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State, Dep't of Environmental Protection v. Gloucester Environmental Management Services

December 17, 2008

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: Honorable Jerome B. Simandle

OPINION

I. INTRODUCTION

This case involves the sixty-acre Gloucester Environmental Management Services, Inc. ("GEMS") Landfill, a federal Superfund hazardous waste site, located in Gloucester Township, Camden County, New Jersey, which remains under this Court's supervision as a thirty-year remedial program is underway. After extensive negotiations regarding the remediation of the Landfill, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, as amended ("CERCLA"), 42 U.S.C. § 9601, et seq., and other federal and state environmental laws, the parties to this action entered into a Consent Decree on June 27, 1997, which the Court approved pursuant to CERCLA. The Consent Decree required, inter alia, that the GEMS Phase II Trust (the "Trust," which is composed of representatives from various potentially responsible party group constituencies) undertake "the construction of a Groundwater Extraction System ("GWE") and an On-Site Groundwater Pre-Treatment ("OSPT") System . . ., and the operation of the GWE and OSPT systems with discharge of the treated water to the Gloucester Township Municipal Utilities Authority ("GTMUA") sewerage system for final treatment at the [Camden County Municipal Utilities Authority]." State of N.J., Dept. of Environmental Protection v. Gloucester Environmental Management Services, Inc., No. 84-0152, 2005 WL 1129763, at *1 (D.N.J. May 11, 2005). This extraction, pre-treatment, and treatment process commenced in July 2005, after the Court directed the CCMUA to issue a permit authorizing discharge of the pre-treated effluent, subject to "reasonable conditions for operations and monitoring." Id. at *25.

The landfill's pretreatment system has discharged effluent that has been rigorously tested for more than three years without a single parameter even approaching a permitted limit. Presently before the Court is the Trust's "motion to enforce litigant's rights" [Docket Item 2470], in which the Trust argues that the CCMUA's refusal to relax certain monitoring requirements set forth in its permit after three years violates the Court's direction that the monitoring requirements be reasonable. For the reasons set forth below, the Court will grant in part and deny in part the Trust's motion.

II. BACKGROUND

A. Enforcement of the Consent Decree

The extensive history of this decades-old case has been described in numerous prior opinions by this Court, see, e.g., GEMS, 2005 WL 1129763, at *1-*8; Dept. of Environmental Protection v. Gloucester Environmental Management Services, Inc., 264 F. Supp. 2d 165, 168-174 (D.N.J. 2003), and is reviewed herein only to the extent necessary to resolve the motion presently under consideration. Under the terms of the Consent Decree entered into by all parties to this litigation in 1997, groundwater was to be extracted from the GEMS Landfill and pre-treated at the OSPT, after which the OSPT-treated effluent would be discharged to the GTMUA sewer system for final treatment at the CCMUA. See GEMS, 2005 WL 1129763, at *1. Under the Decree, the extraction, pre-treatment, and discharge program, which was expected to take thirty years to complete, was to be operated by the Trust for the first ten years before being turned over to the NJDEP for continued operation. (Consent Decree ¶ 45.)

Ten years ago, the potential for radionuclides at the Landfill was a matter of particular concern. Prior to the startup phase of this treatment program,

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 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 . . . .

The detection of the low-level radionuclides prompted careful study, reconsideration and actual testing . . . . In fall 2002, the CCMUA adopted the . . . stringent national drinking water standards (MCLs) as the standard it would apply to radionuclides associated with any discharge from the GEMS Landfill. 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." The CCMUA therefore required that the pre-treated GEMS Landfill wastewater must meet the standards for drinking water (as far as radionuclides are concerned) before discharge to the CCMUA could be permitted . . . .

The Trust's engineering evaluation of December 20, 2002 confirmed that the effluent from the OSPT System met drinking water standards for radionuclides . . . . The final data generated in December 2002 further confirmed that radionuclides pose no risk to human health.

Id. at *2-*4 (footnotes omitted).

In April of 2003, owing to the CCMUA's withdrawal of its permit when the radionuclides issue arose, the Trust filed a motion with this Court to enforce the Consent Decree. The Court issued an Opinion and Order on May 29, 2003, which upheld the Consent Decree and directed the CCMUA, with the cooperation of the New Jersey Department of Environmental Protection ("NJDEP"), "to draft an appropriate proposed permit for the CCMUA's receipt of the pretreated effluent . . ., subject to the procedures for public notice and comment." See GEMS, 264 F. Supp. 2d at 173, 180.

After the CCMUA issued its draft permit, the NJDEP filed a motion to amend the Consent Decree, in which it argued that the discovery of even low-level radionuclides required the EPA to pursue alternative remedial measures at the Landfill, and the EPA filed a cross-motion to enforce the Decree. In its May 11, 2005 Opinion and Order, the Court denied the NJDEP's motion and granted the EPA's motion. See GEMS, 2005 WL 1129763, at *25. With regard to the NJDEP's concerns over the risk posed by the presence of radionuclides, the Court explained, in light of the CCMUA's adoption of EPA drinking water standards for pre-treated effluent, that the EPA's standards

reflect stringent safety concerns and employ the best available science by EPA for water that is intended to be consumed by the public. In this case, as demonstrated throughout the pilot study, the pretreated effluent from the GEMS Site will meet national drinking water standards for radionuclides. The water from GEMS would be pretreated and discharged to the CCMUA's regional sewage treatment system and is not meant to be ingested by the public and thus poses an even lesser threat to the public health than the small risk allowed by EPA for water that is intended to be consumed over a lifetime. Therefore, in insisting upon compliance with the national safe drinking water standards for radionuclides, the CCMUA would put into place the highest degree of protection for public health and safety . . . .

There is simply no basis for concluding that the pretreated effluent of the GEMS Site in general, or the radionuclide component in particular, will pose any measurable risk to the residents of Gloucester Township or of Camden where the regional treatment plant is located. The parties have continuously agreed that the radionuclides including uranium will be carefully monitored much like any other contaminant of waste, to assure that the GTMUA and CCMUA systems and the environment are not harmed in any way. These agreed upon procedures lead to the inescapable conclusion that the NJDEP has no reasonable basis for refusing to comply with its obligations under the Consent Decree.

Id. at *18, *22. The Court then "direct[ed] the CCMUA to issue the final permit forthwith, including reasonable conditions for operations and monitoring." Id. at *25.

B. The CCMUA Permit and Monitoring Parameters

In accordance with this order, the CCMUA issued the final permit on June 6, 2005, and extraction and pre-treatment of the Landfill groundwater commenced shortly thereafter. (Lee Cert. Ex. A.) The permit contains monitoring requirements for two broad categories of parameters: radionuclide parameters and nonradionuclide parameters. (Id. at 5, 7.) With regard to the first category, the permit requires weekly monitoring of five radionuclide parameters -- gross alpha, gross beta, radium-226, radium-228, and total uranium -- and sets forth maximum concentrations for each.*fn1 (Id. at 7.)

As to non-radionuclide parameters, the permit requires thrice weekly testing of a large number of organic and inorganic compounds and tentatively identified compounds ("TICS"), as well as weekly monitoring of certain additional pollutants. (Id. at 5, 6, 8.) With regard to those non-radionuclide parameters tested three times per week, the permit provides:

When three (3) months of sampling analysis, based on a frequency of three (3) times per week as listed in the Effluent Limitations and Monitoring Requirements Table fall below the maximum concentrations stated in the Final Industrial Discharge Permit, the permittee may apply for a reduced sampling schedule for those parameters listed as three (3) times per week, from three (3) times per week ...


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