*1 as to their of a reasonable belief damage because sanction achieved, the Legislature’s goal will not be non-liability, poison forthcoming, the will not be removed. not be money will arrange for an society powerless is that I do not believe by forcing those who have cleanup of these sites immediate up I not cleanup front. do damage pay for that caused legislative goal of only method which that believe through general taxation. is cleanup can be achieved immediate today’s That, unfortunately, the result of decision. goes of the mark its the Court wide suggest I that damage holding cause little today’s will conclusion sites immedi- up clean hazardous waste Legislature’s effort to unprecedented reckon with the Today’s decision does not ately. There is no facing this state and its citizens. of the risk nature self-preserva- attempt at interference with this judicial room infirmity justify could Only the clearest constitutional tion. finds, most, none, at I find and the Court today’s result. statute to be I would allow this a defect exists. “maybe” such as written. enforced CLIFFORD, For modified—Justices affirmance
HANDLER, O’HERN, and STEIN—5. GARIBALDI Justice WILENTZ—1. Dissenting—Chief SERVICE COMPANY THE MATTER OF THE J.I.S. INDUSTRIAL IN COMPANY; LANDFILL; AND J.I.S. INDUSTRIAL SERVICE CORPORATION; AND DONALD J.I.S. INDUSTRIAL SERVICE JONES, W. INDIVIDUALLY. 18, 1986 April Argued Decided November *2 Indus- argued appellants, cause for J.I.S. James E. Stahl Co., (Borrus, Goldin, Foley, Vignuolo, trial Service et al. Stahl, Anthony Hyman attorneys; Vignuolo, & B. briefs). Lewin, General, Attorney argued the cause Deputy
Ross A. Jersey, Environ- respondent, Department New State of (W. Edwards, Cary mental Protection Attorney General of Ciancia, Jersey, attorney; New Attorney James J. Assistant General, counsel, Covino, Ross A. Lewin and John A. General, briefs). Deputy Attorney on the James submitted W. Christie a brief on behalf of amicus curiae, Township Burr, (Griffith, Gloucester Angelini & Viniar, attorneys). Hyatt,
William H. Jr. William J. Friedman submitted a curiae, brief on behalf of Study Group, amici Woodland Minne- Mining sota Manufacturing Company and Rohm and Haas Company Hardin, (.Pitney, Kipp Szuch, attorneys). & opinion Court was delivered
HANDLER, J. Company J.I.S. Industrial Service and J.I.S. Industrial Service Corporation (JIS) disposed of hazardous nearly substances for twenty-five years at a landfill in Township. South Brunswick 19, landfill was closed May court order in 1980. On 1986, Jersey Department the New of Envirnomental Protection (DEP) $700,000 pay directed JIS to to the DEP to fund a investigation remedial feasibility study. and type study This is used to determine the groundwater nature and extent of contamination, and is the step cleanup standard first in a program. pay ordered to the thirty amount within days. DEP 21, extended the July deadline until 1986. In the meantime JIS had Appellate moved the stay. Division for a 10, That motion was July denied on stay O’Hern, JIS moved for a sitting before Justice Daniel J. single as a justice. In July an order dated Justice grant O’Hern stay declined to a of the directive because of the possible danger groundwater the posed contamination to the public. did, however, Justice stay any imposition O’Hern damages noncompliance treble for until the full Court had the opportunity to Spill consider whether damages the Act’s treble provisions appellants’ process violated the rights by deny- due
104 judicial any opportunity to seek review of ing effective them the full Court modified the the directive. On October order, thirty days pay to within the requiring appellants interim satisfactory to imposed by the directive or furnish securi- costs amount, seeking DEP enjoining the from treble ty that for pending disposition appeal. of the The full Court’s damages appeal pending then directly also certified the before order companion appeal with Appellate Division to consider (1988), Kimber, also which we decide case of IMO N.J. today. February 20, the DEP amend- were
We advised to JIS to reflect a revised cost estimate of ed its directive investigation $583,473. As the DEP then a result of further parties it re- identified twelve additional who believed shared sponsibility discharge at for the of hazardous substances directive, supplemental to dated landfill. This led March 27, 1987, ordering parties pay these the DEP the amount investigation feasibility study. for remedial needed parties then entered into an administrative Eleven these making provision required funding consent order under acceptable them mutually terms DEP. entry As a the DEP result the Consent Order longer public no in this anticipates the need to use funds case. damages parties It longer therefore no treble from the seeks comply directive in who failed with the initial this matter. funds, Thus, providing actually DEP receives these *4 Nevertheless, technically this matter will become moot. moot outweigh ness does not need to review this matter. While ordinarily we moot due to refuse examine matters our legal reluctance render decisions the abstract and our see, resources, judicial e.g., desire to v. conserve New Oxfeld 301, (1975); Jersey of Educ., State 68 N.J. 303-04 v. Bd. Sente 204, Clifton, (1974), 66 we rule will on such matters N.J. 205 they importance capable where are of and are of substantial yet See, repetition Conroy, e.g., evade review. Matter 98 of
105 Rivera, (1985); 321, Guttenberg & Loan Ass’n v. 342 Sav. N.J. (1981); 617, Bd. Educ. v. Dunel 622-623 Dunellen 85 N.J. of Ass’n, (1973). issue The matter at N.J. len Educ. category. compelling public of It is a matter falls into this any capable repetition since costs and importance cleanup measures at the landfill investigative and/or additional by the Administrative Con expressly not been addressed have sent Order.
