On appeal from a final decision of the State of New Jersey, Department of Environmental Protection.
King, Deighan and Harvey. The opinion of the court was delivered by Deighan, J.A.D.
Plaintiff VI-Concrete Company (VI-Concrete) appeals from the issuance of a New Jersey Pollutant Discharge Elimination System (NJPDES) permit by the Department of Environmental Protection (DEP) without an application having been made for it. The permit required, as a condition thereof, the installation of ground water wells on a site at Columbia Avenue, Atco, in Waterford Township upon which a landfill previously existed. VI-Concrete requested an adjudicatory hearing and the matter was referred by the DEP to the Office of Administrative Law for a hearing.
Since VI-Concrete never applied for the permit in the first instance, it made a motion to invalidate the permit issued by the DEP. DEP filed a cross-motion for summary judgment. The Administrative Law Judge (ALJ) denied both motions on the basis that there were factual issues to be resolved. On the DEP's interlocutory appeal, the Commissioner of the DEP (Commissioner) affirmed the denial of VI-Concrete's motion but reversed the order of the ALJ and granted the DEP's cross-motion for summary judgment.
The facts developed at the hearing are uncomplicated. The DEP issued an NJPDES permit to VI-Concrete on property owned by it on Columbus Avenue in Atco without any application having been made for the permit. The location of the
landfill refers to "Edgewood Sand & Gravel SLF [Sanitary Landfill]" upon which a landfill operation had previously been conducted. The permit required VI-Concrete
to monitor the ground water at a sanitary landfill in Atco by operating and maintaining four ground water monitoring wells according to the specific and general conditions of this Initial Interim NJPDES permit. The initial Interim NJPDES permit is intended to establish an adequate ground water monitoring program at the above named facility.
Since VI-Concrete never operated a landfill on the property it contends that the DEP could not issue a permit for which an owner had not applied.
At the hearing before the ALJ the following facts were undisputed:
Petitioner is in the business of producing concrete and concrete by-products. In 1976, it purchased the property in question, a 9.54 acre parcel in Waterford Township, Camden County from Edgewood Bituminous Products & Contractors, Inc. When petitioner [VI-Concrete] bought the property, it contained an existing asphalt plant and related equipment. Sometime in the 1960's the property had been used as a sanitary landfill and operated under the name Edgewood Sand and Gravel Sanitary Landfill.
Although the DEP contested VI-Concrete's other assertions, it accepted the following as true for purposes of the summary judgment motion: (1) the landfill was closed in or about 1968; (2) at the time VI-Concrete purchased the property in 1976 it had no indication that a landfill had ever existed on the property; (3) the agreement of sale for the property to VI-Concrete from Edgewood Bituminous Products & Contractors, Inc. stated the property was zoned for an asphalt plant and that an asphalt plant actually existed; (4) no liens, judgments, encumbrances, actions or proceedings were pending against the seller with regard to the sale of the property; (5) VI-Concrete had never operated a landfill at the site, and (6) that there were no outstanding citations against any party for operation of a landfill from the time operation ceased in 1968 through 1985.
In denying both motions for summary judgment, the ALJ concluded that the DEP could unilaterally issue a permit without an application by VI-Concrete, and that a closed landfill could be subject to regulations. He denied VI-Concrete's motion
for summary judgment because disputed facts existed as to when the landfill closed and the extent to which VI-Concrete knew or should have known about prior use. The ALJ also denied the DEP's motion for summary judgment because he concluded that it could not require monitoring of a preexisting inactive landfill without a showing of environmental damage in the absence of more specific regulations. The ALJ concluded that the ...