NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4683-14T1
GREG and RENEE MATEJEK,
Plaintiffs-Respondents,
v.
APPROVED FOR PUBLICATION
MARTHA and GUY WATSON, JOAN March 3, 2017
HOWARD, ALAN and ANNE MARIE
SHAPIRO, APPELLATE DIVISION
Defendants,
and
CARLOS1 and JEAN GILMORE,
Defendants-Appellants,
and
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION and
CLAREMONT HILLS PARCEL TWO
CONDOMINIUM ASSOCIATION,
Defendants.
_______________________________________________________
Argued December 6, 2016 – Decided March 3, 2017
Before Judges Fisher, Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Chancery Division, Morris County,
Docket No. C-126-13.
1
Carlos Gilmore was improperly pleaded as Carl Gilmore.
William H. Mergner, Jr., argued the cause
for appellants (Leary, Bride, Tinker &
Moran, attorneys; Mr. Mergner and Adrian K.
Cousens, of counsel and on the brief).
John M. Bowens argued the cause for
respondents (Schenck, Price, Smith & King,
LLP, attorneys; Mr. Bowens and Sandra
Calvert Nathans, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
The New Jersey Spill Compensation and Control Act (the
Spill Act), N.J.S.A. 58:10-23.11 to -23.24, renders "all
dischargers [of contamination] jointly and severally liable for
the entire cost of a cleanup." Magic Petroleum Corp. v. Exxon
Mobil Corp., 218 N.J. 390, 394 (2014); N.J.S.A. 58:10-23.11g.
The Spill Act also authorizes a private cause of action by a
responsible party for contribution from other responsible
parties. N.J.S.A. 58:10-23.11f(a)(2)(a). We consider in this
appeal the viability of a suit by an alleged contaminator
seeking the cooperation and involvement of other alleged
contaminators in an investigation into the cause of and
responsibility for an alleged contamination. Because we find
nothing in the letter or spirit of the Spill Act that would
preclude the issuance of such a remedy, we affirm.
The facts as found by the trial judge at the conclusion of
a bench trial are relatively simple. Briefly, oil was discovered
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on the surface of a tributary to Royce Brook in Hillsborough in
2006. In response, the New Jersey Department of Environmental
Protection (NJDEP) removed five underground storage tanks, one
from each of five adjoining condominium units. Other than visit
the site a few months later to confirm the absence of oil in the
tributary, the NJDEP took no further action and its file
remained open, thereby constituting, as the judge found, a cloud
on title to all five condominium units.
Approximately seven years after the removal of the tanks,
and with the NJDEP still maintaining an open file, plaintiffs
Greg and Renee Matejek – owners of one of the impacted units –
filed a complaint against the owners of the other four units;
they sought a judgment that would obligate all owners to
participate in and equally share in an investigation and, if
necessary, remediation of the property. The judge found that
even though there was no evidence yet as to the precise source
of the contamination, the fact that the NJDEP had removed all
five tanks was sufficient to impose on the impacted parties the
obligation "to participate in the investigation process."
Consequently, the judge: ordered plaintiffs to retain the
services of a licensed site remediation professional (LSRP) to
investigate; directed the LSRP to render a report to the parties
as to whether remediation was required; and, if remediation was
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required, compelled the division of the costs equally among the
five owners.
Only defendants Carlos and Jean Gilmore – owners of one of
the five units – appeal. They argue: (1) plaintiffs lacked
standing to bring an action to compel investigation and cleanup
under the Spill Act; (2) the trial court lacked jurisdiction to
enter the judgment in question; and (3) the Spill Act does not
permit and the facts did not warrant the relief granted.
The Gilmores' challenge to the judgment chiefly relies on
the lack of evidence that they caused, in whole or in part, the
contamination that warranted the NJDEP's involvement. The judge
recognized this but found the circumstances did not preclude
imposition of an equitable remedy by which that evidence might
be revealed. We agree. To be sure, plaintiffs' suit varies from
what the Legislature likely anticipated when authorizing a
private cause of action for contribution. But, as the judge
recognized, the Spill Act's general approach has since been
altered. Under the Site Remediation Reform Act, N.J.S.A. 58:10C-
1 to -29, which became effective in 2009, the burden of
completing a cleanup fell to private parties through retention
of an LSRP. The former resolution of a spill cleanup – the
NJDEP's issuance of a "no further action" letter – has been
replaced by the rendering of findings by an LSRP who, upon
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finding a site to be clean so advises the NJDEP, which may
thereafter conduct its own confirmatory examination. According
to the Gilmores, a responsible party would have standing to seek
contribution or any other relief from other responsible parties
only following the NJDEP's acceptance of the LSRP's findings.
