plaintiff contends that the amount of waste being disposed of at Edgeboro has created an imminent hazard.
Edgeboro has been repeatedly cited for numerous violations of New Jersey regulatory requirements governing landfills which plaintiff contends are as a result of the operator's inability to cope with conditions imposed on him by DEP. There have been repeated notices of violations for failure to contain odors, failure to apply proper earth cover, failure to contain dust and other items too numerous to mention. In addition to citations for what is happening at the landfill itself, plaintiff contends that the re-routing of trucks from all of the other landfills has resulted in enormous traffic problems with fifteen hundred or so trucks a day seeking to enter Edgeboro. This in turn has resulted in significant air pollution problems in the form of carbon monoxide build up in the areas immediately outside of Edgeboro and the heart of Middlesex County. The site of most of this build up is one in which the carbon monoxide level was already many times over that which is deemed acceptable under the New Jersey State Implementation Plan (SIP) adopted pursuant to federal clean air standards.
Plaintiff also contends that at the current rate of solid waste flow into Edgeboro, it will reach its ultimate capacity not more than two years from now and will therefore have to be closed at that time, leaving Middlesex County without any of the three landfill sites it counted on when it prepared its solid waste disposal plan required by New Jersey law and approved by DEP. As of the time of the approval of the plan, even leaving aside the other facilities, the useful life of Edgeboro was expected to last until 1993. Only then would Middlesex have been in the position of needing some alternative means of disposal so that dating from the present, seven years would have remained for action to be taken. Thus, when Edgeboro was full, some other means of disposal would have been on line and ready to go. Now, plaintiff contends that three-quarters of that time has been eliminated by virtue of the influx of waste from outside of Middlesex County.
Substantial and numerous other litigation has also been instituted in the state courts arising out of this situation. All defendants have moved to dismiss plaintiff's complaint in large part because of their position that this suit duplicates actions presently pending or already decided in the state courts. Plaintiff contends that the instant case differs because it concerns an imminent and substantial endangerment to health and environment under RCRA.
Presently before me are the following motions:
1. Motion to dismiss by the DEP and Morris County, which are joined by Somerset and Union Counties;
2. A motion to intervene by Rockaway Township; and
3. A motion to join as necessary parties the New York State generators and transporters of solid waste.
I note that a motion to dismiss brought by the United States Environmental Protection Agency had already been granted on June 9, 1986.
As the second two motions are only relevant if plaintiff's complaint is not dismissed, I will first address defendants' motions to dismiss.
In considering a motion to dismiss, I must accept as true the factual allegations of the complaint and I may only dismiss the complaint if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Cruz v. Beto, 405 U.S. 319, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972). Because all defendants' motions to dismiss raise common elements of fact and issues of law, I will address them jointly to a great extent. Defendants first contend that plaintiff's suit should be dismissed because defendants are taking two bites at the apple by relitigating issues in federal court which have already been decided by the state courts and administrative agencies of New Jersey.
A federal court assessing the issue or claim preclusive effect of a state court decision "must give to the state court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered." Migra v. Warren City School District Board of Education, 465 U.S. 75, 81, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984). See also Al-Khazraji v. St. Francis College, 784 F.2d 505, 509 (3d Cir.1986).
In University of Tennessee v. Elliott, 478 U.S. 788, , 54 U.S.L.W. 5084, 5087, 92 L. Ed. 2d 635, 106 S. Ct. 3220 (1986), the Court expanded the Migra rule, holding that federal courts must apply the claim and issue preclusion law of the forum state not only to judgments rendered in state courts following traditional litigation, but also to agency decisions rendered after quasi-judicial proceedings. The preclusive effect of the decisions of the New Jersey courts and administrative agencies must, then, be determined by reference to the law of New Jersey.
New Jersey courts describe res judicata as "an ancient doctrine which contemplates that a controversy between parties is once fairly litigated and determined, it is no longer open to relitigation." Lubliner v. Board of Alcoholic Beverage Control, 33 N.J. 428, 435, 165 A. 2d 163 (1960). Prerequisites to the bar of further litigation ordinarily include the entry of a final judgment, The Hills Development Co. v. Township of Bernards, 103 N.J. 1, 59, 510 A.2d 621 (1986), and a full and fair opportunity to litigate, Lubliner, supra, at 437-41.
New Jersey has adopted the "entire controversy doctrine," a near relative of the doctrine of res judicata, by which a party is required to assert all possible claims related to a single controversy in the same action, or be banned from raising them in future actions. New Jersey Court Rule 4:27-1(b); Malaker Corp. Stockholders Protective Committee v. First Jersey National Bank, 163 N.J. Super. 463, 395 A.2d 222 (App. Div. 1978), cert. denied, 79 N.J. 488, 401 A. 2d 243 (1979). New Jersey courts bar the relitigation of finally determined issues, through the doctrine of collateral estoppel, when that issue has been squarely placed in issue, and the party against whom the bar is asserted has had "a full and fair opportunity to litigate the issues in the first action." Eatough v. Board of Medical Examiners, 191 N.J. Super. 166, 175, 465 A.2d 934 (App. Div. 1983).
Here, plaintiff could not have raised its RCRA claim in the Superior Court of New Jersey. 42 U.S.C. § 6972(a) provides in relevant part:
Any action under paragraph (a)(1) of this subsection shall be brought in a district court for the district in which the alleged violation occurred or the alleged endangerment may occur.
This provision constitutes a grant of exclusive jurisdiction over citizen's suits pursuant to RCRA to the United States Courts. First, shall is a word which usually is interpreted to mean that something that shall be done is mandatory rather than discretionary. See United States v. Kravitz, 738 F.2d 102, 104 (3d Cir. 1984).
Secondly, the legislative history for citizen suits under RCRA indicates that Congress did not contemplate that RCRA suits would be brought in State courts. In House Report No. 98-198 regarding the Hazardous and Solid Waste Amendments of 1984, there was discussion of the amendment to the citizen's suit provision granting the right to sue to abate an imminent and substantial endangerment pursuant to the standards of liability for a similar action brought by the Administrator of the Environmental Protection Agency (EPA) under 42 U.S.C. § 6973. The Report states:
Although the Committee has not prohibited a citizen from raising claims under state law in a Section 7002 action, the Committee expects courts to exercise their discretion concerning pendent jurisdiction in a way that will not frustrate or delay the primary goal of this provision, namely the prompt abatement of imminent and substantial endangerments. H.R. Report No. 98-198 at page 53, reprinted in 1984 U.S. Code Cong. and Ad. News at page 5612.