NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. GRACE FOSTER

NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-2569-16T3

NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

        Plaintiff,

v.

GRACE FOSTER, GREGORY
FOSTER, and SHARON
FOSTER-GAUTIER,

        Defendants/Third-Party
        Plaintiffs-Appellants.

v.

NEW JERSEY TURNPIKE
AUTHORITY, COUNTY OF
BURLINGTON,

        Third-Party Defendant-
        Respondent.

___________________________________

              Argued March 1, 2018 – Decided May 16, 2018

              Before Judges Simonelli and Rothstadt.

              On appeal from Superior Court of New Jersey,
              Law Division, Burlington County, Docket No.
              L-2868-14.
          Patrick F. McAndrew      argued   the   cause   for
          appellants.

          Michael K. Plumb argued the cause for
          respondent (Chiesa Shahinian & Giantomasi, PC,
          attorneys; Michael G. Gordon and John A.
          McKinney, Jr., on the brief).

PER CURIAM

     Defendant Grace Foster, and her adult children, defendants

Sharon Foster and Gregory Foster, appeal from the Law Division's

order dismissing their third-party complaint under Rule 4:6-2(e)

for failing to state a claim upon which relief could be granted

against third-party defendant the New Jersey Turnpike Authority

(NJTA).   Defendants' claim arose from a complaint filed against

them by plaintiff the New Jersey Department of Environmental

Protection (NJDEP) under the Solid Waste Management Act (SWMA),


N.J.S.A. 13:1E-1 to -227, relating to the environmental cleanup

of defendants' property where Grace's1 late husband, Asa Foster,

operated a tire salvage and retreading business for many years.

The NJTA was a long-time customer of the business that delivered

tires to Asa's business for disposal.       Defendants alleged that

NJTA should be liable for any cleanup costs because of its delivery

of tires to the family business.     In response to the NJTA's Rule

4:6-2(e) application to dismiss, the motion judge concluded that


1
   We refer to defendants by their first names to avoid confusion
and for clarity. No disrespect is intended.

                                2                               A-2569-16T3
there was no legal basis to hold the NJTA liable for the claims

made by defendants.

     On appeal, defendants contend that the judge incorrectly

determined that the NJTA was not liable under the SWMA's Tire

Management and Clean Up Act (TMCUA), 
N.J.S.A. 13:1E-225(c).            We

disagree and affirm.

     The facts derived from the motion record are summarized as

follows.    Asa purchased a 93-acre tract located in Tabernacle, New

Jersey in the early 1950's.     In 1955, Grace purchased the property

from Asa.    Thirty years later, Gregory purchased a portion of the

property from Grace, and in 1994, Sharon purchased a portion of

the property as well.

     Asa operated a tire salvage and retreading business on the

property from 1950 through 1977 until he passed away and the

business    was   terminated.     Throughout   that   time,   the   NJTA

continuously brought tires to the property for disposal.

     The NJDEP began investigating the property in 1985, and issued

an Administrative Order to Grace for the unlawful disposing and

storing of solid waste "in the form of millions of discarded

automobile tires at the [property]."      Two years later, the NJDEP

issued an Administrative Order and Notice of Civil Administrative

Penalty Assessment (AONOCAPA), ordering Grace to "comply with the

1985 Administrative Order and assessing a $5000 penalty."            Ten

                                   3                            A-2569-16T3
years later, Grace entered into a Stipulation of Settlement with

the NJDEP to resolve the AONOCAPA, and "agreed to remove 250,000

tires from the   [property] every six months until all" tires

(approximately   one   million)   were   removed.     Despite    that

settlement, Grace remained noncompliant, and in 1998, the NJDEP

instituted an action to enforce the settlement.       A court found

Grace liable for the tire removal and ordered her "to comply with

the Stipulation of Settlement." Despite the court order, Grace

still failed to comply.

     Because Grace remained noncompliant, during approximately

2002 through 2005, third-party defendant Burlington County Waste

Management (Burlington) proceeded to shred the tires and remove

them from the property.    In 2004, Burlington made a request to the

NJDEP pursuant to the TMCUA, 
N.J.S.A. 13:1E-225(a), for $300,000

to recover the cost of the partial cleanup it completed and for

its continued performance.     The NJDEP approved the request and

paid Burlington that amount.

     After several years of defendants' continued inaction, on

November 26, 2014, the NJDEP filed a complaint against defendants,

pursuant to the TMCUA, to recover the amount it paid to Burlington

and for future costs associated with the tire removal and cleanup

of defendants' property.     In their complaint, the NJDEP alleged

that defendants were jointly and severally liable for the cost of

                                  4                          A-2569-16T3
removing the tires because the property constituted an illegal

waste tire site.

