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Vi-Concrete Co. v. State

Decided: April 19, 1989.

VI-CONCRETE COMPANY, APPELLANT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT



On certification to the Superior Court, Appellate Division, whose opinion is reported at 220 N.J. Super. 176 (1987).

For reversal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For affirmance -- None. The opinion of the Court was delivered by Stein, J.

Stein

In this case we consider whether the authority conferred on the New Jersey Department of Environmental Protection (DEP) by the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -20 (Act or Pollution Control Act), is sufficient to enable DEP to compel the present owners of closed sanitary landfill sites to bear the cost of installing and maintaining monitoring wells on such sites. The wells are intended to monitor the possible discharge of pollutants into the state's waters. The issue arises in the context of a challenge by petitioner, Vi-Concrete, to the validity of a New Jersey Pollutant Discharge Elimination System (NJPDES) permit issued to it unilaterally by DEP. The permit ordered Vi-Concrete to install monitoring wells on its property, which, allegedly unknown to it, had been used as a sanitary landfill until 1968. The Appellate Division upheld the authority of DEP to issue the permit. Vi-Concrete v. State of New Jersey, Dep't of Envtl. Protection, 220 N.J. Super. 176 (1987).

We have determined that on the record before us it is unnecessary to resolve conclusively the full extent of DEP's authority over closed landfills under the Pollution Control Act. We hold that the Act does not categorically impose on the owners of all closed landfills the duty to install and maintain monitoring wells on their property. We note that the agency has adopted regulations under the Act concerning operating sanitary landfills, N.J.A.C. 7:14A-10.12, but has not attempted to promulgate rules applicable to landfills that, as in this case, ceased operations either before or after the Act was adopted. Moreover, we find clear legislative authority to enable DEP for good cause to install and maintain monitoring wells on petitioner's

property, using funds available pursuant to the Sanitary Landfill Closure and Contingency Fund Act, L. 1981, c. 306, codified at N.J.S.A. 13:1E-100 to -116. Hence, we invalidate the permit issued to petitioner and defer resolution of the question presented until such time as DEP, through rulemaking, has more specifically defined the scope of the power it asserts and the circumstances and conditions under which it is to be exercised.

I.

In 1976 Vi-Concrete purchased a 9.5-acre tract of land in Waterford Township. The property contains an asphalt plant built in 1970. Vi-Concrete uses the plant to make concrete and concrete by-products. The property was used by a prior owner as a sanitary landfill during the 1960s, but has not been used as a landfill since 1968.

In August 1985, the DEP's Division of Water Resources, without any application having been filed, issued a NJPDES permit to Vi-Concrete requiring that four ground-water monitoring wells be installed and maintained on Vi-Concrete's property. The cost of compliance with the permit is estimated to be ten thousand dollars for installation of the wells and three thousand dollars quarterly to perform the required tests.*fn1

Vi-Concrete appealed the DEP's issuance of the NJPDES permit, and the matter was referred for hearing to the Office of Administrative Law. Vi-Concrete moved to dismiss summarily the permit issued by DEP, and the agency filed a cross-motion for summary judgment. The Administrative Law Judge (ALJ) denied both motions on the basis that there were factual issues to be resolved. The ALJ upheld DEP's authority to issue a permit without an application, observing that although the

landfill was closed, it is subject to "continued regulation," and petitioner "can under proper circumstances be made to test the water." The ALJ also noted that the regulation relied on by the agency, N.J.A.C. 7:14A-10.1, applied only to active landfills. The ALJ concluded that in the absence of proof of specific conditions on the property warranting the installation of monitoring wells, the DEP must act by rulemaking to impose the monitoring requirement generally on all closed landfill sites.

The Commissioner sustained the ALJ's ruling that DEP, without an application, had authority to issue a NJPDES permit to the owner of a closed landfill. However, the Commissioner reversed the ALJ's determination that absent proof of a specific need for monitoring wells, DEP must act by rulemaking before requiring owners of closed landfills to incur the expense of installing and maintaining monitoring wells. The Commissioner determined that the department's actions were specifically mandated by the Pollution Control Act:

[T]he Water Pollution Control Act authorizes and, in fact, requires the Department to issue NJPDES permits to all classes of landfills regardless of evidence of discharge because it is clearly and directly inferable from the text of the act that all landfills are dischargers and that, in the absence of specific exemptions all landfills require NJPDES permits.

The Appellate Division affirmed the Commissioner's decision. It held that under the Act DEP was authorized to issue a NJPDES permit, without an application, to the present owner of a closed landfill, 220 N.J. Super. at 181-82, that all landfills, active or inactive, are "dischargers" within the meaning of the Act, id. at 182 and that as the present owner of the property, Vi-Concrete is the proper party to receive the permit, although it may seek contribution or indemnification from its predecessors in title. Id. at 183-84. Finally, because Vi-Concrete contended it owned Lot 4, Block 244 in Waterford township and DEP's pleadings referred to the property at issue as Lot 3, Block 244, the matter was remanded to the Commissioner to determine the precise location as well as the present owners of

the landfill in question. Id. at 187.*fn2 We granted certification. 109 N.J. 514 (1987).*fn3

II.

Narrowly defined, the question before the Court is one of statutory interpretation, its resolution depending on whether the Commissioner's issuance of this unsolicited permit to Vi-Concrete can be reconciled with the language and objectives of the Pollution Control Act. From a broader perspective, the issue may encompass the power of the DEP to require the installation of monitoring wells at closed landfills throughout the State.*fn4 We note that the Department did not mandate the installation of monitoring wells as a condition of landfill closure until 1987, see ...


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