In re the Directive of the New Jersey Department of Environmental Protection

539 A.2d 1181, 110 N.J. 69, 18 Envtl. L. Rep. (Envtl. Law Inst.) 20933, 27 ERC (BNA) 1668, 1988 N.J. LEXIS 34

• Court: Supreme Court of New Jersey
• Decided: April 18, 1988
• Status: Published

Opinions

The opinion of the Court was delivered by

HANDLER, J.

In 1984, the Department of Environmental Protection (DEP) investigated the source of a serious groundwater contamination in the Township of West Milford. The contamination was traced to an Amoco gasoline station leased by Kimber Petroleum Corporation and a Chevron gasoline station owned by Solar Oil Sussex at the time of the contamination. The groundwater contamination required residents of the Greenbrook Estates neighborhood to be connected to an outside water supply. Acting pursuant to the New Jersey Spill Compensation and Control Act, DEP directed Kimber Petroleum and Solar Oil to pay $2.16 million to fund the construction of an alternate water supply, failing which each would be subjected to treble damages. Kimber Petroleum and Solar Oil resisted payment of these costs, appealed to the Appellate Division, and moved for a stay of DEP’s order exacting costs and imposing treble damages upon a refusal to pay. On July 31, 1986, the Appellate Division denied the motion for a stay pending appeal. On October 20, 1986, the Court certified the appeal pursuant to Rule 2:12-2 and ordered appellants to pay or to post security for the claimed costs of the removal but enjoined the imposition of treble damages.

I.

Kimber Petroleum and Solar Oil challenge the constitutionality of the New Jersey Spill Compensation and Control Act (the Spill Act), N.J.S.A. 58:10-23.11 to -23.11z. In particular, they assert that the Spill Act’s treble damages provision violates the parties’ due process rights under the federal and state constitutions.

The treble damages section of the Spill Act is as follows: Whenever any hazardous substance is discharged, the [Department of Environmental Protection] may, in its discretion act to remove or arrange for the removal of such discharge or may direct the discharger 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 department in an amount equal to three times the cost of such removal ... [N.J.S.A. 58:10-23.11f(a).]

The following section deals with the polluter’s liability:

Any person who has discharged a hazardous substance or is in any way responsible for any hazardous substance which the department has removed or is removing ... shall be strictly liable, jointly and severally, without regard to fault, for all cleanup and removal costs.

An act or omission caused solely by war, sabotage, or God, or a combination thereof, shall be the only defenses which may be raised by any owner or operator of a major facility or vessel responsible for a discharge in any action arising under the provisions of this act. [N.J.S.A. 58:10-2S.llg(c), (d).]

Thus under these provisions a “discharger” is one who has “discharged a hazardous substance or is in any way responsible” for such a discharge. Id. The liability of a discharger is absolute—it is strict, “without regard to fault”, and joint and several; only limited defenses not associated with fault—i.e., relating to war, sabotage or divine factors—are available. Id. See State, Dep’t of Envtl. Protection v. Ventron Corp., 94 N.J. 473, 501-03 (1983) (liability under the Spill Act extends to parent corporation of wholly owned subsidiary that violated the Spill Act).

II.

At the outset we point out that DEP, in issuing the directives in this case, has not been acting within the language of the Spill Act as strictly interpreted. The Act directly authorizes DEP to take one of two alternative actions when it discovers illegally-dumped hazardous waste: 1) it can act to remove the waste (and then bring a cost-recovery action against the responsible parties, N.J.S.A. 58:10-23.11q), or 2) it can direct a responsible party to remove the waste. N.J.S.A. 58:10— 23.11g(c), (d). In this case, DEP has done neither. DEP’s directive to Kimber Petroleum and Solar Oil required Kimber Petroleum to pay the money necessary for the work DEP intended to undertake in the construction of an alternative water supply required by the local groundwater contamination. DEP did not seek relief by way of a cost-recovery action nor did it direct Kimber Petroleum and Solar Oil to do the work. This raises as a threshold question the validity of DEP’s action in this case as a basis for treble damages. Though this issue was not fully raised by the parties, we believe it appropriate to deal with it at this time.

