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In re J.I.S. Industrial Service Co.

Decided: April 18, 1988.

IN THE MATTER OF THE J.I.S. INDUSTRIAL SERVICE COMPANY LANDFILL; AND J.I.S. INDUSTRIAL SERVICE COMPANY; J.I.S. INDUSTRIAL SERVICE CORPORATION; AND DONALD W. JONES, INDIVIDUALLY


On certification to the Department of Environmental Protection.

For affirmance as modified -- Justices Clifford, Handler, O'Hern, Garibaldi, and Stein. Dissenting -- Chief Justice Wilentz. The opinion of the Court was delivered by Handler, J. Wilentz, C.J., dissenting.

Handler

J.I.S. Industrial Service Company and J.I.S. Industrial Service Corporation (JIS) disposed of hazardous substances for nearly twenty-five years at a landfill in South Brunswick Township. The landfill was closed by court order in 1980. On May 19, 1986, the New Jersey Department of Environmental Protection (DEP) directed JIS to pay $700,000 to the DEP to fund a remedial investigation and feasibility study. This type of study is used to determine the nature and extent of groundwater contamination, and is the standard first step in a cleanup program. JIS was ordered to pay the amount within thirty days. DEP extended the deadline until July 21, 1986. In the meantime JIS had moved in the Appellate Division for a stay. That motion was denied on July 10, 1986.

JIS moved for a stay before Justice Daniel J. O'Hern, sitting as a single justice. In an order dated July 21, 1986, Justice O'Hern declined to grant a stay of the directive because of the possible danger the groundwater contamination posed to the public. Justice O'Hern did, however, stay any imposition of treble damages for noncompliance until the full Court had the opportunity to consider whether the Spill Act's treble damages provisions violated the appellants' due process rights by denying

them any effective opportunity to seek judicial review of the directive. On October 20, 1986, the full Court modified the interim order, requiring appellants to pay within thirty days the costs imposed by the directive or to furnish satisfactory security for that amount, and enjoining the DEP from seeking treble damages pending disposition of the appeal. The full Court's order also directly certified the appeal then pending before the Appellate Division to consider the appeal with the companion case of IMO Kimber, 110 N.J. 69 (1988), which we also decide today.

We were advised that on February 20, 1987, the DEP amended its directive to JIS to reflect a revised cost estimate of $583,473. As a result of further investigation the DEP then identified twelve additional parties who it believed shared responsibility for the discharge of hazardous substances at the JIS landfill. This led to a supplemental directive, dated March 27, 1987, ordering these parties to pay the DEP the amount needed for the remedial investigation and feasibility study. Eleven of these parties then entered into an administrative consent order making provision for the required funding under terms mutually acceptable to them and the DEP.

As a result of the entry of the Consent Order the DEP no longer anticipates the need to use public funds in this case. It therefore no longer seeks treble damages from the parties who failed to comply with the initial directive in this matter. Thus, providing that the DEP actually receives these funds, the matter will become technically moot. Nevertheless, this mootness does not outweigh the need to review this matter. While we ordinarily refuse to examine moot matters due to our reluctance to render legal decisions in the abstract and our desire to conserve judicial resources, see, e.g., Oxfeld v. New Jersey State Bd. of Educ., 68 N.J. 301, 303-04 (1975); Sente v. Clifton, 66 N.J. 204, 205 (1974), we will rule on such matters where they are of substantial importance and are capable of repetition yet evade review. See, e.g., Matter of Conroy, 98 N.J. 321, 342

(1985); Guttenberg Sav. & Loan Ass'n v. Rivera, 85 N.J. 617, 622-623 (1981); Dunellen Bd. of Educ. v. Dunellen Educ. Ass'n, 64 N.J. 17, 22 (1973). The matter at issue falls into this category. It is a matter of compelling public importance and is capable of repetition since costs for any additional investigative and/or cleanup measures at the landfill have expressly not been addressed by the Administrative Consent Order.

I.

The dispute between these parties has a long history. For about twenty-five years -- until the landfill was closed by court order in December 1980 -- JIS and Donald Jones, its former principal, directed and allowed the disposal of hazardous substances at the landfill. These hazardous substances included pesticides, petroleum hydrocarbons, various volatile organic substances and other chemical wastes and substances.

On August 26, 1975, DEP ordered JIS to install ground water monitoring wells, based on the fact that JIS had been disposing of chemical waste at the facility. DEP's analysis of samples taken from the wells resulted in a departmental order issued on December 19, 1975, which stated that improper disposal of petroleum products, hazardous substances and debris at the JIS site posed a real threat to groundwaters of the state.

JIS was, therefore, ordered to cease its landfill operations and to submit plans and specifications for the removal of materials previously disposed of "and/or the containment of any and all liquid leachate or runoff from said disposed material."

On January 16, 1976, DEP brought suit against JIS and Jones in the Chancery Division, Middlesex County. The suit sought injunctions prohibiting continued operation of the landfill and disposal of pesticides, contaminated containers, hazardous wastes, chemical wastes, bulk liquids or semi-liquids. DEP also sought an order for, among other items, the immediate

submission of plans and specifications for the removal of all previously-deposited waste or, alternatively, for the containment of all leachate or runoff and the immediate submission of plans and specifications for removal of contaminants from the ground water. Temporary restraints were issued limited to the disposal of only chemical wastes, industrial wastes and pesticides, or contaminated containers.

On June 17, 1976, DEP issued a notice of disapproval of JIS's engineering designs because the submitted design data lacked sufficient information on filling procedures, geological and hydrological conditions and a leachate collection and treatment system. The effect of the notice was to revoke JIS's registration to operate its solid waste facility. JIS did not request an administrative hearing on the notice of disapproval.

The suit pending in the Chancery Division went to trial in June 1977. After DEP had presented its case, the parties reached a settlement, set forth in a document dated June 13, 1977, entitled "Requirements for Continued Operation of the JIS Solid Waste Disposal Facility" (hereinafter referred to as the "Requirements Document"). The Requirements Documents was included in the order for judgment on June 27, 1977. It expressly stated not only that the JIS operation would have to meet all operational and engineering requirements found in DEP's regulations but, in addition, "[d]ue to the sensitive geological and hydrological conditions associated with the site, there are some specific requirements that must be made for continued operation of this site.' (Emphasis added). Inter alia, the site-specific requirements set forth in the Requirements Document were:

1. JIS was to take a minimum of 36 borings on the landfill to establish areas of fill.

2. Disposal of solid waste in the future must be on lines areas. Detailed specifications are set forth for virgin [previously unfilled] and ...


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