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Navillus Group, General Partnership, and Jim Sullivan, Inc v. Accutherm Incorporated and Philip J. Giuliano

August 11, 2011

NAVILLUS GROUP, GENERAL PARTNERSHIP, AND JIM SULLIVAN, INC., PLAINTIFFS-RESPONDENTS,
v.
ACCUTHERM INCORPORATED AND PHILIP J. GIULIANO, DEFENDANTS, AND STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANT-APPELLANT, AND TOWNSHIP OF FRANKLIN, DEFENDANT-RESPONDENT.
NAVILLUS GROUP, GENERAL PARTNERSHIP, AND JIM SULLIVAN, INC., PLAINTIFFS-RESPONDENTS,
v.
ACCUTHERM INCORPORATED AND PHILIP J. GIULIANO, DEFENDANTS, AND STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANT-RESPONDENT, AND TOWNSHIP OF FRANKLIN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C-65-06.

The opinion of the court was delivered by: Skillman, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted January 25, 2011

Before Judges Yannotti, Espinosa and Skillman.

The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).

The issue presented by this appeal is whether the Industrial Site Recovery Act (ISRA), N.J.S.A. 13:1K-6 to -14,*fn1 establishes an alternative ground upon which a party who has obtained a final judgment in a tax foreclosure action under the Tax Sale Law, N.J.S.A. 54:5-1 to -137, may secure relief from the judgment based on environmental contamination of the site. We conclude that the Tax Sale Law provides the exclusive grounds upon which a tax foreclosure judgment may be vacated. Therefore, we reverse the judgment of the trial court that relied upon ISRA in vacating a tax foreclosure judgment.

I.

During the period between 1984 and 1992, defendant Accutherm engaged in the manufacture of laboratory-grade thermometers on its property, which is located in Franklin Township, Gloucester County. As part of this manufacturing operation, Accutherm stored twenty to twenty-five pounds of mercury on the site.

In 1988, the Department of Environmental Protection (DEP) determined that there were industrial pollutants, including mercury, in Accutherm's septic system. Consequently, the DEP directed Accutherm to pump its septic system.

In 1990, the Occupational Safety and Health Administration (OSHA) conducted two investigations, evidently in response to employees' complaints of illness, and discovered mercury vapor levels on the site that exceeded OSHA limits. Accutherm attempted to address this problem by renovating its ventilation system, but was not able to conform to OSHA standards.

Due to the cost of compliance with DEP and OSHA requirements, Accutherm ceased operations in 1992 without performing a cleanup of the mercury contamination on its property. In 1994, Accutherm filed a bankruptcy petition, but apparently was never discharged from bankruptcy due to the environmental problems at the Franklin Township site.

After becoming insolvent, Accutherm stopped paying real estate taxes, and Franklin Township sold a tax sale certificate to a bank. However, the bank did not take any steps to foreclose on that certificate.

In 1995, the DEP requested the Environmental Protection Agency (EPA) to inspect the site to determine its eligibility for a federally-funded cleanup. This request resulted in two visits to the site by EPA inspectors, who subsequently issued a report, dated January 16, 1996, entitled "Mini Pollution Report." The EPA inspectors reported that they had found 500 to 1000 thermometers in boxes and on shelves, which appeared to be intact. The inspectors also found small amounts of mercury on the floor, on a countertop, and in a vial. The inspectors' testing of "wipe samples" from fourteen locations revealed two that exceeded the DEP's mercury limits. Based partly on its finding that the building, which was not in active use at the time, was "structurally sound and secure," the inspectors concluded that "the site does not present an immediate threat to human health or the environment."

The DEP subsequently determined, relying upon the EPA inspectors' findings, that the Accutherm site was not a priority for cleanup and placed it on the Known Contaminated Site List, designated as "pending assignment."

In 1997, Franklin Township sold a second tax sale certificate for the property to the same bank to which it ...


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