NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. BORO AUTO WRECKING COMPANY, INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4920-04T34920-04T3

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Plaintiff-Respondent,

v.

BORO AUTO WRECKING COMPANY,

INC., a New Jersey Corporation,

and Fred Errickson,

Defendants-Appellants.

__________________________________

 
Argued Telephonically September 21, 2006 -

Decided October 24, 2006

Before Judges Lefelt, Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No.

MID-C-1739-89E.

Craig S. Provorny argued the cause for appellants

(Herold and Haines, attorneys; Anthony J. Reitano,

of counsel; Mr. Provorny, on the brief).

Frank X. Cardiello, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Acting Attorney General of New Jersey, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Cardiello and Jennifer Killough Herrera, Deputy Attorney General, on the brief).

PER CURIAM

Defendants Boro Auto Wrecking Company, Inc. (Boro Auto) and Fred Errickson appeal from General Equity Part orders dated February 4, 2005 and April 29, 2005, permitting plaintiff New Jersey Department of Environmental Protection (DEP) to conduct

environmental remediation on defendants' contaminated junkyard property in South Plainfield; restraining defendants from engaging in remediation on their own or otherwise interfering with DEP's clean-up efforts; and enjoining defendants' business operations on the site, except for non-ferrous recycling activity confined to the southwest corner of the property, for eighteen months or until the DEP clean-up has been completed. Defendants contend the trial court failed to conduct an evidentiary hearing, make specific findings of fact, or properly balance the factors for injunctive relief. We disagree, and affirm.

This matter dates back twenty years when in June 1984, a spill of transmission and crank case oil from defendants' auto junkyard operation on their four-acre site was reported to DEP. Following its investigation, N.J.S.A. 13:1D-9d, on December 20, 1984, DEP issued a directive to defendants, pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to

-23.24 (Spill Act), to abate the discharges of hazardous substances at and from the Boro Auto Property, to remediate the soil and surface water contaminated by the discharges, and thereafter, to prevent any ongoing operations from further injuring the environment. N.J.S.A. 58:10-23.11f.a.

Defendants failed to fully comply with the 1984 directive. In May 1986, DEP conducted sampling at the site, and confirmed the presence of hazardous substances, including compounds of polychlorinated idphenyls (PCB) and petroleum hydrocarbons in the soil. As a result, on March 13, 1989 - the same year defendants began operating a ferrous and non-ferrous scrap metal salvage business on the site - DEP filed a verified complaint and order to show cause against defendants in the Chancery Division, alleging violations of the Water Pollution Control Act, N.J.S.A. 58:10A-1 to -20 (WPCA), the Spill Act, and public nuisance. DEP sought an order directing defendants to remediate the site, and statutory penalties for violations of the Spill Act and the WPCA. By order of April 14, 1989, the General Equity judge granted DEP temporary injunctive relief, enjoining defendants from discharging hazardous substances or pollutants into the ground or into the waters of the State; a preliminary injunction, requiring immediate termination of defendants' junkyard/auto dismantling activities at the site; and eventually, on June 28, 1990, statutory penalties under the WPCA and Spill Act, which on appeal were modified.

DEP's March 13, 1989 complaint was the genesis of protracted litigation between the parties resulting, throughout the years, in a series of court orders, consent judgments, and administrative consent orders (ACOs) identifying the cause, nature and extent of the contamination and detailing the work required of defendants to complete the environmental remediation. As will be explained, these requirements, as of the date of DEP's instant motion in aid of litigant's rights on November 17, 2004, remained unfulfilled.

Specifically, a March 16, 1990 ACO set forth, among other things, a detailed plan for the remediation, including installation of stormwater containment measures. When defendants failed to comply with the March 1990 ACO, DEP filed a motion in aid of litigant's rights, which resulted in a May 29, 1997 consent judgment ordering defendants to obtain financing "for the purpose of designing and constructing a cap and appropriate oil/water management system" pursuant to the terms of the consent judgment and the March 1990 ACO. The consent judgment further established a 300-day time frame for completion of the remediation that began to run from the day on which the defendants obtained the financing also required therein.

