On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
King, Long and R.s. Cohen. The opinion of the court was delivered by King, P.J.A.D.
This case concerns the right of an alleged polluter to a pre-enforcement challenge to the terms of an alleged administrative "consent" order before clean-up of a polluted site is undertaken. After hearing oral argument on the motion for leave to appeal by Mobil Oil Corporation (Mobil) on November 1, 1990, we granted a stay of any administrative action by the Department of Environmental Protection (DEP) pending our disposition of the matter.
On November 16, 1990 we granted leave to appeal from the order of the Law Division entered on October 30, 1990 denying Mobil's application for a restraining order against DEP. We ordered accelerated briefing and heard the matter on the merits on February 6, 1991. We now affirm Judge Francis' order denying mandatory injunctive relief to Mobil which had challenged the terms of the proposed Administrative Consent Order crafted by DEP to remedy an alleged Spill Act violation and the right of DEP to proceed itself to clean up the site.
DEP brought this suit seeking penalties under the Water Pollution Control Act (N.J.S.A. 58:10A-1 to -34), the Spill Compensation and Control Act, (N.J.S.A. 58:10-23.11 to -23.11z) and the Solid Waste Management Act (N.J.S.A. 13:1E-1 to -198). The action arose from the breakdown in negotiations over clean-up at Mobil's Paulsboro site. Mobil sought restraints against DEP's proceeding to start the clean-up pursuant to the Spill Act and requested a judicial declaration that certain terms of the order which DEP sought to impose on Mobil were illegal.
The dispute is a relatively narrow one arising under the "Spill Compensation and Control Act," N.J.S.A. 58:10-23.11 to -23.11z. But the dispute seems to have serious implications to the
parties and has brought them to loggerheads in their pursuit of an appropriate remediation plan and clean-up of the soil pollution at Mobil refinery site in Paulsboro.
DEP has issued a directive pursuant to the Spill Act aimed towards the ultimate correction of soil pollution by petroleum by-products at the Paulsboro site. In attempted implementation of this directive, DEP has submitted a proposed administrative "consent" order (ACO) for Mobil's execution. The proposed ACO contains a schedule of "stipulated penalties" at clauses 53 and 54 which recites:
53. Mobil shall pay stipulated penalties to the Department for its failure to comply with any of the deadlines or schedules required by this Administrative Consent Order including those established and approved by the Department pursuant to this Administrative Consent Order. Each deadline or schedule not complied with shall be considered a separate violation. Payment of Stipulated Penalties shall be made according to the following schedule, unless the Department has modified the compliance date pursuant to the force majeure provisions hereinbelow:
Calendar Days Stipulated ...