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Middlesex County Bd. of Chosen Freeholders v. New Jersey

Citation: 17 ELR 20475
No. No. 86-126, 645 F. Supp. 715/25 ERC 1247/(D.N.J., 10/02/1986)

The court holds that previous litigation in state court and New Jersey's "entire controversy" doctrine do not bar a Resource Conservation and Recovery Act (RCRA) citizen suit in federal court and declines to abstain while state proceedings are pending. The court holds that it has exclusive jurisdiction over plaintiff's claim that an improperly managed landfill constitutes an imminent and substantial endangerment under RCRA. The language of § 7002(a) provides that a citizen suit action shall be brought in a district court. The legislative history also indicates this, particularly when considered in conjunction with Congress' discussion of what state law claims would be cognizable in federal courts under the doctrine of pendent jurisdiction. Moreover, § 7002 refers to use of the Federal Rules of Civil Procedure. The court holds that New Jersey's "entire controversy" doctrine, a relative of res judicata and collateral estoppel, does not bar plaintiff's RCRA citizen suit since plaintiff could not have raised its RCRA claim in earlier litigation in state court. The court also holds that plaintiff is not barred from bringing suit for failure to exhaust its administrative remedies. Section 7002 does not impose a requirement that a plaintiff exhaust its administrative remedies, and neither the state nor the Environmental Protection Agency (EPA) has instituted action to prevent or abate the alleged endangerment.

The court holds that plaintiff's claim alleging imminent and substantial endangerment states a cause of action under RCRA § 7002. The 1984 amendments to RCRA added a limited right under § 7002 for citizens to sue to abate an imminent and substantial endangerment pursuant to the liability standards established by § 7003. The legislative history indicates that the amendment was designed to provide citizens with the means of obtaining the same relief that the EPA Administrator was already authorized to seek under § 7003. Congress specified that the imminent and substantial endangerment provision was a codification of common law public nuisance remedies and indicated that the statute was to be given a broad construction. The court then holds that the Eleventh Amendment to the Constitution does not bar plaintiff's claim against the state. The issue in the case at bar concerns only state officials' compliance with federal, not state, law. The court also holds that plaintiff has complied with the 90-day notice requirement of § 7002.

The court declines to abstain from exercising its jurisdiction in the case. The court holds that the Pullman abstention doctrine is inappropriate. The federal question to be decided is not a substantial federal constitutional issue but solely an application of RCRA, and there are no unsettled issues of state law. Neither is abstention appropriate under the doctrine enunciated in Burford v. Sun Oil Co., which calls for abstention where there are difficult questions of state law bearing on substantial policy issues. Although New Jersey's state-wide solid waste management scheme clearly indicates an effort to establish a coherent uniform policy in the solid waste disposal area, the state agency in charge does not have exclusive jurisdiction, as has been the situation in cases cited by defendants in which the federal court has abstained. Moreover, RCRA, a federal statute granting federal courts exclusive jurisdiction, is in issue. The court also concludes that interest of comity and federalism do not call for abstention.

The court denies the motion to intervene of a township located in one of the defendant counties. Although a site in the township has been designated under the state Solid Waste Management Act as the site for the county's landfill, the township has no RCRA cause of action, as does plaintiff. In addition, the township's claim that the site is inappropriate for a landfill has already been decided by the state courts and agencies. Finally, the court declines to join as necessary parties waste haulers from New York who use the landfill at issue in the litigation, since their presence is not necessary for the court to determine whether there is a substantial or immediate threat to human health or the environment at the site.

Counsel for Plaintiff
William Greenberg
Greenberg & Prior
196 W. State St., Trenton NJ 08608
(609) 989-9800

Herbert M. Strulowitz, Ass't County Counsel
375 Rte. 10, Randolph NJ 07869
(201) 328-7140

Counsel for Defendant
Paul Schneider, Deputy Attorney General
Department of Environmental Protection
Richard J. Hughes Justice Complex, CN 112, Trenton NJ 08625
(609) 984-5612