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NL Industries, Inc. v. New Jersey Dep't of Environmental Protection

December 19, 2007

NL INDUSTRIES, INC., PLAINTIFF-RESPONDENT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANT-APPELLANT, AND SAYREVILLE ECONOMIC AND REDEVELOPMENT AGENCY, INTERVENOR-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Mercer County, No. C-14-06.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued September 26, 2007

Before Judges Wefing, Parker and R. B. Coleman.

NL Industries, Inc. ("NL") filed a verified complaint seeking a declaratory judgment that N.J.S.A. 58:10B-3.1 did not authorize defendant New Jersey Department of Environmental Protection ("DEP") to remove or replace NL as the party performing certain environmental remediation on property located in Sayreville and previously owned by NL. Sayreville Economic and Redevelopment Authority ("SERA"), who had obtained title to the property through eminent domain, intervened in the declaratory judgment action. The trial court eventually entered an order in which it denied DEP's motion to dismiss NL's complaint, granted NL's motion for summary judgment, and denied SERA's motion for summary judgment. DEP and SERA have appealed from that order. After reviewing the record in light of the contentions advanced on appeal, we affirm, but for reasons other than those stated by the trial court.

The parties' dispute revolves around a tract of land approximately four hundred acres in size that fronts on the Raritan River and was used by NL for industrial purposes for many years. This appeal is not the first time the parties have brought their disputes to this court. In 2007 we affirmed the trial court's grant of summary judgment to NL, holding that NL could not be removed as the remediating party for this site unless it had been declared in default of its cleanup obligations. DEP not having declared NL to be in such default, NL could not be removed as the remediating party. NL Indus. v. N.J. Dep't of Envtl. Prot., Nos. A-5804-04T2 and A-6094-04T2 (App. Div. March 2, 2007).

Within that opinion we set forth the history of this site and the disputes that have arisen between the parties in connection with the efforts at remediation and SERA's many attempts to replace NL as the remediating party. There is no need to restate that history here; it is not material to the issue before us.

At the conclusion of that opinion, we noted that the Legislature had only recently adopted N.J.S.A. 58:10B-3.1. We further noted that the trial court had not had the opportunity to consider the effect of that statute upon the rights and duties of the parties and that NL had already filed a declaratory judgment action seeking relief with respect to that statute. We thus declined to consider the question in connection with that earlier appeal. The order before us on this appeal was entered in connection with the declaratory judgment action to which we referred and thus the question of the effect, if any, of N.J.S.A. 58:10B-3.1 upon these parties and this site is squarely before us.

I.

We turn first to the question whether the trial court had jurisdiction to entertain NL's declaratory judgment action. DEP argues that the trial court did not have jurisdiction and thus should not have proceeded to rule on the merits of the question. DEP presented a substantially similar argument in connection with its earlier appeal. In that appeal we stated:

We reject the DEP's argument that the order under review should be reversed because the matter should have been commenced in the first instance in this court under R. 2:2-3(a)(2). That rule provides in pertinent part that actions "to review final decisions or actions of any state administrative agency or officer" shall be brought directly in the Appellate Division. The DEP has yet to make a "final decision" or take a "final action." Exchange of correspondence between SERA and the DEP with regard to the willingness of the DEP to enter a Memorandum of Agreement with SERA does not contain the "unmistakable notice of [] finality" required to constitute a final administrative decision. In re CAFRA Permit No. 87-0959-5, 152 N.J. 287, 299 (1997).

Indeed, it is that very lack of finality that the DEP utilizes to support the second prong of its argument on jurisdiction, that the matter is premature. NL contends in response that it is entitled nonetheless to relief under the Declaratory Judgment Act, N.J.S.A. 2A:16-50 to -62. N.J.S.A. 2A:16-53 defines "questions determinable and rights declarable" as follows:

A person interested under a deed, will, written contract or other writing constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or ...


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