On appeal from the New Jersey Department of Environmental Protection, ISRA Case No. E20010324.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Ashrafi and Nugent.
Appellant, 50 West Street, LLC, a subsidiary of Hartz Mountain Industries and the former landlord of Crompton Colors, appeals the action of the New Jersey Department of Environmental Protection (DEP) rescinding a No Further Action (NFA) letter issued in 2002, and denying appellant's request for a hearing to contest the rescission. We remand for a hearing.
50 West Street is located in a commercial and residential area east of the Garden State Parkway in the Township of Bloomfield. The site was designated 60 West Street until the property was subdivided in 1991. Prior to 1965, this site was owned by Walter Kiddie Fire Extinguisher Company. Hartz purchased the property in 1965 and subsequently leased the premises to Peerless Bindery.
In October 1991, the site was subdivided establishing two parcels currently known as Block 305, Lots 5.01 and 5.02. There were two buildings at the site in 1990, a warehouse occupied by Peerless, and a three-story office building leased to Child Development Center. The warehouse was demolished in 1990 by Stratford Development Company and replaced by a new warehouse, corresponding to Lot 5.02. This property was renovated in the 1990's and leased to Crompton & Knowels Colors, Inc. (later known as Crompton Colors Incorporated). The three-story structure occupied by the Child Development Center remained as Lot 5.01.
As part of the warehouse demolition, Stratford removed from the site a 10,000-gallon No.2 heating oil tank. According to the Discharge Investigation and Corrective Action Report (DICAR) prepared by Cortell Associates on behalf of Hartz:
During the removal of the 10,000 gallon tank, petroleum product was observed in the surrounding soil and on the surface of the groundwater in the excavation. All oil product was vacuum pumped from the surface of the groundwater and petroleum hydrocarbon contaminated soils were removed from the excavation. As part of the remedial action three groundwater monitoring wells were installed at the site to assess groundwater quality and to determine groundwater flow direction.
Soil and groundwater sampling were conducted onsite. The first round of groundwater sampling revealed no petroleum hydrocarbons above the detection limit. During the second round, a level of 1.1 parts per million (ppm) was detected in only one of the monitoring wells. After four rounds of soil excavation, elevated levels of total petroleum hydrocarbons (TPH) were detected at the east end of the excavation. Base/neutral organic analysis of two of the soil samples revealed slightly elevated levels of these compounds.
The residual petroleum hydrocarbon contamination observed in the fill materials does not pose a threat to human health or the environment. The excavation has been backfilled with clean fill and crushed stone and has been covered by an eight inch concrete foundation. The entire site will be paved or covered with buildings, thereby eliminating any exposure to the residual TPH. (emphasis added.)
At the time Hartz removed the 10,000-gallon oil tank, undertook these remediation measures, and commissioned the DICAR, the property had not been subdivided. Thus, the DEP stored the information contained in the DICAR under the 60 West Street address. When the DICAR was resubmitted to the DEP in March 1993, the property was again identified as 60 West Street.
By letter dated October 19, 1995, the DEP Bureau of Underground Storage Tanks responded to the DICAR and requested Hartz to provide disposal information for the contaminated soil, to conduct additional remedial investigation, and to report the results of these efforts within ninety days in a Remedial Action Workplan. In a report dated January 29, 1996, Envirotech Consultants, Inc., responded on behalf of ...