On appeal from the Superior Court, Chancery Division, Monmouth County.
Furman, Long and Scalera. The opinion of the court was delivered by Furman, P.J.A.D.
At issue on appeal and cross-appeal is liability for the costs of cleanup and removal of buried hazardous contaminants and pollutants on a 22-acre site in Marlboro Township, under the Spill Compensation and Control Act (Spill Act), N.J.S.A. 58:10-23.11 et seq., the Water Pollution Control Act, N.J.S.A. 58:10A-1 et seq., and common law strict liability and nuisance principles.
Defendants Arky's Auto Sales (Arky's), a corporation, and Norman and Stanley Arky, twin brothers individually, appeal from the provision of the judgment following a nonjury trial imposing liability against them under the Water Pollution Control Act. Plaintiff State Department of Environmental Protection (DEP) cross-appeals from the provision of the judgment, as amended, dismissing its claim against defendants Arky's, the individual Arkys and Frank Daidone for relief under the Spill Act. We reverse on the appeal and affirm in part and reverse in part on the cross-appeal.
The trial court's judgment did not rest upon or refer to common law strict liability or nuisance principles, notwithstanding its conclusion of their applicability in its oral opinion. Accordingly, we need not and do not pass on the issue of common law liability under either theory. We point out that here, unlike the factual circumstances in State, Dept. of Environ. Protect. v. Ventron Corp., 94 N.J. 473 (1983), a common law right of action cannot be premised upon the State's ownership of nearby threatened property.
The relationship of the various defendants to the 22-acre site may be summarized briefly. The facts are largely uncontested. Arky's took title to the premises in 1971. Norman and Stanley were sole owners and principals of the corporation, which conducted a business elsewhere. The site was unimproved except for an auto wrecking yard or junkyard on about six acres. Arky's separately leased the six acres, first to Action Auto Wreckers and in March 1973 to defendants Richards.
Judgment of no cause for action in favor of defendants Richards has not been appealed from. During their tenancy, the Richards permitted defendant Daidone to bring full or partially full used steel drums to the leased premises in trailer trucks and to empty and store them there in the course of his business of buying such drums out of state and selling them, when empty, in New Jersey. Many of the drums were marked on the side with warning labels as poisonous or flammable. Some drums ruptured while being unloaded, and the contents spilled on the ground.
On April 23, 1973 a fire broke out at the auto wrecking yard. Several drums exploded. The fire was fought as a chemical fire and brought under control with foam as well as water. The municipal fire chief directed a cleanup of the site. The township engineer advised both Daidone and Stanley Arky that contaminated soil would have to be removed. About a week later, although he observed some progress towards cleanup the fire chief issued Municipal Court summonses against Arky's as owner, the Richards as lessee and Daidone for various fire and building code violations. The complaints were eventually administratively dismissed in June 1979.
On a visit to the site in late April 1973, the township engineer observed a large excavated area on the premises retained by Arky's outside the six-acre leased premises, partially filled with steel drums. Some of the drums were obviously ruptured and leaking. About a month later on another return to the premises, he witnessed Richards pushing drums into the same hole with an excavation machine; some drums were crushed in the process and spilling liquids. He issued a stop work order and advised both Daidone and Stanley Arky. About two truckloads of contaminated soil were removed from the area of the fire on the leased premises, where the drums were initially stored.
There was a hiatus in governmental investigative or enforcement activity directed towards Arky's property until 1981 when Monmouth County health officials and DEP reinspected the
area of the excavated hole, discovered buried drums upon digging random trenches and took test soil samples. The soil samples revealed dangerous contaminant and pollutant levels. Among the hazardous substances identified were benzene, chloroform, ethylbenzene, methylene, chloride, toluene, trichloroethene ...