DEP’s practice of requiring payment by responsible parties while maintaining control itself over remedial actions is not directly authorized by the Spill Act.¹ Nevertheless, DEP’s ability directly to undertake removal of a discharge, thereby assuring the elimination of toxic contamination while concomitantly securing removal costs from responsible parties, would appear to be highly necessary as a means of effective enforcement of the Spill Act. DEP has the discretion, implicit in its broad implied powers, to require responsible polluters to pay for cleanup or removal costs prior to remedial action.² See New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544 (1978); cf. GATX Terminals Corp. v. State, Dep’t of Envtl. Protection, 86 N.J. 46, 52 (1981) (statutory power to clean up spills provides basis to prevent spills). We are satisfied that the practice is implicit in the broad authority granted the Department under the Spill Act and under the Department’s own authorizing legislation, N.J.S.A. 13:1D-1 to -19.

III.

The United States Supreme Court has upheld the validity under the federal constitution of multiple damages provisions. Overnight Motor Transp. Co. v. Missel, 316 U.S. 572, 584, 62 S.Ct. 1216, 1223, 86 L.Ed. 1682, 1691 (1942); Missouri Pac. Ry. Co. v. Tucker, 230 U.S. 340, 348-49, 33 S.Ct. 961, 962-63, 57 L.Ed. 1507, 1510 (1913); Missouri Pac. Ry. Co. v. Humes, 115 U.S. 512, 523, 6 S.Ct. 110, 114, 29 L.Ed. 463, 466 (1885). The Supreme Court regularly applies antitrust legislation, which, like the Spill Act, combines treble damages with joint and several liability. See, e.g., Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981); Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). The Sherman Antitrust Act has been interpreted in a way that those subjected to onerous joint and several liability provisions have no right of contribution. Texas Indus., supra.

The plaintiffs do not, however, claim that the Spill Act’s treble damages provision, as such, is invalid.³ Instead they point to the fact that this provision is only triggered when a DEP order is disputed and claim that this is unconstitutional because it serves to deter judicial challenge to state action.

In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Supreme Court invalidated state rate-making legislation because the legislation permitted railroads to obtain judicial review of rates only as defendants in criminal prosecutions. The legislation violated due process because “the penalties for disobedience [were] by fines so enormous and imprisonment so severe as to intimidate [affected parties] from resorting to the courts to test the validity of the legislation.” Id. at 147, 28 S.Ct. at 448, 52 L.Ed. at 724. With this type of legislation, “the result is the same as if the law in terms prohibited the [affected party] from seeking judicial construction of laws which deeply affect its rights.” Id. If a challenging party has reasonable grounds for contesting the validity or applicability of an administrative order, it must be able to do so without penalty. See Ex parte Young, supra; Oklahoma Operating Co. v. Love, 252 U.S. 331, 338, 40 S.Ct. 338, 340, 64 L.Ed. 596, 599 (1920) (issuing permanent injunction restraining enforcement of penalties accruing during litigation “provided that the plaintiffs had reasonable ground to contest them”); Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459 (1964).

The federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601 to 9657, has a provision similar to, but not identical with, the Spill Act’s treble damages provision. 42 U.S.C. § 9607(e)(3) states:

If any person who is liable for a release or threat of release of a hazardous substance fails without sufficient cause to properly provide removal or remedial action upon order of the President pursuant to section 104 or 106 of this Act, such person may be liable to the United States for punitive damages in an amount at least equal to, and not more than three times, the amount of any costs incurred by the Fund as a result of such failure to take proper action.

The main difference between the language in the Spill Act and that of CERCLA is the former’s mandatory tone. Compare N.J.S.A. 58:10-23.11f(a) (“Any discharger who fails to comply ... shall be liable ... in an amount equal to three times the cost of such removal.”) (emphasis added) with 42 U.S.C. § 9607(c)(3) (“If any person ... fails without sufficient cause”, etc.) (emphasis added).

CERCLA’s treble damages provision, has been challenged on the same ground as the Spill Act’s treble damages provision is today challenged, as an allegedly unconstitutional infringement of federal due process rights. The federal courts that have addressed this claim have ruled that CERCLA’s provision is constitutional. They have done so in part by interpreting the phrase “without sufficient cause” to authorize a “good faith defense”: a party will not be liable for treble damages if it has a reasonable good faith belief that it has a valid defense to the remedial order. Solid State Circuits, Inc. v. United States, 812 F.2d 383 (8th Cir.1987); Wagner Seed Co. v. Daggett, 800 F.2d 310 (2nd Cir.1986); Aminoil, Inc. v. United States, 646 F.Supp. 294 (C.D.Calif.1986); Wagner Elec. Corp. v. Thomas, 612 F.Supp. 736 (D.Kan.1985); United States v. Reilly Tar & Chem. Corp., 606 F.Supp. 412 (D.Minn.1985). Under a good-faith exception, treble damages cannot be imposed on a noncomplying party “if the party opposing such damages had an objective reasonable basis for believing that the EPA’s order was either invalid or inapplicable to it.” Solid State Circuits, supra, 812 F.2d at 391 (footnote omitted).

