site as a storage facility for materials earlier used in the manufacturing operation. Approximately 100 drums of dioctyl phthalate were left behind on the site after Fabritex's manufacturing activities ended. The facts indicated that the remaining drums were unguarded, left in an unlocked area and the content labels on the drums were scrubbed off. The issue presented was whether a facility which had ceased manufacturing operations but continued a storage facility for hazardous substances was subject to ECRA, when the storage ceased.
The court held that ECRA was triggered when Fabritex ceased "substantially all" of its operations, which occurred when it stopped manufacturing and distributing its products. The court also concluded that Fabtritex's act of leaving the 100 drums of waste at the site did not constitute "storage" within the ambit of ECRA because it was clear that the drums were abandoned.
Here Westinghouse's post-sale close-down at the Property is sufficient to trigger ECRA. Undeniably, like Fabritex, it ceased its manufacturing operations before ECRA's effective date. Yet, its activity on the Property after the effective date, December 31, 1983 was more extensive than that of Fabritex. Westinghouse did not merely abandon some hazardous material on the Property. Westinghouse remained on the Property as a tenant for a period of one year. A Westinghouse employee was there through February, 1984 to supervise Westinghouse's close-down operations. The hazardous materials remaining on the Property were not abandoned, but rather, were the subject of a contract for removal between Westinghouse and CECOS International. The removal of at least 256 drums of hazardous waste from the Property was supervised by Westinghouse in January and February of 1984. This activity concerning hazardous waste was sufficient to make Westinghouse an "operator" under ECRA. When Westinghouse finally ceased the operation of this waste storage and removal, ECRA was engaged.
Statute of Limitations
Nonetheless, Westinghouse argues that, even if ECRA was triggered, New West's claim is barred for not being timely filed. ECRA does not contain a statute of limitations. Westinghouse contends that the Court should adopt the period of limitation of six years which is imposed in actions based upon breach of contract or for common-law tort environmental claims. N.J.S.A. 2A:14-1. Westinghouse claims that any failure to comply with ECRA occurred within 5 days of its cessation of waste removal activity at the Property, which either was in late 1984 or early 1985. Hence, New West's lawsuit, filed in 1994, is legally late.
On the other side, New West claims that because there is no statute of limitations contained in the statute, the Court should not engraft one. It asserts that because the NJDJEJP, the state administrative agency empowered to enforce ECRA, is not bound by a statute of limitations, nor should New West, which sues as a private citizen, be. However, the principle of nullum tempus occurrit regi, presently defined as "time does not run against the state," is not always applicable to a private actor. The nullum tempus doctrine was fashioned at common law and, literally in Latin, means "time does not run against the king." See Rutgers v. Grad Partnership, 269 N.J. Super. 142, 634 A.2d 1053 (App.Div. 1993) (citing Devins v. Bogota, 124 N.J. 570, 575, 592 A.2d 199 (1991)). A rationale for the principle is that "the king has established his own rules for litigation." Id. A more pertinent basis is that "the king [and now State] was too busy protecting the interests of his people to keep track of his [its] lands and to bring suits to protect them in a timely fashion." Id. Conversely, a private actor such as New West is not charged with maintaining the welfare of any entity other than itself. Application of the concept of nullum tempus to allow New West's claim is not necessary to protect the public interest and does not here obtain. There should be a statute of limitations when a private actor brings suit under ECRA.
Accordingly, the Court first must determine the appropriate statute of limitation in actions brought by private parties under ECRA, and then determine whether New West's suit was timely filed.
New Jersey's Spill Act, N.J.S.A. 58:10-23.11, et.seq., a comprehensive remedial environmental scheme similar to ECRA, was enacted in 1976,
to control the transfer and storage of hazardous substances and to provide liability for damage sustained within [New Jersey] as a result of any discharge of said substances, by requiring the prompt containment and removal of such pollution.
N.J.S.A. 58:10-23.11a. The Spill Act contains no statute of limitations for private contribution actions. In these circumstances, courts are directed to select a limitations period from among those statues of limitation for actions seeking comparable relief at common law. See Kemp Indus., Inc. v. Safety Light Corp., 857 F. Supp. 373, 1994 WL 532130 at *27 (D.N.J. 1994) (citing Skadegaard v. Farrell, 578 F. Supp. 1209, 1214 (D.N.J. 1984); Montells v. Haynes, 133 N.J. 282, 292, 627 A.2d 654 (1993); White v. Johnson & Johnson Products, Inc., 712 F. Supp. 33, 37 (D.N.J. 1989)).
