N.J. Dep't of Envtl. Prot. v. Dimant

• Decision Date: 18 March 2011
• Citation: 418 N.J.Super. 530,14 A.3d 780
• Parties: NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION and Acting Administrator, New Jersey Spill Compensation Fund, Plaintiffs–Appellants,v.Ofra DIMANT, Rita Lapinski, Charles Zaccardi, Evelyn M. Zaccardi, Gary C. Zaccardi, Michael Zaccardi, and Zaccardi's Cleaners, a New Jersey Partnership, Defendants,andChouchan Samman, Riad Samman, and Sue's Clothes Hanger, Inc., Defendants/Third–Party Plaintiffs–Respondents,v.Bharat K. Shah, Priti B. Shah, and PTR, PTB, PTM Corp., Third–Party Defendants–Respondents,andLouis Scharlat, Conchetta Scharlat, Anthony Chirico, Donald H. Hickman, Floyd S. Randolph, and Cleaning Village of Somerset, Inc., Third–Party Defendants.
• Court: New Jersey Superior Court

418 N.J.Super. 530

14 A.3d 780

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION and Acting Administrator, New Jersey Spill Compensation Fund, Plaintiffs–Appellants,

v.Ofra DIMANT, Rita Lapinski, Charles Zaccardi, Evelyn M. Zaccardi, Gary C. Zaccardi, Michael Zaccardi, and Zaccardi's Cleaners, a New Jersey Partnership, Defendants,andChouchan Samman, Riad Samman, and Sue's Clothes Hanger, Inc., Defendants/Third–Party Plaintiffs–Respondents,

v.Bharat K. Shah, Priti B. Shah, and PTR, PTB, PTM Corp., Third–Party Defendants–Respondents,andLouis Scharlat, Conchetta Scharlat, Anthony Chirico, Donald H. Hickman, Floyd S. Randolph, and Cleaning Village of Somerset, Inc., Third–Party Defendants.

Superior Court of New Jersey, Appellate Division.

Argued March 1, 2011.Decided March 18, 2011.

Mark D. Oshinskie, Deputy Attorney General, argued the cause for appellants (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Mr. Oshinskie, on the brief).

George R. Hardin argued the cause for respondents Chouchan Samman, Riad Samman, and Sue's Clothes Hanger, Inc. (Hardin, Kundla, McKeon & Poletto, P.A., attorneys; Mr. Hardin, of counsel and on the brief; Cynthia Lee, Springfield, on the brief).Jacob Grouser argued the cause for respondents Bharat K. Shah, Priti B. Shah, and PTR, PTB, PRM Corp. (Hoagland, Longo, Moran, Dunst & Doukas, L.L.P., attorneys; Marc S. Gaffrey and Alan Dunst, of counsel and on the brief; Cristyn D. Clifton, New Brunswick, on the brief).Before Judges PARRILLO, YANNOTTI and ESPINOSA.

The opinion of the court was delivered by

PARRILLO, P.J.A.D.

Plaintiffs, the Department of Environmental Protection (DEP) and the Administrator of the New Jersey Spill Compensation Fund, filed a suit for contribution pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10–23.11 to –23.24 (the Spill Act), alleging that defendant, Sue's Clothes Hanger, Inc., a Laundromat and dry cleaner, was responsible for ground-water contamination on various properties in Bound Brook. After a bench trial, the judge ruled that plaintiffs had not proved a nexus between a discharge by defendant and the contamination, and that plaintiffs could not amend their complaint to add third-party defendants, previous operators of the site, as direct defendants. Plaintiffs appeal. We affirm.

In late 1988 and early 1989, an investigation by the Middle Brook Regional Health Commission (MBRHC) uncovered contamination in many of the residential potable water wells in Bound Brook's Longwood Avenue section. The main contaminant was perchloroethylene (PCE), a volatile organic compound that evaporates quickly when exposed to air, and is used in the dry-cleaning industry and as a degreaser in the automobile service and other machine shop industries. Also present were: (1) trichloroethylene (TCE), used as a dry cleaning agent, metal degreaser, and solvent for fats and paints; (2) dichloroethylene (DCE), used as a refrigerant and solvent for fats; and (3) chloroform. TCE and DCE are also byproducts of degrading PCE.

The Longwood Avenue Groundwater Contamination Area, consisting of 365 acres, is bordered by West Union and Longwood Avenues. Rita Lapinski owned a three-unit strip mall fronting on the south side of West Union Avenue. Defendant occupied one of these units. Zaccardi's Cleaners occupied a building immediately to the east of the Lapinski building, also on the south side of West Union Avenue. To the west was the site of a former ExxonMobil (Mobil) gasoline station. The contaminated wells were to the south and southeast of West Union Avenue and the Mobil, Lapinski and Zaccardi properties. Other dry cleaning businesses, Michael James Cleaners and Bound Brook Cleaners, were located east of Zaccardi's Cleaners. Also near this area were two federal Superfund sites, the American Cyanamid contamination area and the Brook Industrial site.