         Defendants filed an answer, denying their legal obligation

to remediate the property, and a third-party complaint.                In their

complaint, defendants claimed the NJTA was liable for dumping

tires on the property, and Burlington was liable for performing

an incomplete cleanup.

         Burlington and the NJTA moved to dismiss the third-party

complaint.      Defendants did not oppose Burlington's motion, but

filed opposition to the NJTA's motion and cross-moved for leave

to   amend    their   third-party   complaint.      The    proposed    amended

pleading alleged that defendants were entitled to "contribution

and damages" from the NJTA because it delivered the tires that

accumulated on defendants' property, making it a "responsible"

person under the TMCUA.          They also argued that the NJTA rather

than Grace was "more legal[ly] and moral[ly] responsible" for the

accumulated tires and, therefore, should be held liable.                     They

further contended that because the NJDEP failed to pursue the NJTA

as   a    responsible   party,    defendants     could    do    so   under    the

Environmental Rights Act (ERA), 
N.J.S.A. 2A:35A-1 to -14.

         At oral argument, defendants advanced the arguments set forth

in their proposed amended third-party complaint.               The NJTA argued

that it only delivered tires to Asa who "ran a tire business" and

                                      5                                 A-2569-16T3
his "business was to accept tires."          It also pointed out that

defendants' could not pursue a claim under the TMCUA as the act

was for the benefit of the NJDEP only, and the NJTA was not a

responsible party because it "had no right to enter the [property]

to control what happens with the tires."

     The    motion   judge   considered   counsels'   oral   arguments    on

October 9, 2015,      and granted defendants' cross motion to amend

its pleading, but granted Burlington's and the NJTA's motions to

dismiss the amended third-party complaint with prejudice.                The

judge found that under 
N.J.S.A. 13:1E-225, the NJTA did not meet

the definition of an "[o]wner . . . or the person responsible for

the accumulation of tires . . . ."         He explained that the "fair

meaning" of the person responsible for accumulating tires is the

"person operating" the site.

     After the judge granted the NJTA's and Burlington's motions,

the NJDEP and defendants entered into a settlement and a consent

order.     Pursuant to the settlement, the NJEP's complaint against

defendants was withdrawn; however, a $300,000 lien remained on

Grace's property to secure payment when the property was sold.

This appeal followed.

     On appeal, defendants argue that their third-party complaint

should not have been dismissed because it stated a viable claim



                                    6                             A-2569-16T3
against the NJTA based upon the plain language of the TMCUA, the

remedial purpose of the act, and the equities.            We disagree.

     We review de novo a trial court's order dismissing a complaint

under Rule 4:6-2(e), applying the same standard as the trial court.

Stop & Shop Supermarket Co. v. Cty. of Bergen, 
450 N.J. Super.
 286, 290 (App. Div. 2017).         That standard requires us to examine

the challenged pleadings to determine "whether a cause of action

is 'suggested' by the facts."         Teamsters Local 97 v. State, 
434 N.J. Super. 393, 412 (App. Div. 2014) (quoting Printing Mart-

Morristown v. Sharp Elecs. Corp., 
116 N.J. 739, 746 (1989)).                   We

must search the pleading "in depth and with liberality to determine

whether a cause of action can be gleaned even from an obscure

statement."   Seidenberg v. Summit Bank, 
348 N.J. Super. 243, 250

(App. Div. 2002).     "[I]t is the existence of the fundament of a

cause of action . . . that is pivotal[.]'"           Teamsters Local 97,


434 N.J. Super. at 412-13 (second alteration in original) (quoting

Banco Popular N. Am. v. Gandi, 
184 N.J. 161, 183 (2005)).

     "A   pleading   should   be    dismissed   if   it   states   no     basis

for relief and discovery would not provide one."              Rezem Family

Assocs., LP v. Borough of Millstone, 
423 N.J. Super. 103, 113

(App. Div. 2011).     Ordinarily, dismissal for failure to state a

claim is without prejudice, and the court has discretion to permit

a party to amend the pleading to allege additional facts in an

                                      7                                 A-2569-16T3
effort to state a claim.    See Hoffman v. Hampshire Labs, Inc., 
405 N.J. Super. 105, 116 (App. Div. 2009).

     We conclude from our de novo review that the motion judge

correctly determined that the NJTA was not liable under the TMCUA

for any cleanup costs related to defendants' property.       The plain

language of the act, under which defendants sought to impose

liability against the NJTA, simply does not apply to patrons or

suppliers of their family's business that was conducted from the

property.

