On appeal from A Final Decision of the New Jersey Department of Environmental Protection, Environmental Claims Administration.
King, Baime and Keefe. The opinion of the court was delivered by Keefe, J.A.D.
The issue presented is whether appellant, NL Industries, Inc. (NL), filed its claim for damages against the New Jersey Spill Compensation Fund (Spill Fund) within one year of the discovery of damage as required by N.J.S.A. 58:10-23.11k. The Spill Fund Administrator determined that the claim was not timely filed. NL appeals from that determination. Although we are not in full agreement with the Administrator's analysis of the facts presented, we agree with the conclusion reached by him and affirm.
NL is the former owner of property located in Pedricktown, New Jersey. During the time NL owned the property it operated a secondary lead smelting site there. Waste materials were generated at the site which included emission control dust, battery case material, lead smelting slag and battery acid. These materials were also stored at the site.
On October 6, 1982 NL entered into an Administrative Consent Order (ACO) with the New Jersey Department of Environmental Protection (DEP) wherein it agreed to take steps to remediate the hazardous waste conditions that existed at the Pedricktown site and to pay certain fines.
The property was sold to National Smelting Company of New Jersey, Inc. in 1983. In connection with that sale, an amendment to the ACO was entered into on February 10, 1983 between representatives of the DEP, NL, National Smelting and Refining and National Smelting Company of New Jersey.
The Amended Administrative Consent Order (AACO) provided that the original ACO remained in effect and that NL had substantially complied with the provisions of that order. The AACO recognized that responsibility for compliance with the remainder of the ACO was the responsibility of National Smelting Company of New Jersey, with the exception of future "ground water contamination which might emanate from [an existing] secured landfill" which remained NL's responsibility. NL agreed to pay the DEP $600,000 in order to create a fund so
that the DEP could perform actions it deemed appropriate to monitor and remedy ground water and surface water problems.
c) The funds paid by NL, and all income thereon, shall be separately maintained for a period of 10 years and shall be administered, invested and expended at the sole discretion of NJDEP to monitor and remedy ground and/or surface water contamination as it nows (sic) exists at the Facility, or as it may exist in the future, in any form and from any source, excluding the secured landfill located at the Facility. . . .
d) It is [the] intention of NJDEP and NL that payment of the funds . . . shall constitute a liquidation and payment for all such monitoring and remedial action, the performance of which may be necessary or desirable in the future, and that NL shall have no further duty or obligation with respect to any such monitoring or remedial action, except for that ground water contamination which may emanate from the secured landfill. . . . NJDEP forever releases and discharges NL from any and all responsibility, obligation and liability relating to the performance of monitoring and remedial action respecting such contamination, under all applicable laws, rules and regulations; NJDEP shall neither commence any action or proceeding against NL with respect thereto nor shall NJDEP take any action to initiate the commencement of any action or proceeding by any other entity against NL with respect thereto. In the event the United States Environmental Protection Agency shall require ground water remedial action at the Facility for those issues which are the subject of this Paragraph (i.e. excluding ground water contamination emanating from the secured landfill), NJDEP agrees to apply the aforedescribed sum to the costs of such remedial action.
Although the United States Environmental Protection Agency (EPA) is mentioned in the AACO, it was ...