The Lapinski building was built in the 1930s, and at least one of the three units had been home to a laundry and dry cleaning establishment since the 1950s. From 1985 through 1987, third-party defendants, Bharat Shah and Priti Shah (the Shahs), operated a Laundromat and dry cleaner called “The Clothes Hanger” at the site eventually taken over by defendant. The Shahs used two Speed Queen dry cleaning machines as part of their operation. These were small non-professional machines that could hold a clothing capacity of eight to fifteen pounds. The machines used PCE as the cleaning solvent. The PCE went into the machine and cleaned the clothes. After the clothes absorbed some of the chemical, the machine dried them, the heat vented through a pipe to the outside of the building, some of the PCE evaporated as a result of the heating and venting process, and any unused liquid PCE fell back to the reservoir under the machine. It was a “closed loop” system.

In May 1987, the Shahs sold the business to Chouchan Sammans and Riad Sammans (the Sammans), who changed the name to “Sue's Clothes Hanger.” They kept the self-serve Laundromat as the dominant business and operated the dry cleaning machines only a couple times a week for drop-off laundry.

The late 1988–early 1989 combined investigation by MBRHC and DEP into the source of the well contamination focused only on defendant's business and Zaccardi's Cleaners. Investigators never took samples from Michael James Cleaners, the largest dry cleaner, because it used a petroleum-based solvent, although underground tanks of “solvent” and petroleum were found leaking on its property soon afterwards.

Because defendant used PCE as a solvent in its dry cleaning process, investigators took various samples from two separate locations inside and outside the store. First, they sampled fluid coming out from behind the two Speed Queens and going into a grated pit in the floor inside the building. Tests of the flow showed that it contained PCE and TCE at levels above the maximum contamination levels (MCL) set by DEP regulations. Investigators then performed a dye test to see whether the fluid in the pit had drained into the groundwater. They only discovered the fluid in the borough's sanitary sewer system. Since sewer lines are usually not a source of contamination, the investigators concluded that the discharge of “dry cleaning solution” was “not being injected directly into the ground.”

Investigators also took samples from a slowly leaking pipe coming out of the back of the building. The liquid had a “sweet, pungent” smell. The pipe, which was about five feet off the ground, dripped onto the asphalt of the narrow driveway and flowed away from the building. PCE can erode asphalt over time, but investigators could not recall if the asphalt had been cracked or eroded. Tests showed that the samples contained PCE and TCE above the MCL.

Defendant discontinued use of the Speed Queen dry cleaning machines in early 1989. Defendant also sealed the grated hole behind the machines and dismantled and sealed the discharge pipes, effectively limiting the period during which there was a possibly contaminating leak from defendant's operation from May 1987 to early 1989.

Over a decade later, in 2000, DEP assigned Lynn Vogel, a geologist and an expert on groundwater transport, to investigate and find the source(s) that had contaminated the Longwood Avenue Groundwater Contamination Area.¹ From her research, Vogel found that the potable wells with the highest levels of PCE contamination in 1988 and 1989 had been located directly behind defendant and Zaccardi's Cleaners. Wells with the lowest levels had been to the east of those stores.

Concentrating on those businesses, Vogel collected new groundwater and soil samples. The soil samples from Lapinski's property revealed PCE and its degradation-by-products, TCE and DCE, but at almost undetectable levels. The groundwater samples showed PCE at levels above the MCL and, surprisingly, methyl tertiary butyl ether (MTBE), a gasoline additive. Vogel saw no pipe coming out of the wall and dripping onto the driveway. Instead, she saw two much higher pipes that were venting air, and some patched concrete holes. Vogel concluded that “The Clothes Hanger is considered the primary source of the Longwood Avenue Ground Water Contamination.” However, she also opined that the presence of the PCE degradation-by-products, TCE and DCE, in the soil samples closest to the building indicated that “the contamination has been there for a long time [prior to 1988], and it's degrading into its lesser compounds.” ²

Matthew J. Mulhall, defendant's expert in geology and hydrogeology, also agreed that the contamination had been longstanding and opined that there had not been “sufficient time” between the Sammans's opening of Sue's Clothes Hanger in June 1987 and the detection of contaminants beneath the impact area in March 1988 for the contaminants to have migrated from their business operation to the first or nearest affected residential wells. “Nine to ten months is not sufficient time for PCE, TCE, or trans–1, 2–DCE to migrate from Sue's Clothes Hanger to these residential wells.” Instead, he concluded that the area's contamination came from the former Mobil station, which was to the west and uphill from the Lapinski building. “The contaminant migrates away from the source area through the aquifer system ... [B]asically you will see an elliptical shape ... following the direction of groundwater flow.” In fact, the monitoring wells on the Lapinski building's eastern border with the Mobil station showed higher PCE contamination and smelled of gasoline.

Vogel and Mulhall also had very different viewpoints about the direction of the groundwater flow in the area. Vogel testified that the pattern of polluted wells showed that the groundwater flowed to the south, southeast. Mulhall disagreed, and opined that groundwater flowed to the south, southwest, following the topography. The 2000 samples from the contaminated wells...