NJ Dept. of Env. Prot. v. Gloucester Env. Mgt.

• Decision Date: 17 August 1989
• Docket Number: Civ. A. No. 84-0152(SSB).
• Citation: NJ Dept. of Env. Prot. v. Gloucester Env. Mgt., 719 F. Supp. 325 (D. N.J. 1989)
• Court: U.S. District Court — District of New Jersey
• Parties: STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff, v. GLOUCESTER ENVIRONMENTAL MANAGEMENT SERVICES, INC., et al., Defendants. GLOUCESTER ENVIRONMENTAL MANAGEMENT SERVICES, INC., et al., Third-party Plaintiffs, v. TOWNSHIP OF GLOUCESTER, et al., Third-party Defendants. TOWNSHIP OF GLOUCESTER, Fourth-party Plaintiff, v. CITY AND COUNTY OF PHILADELPHIA, et al., Fourth-party Defendants. AMADEI SAND & GRAVEL, INC., et al., Plaintiffs, v. STATE OF NEW JERSEY, et al., Defendants. ICI AMERICAS, INC., et al., Plaintiffs, v. STATE OF NEW JERSEY, et al., Defendants.

719 F. Supp. 325

STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff, v.GLOUCESTER ENVIRONMENTAL MANAGEMENT SERVICES, INC., et al., Defendants.

GLOUCESTER ENVIRONMENTAL MANAGEMENT SERVICES, INC., et al., Third-party Plaintiffs, v.TOWNSHIP OF GLOUCESTER, et al., Third-party Defendants.

TOWNSHIP OF GLOUCESTER, Fourth-partyPlaintiff, v.CITY AND COUNTY OF PHILADELPHIA, et al., Fourth-partyDefendants.

AMADEI SAND & GRAVEL, INC., et al., Plaintiffs, v.STATE OF NEW JERSEY, et al., Defendants.

ICI AMERICAS, INC., et al., Plaintiffs, v.STATE OF NEW JERSEY, et al., Defendants.

Civ. A. No. 84-0152(SSB).

United States District Court, D. New Jersey.

August 17, 1989.

COPYRIGHT MATERIAL OMITTED

Peter N. Perretti, Jr., Atty. Gen. of New Jersey by Richard V. Engel, R. Brian McLaughlin, Deputy Attys.Gen., Dept. of Law and Public Safety, Trenton, N.J., for defendantNew Jersey Dept. of Environmental Protection.

H. Curtis Meanor, Podvey, Sachs, Meanor & Catenacci, Newark, N.J. and Norman W. Bernstein, Jenner & Block, Chicago, Ill., for defendantsFord New Holland, Inc., and Sperry Corp.

John F. Lynch, Jr., Carpenter, Bennett & Morrissey, Newark, N.J., Liaison Counsel for Alleged Generator defendants.

Jeffrey P. Heppard, Parker, McCay & Criscoulo, Marlton, N.J., Liaison Counsel for Alleged Operator defendants and for defendantGloucester Environmental Management Services, Inc.

James C. Orr, Wilson, Elser, Moskowitz, Edelman & Dicker, Newark, N.J., Liaison Counsel for Alleged Transporter defendants.

John S. Fitzpatrick, Haggerty & Donohue, Summit, N.J., Liaison Counsel for the defendant Municipalities.

William S. Greenberg, Sills Cummis Zuckerman Radin Tischman Epstein & Gross, Princeton, N.J., for defendant Tp. of Gloucester.

OPINION

BROTMAN, District Judge.

Presently before the court is the motion of defendantsFord New Holland, Inc., and Sperry Corporation("the New Holland defendants") to dismiss plaintiffNew Jersey Department of Environmental Protection's ("DEP") claims against them for lack of subject matter jurisdiction.DEP alleges that those defendants generated toxic waste dumped at a Gloucester Township, New Jersey, landfill.Although the thrust of the New Holland defendants' argument is that DEP cannot bring its state law claims against them in federal court, their motion requires the court to examine whether it has subject matter jurisdiction over the entire case.DEP initially brought this action in state court, and a defendant impleaded the United States Environmental Protection Agency("EPA"), which removed the action to this court.After dismissing EPA from the case, the court chose to maintain jurisdiction over DEP's ancillary state law claims.The New Holland defendants claim that DEP asserted state law claims against it at a time when all of DEP's claims against all defendants were purely state law claims and that there can be no pendent party jurisdiction in such a situation.For the reasons set forth below, the court finds that it does have jurisdiction over this action and that the exceptional circumstances of this case allow for pendent party jurisdiction over the New Holland defendants.The court will therefore deny their motion to dismiss.

I.FACTS AND PROCEDURAL BACKGROUND

A.The Landfill and the State Court Litigation

This lawsuit involves the sixty-acre Gloucester Environmental Management Services, Inc.("GEMS") landfill owned by the Township of Gloucester and operated by Amadei Sand & Gravel, Inc., and GEMS, and others between the late 1950s and 1980 when the state of New Jersey ordered its closure.While in operation the landfill received municipal and industrial liquid and solid waste from hundreds of sources, and that waste included dangerous amounts of toxic materials.

