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STATE OF NEW JERSEY v. GLOUCESTER ENVIRONMENTAL MANAGEMENT

May 29, 2003

STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, PLAINTIFFS,
v.
GLOUCESTER ENVIRONMENTAL MANAGEMENT SERVICES, INC, DEFENDANTS UNITED STATES OF AMERICA, PLAINTIFF, V. AIR PRODUCTS AND CHEMICALS INCORPORATED, ET AL., DEFENDANTS



The opinion of the court was delivered by: Jerome B. Simandle, United States District Judge.

OPINION

This matter comes before the Court upon the GEMS Phase II Trust's motion to enforce the Consent Decree entered into by the parties in 1997, after a long period of negotiations, regarding the remediation of the Gloucester Environmental Management Services, Inc. ("GEMS") Landfill located in Gloucester Township, New Jersey, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, as amended ("CERCLA" or "Superfund"), 42 U.S.C. § 9601, et seq., and other federal environmental laws. As required by the Consent Decree, the Trust has carried out its obligation to construct the Groundwater Extraction ("GWE") system, and wishes to implement the selected remedy of discharging the pretreated effluent through the Gloucester Township Municipal Utilities Authority ("GTMUA") sewage collection system for final treatment at the Camden County Municipal Utilities Authority ("CCMUA") sewage treatment plant.

For the reasons discussed herein, the Trust's motion to enforce the Consent Decree will be granted, and the CCMUA and NJDEP will be directed to finalize the proposed draft CCMUA permit within thirty (30) days of today's date. Further, the GTMUA will be directed to comply with its obligations under the Sewer Service Agreement.

I. BACKGROUND

The GEMS Landfill, Owned by Gloucester Township

This case involves the sixty-acre Gloucester Environmental Management Services, Inc. ("GEMS") Landfill located in Gloucester Township, Camden County, New Jersey, which was owned by the Township of Gloucester and operated by Amadei Sand & Gravel, Inc., and GEMS, in the late 1950s through the 1980s. See State of New Jersey Dep't of Envtl. Prot. v. Gloucester Envtl. Mgmt. Servs. Inc., 719 F. Supp. 325, 328 (D.N.J. 1989). The NJDEP originally brought the case in New Jersey Superior Court in 1980, seeking proper closure and remediation of the landfill which was caused by the dumping of hazardous wastes; the case was eventually removed to federal court in 1984. Id. The United States also filed suit for recovery of response costs and other remedies under CERCLA in 1992. The State and Federal cases were combined and coordinated for all purposes. Several hundred parties were joined as alleged generators or haulers of wastes to the GEMS landfill, including many municipalities in Southern New Jersey, industrial plants, waste processing facilities, trucking companies and other institutions, both private and public. The intensive exchange of pretrial discovery and the scientific and engineering studies led to the preliminary (Phase I) remediation settlement in 1989 and the final (Phase II) remediation settlement in 1997, at issue in this motion, described below, to provide for the cleanup of the GEMS landfill, financed by the responsible parties, over a 30-year period.

The 1997 Consent Decree

On June 27, 1997, the parties to the suit entered into a Consent Decree, which had been negotiated over an extensive period of time, undergoing a period of public comment and review and a hearing, during which time no objection was raised with respect to the proposed remediation plan for the landfill. The terms of the Consent Decree required the construction of a Groundwater Extraction System ("GWE") and an On-Site Groundwater Pre-Treatment ("OSPT") System as shown in the Pre-Trial Remedial Design Report which was attached to the Consent Decree, and the operation of the GWE and OSPT systems with discharge of the treated water to the GTMUA sewerage system for final treatment at the CCMUA. (Consent Decree, § V, ¶ 11, Trust App. Ex. A.) This remedial action, including the extraction and treatment of contaminated groundwater underlying the site, was selected by the EPA, with concurrence by the NJDEP, pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA" or "Superfund"), 42 U.S.C. § 9601, et seq.

The GTMUA Sewer Service Agreement

In addition, the GTMUA and the Trust executed a Sewer Service Agreement ("Sewer Agreement") on May 28, 1997, which permitted the discharge of treated effluent from the GEMS Landfill to flow through the GTMUA's sewage system, and required the Trust to pay a $400,000 one-time connection fee along with annual user fees. The Sewer Agreement was attached to and was made part of the Consent Decree, (Sewer Agreement, Trust App. Ex. B), and provides that the "Court having continued jurisdiction over the GEMS matter shall have jurisdiction over any disputes arising out of this Agreement." (Id. ¶ 39.) Paragraph 15 of the Sewer Agreement provides that the GTMUA has the right to utilize a "plug valve" to shut off the landfill flow to the GTMUA's system for situations deemed to be "emergencies," including, but not limited to, "overflowing of wetwells, main breaks, pump station failures, generator failures, pumping beyond allowable rates and Acts of God." (Id. ¶ 15.)

The Trust paid the $400,000 connection fee to the GTMUA in two installments, and also paid its connection fee of over $1.7 million to the CCMUA, receiving from the CCMUA a permit for discharge. (Lee Aff., ¶ 3, Trust's App.) In addition, as of June 1999, the Trust constructed the GWE and OSPT systems, according to the terms of the Consent Decree, and prepared to begin the one-year "start-up" phase. (Id. ¶¶ 3-4.)

The Discovery and Remediation of Radionuclides

Prior to the start-up phase, the CCMUA requested that samples of effluent from the landfill be analyzed for radionuclides. In late 1999 to 2000, a series of tests indicated low levels of radionuclides*fn1 in the wells of the landfill, raising concerns with federal, state and local agencies. The analysis indicated the low level presence of gross alpha and gross beta particle activity, causing the CCMUA to issue a Cease and Desist Order on June 15, 1999, prior to the start-up. (Cease Discharge Notice, 6/15/99, Trust's App. Ex. D.) The CCMUA subsequently informed the Trust that it was sending the radionuclide data to the EPA and NJDEP for confirmation that the radionuclide levels found in the discharge would be acceptable for the system. (Kricun Letter, 7/6/99, Trust's App. Ex. E.)

