(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interests of brevity, portions of any opinion may not have been summarized).
Argued November 18, 1997 -- Decided March 12, 1998
COLEMAN, J., writing for a majority of the Court.
In this appeal, the Court determines whether the Air Pollution Control Act of 1954 (APCA) and one of its
implementing regulations impose strict liability for civil penalties on the owner or operator of a chemical facility that
releases toxins into the atmosphere because of a fire of unknown origin on its premises. The Court further determines
whether the Department of Environmental Protection (DEP) was timely notified of the release, as required by N.J.S.A.
26:2C-19e.
Alden Leeds manufactures and packages swimming pool chemicals for consumer use. On April 10, 1993, the
plant, located in Kearney, was closed for the Easter holiday. There were no security guards or other personnel at the
site that day. At approximately 11:30 a.m., a fire of unknown origin broke out, ultimately causing a release of
chemicals into the air. After arriving on the scene, the Kearney Fire Department notified the DEP of the fire at 12:27
p.m. and reported that the fire had burned through the roof in a building containing “hazardous chemicals,” causing
the release of an “unknown gas.” Steven Epstein, the vice president of Alden Leeds, arrived on the scene at
approximately 12:39 p.m. On arrival, he located and questioned the fire chief. He further requested access to the
burning building to determine exactly what was on fire so that he could advise the firefighters and call the DEP.
However, the fire chief refused him and advised that the DEP had already been called.
Shortly thereafter, the fire chief permitted Epstein to enter the building. He informed the chief that the
ceiling under which the firefighters were working was wooden and that the second floor housed heavy machinery. He
then called the DEP to report the fire, responding to all questions asked . The phone records showed that Epstein
called the DEP at 12:57 p.m. Epstein maintained that it was not until at least one-half hour after his call to the DEP
that the fire reached the chlorine stored in the building.
Shortly after 1:30 that afternoon, a DEP emergency response specialist arrived on the scene. According to his
analysis of the smoke from the fire, chlorine contaminants were being released into the atmosphere at a level of .5
parts per million, an unacceptable level. The fire caused $9 million in damages to the Alden Leeds property and the
release of chlorine gas and other by-products into the atmosphere. In addition, the fire necessitated the closing of the
Turnpike and several other highways and the halting of service on the PATH and Amtrak trains in the area. Finally, a
number of people went to local hospitals complaining of respiratory problems.
The DEP assessed two civil administrative penalties against Alden Leeds. First, the DEP found that Alden
Leeds “did cause, suffer, allow or permit chlorine and calcium chloride resulting from a fire to be emitted into the
outdoor atmosphere in quantities which resulted in air pollution, in violation of N.J.A.C. 7:27-5.2(a),” which the DEP
maintained imposes strict liability on an owner or operator of a facility storing hazardous chemicals. Second, the DEP
found that Alden Leeds “caused the release of an air contaminant(s) chlorine and calcium chloride...which posed a
potential threat to public health, welfare or the environment...and failed to notify the Department immediately, in
violation of N.J.S.A.26:2c-19(e).” The penalties amounted to $13,000. Alden Leeds contested the penalties assessed,
and the matter was referred to the Office of Administrative Law.
The Administrative law Judge (ALJ) found that Alden Leeds was responsible for the release under the
provisions of the APCA, determining that it was a strict liability statute. The ALJ also concluded that Alden Leeds
failed to notify the DEP immediately because a call was not made to the DEP until over one hour after the initial
release and because the call did not provide relevant information such as a list of potentially toxic chemicals threatened
by the fire.
The Commissioner of the DEP adopted the ALJ's decision. While determining the APCA to impose strict liability on an owner/operator, the Commissioner viewed the statute as requiring some causal nexus between Alden
Leeds and the offending release. The Commissioner found that the required causal nexus was established by the
knowing storage of chemicals reactive to heat and water. Finally, the Commissioner determined that the delay in
notifying the DEP was unreasonable.
The Appellate Division reversed the Commissioner's decision, finding that the mere storage of chemicals was
not a sufficient causal nexus. The panel also concluded that, because Alden Leeds did not cause the release,
immediate notification was not required. Moreover, the Appellate Division found, even if a causal nexus were found, it
was reasonable for Epstein to gather information prior to calling the DEP.
The Supreme Court granted the DEP's petition for certification.
HELD: Although the Air Pollution Control Act imposes strict liability on an owner/operator of a chemical facility
that releases toxins into the atmosphere, a nexus is nevertheless required between that release and the owner/operator,
which nexus is satisfied by the knowing storage of chemicals that are highly reactive to heat and water; notice of the
fire that was given to the DEP satisfied the requirements of the Air Pollution Control Act.
1. The APCA has undergone significant changes since its original enactment that have reflected the Legislature's goal
to strengthen the ability of the agencies to control and prevent air pollution. (pp. 10-14)
2. The legislative scheme of the APCA evinces a plan to curtail and combat pollution regardless of fault. (pp. 14-15)
3. An actor who chooses to store dangerous chemicals should be responsible for the release of those chemicals into
the air regardless of whether those chemicals were lawfully and properly stored. (pp. 18-20)
4. For purposes of determining whether notification to the DEP was immediate, as required by the APCA, the period
before notification is measured from the time a chemical owner or operator has actual knowledge or reason to know of
a fire that threatens toxic chemicals or the time of an actual release, whichever is sooner. (pp. 20-22)
5. Under the circumstances, the notice given by Epstein to the DEP was adequate. (pp. 22-23)
Judgment of the Appellate Division is AFFIRMED in part and REVERSED in part.