I. long history. For dispute parties these has between closed court years—until the landfill was twenty-five about Jones, former Donald its 1980—JIS and order December disposal of hazardous sub- and allowed the principal, directed included These hazardous substances at the landfill. stances organic volatile petroleum hydrocarbons, various pesticides, wastes and substances. and other chemical substances ground water 26,1975, DEP JIS to install August ordered On disposing wells, had been monitoring on the fact that JIS based samples analysis of facility. DEP’s chemical waste at the order issued on departmental in a from the wells resulted taken disposal of improper which stated December at the JIS and debris petroleum products, hazardous substances state. groundwaters of the posed a real threat to site was, therefore, operations landfill to cease its ordered removal of specifications for the plans and submit disposed the containment previously of “and/or materials disposed materi- from said any liquid all leachate or runoff al.” against brought suit January DEP
On Division, County. The suit Middlesex Chancery Jones operation of the land- prohibiting continued sought injunctions containers, hazard- pesticides, contaminated disposal fill and DEP wastes, semi-liquids. wastes, liquids or chemical bulk ous items, for, the immediate among other sought an order also *5 removal of all specifications for the plans and submission or, alternatively, the contain- for waste previously-deposited the immediate submission or runoff and ment of all leachate from the for of contaminants specifications removal plans and to the were issued limited Temporary restraints ground water. wastes, pesti- wastes and only industrial disposal of chemical cides, contaminated containers. or 17,1976, disapproval notice of of JIS’s DEP issued a
On June design data lacked designs because the submitted engineering hy- filling geological and procedures, sufficient information and treatment and a leachate collection drological conditions registra- the notice was to revoke JIS’s system. The effect of request facility. did not an operate its solid waste tion disapproval. on the notice of administrative Chancery in the Division went to trial pending The suit case, presented parties 1977. After DEP had its June settlement, set forth in a document dated June reached a Operation of the “Requirements entitled for Continued (hereinafter Disposal Facility” referred to as Solid Waste Document”). “Requirements Requirements Doc- judgment included in the order for on June uments was operation expressly only not that the JIS would 1977. It stated engineering requirements operational have meet all but, addition, regulations in DEP’s found “[d]ue geological hydrological sensitive conditions associated with site, specific requirements there are some that must be (Emphasis operation this site.” add- made continued for ed). alia, site-specific requirements set forth in the Inter were: Document borings areas 1. JIS was to take a minimum of 36 on the landfill to establish fill. Detailed 2. of solid waste the future must be on lines areas. Disposal virgin non-virgin are set forth for specifications [previously unfilled] areas. [previously filled] 3. Installation of leachate collection and treatment proper system. staging 4. Provision of a solid waste disposal. system Capping inches of of the landfill with 18 inches and 6 soil. clay *6 drainage designed ditches runoff. rapid on-site promote 6. Construct existing groundwater This pollution problem. requirement the 7. Remedy divided 2 was into phases. Phase groundwater or so that it treated on-site off-site. the can be a. Pump ground water wells to collect treat contamination by b. Provide sufficient groundwaters leaving the are not in a manner site Landfill such JIS background contaminated quality. beyond Phase 2—Minimize leachate production by: area; waste to lined or Removal of solid deposited a. previously with 10 to the solid waste 18 inches clay, permeability b. Grade the cap negative 7th 6 inches of soil. top power phases Requirements represented Documents The two of the operation have to the of the exactly what would do for fill, existing respectively. closure of the landfill and for the Requirements expressly “[a]ny stated that addi- The Document filling upon the effectuation of solid waste conditioned tional remedy existing ground pollution problem.” for the water 28,1977, DEP for relief in aid of September filed a motion On operations rights, seeking prohibition disposal all at litigant’s requiring implementation of a facility and immediate the JIS program Requirements forth pollution abatement set motion, granted directing that Documents. The trial court 24, disposal operations cease effective October given was until The closure was later vacated and JIS order 12, 1977, by plans required the June December to submit the 1977, 27, plan both in terms of order. DEP found deficient problem. proposed design pollution On landfill and the 4, seeking 1978, filed closure of January DEP another motion plan complying closure facility the JIS until JIS submitted a Requirements with the Document. hearing ordered administrative
