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New Jersey Department of Environmental Protection, Oversight Resource v. Nanak Auto Fuel

December 19, 2012

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, OVERSIGHT RESOURCE ALLOCATION, PETITIONER-RESPONDENT,
v.
NANAK AUTO FUEL, INC. AND ROSS FOGG ENTERPRISES, RESPONDENTS-APPELLANTS.



On appeal from the New Jersey Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 30, 2012 -

Before Judges Espinosa and Kennedy.

Defendants appeal from the final agency decision of the New Jersey Department of Environmental Protection (NJDEP) assessing a civil penalty against them of $20,000 for failure to sample potable wells, in violation of N.J.A.C. 7:26E-4.4(h)3vi, and $20,000 for failure to maintain and sample a "point of entry" treatment unit (POET) at a residence adjacent to their property, in violation of N.J.A.C. 7:26E-6.3(a). These requirements had been imposed upon defendants pursuant to the NJDEP's "field directive" of March 31, 2005, which required monthly monitoring, maintenance and sampling of the POET on the water supply at the neighboring residence, and regular sampling of neighboring potable wells. After considering the arguments presented in light of the record and applicable law, we affirm.

Ross Fogg Enterprises (Ross Fogg)*fn1 operated a gas station at the intersection of Route 322 and Paulsboro Road in Swedesboro. In September 2000, Ross Fogg reported to the NJDEP that hazardous substances had been discharged from its underground storage tanks into the groundwater. A remedial investigation report submitted in 2001 confirmed the presence of hazardous substances in the groundwater in concentrations exceeding State standards under N.J.A.C. 7:26D-2.2.

On January 8, 2002, the NJDEP issued a directive to Ross Fogg requiring it to conduct a remedial investigation; to identify the source of the contamination; to establish and sample monitoring wells; and to delineate the scope of the contamination. On June 13, 2002, Ross Fogg submitted a remedial investigation report addendum stating that the hazardous substances in the groundwater still exceeded State standards and identifying three potable water supply wells and two domestic water supply wells within 1000 feet of its property.

On June 27, 2002, Nanak Auto Fuel, Inc. (Nanak) purchased the property from the estate of Ross G. Fogg.*fn2 In January 2003, Nanak submitted quarterly monitoring well sample results to the NJDEP, again confirming hazardous substances in the groundwater in concentrations many hundreds of times greater than State standards permit.

In April 2003, the NJDEP advised both Ross Fogg and Nanak that their investigation reports were deficient and required them to delineate the scope of the contamination and to continue to sample the potable wells. After several other deficiency notices were issued by the NJDEP, on October 15, 2003, Ross Fogg and Nanak submitted a modified workplan "to completely address NJDEP requirements." The workplan included, among other things, the regular sampling of monitoring wells and "nearby potable wells." By a March 18, 2004 letter to Ross Fogg and Nanak's principal, the NJDEP conditionally approved the proposed modified workplan.

In early 2005, groundwater sampling still showed the presence of hazardous substances in excess of State standards. Also, sampling at a nearby residential well revealed the presence of hazardous substances in concentrations exceeding "safe drinking water" standards. Consequently, on March 31, 2005, the NJDEP issued a field directive to Ross Fogg and Nanak's principal requiring them, among other things, to conduct monthly monitoring and sampling of the POET unit at the residential premises well and monthly monitoring and sampling of three other potable wells.

Because neither Nanak nor Ross Fogg completed all the sampling and reporting required by the March field directive, the NJDEP notified them in July 2005, and again in November 2005, that they were out of compliance. On September 8, 2006, the NJDEP issued a notice of violation to Ross Fogg and Nanak for, among other things, their failure to sample potable wells as required by N.J.A.C. 7:26E-4.4(h)3vi and their failure to comply with the March field directive. The NJDEP further advised it would not assess penalties if Ross Fogg and Nanak undertook corrective actions by specified dates. They did undertake some efforts thereafter to meet NJDEP requirements, but consistently failed to sample and report sampling results as mandated by the NJDEP.

On February 7, 2007, the NJDEP issued an administrative order and notice of civil administrative penalty assessment (AONOCAPA) to Ross Fogg and Nanak and assessed a $5000 penalty for their failure to delineate soil and groundwater contamination. Nanak and Ross Fogg challenged the AONOCAPA, and the penalty was sustained.

Finally, on July 1, 2008, the NJDEP issued a notice of civil administrative penalty assessment against Ross Fogg and Nanak for, among other things, their failure to sample the potable wells, as required by N.J.A.C. 7:26E-4.4(h)3vi, and their failure to maintain and sample the POET unit at the residential premises, as required by N.J.A.C. 7:26E-6.3(a). A penalty of $20,000 was assessed for each violation. Nanak requested a hearing, and Ross Fogg joined in that request. The matter was then transferred to the Office of Administrative Law.

On June 7, 2010, the administrative law judge (ALJ) issued a decision in which he sustained the penalty assessment. Nanak and Ross Fogg had argued that repairs made by Nanak to the underground storage tanks in 2004, as well as its installation of a vapor recovery system, resolved the leakage of hazardous substances from the ...


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