New Jersey Department of Environmental Protection v. Alden Leeds, Inc.

708 A.2d 1161, 153 N.J. 272, 46 ERC (BNA) 1447, 1998 N.J. LEXIS 212
CourtSupreme Court of New Jersey
DecidedMarch 12, 1998
StatusPublished
Cited by1 cases

This text of 708 A.2d 1161 (New Jersey Department of Environmental Protection v. Alden Leeds, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Jersey Department of Environmental Protection v. Alden Leeds, Inc., 708 A.2d 1161, 153 N.J. 272, 46 ERC (BNA) 1447, 1998 N.J. LEXIS 212 (N.J. 1998).

Opinions

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 atmo[276]*276sphere 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 satisfies the causal nexus. We also hold that the notice of the fire that was given to the DEP satisfied the APCA’s requirements.

I

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 SpectraServ 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 [277]*277was 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-[278]*278half 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.

II

The DEP assessed two civil administrative penalties against Alden Leeds that are relevant to this appeal. 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).” Second, the DEP found that [279]*279Alden Leeds “caused the release of an air contaminant(s) chlorine and calcium chloride resulting from a fire, in a quantity or concentration which posed a potential threat to public health, welfare or the environment or may have reasonably resulted in citizen complaints and failed to notify the Department immediately, in violation of N.J.S.A. 26:2C-19(e).”

The DEP assessed penalties for each offense in the amount of $6,500.

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Related

New Jersey Department of Environmental Protection v. Alden Leeds, Inc.
708 A.2d 1161 (Supreme Court of New Jersey, 1998)

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Bluebook (online)
708 A.2d 1161, 153 N.J. 272, 46 ERC (BNA) 1447, 1998 N.J. LEXIS 212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-jersey-department-of-environmental-protection-v-alden-leeds-inc-nj-1998.