On appeal from the Superior Court, Chancery Division, Essex County.
Antell, Brody and Long. The opinion of the court was delivered by Long, J.A.D.
This appeal arises out of a suit filed by plaintiffs, Ironbound Health Rights Advisory Commission, et al. (IHRAC) against defendants, Diamond Shamrock Chemical Company (Diamond Shamrock), the New Jersey Department of Environmental Protection (DEP) and the New Jersey Department of Health (DOH)*fn1 (collectively, the State). The State here claims that the trial judge exceeded his authority when he ordered it to prepare and implement a plan of health testing and monitoring to address an environmental problem in the Ironbound section of Newark. We agree and reverse.
From 1957 through 1970, the Diamond Alkali Company of Cleveland, Ohio (later Diamond Shamrock) operated an agricultural chemicals manufacturing facility at 80 Lister Avenue, Newark, New Jersey. At this site Diamond Shamrock manufactured herbicides which produced 2,3,7,8 tetrachlodibenzo-p-dioxin (dioxin), a substance highly toxic to human beings, as an unwanted by-product. Reports indicate that in the late 1950's and again in the early 1960's explosions occurred at this location. From 1966 through 1968, the herbicide, Agent Orange (2,4-D and 2,4,5-T) was produced at this site under a federal government contract. In 1969, Diamond Alkali sold the site to Chemicaland Company which operated the plant until 1971. The site then remained idle until 1981, when Marisol, Inc.
purchased it. Marisol initiated clean-up activities, but never began production.
In the spring of 1983, the DEP and the United States Environmental Protection Agency (EPA) undertook a sampling and environmental monitoring program on the site. This testing showed that levels of dioxin there were as high as 51,000 parts per billion (ppb) and that the levels of dioxin were greater than 1,000 ppb throughout the adjoining residential and business area. According to the Federal Centers for Disease Control, dioxin concentrations in the soil of one ppb constitutes an "unacceptable risk to human health."
Based on the DEP's conclusion that an emergency existed, Governor Kean issued Executive Order No. 40 on June 2, 1983, declaring a state of emergency in the Ironbound section of Newark in the area of 80 Lister Avenue. The Governor directed the DEP to adopt emergency measures to check any threat of danger and authorized the Commissioner to take measures to abate the emergency.
On July 28, 1983, pursuant to the Governor's executive order, the Commissioner issued Administrative Order No. 40-9 which imposed restrictions on the outdoor display of consumer goods in the Newark farmers market food distribution area (Ironbound). Two days later the Commissioner issued Administrative Order No. 40-10, directing the immediate vacuuming and cleanup of the streets in the residential areas immediately adjacent to the Diamond Shamrock site. On August 3, 1983, the Commissioner issued Administrative Order, No. 40-11, prohibiting all train traffic in the area of the abandoned Diamond Shamrock site.
On August 1, 1983, IHRAC filed a complaint and Order to Show Cause against a number of defendants including Diamond Shamrock and the DEP. This complaint, which was brought pursuant to the Environmental Rights Act, N.J.S.A. 2A:35A-1 et seq. and the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq., sought preliminary and permanent relief
requiring defendants to clean up and remove all dioxin in the area surrounding 80 Lister Avenue in a manner approved by the court.
After a preliminary hearing the trial judge placed the matter on inactive status in order to give the State the opportunity to develop a plan to solve the health problem at the Shamrock site and to resolve any legal issues implicated in this action. An enormous amount of legal maneuvering, which need not be recounted in detail, followed. It is sufficient to say that IHRAC took the position that the State was failing in its "obligation to protect the public and environment by enforcing" the laws. More particularly, IHRAC claimed that the State needed to adopt a plan to deal with the dioxin problem. The State countered, claiming that it was not a proper party to the litigation. At the same time, the State outlined for the trial judge its strategy in addressing the dioxin issue.
After hearing testimony on these matters, the trial judge found
that the State is not properly organized in the way in which it's tackling this problem and it seems to me that one major difficulty with the State's response thus far is that there is no articulated, written strategy which is publicly available telling everybody what the State's approach is.
Based on this, the trial judge ordered the DEP to file a written plan for dealing with the Ironbound environmental problems no later than June 30, 1984.
The DEP filed the requested plan which the trial judge found "manifestly inadequate." He was critical of the way in which the plan addressed the public health concerns, in particular the lack of a screening and testing strategy with respect to workers and residents who may have been affected by the contamination. In an oral decision, the trial judge required the State (which by then included the DOH) to:
submit to the Court by the October date [October 31] a plan for identifying, testing, and tracking the people at special risk and that plan must certainly include very detailed testing programs for the workers at this site during the occupancy of the site by Diamond Shamrock and almost certainly should include ...