The case of State of New Jersey, Department of Environmental Protection v. J.T. Baker Co. is before the court on defendant's motion for summary judgment on counts three and five of the complaint. As part of this motion, defendant, J.T. Baker Company, requests several rulings on issues concerning the retroactivity of the penalty provisions and interpretations of the spill compensation and control act of 1976,*fn1 ("Spill Act"), and of the Water Pollution Control Act of 1977,*fn2 ("WPCA"): to wit, that:
1. That a discharge under the spill act and the WPCA is a new release from a contained area and that continued leaching and contamination is not a discharge,
2. That Baker cannot be subject to penalties for discharges occurring prior to the 1977 effective dates of the spill act and of the WPCA, and,
3. Thus, that Baker is not subject to penalties for discharges of DDT which occurred only in the 1940's.
To the extent that this motion is for a judgment on issues of law which would obviate the need for presentation at trial of irrelevant evidence, it can be characterized as a motion in limine. Assuming that it prevails on the aforementioned issues, Baker seeks summary judgment as to counts three and five of the complaint based on the DEP's failure to specifically identify the post-1977 discharges which are alleged to be violations of N.J. Environmental Laws, Rules and Regulations.
J.T. Baker Co., has operated a chemical company in Phillipsburg, N.J. since approximately 1904. Baker's facility consists of approximately 60 acres on the east bank of the Delaware river, 1.5 miles upstream from the confluence of the Lehigh and Delaware rivers. The facility handles, stores, treats and disposes of a variety of hazardous substances and solid and hazardous wastes, and is thus subject to regulation by the state
of New Jersey, Department of Environmental Protection, (The "DEP").
In early 1984, Baker was considering whether to merge with another Chemical Company. During the course of merger discussions, Baker commenced an environmental assessment with the intention of seeking DEP approval under the New Jersey ECRA Law if a merger materialized.*fn3 Although the contemplated merger never materialized, Baker discovered a great deal of contamination at its Phillipsburg plant that was caused, in large part, by events occurring decades ago. Thousands of pounds of hazardous substances and wastes were identified in the soil and groundwater at the Phillipsburg site and high levels of contamination were found in sediments in the Delaware River adjacent to and downstream from the site.
Upon completion of its assessment in July 1985, Baker submitted its report to the DEP and voluntarily represented that it was willing to undertake necessary remedial action to clean up the plant site. The next one and one half years were spent further delineating the pollution in and about the plant site and developing a clean up plan. In April 1987, the DEP issued a directive pursuant to the Spill Act advising Baker that unless it agreed to clean up the pollution and provide the necessary assurances that the work would be done properly, the DEP would use public funds to conduct the clean up and would seek three times the money expended in a subsequent cost recovery action pursuant to N.J.S.A. 58:10-23.11f(a).
In May of 1987 Baker agreed to enter into an administrative consent order with the DEP providing for remediation of the contamination. However, the parties were unable to agree upon the amount of penalties to be assessed. The DEP contended
that substantial penalties were warranted under the various statutes that Baker had violated. Because the pollution had been brought to the DEP's attention upon completion of the 1984-1985 assessment and because Baker had assumed responsibility for the clean up of the pollution, Baker contended that no penalties were warranted.
Given the views of the parties regarding penalties, the present litigation ensued. This action is not about remediation costs, since Baker has undertaken to clean up the site. This action is about penalties.
Pursuant to the authority granted to it under N.J.S.A. 13:1D-1, et seq., the DEP filed an eight count complaint against Baker and its Parent Company, Richardson-Vicks, Inc. In this complaint, the DEP seeks injunctive relief, costs and penalties pursuant to the Water Pollution Control Act ("WPCA"), N.J.S.A. 58:10A-1, et seq., The Solid Waste Management Act ("SWMA"), N.J.S.A. 13:1E-1, et seq., and The Spill Compensation and Control Act ("The Spill Act"), N.J.S.A. 58:10-23.11, et seq. for years of alleged environmental abuse at the Phillipsburg site.
Briefly, the counts which are the subject of the instant motion can be summarized as follows.
Count three alleges that the investigation conducted by Baker in 1984-85, in an effort to comply with ECRA requirements, revealed gross contamination of the soils and waters underlying and surrounding the Phillipsburg site which was and is discharging into the Delaware river. Paragraph 3 of this count fully describes the contamination (including the extent of DDT contamination) and concludes that the majority of the contaminants are classified as "hazardous substances" under N.J. LAW. The DEP claims that Baker's actions and/or omissions which resulted in this contamination constitute a "continuing discharge" of hazardous substances in violation of the spill Act, particularly N.J.S.A. 58:10-23.11c. Therefore, even though Baker has agreed to clean up the contamination, the DEP seeks
to impose costs and per diem penalties for "years of environmental abuse and pollution resulting from its unlawful discharges of hazardous substances."
In count five, the DEP seeks costs and penalties under the WPCA for numerous, unspecified, alleged discharges of hazardous substances by Baker into the soil ...