The State purports to sidestep these constitutional claims by arguing that the directives that apparently impose potential liability for treble damages are actually merely notice of obligations under the Spill Act. It characterizes the treble damages provision as a mandatory, not a conditional, multiple damages provision. It argues that the directives do not possess independent legal force, i.e., they do not as such prescribe liability for treble damages, but serve only to provide notice to potentially responsible parties of their obligations under the Spill Act. The directive, according to the State, simply gives the polluter the opportunity to clean up any dump sites for which it is responsible, thus serving only as a notice and as a basis for a defense to the imposition of treble damages liability: if the notice is not sent, liability cannot be imposed. The State contends that since the Legislature has the power to impose unconditional mandatory treble liability, it surely has the power to impose contingent treble damages, which benefits the alleged discharger—the ability to avoid “mandatory” multiple damages for the cleanup through compliance with the terms of the directive.

The State’s characterization of the treble damages provision avoids reality. N.J.S.A. 58:10-23.11f(a) states that the only choice a company has when faced with a DEP directive is compliance or treble damages. Unlike most other laws with multiple damage provisions, the Spill Act’s treble damages provision does not merely notify persons of potential liability and inform those persons how they may stay clear of illegal behavior. These provisions are indisputably coercive; they have the purpose and the effect of compelling persons to pay money to the State, even if those persons have a valid claim that they are not justly or legally responsible for the payment.

No exception is made for those who refuse compliance in order first to determine the directive’s validity. However, the DEP argued that even though a charged party cannot avoid compliance with the required payment of costs, there are means available for bringing a challenge to the validity of a DEP directive without risking further penalties. The alleged violator can pay the costs assessed in the directive and then seek reimbursement from the Spill Fund. Such hearings would be before boards of arbitration with appeals to the Appellate Division.

Boards of arbitration shall be convened by the administrator when persons alleged to have caused the discharge, the administrator or other persons contest the validity or amount of damage claims or cleanup and removal costs present ed to the fund for payment. If the source of discharge is not known, any person may contest such claims presented for payment to the fund.

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One board of arbitration may be convened to hear and determine all claims arising from or related to a common discharge.

The boards shall have the power to order testimony under oath and may subpoena attendance and testimony of witnesses and the production of such documentary materials pertinent to the issues presented to the board for determination. Each person appearing before the board shall have the right to counsel.

Determinations made by the board shall be final. Any action for judicial review shall be filed in the Appellate Division of the Superior Court within 30 days of the filing of the decision by the administrator. [N.J.S.A. 58:10-23.-lln(a), (c), (d), (g).]

The Supreme Court has held that it is sufficient for the due process guarantee of the federal constitution that there be some forum where an order’s validity can be challenged without penalty; it need not be the same forum where enforcement actions are prosecuted and the challenge need not be pre-payment. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Under this analysis, the pre-adjudication payment of actual costs under the statute with the opportunity later to contest the legality or reasonableness of such costs without further penalty⁴ could be viewed as satisfying essential due process concerns.

Nevertheless, under the circumstances, there remain doubts as to the Act’s validity under the federal constitution because of the way in which it combines the lack of a pre-enforcement hearing with strict liability and added penalty for noncompliance.

The United States Supreme Court has never before ruled on the constitutionality of a statutory enforcement scheme that combined, as the Spill Act does, joint and several liability, nearly absolute liability, the 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 found to satisfy due process requirements.⁵ The court’s analysis in that case, however, failed to fully focus on the significance of the fact that the Act’s provision of a means to challenge administrative action is only free of the threat of added punitive damages if done after compliance with such action.

Due process standards arguably call for a right to challenge the validity of a legislative or administrative order without facing the possibility that one will incur a greater penalty if such challenge is unsuccessful than the loss resulting from such an order if left unchallenged. See United States v. Pacific Coast European Conference, 451 F.2d 712, 717 (9th Cir.1971) (under due process a “constitutional tolling principle” prevents one from being forced to pay a statutory penalty for noncompliance with an act during the time it is being tested in good faith); cf. Brown & Williamson Tobacco Corp. v. Engman, 527 F.2d 1115, 1119 (2nd Cir.1975) (“one has a due process right to contest the validity of a legislative or administrative order ... without necessarily having to face ruinous penalties if the suit is lost.”). While none of the individual components of the Spill Act enforcement framework violates due process requirements the combined weight of the joint and several strict liability scheme with the lack of a pre-enforcement hearing opportunity and the imposition of punishment in the form of treble damages upon failure to comply—even if such failure is predicated upon a reasonable defense—may be beyond constitutional tolerance.

