Woodland Private Study Group v. State of NJ

Citation616 F. Supp. 794
Decision Date29 August 1985
Docket NumberCiv. A. No. 85-2291.
PartiesWOODLAND PRIVATE STUDY GROUP, Minnesota Mining and Manufacturing Company, and Rohm and Haas Company, Plaintiffs, v. STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Robert E. Hughey, individually and as Commissioner of Environmental Protection, and Joseph A. Rogalski, individually, and as Assistant Manager, Division of Waste Management, Department of Environmental Protection, Defendants.
CourtUnited States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey

COPYRIGHT MATERIAL OMITTED

William H. Hyatt, Jr., Pitney, Hardin, Kipp & Szuch, Morristown, N.J., for plaintiffs.

Genevieve K. LaRobardier, Margolis, Chase, Kosocki, Aboyoun & Hartman, P.A., Verona, N.J., and David R. Berz, Weil, Gotshal & Manges, Washington, D.C., for plaintiff-intervenor Purex Industries, Inc.

Irwin Kimmelman, Atty. Gen. of N.J. by Mary C. Jacobsen, Ross A. Lewin, Deputy Attys. Gen., Trenton, N.J., for defendants.

OPINION

BROTMAN, District Judge.

INTRODUCTION

The Minnesota Mining and Manufacturing Company ("3M") and Rohm and Haas Company ("R & H"), who together constitute the "Woodland Private Study Group," bring this action for injunctive and declaratory relief from alleged deprivations of their property without due process of law, in violation of the Fifth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983 and the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. The court's jurisdiction is invoked pursuant to 28 U.S.C. §§ 1331 and 1343. R & H and 3M name as defendants the New Jersey Department of Environmental Protection ("DEP"), Robert E. Hughey, individually and as Commissioner of the DEP, and Joseph A. Rogalski, individually and as Assistant Director, Division of Waste Management, DEP. The complaint alleges that defendants are coercing plaintiffs into complying with two DEP Directives and Notices of Violations ("Directives") issued on March 4, 1985, under authority vested in the DEP by the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. ("Spill Act"). The Directives order R & H, 3M and others to contribute to the costs of a proposed state study of environmental damage at two sites in Woodland Township, Burlington County, New Jersey. Plaintiffs allegedly deposited hazardous wastes at these sites during the 1950's and 1960's.

Presently before the court are several dispositive motions, and a request by Purex Industries Inc., ("Purex") to intervene as a party plaintiff. R & H and 3M ask the court to enjoin and declare unconstitutional provisions of the Spill Act which allegedly deny them a meaningful opportunity to challenge the DEP Directives. Defendants seek an order dismissing the complaint for failure to state a claim for which relief can be granted, pursuant to Fed.R.Civ.P. 12(b)(6). Alternatively, defendants request summary judgment pursuant to Fed.R. Civ.P. 56.

The parties having presented, and the court having considered, material outside of the pleadings, defendants' motion will be treated as a request for summary judgment. Fed.R.Civ.P. 12(b). For the reasons stated below, the court finds that there exists no genuine issue as to any material fact and defendants are entitled to judgment as a matter of law. Accordingly, the court will grant defendants' motion for summary judgment and deny the petition for injunctive relief.

FACTUAL BACKGROUND

The New Jersey Spill Act was enacted on January 6, 1977, to protect the economy and the environment of New Jersey from discharges of petroleum and other hazardous substances.1 This action arises under Section 7(a) of the Spill Act, which provides, in pertinent part,

Whenever any hazardous substance is discharged, the DEP may, in its discretion, act to remove or arrange for the removal of such discharges or may direct the dischargers to remove or arrange for the removal of such discharge.... Any discharger who fails to comply with such a directive shall be liable to the DEP in an amount equal to three times the cost of such removal.

N.J.S.A. 58:10-23.11f(a).

During the 1950's and 1960's, the Industrial Trucking Service Corporation ("Industrial Trucking") allegedly deposited wastes generated by 3M, R & H, Hercules, Inc., the Manhattan Soap Company (corporate predecessor to Purex), Standard Oil of Ohio ("SOHIO"), and possibly other various manufacturing concerns, at two dump sites in Woodland Township, Burlington County, New Jersey. Affidavit of Gerard Burke, Deputy Director, Office of Regulatory Services, DEP ("Burke Affidavit"), at ¶¶ 2-3. Both sites are now essentially devoid of vegetation. They are littered with rusted and corroded drums, broken glassware, and black resinous materials. Sampling conducted by the DEP has revealed the presence of volatile organics and pesticides at both sites, and ground water contamination at the site near New Jersey Route 72. Affidavit of Russell Trice, Site Manager, Division of Waste Management, DEP at ¶ 2. The United States Environmental Protection Agency ("EPA") has included both sites on the National Priority List of hazardous sites in need of immediate cleanup under CERCLA. The hazardous nature of these sites and the possibility of severe groundwater contamination has also made them priority targets of cleanup efforts by the DEP under the Spill Act.

