The Supreme Court of New Jersey recently considered the applicability of the New Jersey Air Pollution Control Act (the "Act") to emissions caused by a fire at a facility and clarified the Act's reporting obligations in the matter of New Jersey Department of Environmental Protection v. Alden Leeds, Inc. The Act, among other things, prohibits the release into the atmosphere of substances in quantities that result in air pollution and requires persons who release air contaminants in quantities or concentrations that pose a potential threat to public health, welfare or the environment to notify the NJDEP immediately.
While closed for the Easter holiday in 1993, a fire erupted at a facility that stores, repackages and ships swimming pool chemicals. The cause of the fire was unknown. The local fire department responded to the fire and notified NJDEP. Shortly thereafter, the vice president of the company that owned the facility arrived at the scene, but was denied access to the facility by the fire department and was informed that NJDEP already had been notified. After approximately ten minutes, the vice president was permitted to enter the facility, assessed the situation, informed the fire department of potential dangers and notified NJDEP. Approximately eighteen minutes elapsed between the vice president's arrival at the facility and his call to NJDEP.
NJDEP determined that unacceptable levels of chlorine contaminants were released to the atmosphere from the facility as a result of the fire and assessed penalties for the release and for the company's failure to notify the agency immediately. The company unsuccessfully contested the penalty assessments before an administrative law judge and the Commissioner of the NJDEP, before successfully appealing the penalty assessments to the New Jersey Superior Court, Appellate Division.
The Appellate Division ruled that the mere storage of chemicals at a facility that catches fire is not a sufficient causal nexus between the company and the release to warrant a penalty for the release. The State's failure to pin causation on the company also meant that the company did not have a duty to notify NJDEP immediately, in the Appellate Division's view. Even assuming a sufficient causal nexus, the Appellate Division determined that notice of the release had been given in a reasonable amount of time, which warranted reversing the penalty for untimely notice.
NJDEP petitioned the New Jersey Supreme Court to consider the matter. Finding that the Act imposes strict liability upon those subject to its provisions, the Court held that the knowing storage of hazardous chemicals is sufficient to impose liability under the Act when those chemicals are released into the air. Alden Leeds, Inc. was thereby liable under the Act regardless of the cause of the fire and whether the facility lawfully and properly stored the chemicals. With regard to notifying NJDEP, the court found that the vice president gave timely and adequate notification to the agency because there was no evidence of time wasted prior to notifying NJDEP, nor was there evidence that the vice president failed to inform the agency of the fire's threat to the chlorine stored at the facility. The court noted that the vice president acted reasonably in taking steps to protect the firefighters and gathering information to report to NJDEP. Therefore, the company avoided one of the two penalties initially assessed by the Department.
The decision in Alden Leeds demonstrates that the storage itself of dangerous chemicals is sufficient to subject a facility to penalties under the Air Pollution Control Act for emissions caused by a fire resulting from those chemicals. The case also indicates that courts should consider the reasonableness of the delay in complying with the Act's reporting requirement before concluding that the requirement of immediate notice has been violated.
