CSG Law Alert: NJDEP’s Direct Oversight Authority Broadly Defined
A recent decision by the state Appellate Division has affirmed the broad statutory authority of the New Jersey Department of Environmental Protection (“NJDEP”) to oversee the remediation of contaminated sites and invoke compulsory direct oversight in remediation matters under the Site Remediation Reform Act (“SRRA”).
In the matter of In Re New Jersey Department of Environmental Protection Direct Oversight Determination Against Solvay Specialty Polymers USA, Inc., Docket No. A-0635-20, Solvay Specialty Polymers USA, LLC (“Solvay”) appealed from a determination by the NJDEP that Solvay was subject to direct oversight of its remediation of hazardous substances discharged into the ground, air and water from a facility in West Deptford, New Jersey. The directive alleged that Solvay failed to comply with the site-specific timeframes set forth in a statewide directive and that the contamination, per- and polyfluoroalkyl substances (PFAS) injured one or more sensitive natural resources, specifically the groundwater, drinking water and surface water of the Delaware River and its tributaries.
Solvay argued that the direct oversight determination violated its due process rights established in In re Kimber Petroleum Corp., 110 N.J. 69 (1988), by requiring Solvay to comply with the direct oversight determination before it had an opportunity to have its good-cause defenses to the directive adjudicated in the Law Division. Solvay further argued that the direct oversight determination should be invalidated because it was arbitrary, capricious and unreasonable.
In its ruling, the Appellate Division examined the statutory and regulatory framework of SRRA as well as the New Jersey Supreme Court’s rationale in Kimber. The Appellate Division determined that while Kimber places constitutionally required limits on the imposition of treble damages in an enforcement action by the NJDEP for a responsible party’s failure to comply with an NJDEP directive where good-cause defenses are asserted, it does not excuse a responsible party from complying with a NJDEP directive because it has asserted those good-cause defenses that have yet to be adjudicated. Moreover, the Appellate Division ruled this does not preclude enforcement by the NJDEP of the terms of the directive. The issuance of the direct oversight determination alone is not a penalty and is therefore insufficient to trigger the due process protections established in Kimber.
The Appellate Division further held that the NJDEP’s actions were not arbitrary, capricious or unreasonable, and determined that Solvay’s failure to comply with two expedited site-specific timeframes established in the directive was a sufficient basis for NJDEP’s determination that direct oversight was mandated. Further, the Appellate Division upheld the NJDEP’s invocation of discretionary direct oversight finding that the evidence of emerging contaminants existing in surface water and fish tissue exceeding levels found anywhere else in the world presently is enough to establish a “loss of value” to the surface water within the meaning of N.J.A.C. 7:26E-1.8 despite the lack of quality standards or screening criteria for PFAS substances.