On August 4, 1983, Industrial Trucking notified the DEP of possibly hazardous discharges at the Woodland dump sites.2 Following such notification, plaintiffs and the DEP entered into extensive negotiations as to the scope of a Remedial Investigation/Feasibility Study ("RI/FS"). R & H and 3M sought primary responsibility for preparing the study, with the DEP to exercise an oversight role. Burke Affidavit at ¶¶ 4-6. The parties allegedly arrived at a tentative agreement consistent with the companies' desire to manage the RI/FS. Complaint at 3. On February 16, 1984, the DEP informed them that a change in agency policy would bar them from controlling the selection of a contractor to perform the RI/FS. The DEP announced that it would require allegedly responsible parties to deposit into a trust fund the full cost of the DEP's proposed RI/FS for the Woodland sites, plus a twenty percent contingency fee. The two companies refused to comply with the DEP's request. In April, 1984, R & H and 3M reiterated their offer to perform the RI/FS. Both firms pledged that the DEP and the companies involved would have equal representation on the oversight committee.

On June 29, 1984, the DEP issued Administrative Order No. 69 ("AO69"), an agency policy directive which stated that the DEP would henceforth maintain oversight control for all RI/FS work. By issuing AO69, the DEP hoped to insure the continued trust of the public as to the impartiality of the RI/FS process. Complaint, Exhibit C.

R & H, 3M and the DEP continued negotiations concerning a possible compromise method of conducting the RI/FS throughout the remainder of 1984. In January of 1985, the companies reiterated their proposal for equal representation on the oversight committee. The DEP again rejected this proposal.

On March 5, 1985, the DEP issued the two Directives which raise questions constituting the crux of this case. Complaint, Exhibits A, B. The Directives charge R & H, 3M and others with hiring Industrial Trucking to "dispose of vast quantities of hazardous waste, including hazardous substances." Directives ¶ 7. They also charge the companies with failure to notify the DEP of the discharges, in violation of N.J.S.A. 58:10-23.11e. Id. ¶ 18. The Directives required each firm to pay DEP a total of $880,000 within seven days of receipt of the Directives, in order to fund the costs of a RI/FS for both Woodland sites. The DEP also reserved the right to seek additional compensation and other relief. Id. ¶ 19. In the event that the allegedly responsible parties failed to make payment as directed, the DEP threatened to conduct the RI/FS itself, using monies from the New Jersey Spill Fund. The Directives state that the DEP would then sue the companies to recover all costs incurred in conducting the RI/FS. Failure to comply with the Directives would result in liability equal to three times the cost of conducting the RI/FS, N.J.S.A. 58:10-23.11f(a), and a first priority lien on all the plaintiffs' property, N.J.S.A. 58:10-12.11f(f). Id. at 4-5.

On March 12, 1985, R & H and 3M notified DEP that they would refuse to comply with the Directives. The following day, Purex sent a letter to the DEP denying all liability for the wastes at the Woodland sites. On March 27, 1985, DEP entered into a Consent Order with Hercules, Inc. ("Hercules"), another recipient of the Directives, concerning the Woodland sites. Hercules agreed to provide $275,000 toward the costs of an RI/FS. At some time since then, a three-member committee composed of two DEP representatives and one Hercules representative selected a contractor to perform the RI/FS at a cost of approximately $1.76 million.

On April 10, 1985, the DEP denied a request for an administrative hearing by R & H and 3M, as the Spill Act does not require pre-enforcement review. See In re Witco Chemical Co., Docket No. A-1161-81T2, slip op. (N.J.Super.Ct.App.Div. October 11, 1983). The DEP also informed the two companies that no Spill Fund monies would be used in financing the RI/FS, in order to avoid any possible preemption problem under CERCLA.3 Instead, the DEP stated that it would be using funds derived from the Governor's Contingency Fund, and monies supplied through a Consent Order with Hercules, to initiate the RI/FS. The DEP threatened to seek sanctions against all responsible parties, but repeated its offer for them to join the RI/FS under the auspices of the DEP.

On May 15, 1985, R & H and 3M filed a motion for temporary restraints against enforcement of the DEP Directives. The court granted the request and issued an order prohibiting the DEP from imposing its threatened sanctions until the court reached a decision...

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13 cases
  • Kimber Petroleum Corp., Matter of
    • United States
    • New Jersey Supreme Court
    • April 18, 1988
    ...virtual elimination of substantive defenses, mandatory treble damages, and no pre-enforcement hearing. In Woodland Private Study Group v. State of N.J., 616 F.Supp. 794 (D.N.J.1985), the validity of such a scheme, in the context of the Spill Act, was examined by a federal district court and......
  • Woodland Private Study Group v. State, Dept. of Environmental Protection
    • United States
    • New Jersey Supreme Court
    • November 16, 1987
    ...dispute between plaintiffs and the Department of Environmental Protection (DEP), well summarized in Woodland Private Study Group v. State of New Jersey, 616 F.Supp. 794, 796-98 (D.N.J.1985), has been brewing for some time. As the federal district court pointed out, during the 1950s and 1960......
  • United States v. Charles George Trucking Co., Inc.
    • United States
    • U.S. District Court — District of Massachusetts
    • August 15, 1986
    ...as the private interest, freedom from having to provide the EPA with information and documents, cf. Woodland Private Study Group v. State of New Jersey, D.N.J.1985, 616 F.Supp. 794, is substantially outweighed by the government interest in controlling promptly and efficiently the release of......
  • Danish Health Club, Inc. v. Town of Kittery
    • United States
    • Maine Supreme Court
    • July 21, 1989
    ...threat of coercive penalties, is available, the constitutional requirements of due process are met. Woodland Private Study Group v. State of New Jersey, 616 F.Supp. 794, 806 (D.N.J.1985). Here, 340 days elapsed between expiration of the 90-day grace period and the hearing on the Club's comp......
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