On appeal from the Department of Environmental Protection.
J. H. Coleman, O'Brien and Havey. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
The novel issue raised in these appeals is whether Vulcan Materials Company (Vulcan), the operator of a detinning plant that was built over a closed solid waste landfill, has any cleanup liability at the time of closure under either the Environmental Cleanup Responsibility Act (ECRA), N.J.S.A. 13:1K-6 et seq. or the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 et seq. The Department of Environmental Protection (DEP) ultimately concluded that Vulcan is responsible for surficial cleanup pursuant to ECRA. We now affirm that determination.
The facts are unique. Until the early 1960's the City of Elizabeth operated a 150 acre municipal landfill in that city. The city sequentially closed and covered sections of the landfill with materials not revealed by the record. Subsequent to the closure and covering, the city sold portions of the former landfill for commercial development. In the early 1960's, 13 acres of this land were purchased by the American Can Company (American) which constructed a detinning plant on the site in 1962. A detinning plant is a tin recovery facility which uses caustics, nitrates, water and heat to separate tin from tin-bearing steel. The end product is tin salt (sodium stannate).
American apparently operated the detinning plant until August 1977 when it transferred ownership to MRI Corporation (MRI), a wholly-owned subsidiary of American. MRI operated the detinning plant until 1981 when it leased the land and sold the improvements on the 13 acre site to Vulcan. In 1982 MRI conveyed title to the land to Tinco, Incorporated which later changed its name to Tinmet Corporation. Tinmet is also a wholly-owned subsidiary of American. Vulcan operated the detinning plant until November 27, 1984 when it decided to close the plant because it was unprofitable. Vulcan may not have closed the plant, however, until March 1985. Consequently, Vulcan owns a deactivated detinning plant situated on 13 acres of land which it occupies under a long term lease.
When Vulcan decided to close the plant, it submitted a General Information Submission Statement to the DEP on November 9, 1984 as required by ECRA, N.J.S.A. 13:1K-9a(1). This was the operator's initial notice of closure. On November 26, 1984, following review of the statement, the DEP notified Vulcan that more information was needed. Vulcan supplemented its statement shortly thereafter with additional information. On January 9, 1985 Vulcan submitted a Site Evaluation Submission statement to the DEP, as required by N.J.S.A. 13:1K-9a(2). Later, on March 14, 1985, representatives from the DEP inspected the plant site to determine the extent of possible contamination. Following this inspection, the DEP representatives prepared a report that detailed the results of their visual examination of the site. In a letter dated April 8, 1985 Vulcan provided the DEP with further documentation concerning past and present environmental conditions at the site.
On May 31, 1985, the DEP sent a letter to Vulcan advising it that because the plant site was located above a former municipal landfill, Vulcan would have to conform its ECRA cleanup plan to the landfill closure requirements of the SWMA. By this letter, the DEP sought to hold Vulcan responsible for any contamination present in the underlying landfill as well as for any contaminants present at or near the plant site's surface.
In response, on June 12, 1985 Vulcan protested that the DEP's position was without a legal basis and requested a formal meeting to discuss the matter. Much correspondence flowed between the parties over the following months but nothing was resolved.
The DEP failed to respond by May 16, 1986 to Vulcan's request for a final agency decision concerning the scope of its cleanup responsibility. As a result, on May 29, 1986 Vulcan filed a verified complaint in lieu of prerogative writs to compel the DEP to issue a final decision. On August 14, 1986 the DEP issued its final decision which modified substantially its position set forth in its May 31, 1985 letter. The final decision stated that the landfill exception to the definition of "industrial establishment" contained in ECRA, N.J.S.A. 13:1K-8(f), applied only to those landfills that had approved DEP closure plans pursuant to the SWMA. Because the landfill underlying Vulcan's plant site did not have an approved DEP cleanup plan, the ECRA exception did not apply. The DEP concluded that Vulcan "is responsible for the cleanup of the landfill on which its operation is located under the ECRA. . . . Vulcan Materials Company is one of may [sic] potentially responsible parties that would be required to participate in the overall cleanup of the site." Because an extensive site investigation had to be performed before a final cleanup order could be entered, the DEP stated that Vulcan could do an initial surface cleanup while deferring the ECRA cleanup of the underlying landfill. Upon receipt of the August 14 final agency decision, Vulcan withdrew its complaint in lieu of prerogative writs. Vulcan filed a notice of appeal from the August 14, 1986 agency decision and that appeal was assigned A-473-86T7.
After the notice of appeal in A-473-86T7 had been filed, the DEP modified its decision again based on legal advice from the Attorney General. Consequently, on July 14, 1987 the DEP issued a modified final decision in which it concluded that any landfill subject to the closure requirements of the SWMA ...