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MIDDLESEX CTY. BD. OF CHOSEN FREEHOLDERS v. NEW JE

October 2, 1986

MIDDLESEX COUNTY BOARD OF CHOSEN FREEHOLDERS, Plaintiff,
v.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION; ROBERT HUGHEY, COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION; BOARD OF CHOSE FREEHOLDERS OF THE COUNTY OF MORRIS; BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF SOMERSET; BOARD OF CHOSEN FREEHOLDERS OF THE COUNTY OF UNION; and LEE THOMAS, ADMINISTRATOR OF UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants; THE TOWNSHIP OF ROCKAWAY, Intervenors



The opinion of the court was delivered by: ACKERMAN

 This is an action brought by the Middlesex County Board of Chosen Freeholders (hereafter "Middlesex") pursuant to the citizen suit provision of the Resource Conservation and Recovery Act (hereafter "RCRA"), 42 U.S.C. § 6972(a)(1)(A) and (B).

 The complaint concerns the current conditions at the solid waste disposal facility operated by Edgeboro Disposal Inc. in the Township of East Brunswick in Middlesex County. The Edgeboro facility is authorized to operate by defendant New Jersey Department of Environmental Protection (hereafter "DEP"). Use of this particular landfill is part of the waste management plan for Middlesex, which county is a solid waste management district under the New Jersey Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.

 Every other county in New Jersey is also a solid waste management district with obligations to provide for the disposal of solid waste within its borders. Some counties, including defendants Morris, Somerset, and Union, have not yet provided means to meet the waste disposal needs of their communities. As a result, in order to deal with alleged emergency conditions in those counties, DEP has issued orders calling for solid waste in those three counties to be taken to Edgeboro. Initially, when disposal of waste from Morris, Somerset and Union was begun at Edgeboro, that was but one of three active landfills in Middlesex, and the waste from the other counties was dispersed among the three sites so that the burden on each was manageable. However, the other two Middlesex landfills are no longer in operation having been closed or reached capacity. Now all out-of-county materials coming into Middlesex go to Edgeboro, which must also continue to satisfy the need for solid waste disposal from communities in Middlesex.

 Because the flow from the other two Middlesex landfills was redirected to Edgeboro, in addition to further redirection of waste formerly sent to the Hamm's Sanitary Landfill located outside of Middlesex, 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.

 The reference to the right of a citizen to raise state law claims which the court might consider under the doctrine of pendent jurisdiction indicates to me that Congress contemplated only actions in federal district courts. Pendent jurisdiction is a doctrine that applies only to federal courts accepting state law claims. Were citizens free to bring these actions in state court, the Committee would not have been discussing whether or not state law claims were even cognizable.

 Lastly, the statute itself refers to the Federal Rules of Civil Procedure in 42 U.S.C § 6972, making it unlikely that Congress thought ...


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