On appeal from an Administrative Order Issued by the Commissioner of the Department of Environmental Protection.
Pressler, Dreier and Bilder. The opinion of the court was delivered by Dreier, J.A.D.
On June 24, 1984, Robert E. Hughey, Commissioner of the Department of Environmental Protection (DEP) issued Administrative Order No. 69 (AO69), a "policy statement" entitled "Participation of Responsible Parties in the Development of Remedial Investigations and Feasibility Studies," reproduced in Appendix A, attached to this opinion. Plaintiffs, Minnesota Mining and Manufacturing Company and Rohn and Haas Company, known collectively as Woodland Private Study Group, have appealed from the issuance of AO69, contending that it is, in fact, a rule adopted without the formalities required by the Administrative Procedure Act, N.J.S.A. 52:14B-1 et seq.
The factual background of the underlying dispute between Woodland Private Study Group and the DEP is set forth in detail in Judge Brotman's opinion in Woodland Private Study Group v. State of New Jersey, 616 F. Supp. 794, 796-798 (D.N.J. 1985) and need not be repeated here. Plaintiffs have informed us, however, that they have appealed the summary judgment granted by Judge Brotman. That opinion assumed the validity of AO69, although the issue apparently was neither briefed nor argued. The issue before us is the validity of AO69 which insures DEP control of the formulation and supervision of a remedial investigation/feasibility study of a hazardous discharge controlled by the New Jersey Spill Act. Application of the Spill Act could potentially result in treble damages upon the entities responsible for the pollution, N.J.S.A. 58:10-23.11f(a), as well as a superseding first lien to secure payment therefor upon statutorily designated property of the polluter. N.J.S.A. 58:10-23.11f(f).
Plaintiffs contend that by our earlier denial of the DEP's motion to dismiss this appeal, we have already determined that AO69 is a rule. The issue raised in that motion was the timeliness of the appeal, and plaintiffs assert that our denial necessarily determined the applicability of the one-year time limitation of N.J.S.A. 52:14B-4d to challenge compliance with
procedures necessary to adopt a rule. We disagree. Our denial might also have meant that there was a significant issue whether this statement was a rule subject to the one-year limitation, and that we merely wished to have a full development of the issue in a plenary appeal.
On the merits, we must now determine whether the Administrative Order is a rule. N.J.S.A. 52:14B-2(e) provides:
'Administrative rule' or 'rule,' when not otherwise modified, means each agency statement of general applicability and continuing effect that implements or interprets law or policy, or describes the organization, procedure or practice requirements of any agency. The term includes the amendment or repeal of any rule, but does not include: (1) statements concerning the internal management or discipline of any agency; (2) intraagency and interagency statements; and (3) agency decisions and findings in contested cases.
Six factors to be applied in interpreting this statute are noted in Metromedia Inc. v. Director Div. of Taxation, 97 N.J. 313, 331-332 (1984). The regulation is subject to the Act if it
All appear satisfied here, although the Supreme Court there noted that the various factors could be balanced even if some were applicable and others not. Despite the Commissioner's designation of the statement as an administrative order, we determine it to be a rule subject to the procedural requirements for adoption stated in the Administrative Procedure Act.
We also reject DEP's claim that the thrust of AO69 was adjudicatory. Metromedia makes it clear that the six-part test determines the import of the ...