The trial court then an disapproval engineering design by JIS. DEP’s submitted hearing June May This conducted 1978. On decision, adopted report DEP officer’s as its final determining require- several of the had failed to meet Requirements appealed ments set in the Document. JIS forth and, determination, unpublished opinion, in an DEP appeal dismissed the and remanded the Appellate Division Division, Chancery for a determination whether matter to concerning compliancewith its order of June DEP’s decision 1977, was correct. 28,1980, seeking May again closure of
DEP filed a motion on pollution implementation of the abatement the JIS landfill until Documents, remedy forth in the as embodied set plans in the order of June and submission granted relief compliance that order. trial court with concerning DEP immediate commencement of the sought *7 27, 1977, program set forth in the June pollution abatement met. In specific time deadlines to be October order ordered 12, 1980, 1980, permitted until the court December Documents of plans consistent with submit 27, met and the landfill 1977. This deadline was not was June seeking a notice of motion relief form ordered closed. JIS filed denied, closure, observing was the court that “to which reopening purposes allow the now for the of solid waste landfill concession, seem, dumping would be an unwarranted it would dereliction, verging contempt, of the in view of the Court’s previous orders.” closed,
Although obligated the landfill was JIS remained 1977, 27, under the order of June and the orders issued subse- thereto, quent prevent groundwater further contamination. 13, 1980, proposed ground On October JIS submitted a water plan. ground expert treatment A DEP water concluded that it conceptual proposal “in than a and as such is was fact more general approval.” that more far too for an He noted “[m]uch required requested promptly.” data is and should be 10, 1982, enforce On March DEP filed a notice of motion to 1982, 27, 1977, 27, provisions April of the June order. On engineering plan the court an for resolu- ordered JIS to submit ground problem Require- in the tion of water described 8, by May an ments Documents 1982. JIS did not submit Rather, proposal plan. it submitted a to conduct engineering addition, study. In it resubmit- 90-day ground treatment water revision, engineering plan sub- ted, first two-page awith 1977, rejected by had DEP and which been mitted December the court. that conceptually approved, DEP noted plan was
While the general, impossible for DEP to very it is the outline “because proposal specific DEP noted that more evaluation.” submit contamination, presence testing provide for off-site did not chemicals, plume or the size of the of contamina- of non-volatile plan conform with the DEP also noted that the did not tion. 1982, April provide it did not order of because court’s ground designs for of the contaminated engineering treatment water, upon in agreed the order June August JIS moved to have the closure order vacated. In motion, stating: The trial court denied Judge with JIS’s Furman was sufficiently It was clear impatient penalizing he so that sufficiently as to make ... an order performance generate has That not hope it would immediate positive hoped response. been realized. fully an order December DEP issued administrative On Jones, long-standing on his concluding that Donald based integrity to necessary noncompliance, “lacks moral record requested operate facility.” waste A a solid Law. the Office of Administrative before *8 January applied Jersey for a New Pollution In necessary Discharge System permit, Elimination for commence- ground ninety-day pilot study treatment of the ment of the 9, 1983, approved DEP On March water contamination. expressly approval stated that continued ninety-day study. The discharges period ninety-day after the would be submit to filing granting appropriate permits. of appoint- a notice motion for the
In June DEP filed of operations and assets. ment of a receiver for the JIS solid waste to any take action either alleged DEP that JIS had failed to study ground treatment or begin proposed ninety-day water cap heard, to the landfill. Before the motion was JIS initiated ninety-day ground study began water treatment im- provements at the landfill. The court denied the motion for prejudice receiver without to its later if necessary. renewal upon Based analyses chemical samples numerous water site, taken at and about the JIS there has been and continues to ground be substantial contamination of the water under the property. Requirements Document, which was embodied 27, 1977, in the court’s order of June confirms the existence ground a pollution problem. water
The administrative on DEP’s administrative order of 10, 1982, December was conducted in October and November Addressing JIS’ contention that the merely represented Document an outline specific rather than requirements, the judge administrative law stated: I must note there that whatever the merits of these defenses in a vacuum, it is ignore clear that fairly JIS bound itself in the they document requirements objecting. meet of the criteria to which it many