The parties have questioned the Spill Act’s validity under the New Jersey Constitution and the state doctrine of fundamental fairness.⁶ The New Jersey Constitution offers protections that go beyond those offered by the United States Constitution. See State v. Novembrino, 105 N.J. 95 (1987); State v. Hunt, 91 N.J. 338 (1982); State v. Alston, 88 N.J. 211 (1981). We have resorted to the state constitution when there was uncertainty as to the protection afforded by the federal constitution. See, e.g., State v. Williams, 93 N.J. 39 (1983); State v. Schmid, 84 N.J. 535 (1980), appeal dismissed sub nom. Princeton Univ. v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982). In a variety of contexts we have concluded that, compared with the federal constitution, the state constitution affords parallel protections, e.g., State v. Gilmore, 103 N.J. 508 (1986); State v. Saunders, 75 N.J. 200 (1977), or greater protections, e.g., State v. Novembrino, supra; State v. Alston, supra. In addition, the doctrine of fundamental fairness, which has roots in the New Jersey Constitution and in New Jersey common law, has been applied to grant persons procedural protections that may exceed those offered by the due process clause of the federal constitution. See, e.g., State v. Abbati, 99 N.J. 418 (1985); State v. Gaffey, 92 N.J. 374 (1983); State v. Tropea, 78 N.J. 309 (1978); State v. Talbot, 71 N.J. 160 (1976); State v. Gregory, 66 N.J. 510 (1975); State v. Kunz, 55 N.J. 128 (1969). See generally State v. Ramseur, 106 N.J. 123, 376-79 (1987) (Handler, J., dissenting) (discussing fundamental fairness protections against arbitrary governmental actions). We have recognized the relevance of independent state constitutional protections and the doctrine of fundamental fairness for the protection of civil rights and interests. See State v. 1979 Pontiac Trans Am, Color Grey, 98 N.J. 474 (1985); Right to Choose v. Byrne, 91 N.J. 287 (1982); Burlington County NAACP v. Mt. Laurel, 67 N.J. 151 (1975); cf. Cunningham v. Department of Civil Serv., 69 N.J. 13 (1975) (as a matter of fundamental fairness and administrative due process demoted civil service employees held entitled to an evidentiary hearing to resolve a contested factual issue); King v. South Jersey Nat’l Bank, 66 N.J. 161, 191-98 (1974) (Pashman, J., dissenting) (state constitution’s guarantee of due process should be held to void a contract’s acceleration clause).

The Spill Act, as the State would have it interpreted and applied, could have a draconian impact on affected parties. A small company with arguably little or no actual responsibility for the discharge of a hazardous substance might be forced to pay a large amount of money, with no effective pre-payment judicial recourse, no means to challenge the DEP’s estimate of the monetary amount needed, and a potentially long delay before it gets its refund from the Spill Fund or the contribution due from the other liable dischargers. The result in fact could be confiscatory. This kind of problem—undue harshness in the individual application of the Act’s enforcement provisions—can be rectified by recognition of the availability of a good-cause exception. The availability of such an exception would allow a genuinely aggrieved party with legitimate defenses to urge these in order to avoid the imposition of heavy penalties. Provisions for such an exception could be achieved through the minimal modification of the literal terms of the Act by implying an exception similar to that found in CERCLA. See supra at 76. Without an implied good cause, or reasonable cause exception, the statute may infringe the state or federal constitutions.

