights of the parties will likely arise through Purex's intervention. Therefore, this court grants leave for Purex to intervene in this action pursuant to Fed. R. Civ. P. 24(b).

 DEFENDANTS' ELEVENTH AMENDMENT DEFENSE

 Defendants assert that the Eleventh Amendment bars plaintiffs' claims against the DEP. It is well established that a federal civil rights action may not be brought against a state or a department or agency of a state unless the state waives its immunity under the Eleventh Amendment. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 104 S. Ct. 900, 907, 79 L. Ed. 2d 67 (1984); Alabama v. Pugh, 438 U.S. 781, 782, 57 L. Ed. 2d 1114, 98 S. Ct. 3057 (1978) (per curiam); Laskaris v. Thornburgh, 661 F.2d 23, 25-26 (3rd Cir. 1981). Such immunity covers claims for damages and for injunctive relief, and applies even where the relief sought is purely prospective. Id. The State of New Jersey has neither expressly nor impliedly waived its immunity so as to permit this lawsuit against the DEP. Of course, under Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), plaintiffs are free to maintain this action for prospective relief against the two state officials named as defendants. In light of the foregoing, plaintiffs' claims against the DEP will be dismissed.

 DISCUSSION

 Defendants have moved for summary judgment. The standard for granting summary judgment is a stringent one. Rule 56(c), Fed. R. Civ. P., provides that summary judgment may be granted only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Special Jet Services, Inc. v. Federal Insurance Co., 643 F.2d 977 (3rd Cir. 1981); Ely v. Hall's Motor Transit Co., 590 F.2d 62 (3rd Cir. 1978). In deciding whether an issue of material fact does exist, the court is obligated to view all doubt in favor of the nonmoving party. Tomalewski v. State Farm Insurance Co., 494 F.2d 882 (3rd Cir. 1974); Smith v. Pittsburgh Gage and Supply Co., 464 F.2d 870, 874 (3rd Cir. 1972).

 Both sides agree that there is no genuine issue of material fact outstanding in this litigation. Thus, this matter is ripe for summary judgment. Accordingly, the court will proceed to consider plaintiffs' Rule 56 motion before addressing plaintiffs' request for injunctive and declaratory relief.

 Plaintiffs assert that the enforcement scheme set forth in the Spill Act unlawfully coerces them into compliance with the DEP's Directives. In particular, plaintiffs maintain that the Act is unconstitutional because it neither provides for pre-enforcement review of the Directives, nor allows for the assertion of "good faith" defenses to the imposition of treble damages for failure to comply therewith. Furthermore, plaintiffs allege that if they do comply, they are unable to challenge the Directives in an action for reimbursement of their expenditures pursuant to the Directives, even if they are later found blameless for the discharges at the Woodland sites. An analysis of these claims requires the court to examine the Spill Act's enforcement scheme.

 A. The Spill Act Enforcement Scheme

 1. Strict Liability

 Under Section 8(c) of the Spill Act, "any person who has discharged a hazardous substance or is in any way responsible for any hazardous substance which the department has removed or is removing . . . shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs." N.J.S.A. 58:10-23.11g(c). Cleanup and removal expenses are broadly defined, so as to include the costs of preparing an RI/FS. N.J.S.A. 58:10-23.11b(d).

 The strict liability standard incorporated in the Spill Act is plainly consistent with due process. State statutes which impose liability without fault for damages to state and private interests due to oil and chemical discharges constitute valid regulatory measures pursuant to a state's police power. Steuart Transportation Co. v. Allied Towing Corp., 596 F.2d 609, 620-21 (4th Cir. 1979) (Imposition of strict liability for state's oil cleanup costs under Virginia statute, 1973 Va. Acts, ch. 417); Portland Pipe Line Corp. v. Environmental Improvement Commission, 307 A.2d 1, 44-45 (Me.), appeal dismissed for want of substantial federal question, ...


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