Defendants did not perform the installation of either the site cap or the stormwater management system within the 300-day time frame. Consequently, defendants entered into another ACO with DEP on June 3, 2003 (June 2003 ACO), which acknowledged that the 1998, 1999 and 2000 annual DEP inspections rated the site unacceptable due to defendants' failure to prevent and clean-up spills and other violations and deficiencies that might result in the pollution of stormwater. The June 2003 ACO ordered defendants to construct, install, and operate a stormwater management system by September 1, 2004, and an impervious site cap by November 1, 2004 The ACO also provided for stipulated penalties to be paid by defendants.

Thereafter, in a series of correspondence, DEP advised defendants of their failure to meet implementation schedule milestones as well as the technical and administrative requirements of the March 1990 ACO, the May 1997 consent judgment, and the June 2003 ACO. DEP's concern was heightened by the continuing widespread contamination across the site; the presence of large stockpiles of debris found during a May 2003 inspection, which DEP required defendants to dispose of properly; the failure of defendants to commence soil screening and sampling as of DEP inspections on June 15, 2004 and October 21, 2004; and the finding from a September 15, 2004 inspection that stormwater discharges to surface and groundwater were unacceptable.

Consequently, by letter dated June 21, 2004, DEP advised defendants of its expectation that all of the remedial activities would be completed and the cap and oil/water management systems would be in place and operational by November 1, 2004. By letter dated October 6, 2004, the DEP Commissioner advised defendants of the DEP's concern with the lack of significant progress in undertaking the necessary remedial work, and that DEP would move to enforce the provisions of ACOs should defendants fail to perform the necessary work by the November 1, 2004 deadline.

When defendants missed the deadline after their request for an extension had been denied, DEP filed the instant motion in aid of litigant's rights on November 17, 2004, seeking an order granting DEP access to conduct environmental remediation on the site, and an injunction restraining defendants from operating at the site and interfering with DEP's clean-up work. In a certification filed in opposition to the motion, the project manager overseeing defendants' clean-up operation opined that defendants could complete the necessary remedial work by July 30, 2005.

After negotiations between the parties proved unsuccessful, the General Equity judge heard oral argument on DEP's application on February 4, 2005, at the conclusion of which he found:

Boro simply engaged in activities that were not consistent with the agreements that they entered.

DEP argues that, notwithstanding Crowe v.

De Gioia, there is a violation here. And - there's a violation of those acts, which I previously referenced during my recitation of the facts. And that, in light of those violations, there is no necessity for DEP to meet the Crowe standard.

But I find that there is a reasonable probability of success on the merits of this case. I find that the public may suffer irreparable harm if the site is continued to exist in its current condition.

And in balancing the hardships, the hardships favor in light of the public and the public health.

I think that the defendants have been given sufficient and substantial time to remediate this site and have simply failed to do so.

So accordingly, I'm going to give DEP the right to enter the property and to perform the remediation at the property.

Judge Francis entered an order that same day granting DEP unfettered access to defendants' property to conduct the remediation within an 18-month deadline, and enjoining defendants from conducting any business operations thereon, interfering with DEP's clean-up activities, or doing any clean-up of their own without the express consent of DEP.

On defendants' motion for reconsideration, the trial court conducted an evidentiary hearing on that portion of the February 4, 2005 order enjoining defendants from conducting any business operations at the site. Following three days of hearings, on April 29, 2005, the trial court amended the February 4, 2005 order to permit defendants to conduct limited non-ferrous metal recycling operations at a section of the site while DEP completed the remediation. This appeal follows.