JUSTICE GARIBALDI filed a separate opinion, in which JUSTICE STEIN joins, dissenting in part and
concurring in part in the Court's opinion. Justice Garibaldi would find that the mere storage of chemicals on the
premises does not satisfy the causal nexus requirement of N.J.A.C. 7:27-5.2(a). She further believed that it was the
fire, and whatever or whomever caused the fire that must be viewed as the cause of the release of the toxins into the
air, in the absence of any evidence that the manner in which the chemicals were stored was a cause of the fire.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, and O'HERN join in JUSTICE
COLEMAN's opinion. JUSTICE GARIBALDI filed a separate opinion concurring in part and dissenting in part, in
which JUSTICE STEIN joins.
SUPREME COURT OF NEW JERSEY
A-
50 September Term 1997
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Plaintiff-Appellant,
v.
ALDEN LEEDS, INC.,
Defendant-Respondent.
Argued November 18, 1997 -- Decided March 12, 1998
On certification to the Superior Court, Appellate
Division.
Ronald P. Heksch, Deputy Attorney General, argued the
cause for appellant (Peter Verniero, Attorney General
of New Jersey, attorney; Mary C. Jacobson, of counsel;
Gene B. Rosenblum, on the briefs).
David L. Levinson, a member of the New York bar, argued
the cause for respondent (Bruce L. Safro, attorney).
The opinion of the Court was delivered by
COLEMAN, J.
This appeal raises two significant issues. The first is
whether the Air Pollution Control Act of 1954 (APCA), N.J.S.A.
26:2C-1 to -25.2, and N.J.A.C. 7:27-5.2(a), one of its
implementing regulations, impose strict liability for civil
penalties on the owner or operator of a chemical facility that
releases toxins into the atmosphere because of a fire of unknown
origin on its premises. The second issue raised is whether the
Department of Environmental Protection (DEP) was timely notified
of the release as required by N.J.S.A. 26:2C-19e.
The Commissioner of the DEP concluded that the regulation
imposes strict liability. He concluded that although a nexus
between Alden Leeds and the release of pollution into the
atmosphere is required, the nexus can be established on the sole
basis of knowing storage of highly reactive chemicals on the
premises. The Commissioner of the DEP also found that the notice
it received from the chemical operator was not timely. The
Appellate Division found that merely storing chemicals on the
premises does not satisfy the nexus requirement. The court found
that the notice to the DEP was timely.
We hold that the APCA imposes strict liability and that
knowingly storing chemicals that are highly reactive to heat and
water satisfy the causal nexus. We also hold that the notice of
the fire that was given to the DEP satisfied the APCA's
requirements.
Alden Leeds stores, ships, and repackages swimming pool chemicals. Mark Epstein (Mark) is the president of Alden Leeds and his brother, Steven Epstein (Steven), is the vice president.
The company has its principal place of business in Kearny. It
processes dry chlorine into tablet form at a different site in
South Kearny. The company packages those tablets for sale and
distributes them in plastic containers labeled with silk
screening equipment at the Kearny location. On any given day,
twenty-one different chemicals that present a variety of hazards,
were stored at the Kearny facility. Alden Leeds listed both the
chemicals stored and the individual hazards attendant to each in
a Right-to Know statement filed with the DEP.
On Saturday, April 10, 1993, a fire of unknown origin
occurred at the Kearny facility while it was closed for the
Easter holiday. There were no security guards or other personnel
at the Kearny site that day. Jesus Urriola, an operations
manager at Spectra-Serv located 300 feet north of the Alden Leeds
Kearny site, saw smoke coming from Alden Leeds's property at
approximately 11:30 a.m. He tried to call the fire and police
departments for ten or fifteen minutes; the Kearny Fire
Department arrived on the scene four or five minutes after the
call. The burglar alarm system at Alden Leeds began sounding at
12:02 p.m., but there was no response to that alarm. The Kearny
Fire Department notified the DEP of the fire at 12:27 or 12:28
p.m. and reported that the fire had burned through the roof in a
building containing "hazardous chemicals," causing the release of
an "unknown gas."
At approximately 12:30 p.m., while Steven Epstein was
driving to the Kearny facility, he saw smoke coming from the
direction of Alden Leeds. A toll record shows that he exited the
New Jersey Turnpike at exit 15E (a Kearny exit) at 12:37 p.m.
When Steven arrived on the scene at approximately 12:39 p.m., he
noticed that the gate to the property was open and there were
firefighters present. He could not immediately tell whether the
fire was at the Alden Leeds site or on neighboring property.
Steven eventually discovered that an Alden Leeds building,
designated "Building One," was on fire. That structure housed
offices, the art department, inventory, the liquid filling and
silk screening operations, and employee locker rooms. Steven
located and questioned the fire chief. Steven attempted to gain
access to the building to determine exactly what was on fire so
that he could advise the firefighters and call the DEP, but the
fire chief refused and informed him that the DEP had already been
called.
Approximately ten minutes later, the fire chief permitted
Steven to enter the building. Steven informed the chief that the
ceiling under which the firefighters were working was wooden and
that the second floor housed heavy machinery. Steven then called
the DEP to report the fire; he responded to all questions asked
of him by the person answering the telephone. Alden Leeds's
phone records show that Steven called the DEP at 12:57 p.m. and
the DEP records indicate that the call was received at 12:58. It
is unclear from the record whether the DEP operator asked Steven
about the presence of hazardous chemicals. Steven recalls that
the operator asked what was on fire and that he indicated
polyethylene bottles and silk screening equipment. DEP records
show that a fire was reported and that machinery and polyethylene
bottles were threatened. The tape recording of this conversation
was inaudible. Steven testified that it was not until at least
one-half hour after his call to the DEP that the fire reached the
chlorine stored in the building.
