                   NOT FOR PUBLICATION WITHOUT THE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




                                               2                                       A-4683-14T1
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




                                            3                               A-4683-14T1
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




                                              4                                   A-4683-14T1
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



                                    5                              A-4683-14T1
              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



                                           6                                A-4683-14T1
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.




                                            7                                   A-4683-14T1
    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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