As a threshold matter, we reject DEP's mootness argument that because its remedial activities are completed, there is no longer any remaining controversy between the parties. We are satisfied that the issues to be resolved in this appeal remain in dispute and thus there is genuine and concrete adversity between the parties. See Advance Electric Co. v. Montgomery Township Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div.), certif. denied, 174 N.J. 364 (2002). Moreover, issues concerning the standards and procedural requisites for statutory injunctive relief appear to be of substantial importance to both parties, Gross v. Ocean Twp., 92 N.J. 539, 541 (1983), and capable of repetition. Advance Electric Co., supra, 351 N.J. Super. at 166. In any event, resolution of these issues may well be germane to the likely collateral consequence of future litigation between the parties. See Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 97 (App. Div. 2000). We therefore proceed to a discussion of these issues.

(i)

Defendants first complain that the matter proceeded summarily without an evidentiary hearing. We are satisfied, however, that the matter proceeded in accordance with applicable court rules and governing statutory provisions.

Pursuant to Rule 4:67, a trial court may adjudicate matters in a summary manner where authorized by statute or rule to do so. DEP's enabling legislation as well as the Spill Act expressly authorize it to seek injunctive and other relief in summary proceedings brought in the Superior Court. N.J.S.A. 13:1D-9(e); N.J.S.A. 58:10A-24.6a. However, even without such explicit statutory authorization, it is clear that a state administrative agency may seek enforcement of a written order or determination entered by it, whether final or interlocutory, in a summary proceeding. R. 4:67-6; see also Matter of Valley Road Sewerage Co., 295 N.J. Super. 278, 290 (App. Div. 1996), aff'd, 154 N.J. 224 (1998).

A summary action is, of course, not a summary judgment proceeding. In a summary action, findings of fact must be made, and a party is not entitled to favorable inferences such as are afforded to the respondent on a summary judgment motion for purposes of defeating the motion. O'Connell v. N.J. Mfrs. Ins. Co., 306 N.J. Super. 166, 172 (App. Div. 1997), appeal dismissed, 157 N.J. 537 (1998). See also Courier News v. Hunterdon, 358 N.J. Super. 373, 378-379 (App. Div. 2003) (distinguishing summary proceedings from summary judgment).

Despite the clear authority of the court to decide the matter summarily, Rule 1:10-3; Board of Educ. v. Middletown Educ. Ass'n, 352 N.J. Super. 501, 508 (Ch. Div. 2001), defendants nevertheless contend that an evidentiary hearing beyond consideration of the filed certifications was required here because there were issues of fact concerning any continuous discharges of hazardous substances from defendants' site and any DEP actions in inhibiting defendants from completing their cleaning of the site. We disagree. Whatever the extent of the disputes over these issues, they were neither genuine nor material to the validity of injunctive relief. As the trial judge clearly found, defendants had not taken any "significant action" in terms of the remediation of the site and there was nothing in the record to refute this finding. For example, defendants by their own admission were not able to meet the final agreed-upon deadline of November 1, 2004 to clean up and cap the site and install a system to capture contaminated stormwater, as required by DEP. As a result, the soil was still contaminated more than the acceptable limit in October 2004. Defendants also do not dispute the fact that the discharge of hazardous substances occurred as early as 1984; that the remediation process has not been completed despite the passage of twenty years; that the site remains unsafe as it is outside of compliance with DEP's requirements; and that they failed to comply with controlling court and administrative orders. Under the circumstances, in enjoining defendants' failed clean-up effort in favor of DEP's remediation, Judge Francis properly proceeded in a summary manner without conducting an evidentiary hearing. N.J.S.A. 13:1D-9(e); N.J.S.A. 58:10A-10(c); N.J.S.A. 58:10-23.11u; see also In re Kimber Petroleum Corp., 110 N.J. 69, 75, appeal dism. sub. nom., Kimber Petroleum Corp. v. Daggett, 488 U.S. 935, 109 S. Ct. 358, 102 L. Ed. 2d 349 (1988).

(ii)

Contrary to defendants' final contentions, we are also satisfied that the court made the requisite findings of fact in accordance with Rule 4:52-4, and applied the proper legal standard in awarding injunctive relief.