Through a similar analysis, the Gilmores argue the NJDEP
possessed primary jurisdiction over the dispute.
We find no merit in the Gilmores' contentions. As the trial
judge recognized, plaintiffs' title was encumbered and, if the
Gilmores' arguments were sustained, plaintiffs would have no way
to remove that encumbrance other than to solely bear the expense
of investigation and remediation. We agree with the trial judge
that such a scenario leaves plaintiffs with no adequate remedy
at law. And we agree that, in such circumstances, a court may
provide a remedy that fairly and justly alleviates the
inequitable burden that a narrow interpretation of the Spill Act
would impose.
Indeed, a court's equitable jurisdiction provides as much
flexibility as is warranted by the circumstances:
Equitable remedies are distinguished for
their flexibility, their unlimited variety,
their adaptability to circumstances, and the
natural rules which govern their use. There
is in fact no limit to their variety in
application; the court of equity has the
power of devising its remedy and shaping it
so as to fit the changing circumstances of
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every case and the complex relations of all
the parties.
[Sears Roebuck & Co. v. Camp, 124 N.J. Eq.
403, 411-12 (E. & A. 1938) (internal quota-
tions omitted).]
The authority to issue a judgment that compelled the other
owners' cooperation in the further investigation of the property
arose from the maxim that equity "will not suffer a wrong
without a remedy." See Crane v. Bielski, 15 N.J. 342, 349
(1954); In re Mossavi, 334 N.J. Super. 112, 121 (Ch. Div. 2000).
In addition, we reject the notion that another equitable
maxim – "equity follows the law" – might arguably suggest that
the reach of equity should be restrained by the Spill Act's
limits for two essential reasons. First, as we have already
observed, the practice of remediation appears to have been
altered with the enactment of the Site Remediation Reform Act.
In this case, the NJDEP maintains an open file – a fact that
clouds plaintiffs' title – while leaving the dispersion of that
cloud to the impacted property owners. Absent the crafting of an
appropriate remedy, plaintiffs would have been left with the
prospect of either doing nothing or proceeding on their own in
gathering evidence necessary to seek contribution from other
dischargers. This circumstance strongly suggests the need for a
remedy that would fairly burden all the potential dischargers
with an investigation into the actual cause, the remediation of
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the property if necessary, and the fixing of responsibility for
the discharge on those truly responsible.
Second, we do not interpret the Spill Act as being so
narrow or ineffectual as to permit a private action only on
proof that another caused contamination in whole or in part. The
Legislature expressly welcomed a "liberal constru[ction]" of the
Spill Act for "the general health, safety, and welfare of the
people of this State." N.J.S.A. 58:10-23.11x. And the Supreme
Court has recognized that the Spill Act was "not intend[ed] to
prevent persons from seeking" adequate relief through other
means in such matters. Magic Petroleum, supra, 218 N.J. at 407.
At present, the facts suggest only that the tributary was
contaminated in 2006. The NJDEP continues to maintain an open
file but apparently has no intention of further investigating or
remediating; it merely removed the tanks and charged the five
property owners with the cost. Is it not in the best interest of
the health, safety and welfare of the people to compel a further
investigation? Rather than preclude or render unduly burdensome
a greater examination into the situation through the adoption of
a narrow interpretation of the Spill Act, we commend the trial
judge's exercise of discretion in adopting an inventive solution
– the necessity of which was compelled by all the relevant
circumstances – in this particular situation.
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In affirming the judgment under review, we assume the
likelihood of additional litigation in the future, as did the
judge when he observed that, "[i]n the event . . . additional
remediation is required and the parties are not able to agree as
to the allocation, new litigation may be initiated." The judge
recognized the possibility that the parties might seek further
adjustment of their rights depending upon the outcome of the
investigation required by the judgment under review. By
affirming that judgment, we also do not foreclose that
possibility nor limit the scope of any future litigation or the
potential issuance of a remedy for those property owners who may
be exonerated by the investigation to follow.
We find insufficient merit in the Gilmores' remaining
arguments to warrant further discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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