A private cause of action by a transferee of land against the transferor for failing to comply with ECRA is most analogous to a common law environmental tort action, which must be commenced within six years of its accrual. See Hatco Corp. v. W.R. Grace Co., 801 F. Supp. 1309, 1323 (D.N.J. 1992). Courts have fashioned this six-year period of limitations to similar Spill Act claims. See Kemp at *27. New West's lawsuit was filed on March 8, 1994. Its ECRA claim against Westinghouse is barred therefore, unless it arose after March 8, 1988.
New West asserts that its claim cannot be barred by any statute of limitations because Counts 8 and 9 of its Complaint allege that Westinghouse engaged in fraud by concealing the existence of environmental reports it had prepared in 1983. Generally, New Jersey law provides that where a plaintiff claims that there has been fraudulent concealment of facts underlying a potential cause of action, the period of limitations does not commence until the plaintiff discovers the wrong. See, e.g., Foodtown v. Sigma Marketing, 518 F. Supp. 485 (D.N.J. 1980); Lopez v. Swyer, 62 N.J. 267, 275 n.2, 300 A.2d 563 (1973); Kyle v. Green Acres at Verona, 44 N.J. 100, 109, 207 A.2d 513 (1965).
This is a motion for summary judgment and, at this stage, New West is not entitled merely to rest upon the allegations in its complaint. New West has not directed the Court to anything factual which indicates a competent and relevant basis for a finding that Westinghouse fraudulently concealed non-compliance with ECRA, particularly since the alleged 1983 reference predates the 1984-85 activity which triggered the statute.
Finally, even if a six-year statute of limitations is applied, New West maintains that its Complaint still was timely filed under application of the "discovery rule." The discovery rule is an equitable principle delaying the accrual of a cause of action until the injured party discovers it may have the basis of an actionable claim. See Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 426, 527 A.2d 66 (1987). The discovery rule has been applied in certain contexts. See, e.g., Kemp Industries, Inc. v. Apollo, 857 F. Supp. 373, 1994 WL 532130 (D.N.J. 1994); Allied Corp. v. Frola, 730 F. Supp. 626 (D.N.J. 1990); Enertron Industries v. Mack, 242 N.J. Super. 83, 576 A.2d 28 (App.Div. 1990). Here, however, New West has not furnished the Court with evidential justification to apply the discovery rule.
When did New West's cause of action against Westinghouse arise? At the latest, it was that time in March, 1985 when New West discovered drums which had been left behind by CECOS, Westinghouse's hired mover. New West had then until the appropriate day in March, 1991 to file suit. This action was commenced three years past that time; it had become legally stale.
Westinghouse's motion for partial summary judgment on the ECRA Issue is granted.
ECRA Only Applies to an Industrial Site
Finally, Westinghouse contends that it is not liable under ECRA because the Property was not an "industrial site" after December 31, 1983. ECRA defines whether property is industrial, and therefore subject to its provisions, based upon its SIC number. Westinghouse claims that New West has not proven that the SIC number the Property was assigned subjects it to ECRA.
New West asks the Court to take judicial notice of the SIC number of the Property as reported in two publications: the New Jersey Directory of Manufacturers and MacRae's New Jersey State Industrial Directory. In a supplemental brief submitted, with leave of the Court, after this motion already was briefed, Westinghouse attacks the reliability of these publications, claiming that they cannot provide an appropriate basis upon which judicial notice of a fact may be taken. At the least, Westinghouse contends that a genuine factual dispute exists as to whether the Property was an "industrial site" after ECRA became effective.
The dispute is governed by Federal Rule of Evidence 201(b) which provides that
A judicially noticed fact must be one not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Westinghouse correctly notes that the mere fact of publication does not perforce qualify a source as sufficiently accurate so as to form a basis for judicial notice. Westinghouse contends that the publications in question lack reliability because they contain disclaimers of responsibility for errors or omissions and lack appropriate verification procedures.
However, because the Court already has determined that New West's action is time-barred, this issue need not be decided.
This motion has been bifurcated into a "Contractual Issue" and an "ECRA Issue." For reasons stated above:
Westinghouse's motion for summary judgment on the Contractual Issue is DENIED.
New West's motion for partial summary judgment on the Contractual Issue is GRANTED.
Westinghouse's motion for partial summary judgment on the ECRA Issue is GRANTED.
New West's motion for partial summary judgment on the ECRA Issue is DENIED.
An appropriate order follows.
William H. Walls, U.S.D.J.
Date: November 9, 1995
This matter is before the Court on cross motions for partial summary judgment and summary judgments, pursuant to Rule 56 of the Federal Rules of Civil Procedure.
For good cause having been shown, and based upon the written submissions and oral argument of the parties, it is on this day of 1995, ORDERED that, in accordance with the issues having being so designated in the opinion accompanying this order,
Westinghouse's motion for summary judgment on the Contractual Issue is DENIED.