DEP Emergency Response Specialist Bruce Doyle arrived on the
scene shortly after 1:30 that afternoon. According to his
analysis of the smoke from the fire, chlorine contaminants were
being released into the atmosphere at a level of .5 parts per
million. The DEP investigation of the fire revealed atmospheric
chlorine levels between .1 and .3 parts per million in the
western end of Hudson County. Doyle testified that different
agencies establish an unacceptable level of chlorine in the
atmosphere at between .5 and 1 part per million.
At the time the fire apparently started, Mark Epstein was
shopping with his family in Nanuet, New York. At approximately
12:30 p.m., Mark's wife called her home from her car phone and
was informed of the fire. Phone records show that at 12:44 Mark
called the Kearny police from his wife's car phone. The police
informed him that the DEP had been called and that Steven was on
the scene.
The fire caused $9 million in damages to the Alden Leeds
property and the release of chlorine gas and other by-products
into the atmosphere. The DEP informed people downwind of the
fire that they should remain indoors with their windows closed.
The fire also necessitated the closing of the Turnpike, Route
1/9, the Lincoln Highway, the Pulaski Skyway, and Route 280. The
DEP halted service on the PATH and Amtrak trains in that area. A
number of people went to local hospitals complaining of
respiratory problems.
The DEP assessed penalties for each offense in the amount of $6,500. It calculated the amounts by starting with $10,000, the base penalty for the offenses, and then applied percentage reductions for remedial measures taken (15"), population affected (5"), and off-site property damage (15"). Alden Leeds contested
the penalties assessed, and the matter was referred to the Office
of Administrative Law.
An Administrative Law Judge (ALJ) found that Alden Leeds was
responsible for the release under the provisions of the APCA,
determining that although an unknown third party caused the fire,
the APCA is a strict liability statute. The ALJ also concluded
that Alden Leeds failed to notify the DEP immediately because a
call was not made to the DEP until one hour and eighteen minutes
after the initial release and the call did not provide relevant
information such as a list of potentially toxic chemicals
threatened by the fire. Furthermore, the ALJ found that Alden
Leeds was obligated to have reliable safety mechanisms in place
that were commensurate with the hazardous inventories stored on
the premises.
The Commissioner of the DEP adopted the ALJ's decision with
regard to the release. The Commissioner concluded that although
neither an intent to cause a release nor fault is a necessary
requirement to impose liability under the APCA, "some causal
nexus between Alden Leeds and the offending release must be
established." The Commissioner found that the required causal
nexus was established by the knowing storage of chemicals
reactive to heat and water. The Commissioner also concluded
that the reasonableness of Alden Leeds's notice to the DEP must
be determined based on the time it took Alden Leeds to notify the
DEP after it had actual knowledge of the fire. The Commissioner
determined that the delay in this case was unreasonable.
The Appellate Division reversed the Commissioner's decision
in an unpublished opinion. Finding that the APCA imposed strict
liability, the appellate panel concluded that the storage of
chemicals was not a sufficient causal nexus. The panel also
concluded that because Alden Leeds did not cause the release,
immediate notification was not required. The court noted that
even if a causal nexus was found, it was reasonable for Steven to
gather information prior to calling the DEP. We granted the
DEP's petition for certification,
149 N.J. 143 (1997), and now
affirm in part and reverse in part.
-A-
. . . regulations controlling and prohibiting air pollution." L. 1954, c. 212, § 8. In 1967, the Commission was abolished and all its powers, including the power to promulgate regulations, were transferred to the DOH. L. 1967, c. 106, §§ 2, 6. In 1970,
the Legislature transferred all functions, powers, and duties of
the DOH relating to air pollution to the Division of
Environmental Quality and the Commissioner of the DEP. N.J.S.A.
13:1D-7. Therefore, the fire in the present case falls within
the jurisdiction of the DEP.
In 1960, the DOH and the Air Pollution Control Commission
promulgated the New Jersey Air Pollution Control Code. The
regulation provided: "No person shall cause, suffer, allow or
permit to be emitted into the outdoor atmosphere substances in
quantities which shall result in air pollution." New Jersey Air
Pollution Control Code, Chapter VI, Section 2.1. That regulation
was subsequently readopted and codified at N.J.A.C. 7:27-5.2(a).
It provides:
Notwithstanding compliance with other
subchapters of this chapter, no person shall
cause, suffer, allow or permit to be emitted
into the outdoor atmosphere substances in
quantities which shall result in air
pollution as defined herein.
[N.J.A.C. 7:27-5.2(a).]
Alden Leeds was charged with violating that regulation.
Related to, yet independent of, the alleged code violation,
Alden Leeds was charged with violating the specific notice
provision of the APCA itself. That charge was based on N.J.S.A.
26:2C-19e. It provides:
A person who causes a release of air
contaminants in a quantity or concentration
which poses a potential threat to public
health, welfare or the environment or which
might reasonably result in citizen complaints
shall immediately notify the department. A
person who fails to so notify the department
is liable to the penalties and procedure
prescribed in this section.
[N.J.S.A. 26:2C-19e.]
The DEP argues that pursuant to its authority under the APCA
to adopt regulations to combat air pollution, it promulgated a
strict liability regulation prohibiting the release of harmful
toxins into the air regardless of fault. It maintains that the
Appellate Division's requirement that in order to sustain a
violation of N.J.A.C. 7:27-5.2(a), the DEP must show that some
conduct by a responsible owner or operator of a chemical facility
caused the fire that precipitated a release of air pollution is
not required by the APCA and its implementing regulations.
There has been little consideration of the APCA in either
legislative history (it passed without a statement) or judicial
decisions. As a preliminary matter, N.J.S.A. 26:2C-19e, under
which Alden Leeds was punished, did not exist in the original
enactment. However, an analysis of the original enactment and
its subsequent modifications help to inform our decision.