The question thus presented is whether the implication of such a good cause exception can be reconciled with the intent of the Legislature. Given the choice between invalidating the Spill Act and reading a provision into the Act, we choose the latter course. “In appropriate cases, a court has the power to engage in ‘judicial surgery’ or the narrow construction of a statute to free it from constitutional doubt or defect.” N.J. Chamber of Commerce v. N.J. Elec. Law Enforcement Comm’n, 82 N.J. 57, 75 (1980); see Town Tobacconist v. Kimmelman, 94 N.J. 85, 104 (1983). This action is appropriate when the Legislature would have preferred the statute to remain in effect in modified form to the statute being invalidated. Id. We therefore hold that treble damages need not be assessed if the party opposing such damages had an objectively reasonable basis for believing that DEP’s directive was either invalid or inapplicable to it, and that any decision by the DEP to seek treble damages in a recovery action be subject to judicial review as any other agency action. We find that such limitation comports with what we perceive to be the intent of the Legislature. When viewed in the context of the broadened implied powers granted the DEP under our analysis, the scheme effectuates the legislative intent of providing a powerful anti-pollution mechanism, serving to discourage potentially liable parties without needlessly acting against potentially innocent parties with undue harshness. The imputation of a narrowly drawn good-cause defense is a reasonable constraint on the broad implied agency powers we find by our expansion of the literal terms of the Spill Act.

We are satisfied that so interpreted, the Act will not be significantly weakened and that responsible polluters will remain fully amenable to the necessarily strict enforcement machinery of the Act. The Spill Act serves the important interests of preventing and eliminating contamination from toxic waste dumps.⁷ The authorization of a good-cause defense to the Act’s treble damages provisions will validate the Act’s enforcement mechanisms. The Act so construed does not mean that compliance with DEP directives will be slowed because some parties challenge the directives in court. This would misstate the procedural posture in which a good-cause defense comes into play. A good-cause defense is relevant only once a company refuses to comply with a DEP directive and DEP moves in court to enforce the directive. In accordance with its directive the DEP in its enforcement action may seek treble damages as a penalty for non-compliance.⁸ If the court determines that a company’s basis for non-compliance is objectively reasonable, even if the court does not ultimately uphold the company’s argument, DEP’s request for treble damages may be rejected if not reasonable in light of all the circumstances. The enforcement provisions of the Act will remain effective tools to secure swift compliance with the terms of the Act to the end that hazardous discharges are cleaned up as promptly as possible by those polluters responsible. Given the importance of the objectives the Spill Act serves, the Legislature would prefer somewhat less efficient, but still effective, enforcement provisions to none at all.

We turn more specifically to the additional issues of what kind of good-cause defenses would be available in a treble damages/enforcement action. This calls for an examination of the substantive liability of parties for removal under the Act and the nature and extent of damages available.

A party even remotely responsible for causing contamination will be deemed a responsible party under the Act. See Ventron Corp., supra. As dischargers, Kimber Petroleum and Solar Oil are each responsible parties regarding the contamination that made the local water supply unusable. N.J.S.A. 58:10-23.11g(c) states that responsible parties are liable for “all cleanup and removal costs.” Thus each is liable under the Spill Act for the total costs entailed in the cleanup and removal of the contaminants.

Since the Act provides for joint and several liability DEP’s assessment of one’s proportional share of liability will rarely be the subject of a good-cause defense. In addition, the Act’s strict liability provision will severely restrict claims involving the initial triggering of liability. Nevertheless, there remains a number of possible good-cause defenses. Kimber Petroleum and Solar Oil, for example, raise several arguments against the validity of the statutory damages scheme. ■ One claim is that the costs sought are unreasonable; it is asserted that the work to construct a new water supply is beyond the statutory liability of a responsible party, which is limited to, at most, the cleanup and removal of the hazardous waste discharge. The meaning of the statute on this point is not clear. N.J.S.A. 58:10-23.11g(a)(2) defines “all cleanup and removal costs” to include “the cost of restoration and replacement, where possible, of any natural resource damaged or destroyed by a discharge.” Funding the creation of an alternative water supply might also fit under the equally broad definition, id. at (a)(1), that cleanup and removal costs include damage to private property. Thus it is arguable that a discharger would be responsible for creating an alternative long-term water supply. On the other hand, the construction of the extensive infrastructure entailed in a water supply may not be within the contemplation of replacing a natural resource destroyed by a discharge. Moreover, genuine disputes may arise in terms of whether the previous water supply was wholly a part of a “natural resource” and whether a discharge brought about the destruction of the natural resource, as well as in terms of the costs reasonably related to any replacement of the natural resource.

While the statute then can be read broadly to encompass such far ranging costs as being included in “removal costs”, we acknowledge a countervailing position that such costs exceed those reasonably within the contemplation of the statute. We cannot on the record presented and the issues actually argued resolve these questions of statutory construction. We raise them to suggest that in an appropriate case, an aggrieved party should have the right, in an action for reimbursement to recover costs, to demonstrate that an element of the costs imposed by DEP is unreasonable. An identical contention raised on an objectively reasonable basis could constitute a “good-cause defense” to a pre-payment enforcement directive.