It is clear that our review of an order for injunctive relief "is limited to determining whether the trial court abused its discretion." Bubis v. Kassin, 353 N.J. Super. 415, 425 (App. Div. 2002) (quoting Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 137 (1994); Sheppard v. Frankford, 261 N.J. Super. 5, 9-10 (App. Div. 1992). We are also limited in our review of a judge's factfinding, only deciding whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence in the present record. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); see also Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974).

Governed by these standards, we find sufficient evidence in the record to support the judge's findings and no mistaken exercise of discretion in the application of these facts to the legal standard.

There is clear statutory authority for the issuance of injunctive relief to prevent violations of our environmental laws, specifically the WPCA, N.J.S.A. 58:10A-10(c), and the Spill Act, N.J.S.A. 59:10-23.11u.b., to protect the public health. See also N.J.S.A. 13:1D-9(e). Actual harm or direct injury to the public health or environment need not be shown to enjoin a violation of our environmental laws. State Dep't of Envt'l Protection v. Interstate Recycling, Inc., 267 N.J. Super. 574, 577-578 (App. Div. 1993) (citing Hoffman v. Garden State Farms, Inc., 76 N.J. Super. 189, 201 (Ch. Div. 1962)). Rather, the Legislature has fashioned an injunctive remedy designed to be "preventive" and intended to "restrain acts which tend to produce public injury." State v. Wheeler, 44 N.J.L. 88, 96 (Sup. Ct. 1882).

Defendants' argument that there have been no new or recent discharges of hazardous substances on the site misses the point. No one disputes DEP's finding of a "strong likelihood that any hazardous substances contained within the soil mixture in the massive soil pile [and within the soil mixture of two smaller piles] [may end up] running off and leaching out onto the ground, and/or migrating into the groundwater . . . ." Thus, injunctive relief was warranted here if only because defendants' continuing violation of court and agency orders and their failure to timely remediate presented a substantial likelihood of harm to the public.

Injunctive relief was also supportable under the traditional analysis of Crowe v. De Gioia, 90 N.J. 126 (1982). As the trial judge found:

there is a reasonable probability of success on the merits of this case. I find that the public may suffer irreparable harm if the site is continued to exist in its current condition.

And in balancing the hardships, the hardships favor in light of the public and the public health.

I think that the defendants have been given sufficient and substantial time to remediate this site and have simply failed to do so.

So accordingly, I'm going to give DEP the right to enter the property and to perform the remediation at the property.

Indeed, it was undisputed that the March 1990 ACO contained factual findings that the soil and groundwater at and underlying the site were contaminated as a result of the operations at the site during the 1980's. The soil sampling revealed the presence of hazardous substances, specifically, petroleum hydrocarbons at concentrations reaching 160,000 parts per million, and PCB compounds, at concentrations up to 13,941 parts per billion (ppb) and 21,928 ppb, respectively. Moreover, a sampling conducted by one of defendants' own consultants revealed that the on-site PCB contamination area had expanded. And a September 28, 2004 DEP site investigation found discharges of rain water with an oily sheen to a municipal storm sewer, carrying potentially contaminated rain water into the municipal drain system. Thus, DEP's showing of irreparable harm, even though not required, warrants the injunctive relief challenged on appeal.

Lastly, we simply note that defendants' concerns over the nature, manner, scope and costs of DEP's remediation effort are not properly before us on this appeal and are more appropriately the subject of any putative cost recovery action that DEP may initiate pursuant to the Spill Act.

Affirmed.

 

An interim consent order was entered on June 5, 1992, allowing defendants to accept and crush car shells at its facility, but not those containing hazardous materials.

Defendants sought emergent relief from this court, requesting a stay of the February 4, 2005 order to the extent the trial judge denied the motion for reconsideration seeking to vacate the decision permanently enjoining defendants from conducting the remediation and directing DEP to take over the performance of the remediation. We denied the application for emergent relief.

(continued)

(continued)

15

A-4920-04T3

 

October 24, 2006