The original statute imposed limitations on the expressed
powers of the Commission. The statute provided for a two-tiered
structure. The Commission was responsible for promulgating
regulations controlling air pollution, while enforcement and
implementation responsibilities were left to the DOH. Gerard R.
Moran, The Air Pollution Control Act and Its Administration,
9
Rutgers L. Rev. 640, 658 (1955). Therefore, the enforcement
capabilities of the DOH were at the mercy of the rule-making
power of the Commission. That structure ensured a period, after
passage of the statute, in which the APCA had no enforcement
aspect. Ibid.
The power of the DOH to "control air pollution" by requiring
registration and exercising the ability to enter and investigate
a suspected pollution site was severely limited. L. 1954, c.
212, § 9. Those powers were to be exercised only if the
registrant or suspected polluter consented to the intrusion.
Ibid. If the registrant refused consent, the Legislature
required a hearing before the DOH could take any action. Ibid.
That permitted polluters in operation at the time the statute
went into effect to continue polluting because of the "absence of
an authorization for agency resort to court for enforcement of
its early orders." Moran, supra,
9 Rutgers L. Rev. at 660; see
also id. at 661-62.
The original statute's primary enforcement provision was
contained in section 19, where it remains today in an amended
form. The original provision provided for civil liability in the
form of a fine. The fine was to be imposed if the polluter had
not taken the remedial actions before the expiration of the time
period contained in a DOH order to take preventative or
corrective measures.
The statute underwent significant changes during the 1962
legislative session which strengthened the DOH's powers and added
provisions to section 19. L. 1962, c. 215. Specifically, the
amendments removed the consent and hearing requirement regarding
the registration and enter-and-search provisions of the statute.
L. 1962, c. 215, § 3. Additionally, the Legislature amended
section 19, increasing the amount of the penalty that could be
imposed. L. 1962, c. 215, § 11. The amendments also modified
section 14, the triggering section of the statute. Whereas in
1954, the DOH could undertake an investigation only after a
written complaint had been filed, the 1962 amendment authorized
the DOH to investigate "[w]henever the department has cause to
believe that any person is violating any code, rule or regulation
promulgated by the commission. . . ." L. 1962, c. 215, § 6.
Finally, the Legislature permitted the DOH to order offending
entities to cease their activity until remedial action was taken.
The scope of the 1962 amendments, as compared to the
original enactment, reflects that the Legislature sought to
strengthen the DOH's enforcement authority under the APCA. The
amendments abridged the power of suspected polluters to control
compliance or investigation by simply refusing consent.
Five years later, the APCA was again amended to better
control pollution. In 1967, the Legislature not only authorized
the DOH to continue with enforcement actions in the Superior
Court, but also authorized the courts to grant injunctive relief
in a "summary manner." L. 1967, c. 105, § 1. In addition, the
Legislature enhanced the penalties and provided for continuing
penalties for ongoing offenses. L. 1967, c. 105, § 1.
When the 1967 amendments became law, Governor Richard J.
Hughes stated that the "signing of these control measures places
this State in the forefront of the fight for clean air and
water." Statement by Governor Richard J. Hughes on Signing the
Air and Water Pollution Bills, Sen. Bill No. 180, June 15, 1967.
He continued, "The perils of air and water pollution are so vast
and so ominous that we must never relax in our efforts to assure
to our citizens two basic God-given rights, which have too often
been overlooked in our modern age--clean air and clean water."
Ibid.
Finally, in 1985, the Legislature amended N.J.S.A. 26:2C-19
to include section "e" under which Alden Leeds has been charged.
L. 1985, c. 12, § 1. The Legislature bifurcated N.J.S.A. 26:2C-19 into five subsections. Those sections incorporated the DOH's
ability to institute a civil suit (subsection a), to impose an
increased civil administrative penalty (subsection b), to settle
a claim (subsection c), to fine an entity for violations of the
original statute (subsection d), and to require notice of release
of air contaminants (subsection e). Subsection 19e has not been
changed since it became effective in 1985. Those amendments
strengthened New Jersey's ability to combat air pollution by
increasing the penalties that the DEP was permitted to impose.
Senate Energy and Environment Committee, Statement to Senate Bill
No. 2480, (Dec. 6, 1984).
The bill also requires the immediate
notification of the department of any
violations. The penalty for failure to
notify the department would constitute a
separate violation and subject the violator
to liability to the increased penalties.
[Ibid.]
Despite the limited legislative history, we must nonetheless
decide whether a causal nexus between the release and the actions
or inactions of Alden Leeds is required by either N.J.S.A. 26:2C-19e or N.J.A.C. 7:27-5.2(a). Both the DEP and the Appellate
Division agree that the APCA is a strict liability statute. The
DEP in its decision concluded that "neither intent to release the
air pollutant, nor fault is a necessary element of the violation.
Yet, some causal nexus between Alden Leeds and the offending
release must be established." The Appellate Division agreed with
that conclusion. The DEP found that the nexus was established
based on Alden Leeds' knowingly storing at the Kearny site large
quantities of chemicals that were highly reactive to heat and
water. The Appellate Division disagreed with that conclusion.
Because the petition for certification has not questioned whether
or not the APCA is a strict liability statute, we will not
extensively treat the issue. Rather, the primary focus will be
whether storing the chemicals and the heating of them during the
fire established the nexus.