The Court convened a conference in March 2001, at which the Trust, the EPA, the NJDEP, and the CCMUA, agreed to negotiate a plan to proceed with a baseline study and trial operation of the OSPT, with the effluent going to the CCMUA. (Lee Aff., ¶ 8, Trust's App.) The parties were subsequently involved in nearly a year-long negotiations process, which also determined what levels of radionuclides would be permitted during the trial operation of the OSPT. In July 2000, the Trust's radiation expert Van Pelt Associates issued a report regarding the existence and concentrations of radionuclides in the GEMS area groundwater. (Lee Aff., ¶ 9, Trust's App.) The CCMUA also enlisted its own radiation consultant to develop a discharge standard for radionuclides. (Id.) In August 2001, the CCMUA consultant proposed a discharge limit for radionuclides which would be applicable to the GEMS discharge during the trial operation of the OSPT.*fn2 (Id.)

The CCMUA then proceeded to public hearings regarding the proposed radionuclide discharge limits as recommended by its experts. The CCMUA had developed a Work Plan that proposed to govern the discharge of the GEMS effluent to the CCMUA, having received input from the EPA and the Trust, but no response or feedback from the NJDEP. (Kricun Letter, 11/30/01, Trust's App. Ex. F.) The CCMUA then sent a letter to the NJDEP on August 31, 2001 stating its intention to apply the proposed standard to the GEMS discharge, giving it a 45-day period in which to comment. (Id.) After the 45-day period, the CCMUA again notified the NJDEP of its intentions on October 25, 2001. (Id.) The NJDEP replied by letter dated November 1, 2001, indicating that it had technical concerns regarding the CCMUA consultant's study, but stating that it would not share those concerns at that time. (Id.) The parties were unable to reach agreement on the standard to be applied. (Quinn Decl. ¶ 26.)

In fall 2002, the CCMUA adopted the more stringent drinking water standards (MCLs) as the standard it would apply to radionuclides associated with any discharge from the GEMS Landfill. (CCMUA Public Responsiveness Summary, October 2002, Trust's App. Ex. J.) The CCMUA notified the NJDEP and the EPA of its position that it would not accept the groundwater unless "all radionuclides are removed on-site to meet drinking water standards, and all other pollutants are removed on-site to meet normal industrial sewerage standards." (Id.)

Meanwhile, the Trust submitted an application to the NJDEP in the summer of 2001 to permit the discharge of treated effluent from the OSPT System by surface water to Holly Run on a trial basis, as a contingency plan in the event the sewer trial could not be realized. (Lee Aff., ¶¶ 11, 12, Trust's App.) The original proposed sewer trial would have provided for pre-treatment of the landfill and discharge of the water into the CCMUA system, whereas the contingency surface water trial would treat the water on-site and discharge it to Holly Run. A stipulation providing for a six-month sewer trial was submitted to the Court in March 2002, though a regional drought problem surfaced and the parties agreed to postpone the sewer trial. (Lee Aff., ¶ 14, Trust's App.) The parties thus agreed to implement a 90-day surface water pilot study, for which the Trust had previously obtained a surface water permit. The Trust additionally added a solids removal system to its OSPT system to facilitate the removal of suspended solids from the effluent. (Lee Aff., ¶ 15, Trust's App.) The discharge to the CCMUA consequently never occurred, while the temporary pilot discharge of treated effluent to Holly Run went forward. (Quinn Decl. ¶ 31.)

The surface water pilot study commenced on April 10, 2002, and continued for eight months.*fn3 (Lee Aff., ¶ 14, Trust's App.) During that time, in accordance with the pre-approved testing protocols, the Trust pumped and tested from the groundwater extraction wells, monitored weekly the readings they obtained of the effluent from and influent into the OSPT, and analyzed the levels of radionuclides in the treated groundwater. (Id. ¶ 15.) The Trust's engineering evaluation*fn4 of December 20, 2002 confirmed that the effluent from the OSPT System met drinking water standards ("MCLs") for radionuclides:*fn5

Radionuclides are below the permit equivalent limits, which are the same as drinking water quality for radionuclide parameters. Routine monthly reports are submitted to the USEPA and NJDEP pursuant to the agency-approved Work Plan for Discharge to Surface Water Pilot Study and the surface water discharge permit equivalent. These reports continue to show compliance with the permit equivalent limits including radionuclides, except for the non-radiological parameters [total dissolved solids, ammonia, and chemical oxygen demand] noted above.
Of note, the GEMS treatment plant effluent data have consistently demonstrated that with the addition of solids removal (rather than solids return as originally provided for in the constructed design), the plant is capable of meeting Maximum Contaminant Levels (MCLs, i.e., drinking water quality) as the radionuclide permit limits for a discharge to the CCMUA.

(Discharge Alternatives Evaluation, GEMS Landfill, at 2-1, Trust's App. Ex. I.) Thus, the engineering report found that radionuclides existed in low levels, met all the standards contained in the Permit received by the Trust, and furthermore, met the MCL discharge standard for radionuclides. (Id. at Figures 2-1, 2-2.) The final data generated in December 2002 further confirmed that radionuclides pose no risk.*fn6 (Lee Letter, 1/24/03, Trust's App. Ex. M.) The results of the pilot study measurements of radionuclides compared with the various possible regulatory parameters discussed above are shown in Table I:

TABLE I: Radionuclides Contained in GEMS Landfill Pretreated Effluent (2002-03 Pilot Study)

Radium-226 Radium-228 ...


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