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In re Applicability of Ecra to Robert L. Mitchell Technical Center

Decided: March 1, 1988.

IN RE APPLICABILITY OF ECRA TO THE ROBERT L. MITCHELL TECHNICAL CENTER


On appeal from the Final Decision of the New Jersey Department of Environmental Protection.

Pressler, Bilder and Gibson. The opinion of the court was delivered by Bilder, J.A.D.

Bilder

This is an appeal by Celanese Corporation from a decision of the Department of Environmental Protection denying its request for a determination that its research and development facility in Summit (Robert L. Mitchell Technical Center) is not subject to the provisions of the New Jersey Environmental Cleanup Responsibility Act (ECRA), N.J.S.A. 13:1K-6 et seq.

In 1983 the Legislature enacted ECRA and thereby held owners or operators of industrial establishments accountable for environmental problems on their properties. It accomplished that goal by requiring that the property be in an environmentally appropriate condition as a precondition to its closure, sale or transfer. The precondition can be met by a negative declaration that no contamination by hazardous substances exists on the property or by a cleanup plan which will detoxify it. See N.J.S.A. 13:1K-6 et seq. And see Note, The Environmental Cleanup Responsibility Act (ECRA): New Accountability for Industrial Landowners in New Jersey, 8 Seton Hall Legis. J. 331 (1985).

In a very general and oversimplified sense, industrial establishments subject to the act are places of business which engage in operations involving hazardous substances and which conduct an operation designated in a Standard Industrial Classification Manual (SICM) as having a Standard Industrial Classification (SIC) number starting with 22-39 inclusive, 46-49 inclusive, 51 or 76. N.J.S.A. 13:1K-8f. Thus ECRA does not apply to establishments whose business does not fall within a designated SIC number. Property owners who believe they are not

subject to ECRA may apply to DEP*fn1 for a written finding that ECRA does not apply to their property. See Note, ECRA: New Accountability, supra at 358-359. Such a finding is known as a letter of nonapplicability. Applications must be supported by affidavits clearly describing the reasons for nonapplicability. Ibid.

Celanese is the owner of a research facility in Summit in which Celanese, its affiliates and others research new materials, products, processes and designs and develop them to a stage where a decision can be made to abandon further development, transfer the technology for use at a full manufacturing facility or transfer the technology to a third party. Most of its efforts are directed at the development of new products not presently produced by Celanese. According to a Celanese affidavit:

The primary purpose of operations at the site is to research and develop new materials, processes and/or designs from inception to the point where developmental and market exploratory activities indicate commercial viability (i.e., through pilot plant scale production and initial sales testing to determine whether construction of a commercial manufacturing facility at some other location is merited by market demand).

The facilities available at the site to service these research and development functions include laboratories (chemical testing, physical testing, and classic analytical chemistry), state-of-the-art analytical and computer systems (including electron microscopy, optical microscopy, spectro chemistry, infrared spectrometry, mass spectrometry, thermal analysis, x-ray diffraction), an extensive technical information center, pilot plant facilities, engineering and traditional office support services.

Most of its recent efforts (60% of the expenses and 70% of the employees during 1985 and 1986) are related to new materials not presently produced or sold by Celanese. The remainder of its efforts (40% of the expenses and 30% of the employees during the same years) are directed to applied research into

existing products of Celanese and pilot plant production. Some of the research involves third parties and some is done ...


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