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In re Fabritex Mills Inc.

Decided: February 17, 1989.

IN THE MATTER OF FABRITEX MILLS, INC.


On appeal from the final decision of New Jersey Department of Environmental Protection.

Dreier and Brochin. The opinion of the court was delivered by Brochin, J.s.c. (temporarily assigned).

Brochin

Fabritex Mills, Inc. appeals from a final administrative determination of the New Jersey Department of Environmental Protection requiring it to comply with the notice and reporting provisions of the Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6 and following.

In five buildings rented from Cleaveland Industrial Center, Fabritex operated a facility for the custom coating of fabric with plastic and for the wholesale distribution of its products. Manufacturing facilities of other tenants of Cleaveland were located in adjacent buildings.

On March 7, an employee of the DEP visited a nearby building which had been vacated by a former tenant of Cleaveland. He made this brief, handwritten report of his observations about Fabritex:

TK informed me of a neighboring tenant, Fabritex which ceased operations & left about 100 drums on site. About 50-70 of these drums were on site when I was there. An effort was made to scrub labels off of drums, but "DIOCTYL PHTHALATE" was on them. Fabritex used one lg. bldg., 3 md. bldgs. & 1 sm. bldg. to coat fabric. . . . refer Fabritex to compliance. . . . 1st step get RA for Fabritex, ck N.J. Directory, get out letter notifying that cessation = 15/30 day.

On the basis of that report the DEP sent Fabritex a letter dated August 5, 1987, which stated:

This office . . . has been advised that Fabritex Mills, Inc. has ceased operations at 20 Parker Road, Long Valley, Morris County. The cessation of operations without submitting the initial ECRA Notice required by N.J.S.A. 7:1-3.7 and without receiving the required Departmental approval either for a Negative Declaration or a Cleanup Plan was in violation of the Act.

The letter enclosed a copy of the administrative regulations referred to in the letter, and required the return of a "General Information Submission" form within five days and a "Site Evaluation Submission" form within fifteen days.

The response was an August 31, 1987, letter from the attorneys for Fabritex enclosing an affidavit from John Logan, who described himself as an "officer" of the corporation. The affidavit stated:

In approximately March of 1986, Fabritex ceased manufacturing operations at the site; however, it presently utilizes the site as a storage facility for the materials utilized in the manufacturing operation. . . . For the last few months, the corporation has been assessing whether or not it should continue to engage in the manufacturing operations in New Jersey, but has not made any determination that it will permanently cease all operations . . . in New Jersey.

The report of the DEP employee and the portion of the affidavit of the officer of Fabritex which we have quoted constitute the entire factual record in the case. The DEP wrote a letter dated October 27, 1987, which stated that "on the basis of the information represented in the affidavit signed by John Logan, the Department finds that this transaction is subject to the provisions of ECRA." Fabritex's attorneys replied that DEP had not answered the question whether "a facility, which had ceased manufacturing operations but continued a storage facility for hazardous substances, was subject ...


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