NJ DEPT. OF ENV. PROTECTION v. Briar Lake Dev.

• Decision Date: 20 April 1990
• Docket Number: Civ. A. No. 90-1538(SSB).
• Parties: NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff, v. BRIAR LAKE DEVELOPMENT CORPORATION, Defendant.
• Court: U.S. District Court — District of New Jersey

736 F. Supp. 62

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff, v. BRIAR LAKE DEVELOPMENT CORPORATION, Defendant.

Civ. A. No. 90-1538(SSB).

United States District Court, D. New Jersey.

April 20, 1990.

Robert J. Del Tufo, Atty. Gen. by Richard F. Engel, Deputy Atty. Gen., State of N.J., Dept. of Law and Public Safety, Trenton, N.J., for plaintiff.

John F. Rodgers, Jr., Haddonfield, N.J., for defendant.

OPINION

BROTMAN, District Judge.

Presently before the court is the motion of the State of New Jersey Department of Environmental Protection (hereinafter "NJDEP") for an order to show cause with temporary restraints. Essentially, this is an application for immediate access to property owned by defendant Briar Lake Development Corporation (hereinafter "BLDC"). The property is adjacent to the Gloucester Environmental Management Services, Inc. Landfill in Gloucester Township, Camden County, (hereinafter the "GEMS landfill"), and NJDEP contends that it needs access to permit the cleanup of the GEMS landfill to proceed. The court held a hearing on April 12, 1990, at which both parties were present, and entered an order granting the requested relief. This opinion addresses the reasons for the entry of that order.

I. FACTS AND PROCEDURE

This action is brought pursuant to the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (hereinafter "CERCLA"), Pub.L. No. 96-510, 94 Stat. 2767 (1980), as amended by the Superfund Amendments and Reauthorization Act of 1986 (hereinafter "SARA") Pub.L. No. 99-499, 100 Stat. 1613 (1986), codified at 42 U.S.C. § 9601 et seq., and the New Jersey Spill Compensation and Control Act (hereinafter the "Spill Act"), N.J. Stat.Ann. § 58:10-23.11 et seq.

The court is extremely familiar with the GEMS landfill, and oversees the litigation surrounding the clean-up efforts there. NJDEP v. GEMS, Civil No. 84-152. Nonetheless, some review of the background to this relatively straightforward lawsuit will help to explain the action taken.

The GEMS landfill is a 60 acre site that has operated under various names, and by different entities, since the 1950's. It is currently ranked 12 on the National Priority List of hazardous waste sites for cleanup under CERCLA. See 40 C.F.R. Part 300, App. B (July 1, 1989). In addition to municipal waste, the landfill contains large quantities of chemical and hazardous substances. The site is elevated from 80 to 100 feet around the surrounding terrain, and stands next to a surface water body known as Holly Run that flows into a small pond known as Briar Lake.

In February, 1983, the United States Environmental Protection Agency (hereinafter the "EPA") initiated response actions at the site by installing culverts at the head of Holly Run, and by placing a fence around a portion of Holly Run and Briar Lake. The fence, which remains standing and is on part of the property to which NJDEP now seeks access, was erected because of the contamination of Holly Run and Briar Lake caused by the landfill. That contamination was documented in a remedial investigation/feasibility study prepared by the EPA in July, 1985.

After public comment, the EPA issued a Record of Decision (hereinafter "ROD") listing the following remedial actions for the GEMS landfill:

1. Construction of a security fence.

2. Installation of a multimedia cap on top of the landfill and installation of a clay and soil cover on the sides.

3. Construction of an active gas collection and treatment system.

4. Construction of a ground water pumping and treatment system.

5. Implementation of remedial action to connect selected homes to an existing public water supply system.

6. Remediation (clean-up) of Holly Run and Briar Lake.

Verified Complaint at 4-5 (pp. 14). In August, 1988, the EPA issued an order pursuant to Section 106 of CERCLA directing the PRPs to perform the ROD.

NJDEP had filed suit in 1980 in the Superior Court of New Jersey, Chancery Division, seeking closure of the landfill, recovery of response costs, and penalties.¹ The case was removed to federal court in 1984 when the EPA was named as a defendant. See New Jersey State Department of Environmental Protection v. Gloucester Environmental Management Servs. Inc., (hereinafter "NJDEP v. GEMS"), 719 F.Supp. 325 (D.N.J.1989) (detailing procedural history of enforcement action).