We agree with the Appellate Division and the Commissioner of
the DEP that the APCA and regulations promulgated pursuant to it
impose strict liability. The legislative scheme of the APCA
evinces a plan to curtail and combat pollution regardless of
fault. Each legislative amendment since 1962 has manifested a
clear intent to curtail air and water pollution quickly in order
to protect the health of our citizens. Because the APCA has as
its purpose "the protection of the public health and public
welfare, [it] is entitled to a liberal construction for the
accomplishment of its obvious beneficent objective." Department
of Health v. Owens-Corning Fiberglas Corp., 100 N.J. Super. 366,
382 (App. Div. 1968), aff'd o.b.,
53 N.J. 248 (1969). We are
similarly persuaded that N.J.A.C. 7:27-5.2(a) imposes strict
liability for the release of air pollution. The DEP's
interpretation of a regulation it is required to enforce is
entitled substantial weight. National Waste Recycling, Inc. v.
Middlesex County Improvement Auth. & Waste of N. Jersey, Inc.,
150 N.J. 209, 228 (1997); Merin v. Maglaki,
126 N.J. 430, 436-37
(1992); Tufaro v. Department of Human Servs.,
90 N.J. 538, 547
(1982).
We turn now to whether a causal nexus between the fire and
the release of pollution was established. In concluding that it
was not, the Appellate Division relied on Department of Health v.
Roselle,
34 N.J. 331 (1961). That reliance was misplaced.
In Roselle, the defendants, refuse dump operators, had
consented to a judgment obtained by the DOH ordering the
defendants to cease violating the Air Pollution Control Code
which prohibited the open burning of refuse. Id. at 335-36. The
DOH brought an action against the defendants for failing to
comply with the prior judgment when fires of unknown origin
continued. Ibid.
The provision at issue was adopted after the Air Pollution
Commission had intentionally permitted the continuance of open
dumping despite its awareness that fire outbreaks were likely to
continue absent deliberateness due to the dumping of hot ashes
and spontaneous combustion. Id. at 349. The Code provided that
no person "'shall cause, suffer, allow or permit open burning of
refuse.'" Ibid. (quoting the Air Pollution Control Code). The
Court concluded that "[t]he word 'cause' is clear enough, and if
defendants had set the fires in question, their violation of the
injunction would be plain, and the vagueness of the words
'suffer, allow or permit' would not relieve them of
responsibility." Id. at 349-50.
Roselle is distinguishable from the present case for a
number of reasons. Based on the Commission's decision to
continue to permit open dumping with the knowledge that fires
were inevitable, the Roselle Court found that the regulation was
specifically aimed at eliminating intentional fires, rather than
spontaneous fires. Ibid. The Court's conclusion that "cause"
required more than a fire of unknown origin was reached based on
the special facts that at least two known potential causes of
fires were unrelated to defendant's conduct. Here, N.J.A.C.
7:27-5.2(a) is a blanket prohibition on the release of
contaminants into the atmosphere, regardless of any
unintentional or unexplained intervening causes that may have
started the fire.
The two cases can be further distinguished. The event
prohibited by the provision in Roselle was the fire. The
defendant in that case did not cause the fire. Here, the
prohibited event was the "emi[ssion] into the outdoor atmosphere
[of] substances in quantities which shall result in air
pollution." N.J.A.C. 7:27-5.2(a). We are satisfied that the act
of housing dangerous substances is enough to impose liability for
causing a release of air pollution if those substances are
somehow released. That analysis could not apply to Roselle
because the punished act was not the emission but was the actual
fire.
Finally, Roselle was decided in 1961. Since that time, the
Legislature has strengthened the ability of the State's
regulatory agencies to limit, control, and punish those
responsible for air pollution. Indeed, only eight years after
Roselle, the Appellate Division noted that from the 1967
amendments to the APCA, "[o]ne must draw the conclusion that the
Legislature, faced by the increasingly serious and indeed
emergent problem of air pollution, was not satisfied with the
progress made by the [Air Pollution Control] Commission."
Consolidation Coal Co. v. Kandle,
105 N.J. Super. 104, 125 (App.
Div.), aff'd o.b.,
54 N.J. 11 (1969).
As we noted previously, the APCA has undergone significant changes since its original enactment. See, e.g., L. 1995, c. 188; L. 1994, c. 101; L. 1993, c. 257; L. 1989, c. 333; L. 1985, c. 12; L. 1971, c. 155; L. 1967, c. 106; L. 1962, c. 215. The overall nature of those changes reflects the Legislature's goal to strengthen the ability of the agencies to control and prevent air pollution. Additionally, since Roselle was decided in 1961, our common law has evolved to recognize the principles we articulate in this case. In 1962, this Court adopted the proposition that "an ultrahazardous activity which introduces an unusual danger into the community [] should pay its own way in the event it actually causes damage to others." Berg v. Reaction Motors Div., Thiokol Chem. Corp., 37 N.J. 396, 410 (1962). In 1983, the Court expressly recognized "that the law of liability has evolved so that a landowner is strictly liable to others for harm caused by toxic wastes that are stored on his property and flow onto the property of others." State v. Ventron Corp., 94 N.J. 473, 488 (1983). The Court explained "that those who use, or permit others to use, land for the conduct of abnormally dangerous activities are strictly liable for resultant damages." Ibid.; see also Bahrle v. Exxon Corp., 145 N.J. 144, 156-57 (1996) (reaffirming the Court's holding in Ventron, supra); Restatement (Second) of the Law of Torts §§ 519, 520 (1969) (setting out strict liability rule and test for abnormally dangerous activity on land). The same rationale applies to
pollution that is released into the air from chemicals stored at
a chemical facility.
An actor who chooses to store dangerous chemicals should be
responsible for the release of those chemicals into the air.
That Alden Leeds lawfully and properly stored chemicals does not
alter that conclusion. See DeEugenio & Sons v. Division of
Envtl. Quality,
92 N.J.A.R 2d (Vol. 5) 47 (EPE), aff'd, No. A-4055-91T2, (App. Div. April 2, 1993), certif. denied,
134 N.J. 480 (1993) (holding that despite lawfulness of open burning in
question, consequent deposit of smoke particulate on neighboring
property violated N.J.A.C. 7:27-5.2(a)).