IV.

We conclude that (1) a good-cause defense by necessary implication is provided under the treble damages provision of the Spill Act, (2) good-cause defenses include challenges to the reasonableness of the costs assessed, and (3) the DEP has the authority to seek removal costs from dischargers while controlling remedial action and obtain treble damages upon failure to pay such costs.

Accordingly, we rule that the DEP directive issued to Kimber Petroleum and Solar Oil threatening treble damages upon noncompliance complies with the Spill Act. The provisions of the DEP directive ordering the payment of removal costs are valid and enforceable subject, however, to any good-cause defense that may be raised by the appellants. Nevertheless, in this case we need not consider further the applicability of a good-cause defense as a basis for denying treble damages because the Court has ordered the parties to pay the remedial costs assessed by the directive or security for those costs and has for purposes of this appeal excused liability for treble damages based upon the earlier failure of the parties to have complied with the DEP directive. The directive of DEP, as modified by the order of this Court on appeal, is affirmed.

1 Under the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601 to 9657, the Environmental Protection Agency (EPA) has three options: 1) it may file a civil suit to force a responsible party to remove the hazardous waste, id. at § 9606(a); 2) it may issue an administrative order requiring removal; id., and 3) it can use Superfund moneys for the cleanup, and the responsible parties would then be liable for those amounts to the Superfund. Id. at §§ 9604(a)(1), 9612(c)(1); see Wagner Elec. Corp. v. Thomas, 612 F.Supp. 736, 738 (D.C.Kan.1985). The EPA thus does not seem to be authorized by CERCLA to act in a way analogous to the way that DEP has acted in this case: i.e., to maintain control of the cleanup operations while requiring the responsible parties to prepay.

2 However, we note that if the DEP completed the cleanup and removal and then assessed costs, the accuracy of DEP's assessment of the costs would not be the issue it predictably is when a directive is issued to an alleged polluter before the cleanup has begun.

3 A number of other New Jersey statutes authorize the recovery of treble damages. See, e.g., N.J.S.A. 2A:18-61.6 (fraudulent eviction), 2A:33-2 (impounding distressed chattels), 17:33A-7 (insurance fraud), 46:10A-2 (mortgage financing), 56:4-2 (unfair competition).

4 Kimber Petroleum and Solar Oil argue that arbitration is an inadequate alternative forum for challenging the validity of DEP’s Directives because only the amount of costs can be challenged in that forum. We do not agree with the implied narrow reading of N.J.S.A. 58:10-23.1 In. The scope of the arbitrator’s powers under that section is clearly broad enough to cover and challenge brought to the validity of any aspect of a directive. However, the DEP maintains that no recourse to the fund or its arbitration procedures may be had by a partially responsible discharger. Thus the remedy is illusory in almost all cases.

5 The Woodland court based its determination on its conclusion that the Act’s post-enforcement arbitration provision satisfied the needs of parties claiming innocence of any wrongdoing. Some question arises, however, as to the adequacy of this provision for parties admitting responsibility but contesting the amount of money determined by the DEP as being required. One reading of the Act would find arbitration unavailable, at least to the extent of any contested amounts, in such a situation. See Tree Realty, Inc. v. Department of Treasury, 205 N.J.Super. 346, 349 (App.Div.1985) (any party in any way responsible for an offending discharge is fully liable and "there is no point in submitting the matter to arbitration."). Such a problem would not arise, however, if a good-cause defense was read into the Act.

6 Cf. Pennzoil v. Texaco, — U.S.-,---& nn. 10-11, 107 S.Ct. 1519, 1526-27 & nn. 10-11, 95 L.Ed.2d 1, 16-17 & nn. 10-11 (1987) (federal court should abstain from determining validity of state statute under the federal constitution in part to give the state courts an opportunity to modify the statute's interpretation in light of a state constitutional provision).

7 The need for action in this area, and, in particular, for state government action, was shown by a recent report that stated that nationally there are tens of thousands of abandoned toxic waste dumps, of which around 20,000 are seriously contaminated. By contrast, in the seven years that the federal statute CERCLA has been in place to protect the public from such contamination, only 13 sites have been completely cleaned up. New York Times, April 19, 1987, at E4, col. 1.

8 In addition, the DEP has the option of itemizing the amounts required by its directives in order to limit the extent of what can be reached by a good-cause defense.