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TAC Associates v. New Jersey Dep't of Environmental Protection

July 1, 2009

TAC ASSOCIATES, PETITIONER-APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION AND THE NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY, RESPONDENTS-RESPONDENTS.



On appeal from a Final Agency Decision of the Department of Environmental Protection.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued May 12, 2009

Before Judges Winkelstein, Fuentes and Gilroy.

In this appeal, we are required to determine the validity of a regulation promulgated by the New Jersey Economic Development Authority (EDA) to implement certain sections of the Hazardous Discharge Site Remediation Fund, N.J.S.A. 58:10B-4(a), "a special, revolving fund [established by the Legislature] for the purpose of financing remediation activities at sites at which there is, or is suspected of being, a discharge of hazardous substances or hazardous waste." N.J.A.C. 19:31-8.1.

As part of this Fund, the Legislature established Innocent Party Grants (IPG), a program intended to assist certain owners of contaminated properties defray the cost of remediation. N.J.S.A. 58:10B-5(d). The regulation challenged by petitioner, TAC Associates (TAC), limits the eligibility for an IPG by defining the term "innocent party" to mean, in addition to other unchallenged requirements, persons who continue to own the contaminated property until the application process is complete. Specifically, petitioner argues that EDA regulation N.J.A.C. 19:31-8.2 is inconsistent with the criteria for eligibility established by the Legislature in N.J.S.A. 58:10B-6(b)(4), the statute defining the term "innocent party." We agree with petitioner's position.

TAC is a general partnership consisting of four individuals. From 1975 to 2003,*fn1 TAC owned industrial property located at 35-41 Orlando Drive, in the Borough of Raritan. TAC ceased its industrial operations and sold the property in December 2003. The sale of the property triggered TAC's obligation, under the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 to -18 (ISRA), to investigate and remediate any contamination at the property prior to transferring title. N.J.S.A. 13:1K-9.

Pursuant to N.J.S.A. 13:1K-9 and N.J.A.C. 7:26B-3.2, TAC submitted a General Information Notice to the New Jersey Department of Environmental Protection (DEP) in November 2003, formally providing notice of the cessation of the facility's operations and the sale of the property. In that notification, TAC identified itself as the "authorized agent to work with the [DEP]" to perform the necessary remediation, and as the "firm responsible for conducting the remediation."

Prestige Environmental, Inc., a consultant retained by TAC to investigate and assess the level of contamination at the property, determined that there was hydrocarbon contamination in the soil and groundwater. In response, TAC and the buyer of the property agreed to create Remediation Trust Accounts to fund the needed remediation. According to TAC, "most of these funds have been already expended during the course of the environmental investigation."

In November 2007, the Legislature established within the EDA, "a special, revolving fund to be known as the Hazardous Discharge Site Remediation Fund" to provide financial assistance to governmental entities and individuals "for the purpose of financing remediation activities at sites at which there is, or is suspected of being, a discharge of hazardous substances or hazardous wastes." N.J.S.A. 58:10B-4(a).

The DEP and the EDA are the two State agencies responsible for the administration of these remediation funds. The DEP reviews the grant applications and makes eligibility determinations. Once an application is deemed eligible, it is referred to the EDA for financial review. N.J.A.C. 7:26C-6.2(d)(1). Final approval of an application is made by the EDA. Ibid.

The Legislature also made the Hazardous Discharge Site Remediation Fund available to individual persons through the IPG. N.J.S.A. 58:10B-5(d). Under this statute, "[g]rants may be made from the remediation fund to persons who own real property on which there has been a discharge of a hazardous substance or a hazardous waste and that person ...


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