The risks attendant to the storage of dangerous substances
counsel in favor of precautions to prevent their release. Alden
Leeds took no such precautions. On the day of the fire, there
was no one stationed at the plant to alert the authorities as
soon as a fire or other unforeseen calamity erupted. Nor was
there any other early warning system in place. A burglar or
smoke alarm sounded, but there was no response to that alarm.
The law imposes a duty upon those who store hazardous substances
to ensure that the substances on their property do not escape in
a manner harmful to the public. Alden Leeds failed to meet that
burden.
Although Alden Leeds was not found responsible for the fire,
the company's facility caused a release of air pollutants. The
required nexus is satisfied by the knowing storage of hazardous
chemicals. Regardless of what started the fire, it was the
knowing storage of chemicals by Alden Leeds that caused the
release of air contaminants once the fire reached the chemicals.
Immediate notification is required "so that if the release involves either the risk of serious harm to the public health, or to the environment, or the risk of panic, those risks could be minimized" by the DEP. New Jersey Dep't of Envtl. Protection & Energy v. Occidental Chem. Corp., 288 N.J. Super. 458, 463 (App. Div. 1995). Immediate notice is imperative "so that help can be dispatched, evacuation started, traffic patterns rerouted, and local police, fire, hospitals and ambulance squads and the local civil defense office notified." Ibid.
The meaning of "immediately" is at issue in the present case. The DEP has interpreted the term to require "'a case-by-case determination as to whether notice was given as soon as
reasonably possible under the circumstances.'" Id. at 464. We
agree.
For purposes of determining whether notification was
immediate, the period before notification is measured from the
time a chemical owner or operator has actual knowledge or reason
to know of a fire that threatens toxic chemicals or the time of
an actual release, whichever is sooner. Mobil Chem. Co. v.
Department of Envtl. Protection,
13 N.J.A.R. 791, 802 (1990).
Eighteen minutes elapsed between Steven's arrival at the facility
and his call to the DEP. Before calling the DEP, Steven took
reasonable actions to protect the firefighters before gathering
information to call the DEP. There is no evidence of time wasted
prior to notifying the DEP. It is reasonable to "gather
information for the Department's required incident notification
form before notifying the Department." Occidental, supra, 288
N.J. Super. at 464. Although he found that Alden Leeds's notice
was inadequate, the Commissioner noted that in order for the
notification to be useful, basic information must first be
gathered, including the location of the release, the nature of
the released substance, the magnitude and time of the release,
and whether the release is under control. Steven spent his first
eighteen minutes at the scene trying to ascertain that
information. First, he tried to gain access to the building
because of the fire barricade that had been established. After
he was allowed to enter, he made an inspection. He called the
DEP as soon as he had completed his investigation.
It was entirely reasonable for Steven to gather information
important to the safety of the firefighters on the scene. The
Commissioner recognized that protecting human health from an
imminent threat of harm may take precedence over the duty to
notify the DEP immediately. Here, the firefighters were
operating under a wooden second floor that held heavy machinery.
That information was critical to firefighters working under a
weakened structure supporting heavy overhead equipment. We
conclude that under the circumstances, the notice to the DEP was
timely.
We also reject the DEP's contention that the notice was not
adequate. When Steven called, he informed the operator that
there was a fire involving polyethylene bottles and silk
screening equipment. At the time, that appears to have been the
extent of his knowledge. He should have also informed the DEP of
the possibility of the fire spreading to chlorine. The record
does not reveal whether or not he so informed the DEP because the
cassette of his phone call is inaudible and he does not recall
his complete conversation. In the future, computerization of a
chemical operator's Right-to-Know statement will allow the person
receiving the notice to have instant access to the list of
chemicals stored on the premises. We conclude that under the
circumstances, the notice given by Steven was adequate.
Affirmed in part and reversed in part.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, and O'HERN join in JUSTICE COLEMAN'S opinion. JUSTICE GARIBALDI filed a separate opinion concurring in part and dissenting in part, in which JUSTICE STEIN joins.
SUPREME COURT OF NEW JERSEY
A-
50 September Term 1997
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Plaintiff,
v.
ALDEN LEEDS, INC.
_________________________
GARIBALDI, J., dissenting in part, concurring in part.
The majority affirmed in part and reversed in part the Appellate Division. It reversed the Appellate Division and concluded that "knowingly storing chemicals that are highly reactive to heat and water satisfies the causal nexus" sufficient to impose civil penalties against the owner or operator of a chemical facility that releases toxins into the atmosphere under N.J.A.C. 7:27-5.2(a). Ante at ___ (slip op. at 2). Under that holding the owner or operator of a chemical factory that lawfully and properly stores chemicals would be liable under N.J.A.C. 7:27-5.2(a) for the release of toxins as a result of a fire caused by an arsonist. I do not believe that when N.J.A.C. 7:27-5.2(a) was promulgated in 1969 the Legislature authorized the Department of Environmental Protection (DEP) to impose such
liability. I, as did the Appellate Division, find that merely
storing chemicals on the premises does not satisfy the causal
nexus requirement of N.J.A.C. 7:27-5.2(a).
I do, however, agree with the majority, when it affirmed the
Appellate Division, and held that the notice the DEP received
from the operator of the chemical company was timely under
N.J.S.A. 26:2C-19(e).
The facts are undisputed. Alden Leeds manufactures and packages swimming pool chemicals for consumer use. On April 10, 1993, the plant was closed for the Easter holiday. A fire broke out of unknown origin, causing a release of chemicals into the air. The chemicals were legally and properly stored at the factory. The administrative law judge (ALJ) found that the fire was ignited by an unknown third party.See footnote 1 There is no allegation that the fire was caused by the negligence of Alden Leeds or any of its employees.