     We begin our analysis of the statute in accordance with the

"well     settled   [principle]   that   the   goal    of    statutory

interpretation is to ascertain and effectuate the Legislature's

intent."    State v. Olivero, 
221 N.J. 632, 639 (2015).     The court's

"analysis of a statute begins with its plain language, giving the

words their ordinary meaning and significance."       In re Estate of

Fisher, 
443 N.J. Super. 180, 190 (App. Div. 2015); see also

Bridgewater-Raritan Educ. Ass'n v. Bd. of Educ., 
221 N.J. 349, 361

(2015).     "Statutory language is to be interpreted 'in a common

sense manner to accomplish the legislative purpose.'"         Olivero,


221 N.J. at 639 (quoting N.E.R.I. Corp. v. N.J. Highway Auth., 
147 N.J. 223, 236 (1996)).     "When that language 'clearly reveals the

meaning of the statute, the court's sole function is to enforce

the statute in accordance with those terms.'"         Ibid. (quoting

                                  8                             A-2569-16T3
McCann v. Clerk of Jersey City, 
167 N.J. 311, 320 (2001)).                 Courts

"need   not    look   beyond     the   statutory     terms   to    determine   the

Legislature's intent when the statutory terms are clear."                   In re

Rogiers, 
396 N.J. Super. 317, 324 (App. Div. 2007).                   "Only if a

statute is ambiguous do [courts] resort to extrinsic aids to

ascertain the Legislature's intent."            Ibid.

     The TMCUA states in pertinent part:

              The [NJDEP] shall recover to the use of the
              Tire Management and Cleanup Fund from the site
              owner or the person responsible for the
              accumulation of tires at the site, jointly and
              severally, all sums expended from the fund to
              manage tires at an illegal waste tire site,
              except that the department may decline to
              pursue such recovery if it finds the amount
              involved too small or the likelihood of
              recovery too uncertain.

              [
N.J.S.A. 13:1E-225(c) (emphasis added).]

     The   plain      language    of   the   TMCUA   does    not   indicate    any

intention by Legislature to permit anyone other than the NJDEP to

recover under the act.         Similarly, it limits liability only to the

"site owner" or anyone who permits "the accumulation of tires at

the site[.]"      Ibid.    The TMCUA makes no provision for a private

cause of action or any other means for a responsible person to

recover from third parties or any right to contribution.

     Applying the clear intent of the act here, the NJTA was not

a responsible party from whom the NJDEP or defendants could recover


                                         9                                A-2569-16T3
under the act.   The fact that the NJTA delivered tires to Asa for

disposal did not make it responsible for the accumulation of tires

at the site, as it had no control of what happened there after it

properly delivered the tires for disposal, and there was no

evidence that it directed Asa, in any fashion, as to what to do

with the tires once delivered.    It is apparent that Asa and his

business, until his death, were the sole "person[s] responsible

for the accumulation of [the NJTA's] tires at the site" while

Grace was the "site owner[.]"    Ibid.

     Even if defendants could establish that the NJTA was a

responsible party under the TMCUA, the statute does not provide

for a private cause of action that would support defendants' claim

under the act.   Contrary to defendants' arguments, no such right

can be inferred from the statute.        When a statute does not

expressly authorize private enforcement actions, our courts "have

been reluctant to infer a statutory private right of action where

the Legislature has not expressly provided for such action."   R.J.

Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 
168 N.J. 255,

271 (2001).   We apply a three-part test for determining whether a

statute implies a private cause of action:

          To determine if a statute confers an implied
          private right of action, courts consider
          whether: (1) plaintiff is a member of the
          class for whose special benefit the statute
          was enacted; (2) there is any evidence that

                                 10                        A-2569-16T3
           the Legislature intended to create a private
           right of action under the statute; and (3) it
           is consistent with the underlying purposes of
           the legislative scheme to infer the existence
           of such a remedy.

           [Id. at 272.]

     The undisputed facts in this case do not satisfy the test.

There is nothing in the act's language that indicates defendants,

as property owners, were intended to benefit from the TMCUA, or

suggests a private cause of action, or leads us to conclude that

the purpose of the act was to create a remedy for businesses to

pursue their customers or suppliers for contribution under the

circumstances presented in this case.    Rather, it is clear that

the purpose of the act was to enable the NJDEP to recover for

funds expanded to remedy problems that, as here, property owners

ignored.

     Turning to defendants remaining arguments, we find them to

be without sufficient merit to warrant discussion in a written

opinion.   R. 2:11-3(e)(1)(E).    We only observe that as to the

argument relating to the ERA, even if it was applicable, it was

undisputed that defendants failed to comply with the statutory

notice requirements that are a condition to bringing an action

under that act.   
N.J.S.A. 2A:35A-11.

     Affirmed.



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