On appeal from Superior Court, Law Division, Essex County.
Antell, Deighan and Landau. The opinion of the court was delivered by Antell, P.J.A.D.
The narrow question presented on this appeal is whether these consolidated actions against a state administrative agency were properly brought in the Law and Chancery Divisions or whether plaintiffs may find their relief exclusively in the Appellate Division.
Invoking his emergency powers under the Civil Defense and Disaster Control Act, N.J.S.A. App. A:9-30 et seq., on December 2, 1983, Governor Kean signed Executive Order No. 56. Among other things, this authorized and directed the New Jersey Department of Environmental Protection (hereinafter "DEP") to take emergency measures necessary to protect the public health, safety and welfare from the hazards of radium, radon and other radioactive decay products present in the Borough of Glen Ridge and the Town of Montclair. These elements were found in dangerous concentrations in the soil under and surrounding certain residential structures within the named municipalities. Radon is a gas produced by the breakdown
of radioactive substances. It is believed to be a significant causative factor in the etiology of lung cancer when contained within enclosed areas, and it was determined that it had penetrated certain houses in volumes considered seriously threatening to the health of the occupants.
By August 1985 some 15,000 barrels of contaminated soil, weighing in the aggregate approximately 5,500 tons, had been excavated from the affected properties. Thereafter, DEP's efforts to find a permanent storage site both within and without the State of New Jersey were resisted by local officials and residents and the removal project stalled. On November 8, 1985 the Town of Montclair sued in the Chancery Division of the Superior Court in Essex County for an injunction requiring DEP to remove the radioactive soil, of which approximately 10,000 barrels had already been transferred to the Town of Kearny in Hudson County for temporary storage. On March 4, 1987 an order was entered in the Chancery Division directing that removal of the barrels commence not later than May 15, 1987, later extended to June 15, 1987, and that it "continue expeditiously thereafter until such time as all of the barrels are removed." The theory of the Montclair action was that evacuation of the residents from their houses and the presence of 5,000 barrels of contaminated soil on their property combined to create a police and fire hazard which resulted in a private and public nuisance.
On June 4, 1987 DEP publicly announced by Administrative Order No. EO56-2 that it would comply with the court-mandated deadline by removing the barrels from Montclair to the Colliers Mills Wildlife Area within the Preservation Area of the Pinelands National Reserve. This site is designated in the Pinelands Protection Act, N.J.S.A. 13:18A-1 et seq., and the National Parks and Recreation Act of 1978, 16 U.S.C.A. §§ 471i, 502, as an ecologically and environmentally sensitive area. Alleging that the proposed action constituted a threat to the environment and to the public health, safety and welfare, the Township of Jackson and the Ocean County Board of
Chosen Freeholders brought consolidated actions in the Superior Court, Law Division, in Ocean County to enjoin DEP from implementing its administrative order. A temporary restraining order was signed by the Assignment Judge of Ocean County and the matter set down for preliminary hearing on June 9, 1987. Thereafter an order was signed on June 9, 1987 by the Assignment Judge of Essex County consolidating the two actions in Essex County. That order also partially remands the matter to Ocean County for a determination of the "appropriateness of the proposed site in Colliers Mills, Jackson Township for the temporary storage of 15,000 barrels of radium contaminated soil now stored in Montclair. . . ." It also denies DEP's motion for transfer of the proceeding to the Appellate Division. On June 16, 1987 we granted the motions of DEP and the Town of Montclair for leave to appeal from that denial. We further ordered that pending disposition of the appeal, DEP was restrained from transporting any amount of the contaminated soil to the Colliers Mills Wildlife Management Area and from preparing the site for storage thereof. On July 8, 1987 the Supreme Court dissolved our injunction, but remanded the matter to this court for a determination on the merits of the appeal.
We parenthetically observe that although there has been no restraint upon temporarily storing the barrels at Colliers Mills since the date of the Supreme Court order, DEP has not taken this course of action. Instead, as we have learned at oral argument, it has retained a private contractor to detoxify the contaminated soil and dispose of it eventually in the State of Washington. Superficially, it therefore appears that the issue raised has become moot. However, the events prologue to this appeal which have thwarted DEP's previous attempts to comply with the Chancery Division's order, and which we have not attempted to summarize, suggest that consummation of DEP's present plan is by no means certain. Thus, a judicial determination of DEP's intention to keep the Colliers Mills site as a viable possibility for temporary storage may well be necessary. For
this reason and because of the public importance of the question presented we will consider the merits of the appeal. Bd. of Ed., E. Brunswick Tp. v. Tp. ...