The DEP filed administrative charges against Alden Leeds for violations of N.J.S.A. 26:2C-19(e) and N.J.A.C. 7:27-5.2(a). A hearing was held before an ALJ who concluded that "no mens rea" was required to establish a violation of the statute and the regulation. Accordingly, the ALJ found that Alden Leeds violated both. Although the Commissioner of the DEP adopted the ALJ's decision with respect to liability, he concluded that "[c]ertainly neither intent to release the air pollutant, nor
fault is a necessary element of the violation. Yet some causal
nexus between Alden Leeds and the offending release must be
established." (Emphasis added). The Commissioner found such a
causal nexus merely from the legal and proper storage of the
chemicals. I disagree.
I agree with the majority that N.J.A.C. 7:27-5.2(a) imposes
strict liability. I also agree with the majority that a causal
nexus must be established between Alden Leeds' activities and the
release of contaminants into the atmosphere. However, from an
examination of the plain language of the statute, relevant case
law, and legislative history, I conclude that something more than
the mere lawful storing of chemicals is required to establish a
causal nexus under N.J.A.C. 7:27-5.2(a). Stated differently, the
mere happening of a fire caused by an unknown third party is
insufficient to impose liability.
N.J.A.C. 7:27-5.2(a) provides:
Notwithstanding compliance with other subchapters of this chapter, no person shall cause, suffer, allow or permit to be emitted into the outdoor atmosphere substances in quantities which [sic] shall result in air pollution as defined herein.
Although the words "cause, suffer, allow, or permit" are not defined in N.J.S.A. 26:26-19(e) or N.J.A.C. 7:27-5.2(a), the plain language of the regulation -- "no person shall cause, suffer, allow or permit. . . ." -- indicates that some volitional act is required to impose liability. In Department of Health v. Roselle, 34 N.J. 331 (1961), we interpreted a provision of the
New Jersey Air Pollution Control Code (the Code) that had the
exact same language. In Roselle, the Department of Health
charged the operators of a refuse dump with a violation of the
Code, which provided that "[n]o person shall cause, suffer, allow
or permit open burning of refuse. . . ." (Emphasis added). Id.
at 336. That charge had resulted from the outbreak of fires of
unknown origin, just like the fire at Alden Leeds. Ibid. Chief
Justice Weintraub, speaking for the Court, found that the
defendants could not be found to have violated the statute (or
the injunction issued thereto) without evidence that they somehow
started the fires, stating:
The word "cause" is clear enough, and if
defendants had set the fires in question,
their violation of the injunction would be
plain, and the vagueness of the words
"suffer, allow or permit" would not relieve
them of responsibility. But plaintiff
disavowed a charge that defendants started
the fires and indeed disavowed knowledge of
their origin.
Although the "cause, suffer, allow or permit" language in
the two regulations is identical, the majority criticizes the
Appellate Division for applying the Roselle Court's
interpretation to the language of N.J.A.C. 7:27-5.2(a). Even
though the Code in Roselle targeted a more specific cause of air
pollution -- the open burning of refuse -- than the regulation
here -- targeting emissions generaly -- the Court's treatment of
the identical language in a similar environmental statute is
significant precedent.
As stated by this Court in Roselle, it is evident that
"cause" suggests some catalyst -- some act or failure to act by
the party charged with "causing" the emission which started,
precipitated or lead to the result -- here the release of air
contaminants into the atmosphere. If the fire were caused by
Alden Leeds' negligent storing of the chemicals or indeed if the
fire was the result of the spontaneous combustion of the
chemicals, even properly stored, then I would find that Alden
Leeds violated N.J.A.C. 7:27-5.2(a). In those situations, Alden
Leeds' actions would have been a catalyst to the release of
pollutants. For example, in DeEugenio & Sons v. Division of
Envtl. Quality,
92 N.J.A.R 2d (EPE) 47 (1992) aff'd, No. A-4055-91T2 (App. Div. April 2, 1993), certif. denied,
134 N.J. 480
(1993), a peach farmer secured the necessary permits to burn
peach tree trimmings. Due to wind change, the fire was
responsible for the improper emission of smoke into the
atmosphere and he was deemed to have violated N.J.A.C. 7:27-5.2(a). Although the farmer did not act negligently, he did set
the fire. See also Department of Health v. Concrete Specialties,
Inc.,
112 N.J. Super. 407, 410 (App. Div. 1970) (finding that
defendant whose equipment caused smoke to be emitted into the air
violated regulation promulgated under APCA because defendant
allowed and permitted the emission of smoke).
But the fire here was started by an unknown third person.
Alden Leeds did nothing to cause the fire. There is no evidence
that Alden Leeds either by an affirmative act or an act of
omission "caused, suffered, allowed or permitted" the release.
Causation is not established where the result would have occurred
without any action on Alden Leeds' part. State v. Jersey Central
Power & Light Co.,
69 N.J. 102, 111 (1976) (holding because the
nuclear power plant was only accelerating a condition that would
naturally have occurred, it was not charged with polluting a
creek in violation of N.J.S.A. 23:5-28). The mere storage of the
chemicals by Alden Leeds was not the catalyst that caused the
fire or the subsequent emission of contaminants into the air. By
its plain language, N.J.A.C. 7:27-5.2(a) requires the DEP to show
by a preponderance of evidence that Alden Leeds "caused,
suffered, allowed or permitted" the release of the contaminants
into the air. The DEP has failed to do so.
