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In re Forsgate Industrial Complex

January 20, 2009

IN RE REQUEST BY FORSGATE INDUSTRIAL COMPLEX, L.P., THAT THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION REVOKE THE OCTOBER 18, 2005 NO FURTHER ACTION AND COVENANT NOT TO SUE LETTER ISSUED TO LEGGETT & PLATT, INC. FOR THE CREST FOAM CORPORATION FACILITY LOCATED AT 100 CAROL PLACE, MOONACHIE BORO, BERGEN COUNTY.


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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 12, 2008

Before Judges Wefing, Parker and Yannotti.

Forsgate Industrial Complex, L.P. (Forsgate) appeals from a final determination of the New Jersey Department of Environmental Protection (NJDEP), which denied Forsgate's application for revocation of a "No Further Action" and "Covenant Not to Sue" letter (NFA) issued to Leggett & Platt, Inc. (Leggett) with respect to certain properties in Moonachie, New Jersey. For the reasons that follow, we affirm.

We begin by summarizing the procedural history in this dispute and the relevant facts. Prior to June 14, 1991, Crest-Foam Corp., Crest-Foam Industries, Inc., and/or Crest-Foam Industries, Incorporated (collectively, Crest-Foam) operated an industrial facility on properties located at 100 Carol Place, 1 State Street and 35 State Street in Moonachie. It appears that, during the operation of this facility, Crest-Foam contaminated the soil and underlying groundwater. In 1986, as a result of a sale or transfer of stock, the Crest-Foam site became subject to the requirements of the Industrial Site Recovery Act (ISRA), N.J.S.A. 13:1K-6 to -35. Leggett, which is the successor in interest to Crest-Foam, assumed responsibility for the contamination of the properties and their remediation under the direction of the NJDEP.

On October 18, 2005, the NJDEP issued to Leggett an NFA with respect to the property at 100 Carol Place, specifically Lot 5.02, Block 38; Lot 3, Block 39; and Lot 2.02, Block 39.*fn1

The NFA provided that the NJDEP would not bring a civil action against any person who undertook the remediation of the property and subsequent owners, lessees or operators of the property.

The NFA further stated that, in accordance with N.J.S.A. 58:10B-13.1, nothing therein shall benefit any person who is liable, pursuant to the Spill Compensation and Control Act (Spill Act), [N.J.S.A.] 58:10-23.11 [to -23.24], for cleanup and removal costs and the [NJDEP] makes no representation by the issuance of this [c]ovenant, either express or implied, as to the Spill Act liability of any person.

The NFA also provided that it could be revoked by the NJDEP "at any time after providing notice upon its determination that any person with the legal obligation to comply with any condition in this No Further Action Determination has failed to do so[.]"

In December 2005, Forsgate filed a complaint in the Chancery Division naming Leggett and Crest-Foam as defendants. Forsgate sought, among other things, to compel Leggett and Crest-Foam to remediate environmental contamination on its properties allegedly emanating from the former Crest-Foam site and to compensate Forsgate for the costs it had incurred and will incur to investigate and remediate the alleged contamination of its properties.

In its amended complaint, which was filed on April 5, 2006, Forsgate asserted that it had retained Sadat Associates (Sadat) to perform an environmental analysis of its property. Sadat had concluded that it was likely that contamination from the Crest-Foam facility had migrated to the Forsgate properties, and it was not probable that the Forsgate properties had been contaminated by other potential sources.

According to the amended complaint, Sadat identified two sources of groundwater contamination from the Crest-Foam site. One source was located on the 100 Carol Place property. The other source was on the 35 State Street property. Sadat said that groundwater could have flowed off the Crest-Foam property in any one of four ...


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