Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Frederick Gumm Chemical Co. v. Dep't of Environmental Protection

June 1, 2007

FREDERICK GUMM CHEMICAL CO. AND CLEPO, INC., PETITIONERS-APPELLANTS,
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT-RESPONDENT.



On appeal from the Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: October 11, 2006

Before Judges Kestin, Weissbard and Graves.

Petitioners, Frederick Gumm Chemical Co. (FGCC) and Clepo, Inc. (Clepo), appeal from a final decision of the Department of Environmental Protection (DEP or the Department) rescinding an underground storage tank (UST) waiver of February 27, 1998 (sometimes incorrectly stated by DEP to be February 27, 1996), and reiterated in exactly the same terms on August 1, 2001. The waiver had been issued pursuant to the Industrial Site Recovery Act (ISRA), N.J.S.A. 13:1K-6 to -14. The rescission was announced in a letter from DEP dated April 4, 2005, which also stated that the pertinent "ISRA cases are hereby reopened[,]" noting that ISRA establishes certain compliance measures "as a precondition of a sale of property [] or business" and "requires the establishment of a remediation funding source sufficient to cover the cost of remediati[on.]" The rescission was further formalized by DEP's denial, in a letter dated September 20, 2005, of petitioners' request for consideration by the Site Remediation and Waste Management technical review panel. The notice of appeal specifies both of the latter communications as constituting the agency action from which the appeal is taken.

The agency's letters set forth the bases for its decision to rescind the waivers and reject petitioners' technical review request. The letter of April 4, 2005, signed by the chief of DEP's Bureau of Risk Management Initial Notice & Case Assignment (the Bureau), stated that the approval had been based on the certified information provided to the Department concerning the satisfactory completion of a Preliminary Assessment/Site Investigation Report (PA/SIR) in accordance with the Technical Requirements for Site Remediation (N.J.A.C. 7:26E). The certified reports supported that the only area of concern at the referenced site where a discharge of a hazardous substance had occurred was from underground storage tanks regulated by New Jersey's Underground Storage of Hazardous Substances Act and the implementing regulations[,] N.J.A.C. 7:14B. This qualified Clepo, Inc[.] as the property owner and Frederick Gumm Chemical Company as the operator for the ISRA Underground Storage Tank Waiver and effectively closed the referenced ISRA cases.

Subsequent to the ISRA waivers being issued, the Department became aware of contamination at the referenced site from areas other than from regulated under[]ground storage tanks. In section 5.4.11 of the certified Remedial Action Workplan dated April 2004 submitted to the Department's Bureau of Southern Case Management, Clepo Inc[.] as the property owner identified that areas other than the regulated underground storage tanks were contributing to the contamination detected at the referenced site.

Clepo Inc. and Frederick Gumm Chemical Company failed to incorporate this information in the PA/SIR for the referenced ISRA cases.

The September 20, 2005 letter denying petitioners' request for a technical review was signed by DEP's director of Remediation Management and Response. It stated:

The disputed technical issue identified is not considered appropriate for this process. The Site Remediation Program issued ISRA Underground Storage Tank Waivers dated February 27, 1998 and August 1, 2001 based on certified information provided to the Department concerning the satisfactory completion of a Preliminary Assessment/Site Investigation Report in accordance with the Technical Requirements for Site Remediation (N.J.A.C. 7:26E). These reports had supported that the only area of concern at this site was a discharge of a hazardous substance from an underground storage tank regulated by the [] Underground Storage of Hazardous Substances Act and the implementing regulations of N.J.A.C. 7:14B. As you are aware, subsequent information provided as part of the Remedial Action Workplan (April 2004) identified that areas other than the regulated underground storage tank were contributing to the contamination detected at this site.

Given the new information, the ISRA waivers were rescinded. This rescission is an appropriate enforcement response to this new information. Challenges to enforcement actions are not appropriate for review by a Technical Review Panel.

. . . Clepo is required to continue to investigate and remediate all discharges of a hazardous substance or hazardous waste on or emanating from the industrial establishment and to establish a remediation funding source under a Remedial Action Work Plan or Remediation Agreement.

On appeal, petitioners contend that DEP "is estopped from rescinding the 1998 waiver after seven years" by reason of petitioners' reliance on the waiver, "as well as [] DEP's assurances with respect to the waiver;" that rescission "is barred . . . by the doctrine of laches;" and that the rescission, having been "based upon an isolated hearsay statement, violated [petitioners'] due process rights because [] DEP has not provided a hearing on the matter or any other means for review of its decision." DEP responds by asserting that the rescission "was based on substantial evidence in the record, comports with the express language in ISRA and, thus, is clearly not arbitrary, capricious or unreasonable;" that "DEP properly invoked its inherent power to reconsider the UST waiver approval after Clepo and FGCC presented new facts that invalidated earlier, certified submissions;" that "this matter is not a contested case within the meaning of the Administrative Procedure Act and therefore should not be remanded to the Office of Administrative Law for an adjudicatory hearing;" that "a remand is unnecessary as the DEP has identified the facts and evidence underlying its decision;" and that concepts of equitable estoppel and laches are inapplicable because petitioners "failed to report to [] DEP before April 2004 that [a] trench was [a] non-UST contamination source, thereby creating the lapse in time between [] DEP's waiver issuance and rescission."

There appears to be no dispute regarding the background facts of the matter. We summarize those facts as they have ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.