The majority analogizes N.J.A.C. 7:27-6.2(a) to common law
strict liability for ultrahazardous activities. However, under
common law strict liability, "[t]he strong current of authority"
provides that forces of nature and actions of third parties that
bring about damaging events from ultrahazardous activities
relieve a defendant of liability. W. Page Keeton et al., Prosser
and Keeton on the Law of Torts § 79, at 563 (5th ed. 1984).
Therefore, the analogy to common law strict liability provides no
support for a construction of N.J.A.C. 7:27-5.2 that would hold a
defendant liable even when an unknown third party caused the
release of pollutants.
The legislative history also supports my conclusion that the Legislature did not intend the DEP to have the authority to
conclude that the mere happening of a fire is sufficient to
impose liability under N.J.A.C. 7:27-5.2(a). We recognize the
importance of deference to an administrative agency's
interpretations. Nonetheless, we have repeatedly held, "[a]n
administrative agency may not under the guise of interpretation
extend a statute to include persons not intended, nor may it give
the statute any greater effect that its language allows."
Kingsley v. Hawthorne Fabrics, Inc.,
41 N.J. 521, 528-29 (1965).
The issue is not whether the DEP believes that it is good policy
to fine an owner or operator merely because he lawfully and
properly stored chemicals, but whether in 1969 when N.J.A.C.
7:27-5.2(a) was enacted the Legislature intended and authorized
the DEP to enact a regulation imposing such liability.
The predecessor of N.J.A.C. 7:27-5.2 was promulgated in
1960. Ante at ___ (slip op. at 9). N.J.A.C. 7:27-5.2 was
subsequently readopted and codified prior to September 1, 1969.See footnote 2
In 1969 the regulation was promulgated under N.J.S.A. 26:2C-8,
which states "[t]he department shall have the power to formulate
and promulgate, amend and repeal codes and rules and regulations
preventing, controlling and prohibiting air pollution throughout
the State. . . ." Neither the notification requirement of
N.J.S.A. 26:2C-19(e), the criminal sanctions of N.J.S.A. 26:2C-19(f), nor even the general fine provision of N.J.S.A. 26:2C-19(d) for violations of the APCA had been enacted when N.J.A.C.
7:27-5.2(a) was promulgated. The only statutory authority under
which the DEP could assess fines at that time was against those
who failed to comply with DEP orders. Alden Leeds did not fail
to comply with any DEP directive. Therefore, because when the
DEP promulgated N.J.A.C. 7:27-5.2(a) it had no authority to fine
a company for a release of pollution solely on the basis that the
company stored chemicals, the majority's construction of the
regulation exceeds the DEP's statutory authority.
Although the Legislature has strengthened the ability of DEP
to control air pollution, it has retained the concept of "cause."
For example, subsection e of N.J.S.A. 26:2C-19, which was enacted
in 1985, provides:
A person who causes a release of air
contaminants in a quantity or concentration
which poses a potential threat to public
health, welfare or the environment or which
might reasonably result in citizen complaints
shall immediately notify the department. A
person who fails to so notify the department
is liable to the penalties and procedures
prescribed in this section.
Therefore, to impose liability under either the statute or
N.J.A.C. 7:27-5.2(a), the DEP must show by a preponderance of
evidence that a party caused the emission of air contaminants
into the atmosphere.
Under the Environmental Cleanup Responsibility Act,
N.J.S.A. 13:1K-6 (ECRA), the Legislature imposed liability on the
owner of property without regard to fault or causation.
N.J.S.A. 13:1K-9. The ECRA was enacted in 1983, L. 1983, c. 330,
in response to the problems and delays that arose because of
attempts to allocate fault among several owners. As noted in
Superior Air Prod. v. NL Indus.,
216 N.J. Super. 46, 63 (App.
Div. 1987), "[r]esponsibility for the contamination plays no part
in the ECRA process. Non-compliance subjects the violator to
strict liability for costs without regard to fault."
Accordingly, under ECRA, the Legislature clearly knew how to
impose strict liability for a cleanup of a hazardous substance
based solely on the ownership of the property, and did so under
ECRA. Likewise, N.J.S.A. 58:10-23.11(g) states that any person
who "is in any way responsible for any hazardous substance
[discharge into water] . . . shall be strictly liable . . .
without regard to fault." That too indicates that when the
Legislature intends to impose liability solely on the basis of
ownership of the property, it does so in unmistakable language.
It did not do so in N.J.S.A. 26:2C-19(e) and the DEP did not do
so in N.J.A.C. 7:27-5.2(a).
Subjecting a party to civil penalties for a release of
contaminants it neither volitionally nor even accidentally caused
is a harsh result. The intention to do so should be explicit
from the regulations and from the enabling statute. Such a
dramatic expansion of an agency's authority should be left to the
Legislature and not the Commissioner.
To summarize, the words "cause, suffer, allow or permit" presume some catalyst leading to an effect. As the Appellate Division recognized, "[t]he record is barren of any evidence that the manner in which appellant stored the chemicals was a cause of
the fire." It was the fire, and whatever or whomever caused the
fire that must be viewed as the cause of the release of the
contaminates into the air.
I concur in the Court's reversal of the DEP's claim under
N.J.S.A. 26:2C-19(e). I would affirm the judgment of the
Appellate Division.
Justice Stein joins in this opinion.
NO. A-50 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Plaintiff-Appellant,
v.
ALDEN LEEDS, INC.,
Defendant-Respondent.
DECIDED March 12, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Coleman
CONCURRING/DISSENTING OPINION Justice Garibaldi
Footnote: 1There is a reference in the police log that an unnamed third-party called the Kearny Police Department to claim responsibility for the fire. Footnote: 2It is unclear when N.J.A.C. 7:27-5.2(a) was actually codified, as the subchapter historical note merely states that "all provisions of this subchapter . . . became effective prior to September 1, 1969."