On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County.
J. H. Coleman and Baime. The opinion of the court was delivered by Coleman, J.h., P.J.A.D.
The crucial issue raised in this appeal is whether a successor in title to land used as a municipal sanitary landfill can compel the former municipal operator of the landfill to comply with its closure responsibilities. Plaintiff filed a complaint on April 1, 1986 seeking an injunction directing defendant to comply with its closure obligations under the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 et seq. The complaint was in essence amended by a pretrial order to permit plaintiff to seek damages for abatement of a common law nuisance, breach of an alleged covenant running with the land and indemnification.
On March 3, 1988, the trial judge granted summary judgment dismissing the complaint. The claims based on a breach of an alleged covenant and common law nuisance were dismissed with prejudice. The claim for indemnification was dismissed without prejudice. The indemnification claim is based on a provision in a lease between defendant and the former owner of the landfill property. We now affirm the dismissal of the claims based on an alleged covenant and common law nuisance. We reverse that portion of the summary judgment which dismissed plaintiff's request to compel defendant to comply with its closure responsibilities.
The facts essential to our decision are not in dispute. In 1963, defendant Middletown leased approximately 62 acres of vacant land from its then owner, J. Howard Smith, Inc. The land was leased to operate a municipal sanitary landfill. Defendant operated the landfill between 1963 and 1976. The landfill was registered by the New Jersey Department of
Environmental Protection (DEP) on June 24, 1970. During the operation of the landfill, the DEP found numerous violations because the solid waste deposited in the landfill was covered inadequately.
On May 20, 1976, defendant's acting engineer presented the Mayor and Township Committee with a report concerning the termination of the landfill operations. The report indicates that the Township Engineer contacted the Bureau of Solid Waste Management within the DEP and "asked what specific requirements they [sic] would impose on the Township if the Township should decide to close the landfill." The Bureau indicated that it would require a final cover of two feet over the landfill in addition to a grass cover. The Township was also advised that it would be required to install methane gas vents across the landfill. The cost of closing the landfill was estimated at $662,400.
On October 9, 1976, representatives from the Township met with the DEP concerning the closure of the landfill. An agreement was reached whereby the Township agreed, among other things, that closure would include methane gas vents, a final cover consisting of a minimum of one foot clay and one foot of top soil and a grass cover. See N.J.A.C. 7:26-1.4 (formerly 7:26-1.4.15 and .27, "cover material" and "final cover"). A March 15, 1977 inspection conducted by the DEP revealed that defendant had not met the agreed to closure requirements. A notice of prosecution was sent to defendant on April 14, 1977 and defendant was given until May 16, 1977 to comply. That deadline date passed. Based on the record before us, not much was done to force compliance. On August 8, 1978, defendant's manager advised the landowner that defendant was taking steps to close the landfill. But inspections performed by the Monmouth County Board of Health on July 30 and August 11, 1981 revealed that areas of solid waste were still not covered.
On November 3, 1980, the owner of the land gave an option to plaintiff to purchase the land. Plaintiff submitted to the
Planning Board conceptual plans for a planned unit development. On February 13, 1981, the Director of Planning & Community Development submitted his thoughts. He was impressed to say the least. He commented that the proposal would exceed one million dollars. He stated that the planned development would eliminate defendant's liability for proper closure of the landfill. The authority for this conclusion is not revealed in the record. Plaintiff exercised the option to purchase the landfill acreage on July 16, 1982 and title was closed on November 4, 1982. It is clear from the record that plaintiff was aware that it was purchasing a former sanitary landfill.
In this appeal, plaintiff argues that the trial court should not have dismissed its application to compel defendant to comply with its closure responsibility. The Middletown landfill is a solid waste facility under the SWMA, N.J.S.A. 13:1E-3(i). Also, the SWMA controls the closure of sanitary landfills and is supplemented by the Sanitary Landfill Facility Closure Act and Contingency Fund, N.J.S.A. 13:1E-100 et seq. N.J.S.A. 13:1E-103 imposes joint and several liability upon the owner and operator for proper closure of the landfill. No exception from the legislative scheme has been granted municipalities. N.J.S.A. 13:1E-5(b). Rules governing the closure of sanitary landfills have been promulgated pursuant to the SWMA, N.J.S.A. 13:1E-6. These rules are contained in N.J.A.C. 7:26-1 et seq. In general, the closure of a landfill requires a minimum of two feet of compacted cover of soil, earth or other insoluble and nondegradable material approved ...