In 1980 DEP filed this lawsuit in the Superior Court of New Jersey, Chancery Division, Camden County, seeking proper closure of the landfill, recovery of response costs, and penalties.As DEP learned the extent of contamination in the landfill, it amended its complaint to join additional parties it believed were responsible for dumping hazardous wastes at the site and to add additional legal grounds for relief.By the end of 1982, DEP had filed three amended complaints in Superior Court asserting several causes of action against the owners and operators of the landfill under the New Jersey Spill Compensation and Control Act ("the Spill Act"), N.J.Stat.Ann. §§ 58:10-23.11 to 58:10-23.33(West 1982); the Solid Waste Management Act, id.§§ 13:1E-1 to 13:1E-48(West 1979); the Sanitary Landfill Facility Closure and Contingency Fund Act, id.§§ 13:1E-100 to 13:1E-198(West Supp.1989); the Water Pollution Control Act, id.§§ 58:10A-1 to 58:10A-20;Id.§ 23:5-28(West 1940& Supp.1989); as well as claims based on common law nuisance, negligence, and strict liability.By early 1984, the parties to the state court suit by direct and third-party claims included the owners and operators of the landfill, several parties that allegedly generated the toxic materials dumped at the site, and several parties that allegedly transported those materials to the site.

Early in 1983 EPA became involved in the effort to remedy the landfill.In that year EPA listed the GEMS landfill on its national priority list of hazardous waste sites needing remediation.It now ranks twelfth on that list.EPA joined forces with DEP pursuant to section 104 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ("CERCLA"), 42 U.S.C. §§ 9601-9657(1982), and hired a firm to conduct a feasibility study at the site.In 1985, after a public comment period, EPA issued a Record of Decision selecting a remedy for the landfill.The remedy to be performed included installation of a cap on top of the landfill and a clay and soil cover on its sides; construction of an active gas collection and treatment system; construction of a groundwater pumping and treatment system; connection of certain homes to the public water supply system; relocation of Holly Run; and remediation of Holly Run and Briar Lake.EPA and DEP later divided the remedy into two phases: Phase one included capping the landfill and building a gas collection and treatment system, and phase two included building a groundwater pumping and treatment system and decontaminating Holly Run and Briar Lake.

B. Impleader, Removal and Early Proceedings in This Court

In late 1983 the Township of Gloucester filed an amended third-party complaint in Superior Court naming EPA as a third-party defendant.That pleading amended the Township's third-party complaint to state:

27(a).The E.P.A., sic is an agency of the United States authorized under Federal Statutes to perform remedial measures at duly designated waste disposal sites;

....

152.The E.P.A. has an interest in this matter, which would necessarily be affected by resolution of this case in that it seeks the same or similar relief as does plaintiff, D.E.P.

153.The E.P.A.'s refusal to join in this action as a plaintiff exposes the Township of Gloucester to the possibility of inconsistent or multiple obligations by reasons of E.P.A.'s claimed interest.

In January 1984 EPA filed a verified petition for removal in this court.That petition stated, "This action is a Civil action commenced in a state Court over which the United States District Court has original jurisdiction, and therefore may be removed to this court pursuant to 28 U.S.C. § 1441(a)et seq."

Following removal to this court, EPA moved for dismissal on the ground that the complaint failed to state a claim upon which relief could be granted.The court granted the motion and dismissed the agency from the case because it found that sovereign immunity barred the lawsuit.New Jersey Dep't of Envtl. Protection v. Gloucester Envtl. Management Servs., Inc., Civil ActionNo. 84-152, slip op.(D.N.J. Aug. 1, 1984).The court then raised on its own motion the question of whether it could maintain subject matter jurisdiction over the case without EPA as a party.After requesting further briefing and after carefully considering the issue, the court determined that it could and should retain jurisdiction over the case in its entirety.New Jersey Dep't of Envtl. Protection v. Gloucester Envtl. Management Servs., Inc., Civil ActionNo. 84-152, letter op.(D.N.J. June 5, 1985).

In finding continued federal jurisdiction, this court first held that EPA properly removed the action to federal court.Although EPA's removal petition cited the entire removal chapter, the court focused its attention on a single provision permitting removal of any action against

Any officer of the United States or any agency thereof or person acting under him, for any act under color of such office or on account of any such right, title, or authority claimed under any act of Congress for the apprehension or punishment of criminals or the collection of revenue.

28 U.S.C. § 1442(a)(1);see letter op. at 5-6.The court further held that section 1442(a)(1) authorizes removal of an entire case even though the agency seeking removal was involved in only one discrete part of the case.Letter op.at 6(citingIMFC Professional Servs. v. Latin Am. Home Health, Inc.,676 F.2d 152, 158-59(5th Cir.1982)).The court went on to find that it had the power to maintain jurisdiction over the case after it dismissed EPA.Id. at 7.Finally, the court found that it should exercise its discretion to retain jurisdiction over the case:

This case involves, inter alia, a determination of responsibility for and cleanup of toxic wastes, a pressing national issue which is most acute in New Jersey.It is vital that these actions proceed expeditiously in order to protect the public welfare and to preserve the public trust and confidence.By retaining jurisdiction now, the court hopes to avoid creating a litigation "merry-go-round" of waste and delay when, on remand, federal claims are asserted and/or federal

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