That action encompasses approximately 250 parties which have been divided into the four sub-groups: owners, operators, generators and transporters. The litigation itself has been divided into two phases. The first phase was directed to the clean-up of the landfill, and was largely settled in January, 1988, approximately when 100 potentially responsible parties (hereinafter "PRPs") signed an Administrative Consent Order (hereinafter the "ACO") patterned after the ROD that was subsequently approved by the court. Pursuant to the ACO, the parties paid approximately $32.5 million to a Trust established to oversee a multi-year effort to implement the remediation.

The cleanup commenced on June 4, 1989, and is proceeding pursuant to the terms of the ACO, although there have been some delays brought on by opposition by local landowners and others. See Neighborhood Toxic Cleanup Emergency v. Reilly, 716 F.Supp. 828 (D.N.J.1989). See also New Jersey Department of Environmental Protection v. Hurst, Civil No. 89-5216(SSB) (NJDEP suit for access). The cleanup has proceeded this far because of the cooperation of hundreds of PRPs who agreed to the Phase One settlement, the tireless efforts of Hon. Jerome Simandle, the United States Magistrate who has been overseeing the case management of NJDEP v. GEMS, the patience and reasonableness of hundreds of attorneys, and the work of the engineers responsible for the actual cleanup at the site.² It is within this delicate truce that the instant litigation arises.

This general overview of the GEMS-related litigation provides some backdrop to NJDEP's claim that denial of access could hurt the delicate balance that has permitted the cleanup to proceed. The Verified Complaint alleges that:

The remediation of the GEMS Landfill is proceeding in a sequence. The work has been completed to the point where the next sequence involves the removal of contaminated sediments in Holly Run and Briar Lake at the BLDC property, which sediments are to be transported to the top of the landfill. Further remediation work cannot continue until the sediments in Holly Run and Briar Lake on the BLDC property are excavated.

Verified Complaint at 6 (paragraph 20). The remediation must commence with the Holly Run and Briar Lake, the upstream areas; to commence with the downstream areas would be futile, for they would become contaminated again when sediments are later extracted from the upstream areas. Thus, the Verified Complaint alleges that "failure to gain access will cause the remediation to stop." Id. at 3 (paragraph 5).

Although NJDEP had been negotiating with defendant for access to allow the cleanup to continue, see Affidavit of Douglas Martin (Appendix E to Verified Complaint), NJDEP's offers were viewed as insulting and those discussions have come to a halt. The instant verified complaint was filed soon thereafter.

II. DISCUSSION

The usual standard for a preliminary injunction³ order is well-established: parties seeking an injunction must show:

(1) that there is a reasonable probability that they will succeed on the merits; (2) that they will be irreparably harmed if the injunction is not granted; (3) that they will suffer more harm if the injunction is not granted than defendants will suffer if the injunction is granted; and (4) that the granting of the injunction is not contrary to the public interest.

Delaware Valley Transplant Program v. Coye, 678 F.Supp. 479, 481 (D.N.J.1988) (citing SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244, 1254 (3rd Cir.1985). Accord Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148, 150-51 (3rd Cir. 1984); In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137, 1143 (3rd Cir.1982).

Plaintiff need not show irreparable harm, however, where Congress has displaced the normal equitable balancing with a statutory standard. Weinberger v. Romero-Barcelo, 456 U.S. 305, 310-13, 102 S.Ct. 1798, 1802-03, 72 L.Ed.2d 91 (1982). See United States v. City and County of San Francisco, 310 U.S. 16, 30-31, 60 S.Ct. 749, 756-57, 84 L.Ed. 1050 (1940). In Weinberger, the Supreme Court recognized the centuries-old history of courts' exercising equitable discretion in issuing injunctions, "a practice of which Congress is assuredly well aware." Id., 456 U.S. at 313, 102 S.Ct. at 1803. The Court then stated that "of course, Congress may intervene and guide or control the exercise of the court's discretion, but we do not lightly assume that Congress has intended to depart from established principles." Weinberger, 456 U.S. at 313, 102 S.Ct. at 1803 (citing Hecht Co. v. Bowles, 321 U.S. 321, 329, 64 S.Ct. 587, 591, 88 L.Ed. 754 (1944)). "`Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court's jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.'" Id. (quoting Porter v. Warner Holding Co., 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 (1946)).

In examining CERCLA to ascertain whether Congress intended to displace a court's equitable jurisdiction, the court is "guided by well-settled principles of statutory construction." Smith v. Fidelity Consumer Discount Co., 898 F.2d 907, 909 (3rd Cir.1990). "`The starting point for interpreting a statute is the language of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.'" Id. at 909-10 (quoting Consumer Product Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980)). See United States v. Turkette, 452 U.S. 576, 580, 101...