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Township of Howell and Township of Howell Board of Health v. Waste Disposal Inc.

Decided: January 7, 1986.

TOWNSHIP OF HOWELL AND TOWNSHIP OF HOWELL BOARD OF HEALTH, PLAINTIFFS-APPELLANTS,
v.
WASTE DISPOSAL, INC., A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT, AND STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFF-RESPONDENT, V. WASTE DISPOSAL, INC., A NEW JERSEY CORPORATION, AND SCA SERVICES, INC., A DELAWARE CORPORATION, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County.

King, Simpson and Scalera. The opinion of the court was delivered by Scalera, J.s.c. T/a.

Scalera

This case involves the question of who and under what circumstances persons other than the State Department of Environmental Protection can sue to enforce diverse environmental protection legislation enacted in New Jersey. We are called upon to thread through statutes and common law rights and arrive at solutions which will protect the very important public interests involved, yet preserve the rights of private parties against multiple and vexatious litigation. We are mindful that there is no political subject more prevalent in the minds of our citizenry than protection and preservation of our worldly environment for a myriad of obvious reasons.

Waste Disposal, Inc., (WDI), which is a wholly owned subsidiary of SCA Services, Inc., owns and operates a sanitary landfill in Howell Township, New Jersey. Pursuant to the Solid Waste Management Act, (Solid Waste Act) N.J.S.A. 13:1E-1 et seq., the Department of Environmental Protection (DEP) issued to WDI a certificate of approved registration and engineering

design approval to operate this landfill. During the fall and winter of 1980, water and sediment sampling was performed at the WDI landfill and adjacent areas by a joint team from the DEP and the United States Environmental Protection Agency. Subsequent chemical analysis disclosed that significant concentrations of benzene, toluene and other toxic volatile organic pollutants were present in the groundwater at the site. Also, the leachate flow from the landfill was contaminated with high concentrations of toxic volatile organic compounds. The contaminated leachate and groundwater was discharged into Muddy Ford Brook, which flows along the western side of the landfill. Volatile organic compounds were present also in groundwater on the eastern side of the landfill and in the sediments of Sandy Hill Run which flows along the eastern edge of the landfill. In addition, heavy metal contaminants were present in groundwater on the eastern and western side of the site, in leachate, and in the stream water of Sandy Hill Run.

As a result of these findings, WDI entered into an administrative consent order with the DEP dated May 8, 1981, pursuant to the Solid Waste Act. WDI was required to develop and submit to the DEP by March 30, 1981, a program addressing the containment of contamination and control of the quality of leachate discharged from the landfill. Also, WDI was required to establish a program for a ground and surface water monitoring system, the treatment of contaminated water discharged from the landfill, and the removal of hazardous substances located on the landfill. If WDI failed to comply with the terms of the administrative consent order, the DEP reserved the right to seek full enforcement of the order in the Superior Court.

At approximately the same time that the DEP was attempting to achieve this solution, the Township of Howell (Township) along with its Board of Health filed a complaint in the Superior Court, Chancery Division seeking injunctive relief and statutory penalties against WDI as a result of its alleged violation of the

Solid Waste Act.*fn1 WDI sought a dismissal of the complaint on the grounds that plaintiffs lacked standing, had failed to exhaust their administrative remedies and that the court lacked subject matter jurisdiction. An order dismissing the complaint against WDI was entered. The Township and its Board of Health filed an appeal with this court.

While that appeal was pending, DEP continued its efforts to achieve a voluntary correction of the contamination at the landfill. As required by the administrative consent order, WDI submitted a proposed remedial program to which the DEP gave conceptual approval. As a result of further negotiations in which the Township participated, a more comprehensive administrative consent order was entered into by WDI. The Township was a signatory to this agreement, along with the DEP and WDI.

Under the terms of the second administrative consent order, which was entered into pursuant to the Solid Waste Act, and the Water Pollution Control Act, (Water Pollution Act) N.J.S.A. 58:10A-1 et seq., WDI agreed to a construction schedule for implementation of the remedial program. Among other items, WDI was required to install a final clay cap on finished areas of the landfill, an intermediate clay cap on remaining areas of the site, a slurry cut-off wall and a well point-pump collection system. It also was required to construct a leachate treatment facility and a sewer extension. In addition, WDI agreed to relocate the Muddy Ford Brook and to install a leachate collection and drainage system and gas vents. The order again provided that if WDI failed to comply with the terms of the administrative consent order, the DEP reserved the right to seek full enforcement of the order in the Superior Court. Shortly after execution of this administrative consent order, the Township and its Board of Health advised the Appellate Division

that the matter on appeal had been settled and consequently, an order was entered dismissing that appeal.

Subsequently a compliance review conducted by the DEP in November, 1983 disclosed that WDI uniformly had been late in meeting the compliance dates set forth in the administrative consent order. Thus, on May 16, 1984, the Township unilaterally filed the instant complaint against WDI seeking injunctive relief, damages, cleanup costs and penalties as a result of illegal hazardous substance contamination to the surface and groundwater in the vicinity of the WDI landfill which posed a serious threat to the public health and environment.

The complaint alleged that WDI had failed to comply with the latest consent order as evidenced by its failure to construct a leachate treatment facility, sewer extension and well point-pump collection system and by its delinquent performance of other work items. The complaint also was based on rights accorded under the provisions of the Solid Waste Act and the regulations promulgated thereunder, the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq., the Spill Compensation and Control Act, (Spill Act) N.J.S.A. 58:10-23.11 et seq., and the regulations promulgated thereunder, the Water Pollution Act and the regulations promulgated thereunder; the water quality legislation set forth in N.J.S.A. 23:5-28; strict liability, common law nuisance and common law negligence. WDI filed an answer which denied the material allegations of the complaint and challenged the Township's authority to institute the action. In addition, the answer contained numerous defenses, included among which were the allegations that plaintiff lacked standing, that the complaint was barred by the doctrine of preemption, and that the DEP was vested with exclusive authority to enforce the administrative consent order.

The DEP sought leave to appear as amicus curiae in the matter based on allegations that it had a special interest in the case since the complaint raised issues involving the administrative consent order to which it was a party and that as the

agency created by the Legislature to implement environmental statutes, it had expertise which could assist the court. The DEP initially took the position that the Township had standing to pursue the action since the Township was a signatory to the administrative consent order. The DEP also felt that the Township's Board of Health had standing to bring the action pursuant to the Solid Waste Act, so long as the DEP did not intervene or institute a separate action in the Superior Court. At the same time, WDI sought a dismissal of the Township complaint asserting that it lacked standing to pursue the action under the various environmental statutes cited in its complaint. WDI further argued that the DEP had the exclusive authority to enforce the terms of the administrative consent order. The trial judge denied the DEP's application to appear as amicus curiae and instead ordered that it become a party to the action. The DEP then successfully sought leave to intervene as a plaintiff in the matter. In addition, the court allowed the complaint to be amended to include the Township's Board of Health as a party plaintiff.

Thereafter, the trial court granted WDI a partial dismissal of the complaint of the Township and the Board of Health. Specifically, it found that "once the State comes in and intervenes in the matter as a plaintiff, then the State's rights are preemptive of any rights of the municipality or Board of Health which might . . . be involved in this suit insofar as the State's claim is concerned." To the extent that the DEP's complaint sought relief from WDI and advanced claims which were identical to the claims advanced and relief sought by the Township and the Board of Health, the court held that the DEP's action was preemptive and it had exclusive authority to commence enforcement proceedings insofar as the administrative consent order was concerned. However, the court reserved ...


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