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North Bergen I, LLC v. New Jersey Department of Environmental Protection

July 12, 2011

NORTH BERGEN I, LLC, APPELLANT,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT.



On appeal from the Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 21, 2011

Before Judges Carchman and Parrillo.

Appellant North Bergen I, LLC (North Bergen) appeals from a December 23, 2009 letter disposition of the New Jersey Department of Environmental Protection (DEP)*fn1 denying its application to have its oversight cost review request, i.e., billing dispute, transmitted to the Office of Administrative Law (OAL) for a hearing as a contested matter. Because this preliminary determination is not a final decision of a State administrative agency, we dismiss the appeal.

By way of background, in December 1999, North Bergen purchased industrial property formerly owned by Sier-Bath Co., Inc., later known as SBG Holding Corporation (SBG). At the time of purchase, the property was under an Administrative Consent Order (ACO) between its former owner and DEP. SBG requested that DEP terminate the ACO and allow North Bergen to proceed in cleaning up the property under a remediation agreement, which was permitted.*fn2 As part of the agreement executed in December 1999, North Bergen became subject to the Administrative Requirements for the Remediation of Contaminated Sites, N.J.A.C. 7:26C. This regulation allows DEP to assess upon all private entities that undertake site remediation projects DEP's costs to oversee such work. See N.J.A.C. 7:26C-4.1. For instance, to ensure the necessary remediation is being properly performed, DEP requires the responsible party to submit regular technical and progress reports, which DEP staff review and comment upon. See N.J.A.C. 7:26E-6.6.

Thus, DEP's oversight work is funded solely by the charges collected from the responsible parties pursuant to DEP regulations, which provide:

The person responsible for conducting the remediation shall pay the Department's oversight costs pursuant to this section whenever the Department assesses those costs against the person responsible for conducting the remediation . . . . [N.J.A.C. 7:26C-4.5(a).]

See also E.I. du Pont de Nemours & Co. v. State, Dep't of Env't Prot. & Energy, 283 N.J. Super. 331, 341-44 (App. Div. 1995).

The party responsible for the remediation is billed by way of an invoice and must pay by the date indicated on the invoice.

N.J.A.C. 7:26C-4.5(b). The invoice identifies the DEP staff members involved in the review and the number of hours expended thereon. N.J.A.C. 7:26C-4.5(c). Costs are based on a formula that includes direct costs determined using a salary additive and fringe benefit factor, and expenses. N.J.A.C. 7:26C-4.5(e).

Since execution of the remediation agreement, North Bergen has been conducting an environmental cleanup on its property and DEP, as required by statute, has been conducting periodic oversight of the cleanup, for which the agency has been billing North Bergen approximately twice per year through October 2010 based on the time required to review, among other things, all necessary plans, drawings and test results. The first invoice for these costs was approved by DEP on July 11, 2001, in the amount of $2,421.66. Since then, DEP has issued about twenty-seven oversight cost invoices to North Bergen, in ever increasing amounts, and the outstanding balance of oversight costs is presently $43,420.09.

North Bergen first challenged DEP oversight charges in a letter dated July 27, 2007. While paying a portion ($1,515.26) as uncontested, North Bergen refused to pay the remainder of the charges ($23,838.30) as being unreasonable and "excessive" and, pursuant to DEP regulations specifying how such a billing dispute is to be resolved, filed an "oversight cost review request," (request) with DEP, objecting to the June 24, 2007 oversight cost invoice. See N.J.A.C. 7:26C-4.6(a) (requiring an objector to submit a written request to DEP within thirty days of the billing date indicated on the oversight cost invoice received by the objector).

N.J.A.C. 7:26C-4.6(d) specifies the information that must be provided by the objector for ...


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