[********] If JIS had or about its doubt about the wisdom of any the criteria any responsibility groundwater overall system, install a decontamination it ought judgment. added). not (Emphasis have entered into the consent The AU issued an finding Initial Decision that DEP was entitled to registration revoke the collector/hauler of JIS and to deny its application. transfer station He also held that the DEP could registration not revoke the for the landfill since the landfill was already closed. On the issue of Donald Jones’ engage fitness to activities, that, solid waste the AU ruled “purely law,” as a matter of DEP was not entitled finding upon unfitness based the state of the law at that time. Former DEP Hughey Commissioner adopted the Initial Decision with was, fact, modification that DEP finding entitled to Jones was appealed. unfit. JIS
On December Appellate Division issued a deci- sion that affirmed DEP’s closing orders the landfill and deny- ing the permit. transfer station The decision modified the
Ill Final Decision and allowed set forth the general debarment opposed the JIS collector/hauler—as to continue Donald Jones expressly Appellate Division found The landfill—business. to by appel- reasonably specific default documented “sufficient Chancery the DEP and the and Jones of orders of JIS lants departmental orders agreement substantiate settlement permit.” denying station closing and the transfer the landfill background DEP issued a directive against this that It $700,000 pay The letter ordered JIS May directive study investigation feasibility and costs of a remedial to fund Township. It cleanup of the landfill South Brunswick site, ongoing contamination at the landfill upon based responsibili- to fulfill unwillingness of JIS its the demonstrated Document, embodied ties—especially under Appellate af- Division’s order—and June operate a landfill or of Donald Jones’ unfitness firmance strongly facts demonstrated station. Those transfer responsibility to undertake the not be vested with the could cleanup on its ground water own.
II. Spill damages provision of the the treble JIS contended that guarantees of the States process United Act violates the due Jersey These conten- the New Constitution. and Constitution companion case of Kim- parallel those in the IMO tions raised damages argued provision of specifically that the treble ber. It judi- any it Spill Act because forecloses is unconstitutional prior penalties. of severe imposition relief to the cial governing interpretation Spill of the Act standards damages provisions were application Act’s treble Kimber, supra. In companion case of IMO established joint case, determined that the Act’s combination we elimination nearly liability, the virtual liability, several absolute damages, no defenses, mandatory treble of substantive concerning doubt raised substantial pre-enforcement *10 112 constitutionality
the Act’s under the state and federal due guaranties. accordingly We process ruled that modification of statutory provisions strict required the would be to obviate objections, constitutional comport would with the overall purpose the Legislature intent and in providing treble dam- ages part of as Spill enforcement scheme under the Act. (1) good-cause held that a by implication We defense necessary provided damages Act, under provision Spill the treble of the (2) good-cause challenges defenses include to the reasonable- assessed, (3) ness of the costs the DEP has authority to dischargers controlling seek removal costs from while remedial damages action and obtain upon treble pay failure to such costs. See id. 110 at 69. N.J. case, skeptical
In this arewe that JIS could have suc cessfully good-cause mounted a defense. Such a defense re quires objectively that JIS have had an basis reasonable for believing that the DEP inapplica directive either invalid or to it. The ble record the case belies such an assertion. Nevertheless, that, acknowledge Kimber, we as in IMO petitioning party opportunity should have the to good- assert a particular cause defense to DEP’s directive. That this case was settled change analysis does not our since the mere existence of possibility agreeing of the State such settlement does not detract from obligated the fact that it is not so. do Our holdings today in Kimber, this case and in IMO supra, apply to situations where the DEP option despite refuses this the exist good-cause ence of a valid defense.
Accordingly, we rule that the DEP directive issued to JIS threatening damages upon noncompliance treble comply does Spill with Act but cannot be enforced as issued. The. provisions ordering DEP directive payment of remov- threatening al costs damages treble are valid and enforce- subject, however, able any good-cause defense may be by appellants. raised The Order requiring of the Court payment of provision remedial costs or of security long continued so the directive shall be under for such costs and effect. remains force directive the DEP WILENTZ, dissenting. C.J., appeal majority this disagree with the decision I dissenting compan- my opinion in the expressed the reasons (1988). Kimber, 110 N.J. ion case IMO *11 CLIFFORD, For modified—Justices affirmance GARIBALDI, HANDLER, O’HERN, and STEIN—5. WILENTZ—1. Dissenting—Chief Justice PLAINTIFF-RESPONDENT, JERSEY, v. OF NEW STATE HOWARD, DEFENDANT-APPELLANT. G. CHARLES 28, 1987 April Argued September Decided