IN THE MATTER OF SPILL FUND LIENS ALEXANDER CLEANERS (SPILL COMPENSATION FUND, DEPARTMENT OF ENVIRONMENTAL PROTECTION)

• Court: New Jersey Superior Court Appellate Division
• Decided: October 3, 2017
• Docket: A-2206-15T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2206-15T1

IN THE MATTER OF SPILL FUND LIENS ALEXANDER CLEANERS DJ 330193-11 DJ 330187-11 (First Priority Lien) 137 Broadway Block 1102 Lot 4 Hillsdale Borough Bergen County Program Interest No. 015123. ___________________________________

Submitted May 16, 2017 – Decided October 3, 2017

Before Judges Ostrer and Vernoia.

On appeal from the Spill Compensation Fund, Department of Environmental Protection.

Kaufman Semeraro & Leibman, LLP, attorneys for appellants Alexander Cleaners, Hee Kul Eun and Ryou Eun (Marc E. Leibman and Justin D. Santagata, on the briefs).

Christopher S. Porrino, Attorney General, attorney for respondent New Jersey Department of Environmental Protection (Melissa H. Raksa, Assistant Attorney General, of counsel; Matthew D. Orsini, Deputy Attorney General, on the briefs).

The opinion of the court was delivered by

OSTRER, J.A.D. Appellants Hee Kul Eun and Ryou Eun challenge the Department

of Environmental Protection's filing of a lien against them and

their property to recoup almost one million dollars the Department

spent to clean up environmental contamination. The Euns contend,

for the first time on appeal, they were entitled to an

administrative hearing before the Department or the Office of

Administrative Law. In their reply brief, they also assert the

Department should have adopted by formal rule-making its

administrative guidance governing lien contests. We reject these

arguments and affirm.

The Euns knew the property they purchased in March 1996 was

contaminated. They conceded that, as part of their purchase, a

preliminary site investigation detailed the contamination. After

the purchase, Mr. Eun entered into a Memorandum of Agreement with

the Department, and agreed to submit a remedial action work plan.

After he failed to do so, the Department terminated the MOA and

eventually undertook the clean-up with public funds. In 2011, the

Department filed its first lien seeking reimbursement of the

$508,121.35 the Department incurred since 1996. As the cleanup

continued, the Department filed an amended petition increasing the

lien to $856,547.78 to include expenses through 2014.

The Department informed the Euns by letter of the amended

lien, and invited them to "notify the Department in writing and

2 A-2206-15T1 include specific reasons [they] believe[d] the Department did not

have a reasonable basis to file the lien." The Department advised

the Euns it would assign "[a]n agency official . . . to review

[their] case and to render a decision as to whether the Department

had a reasonable basis to file the lien in question." The notice

also informed the Euns they could get copies of the Department's

lien-related records through a request under the Open Public

Records Act, N.J.S.A. 47:1A-1 to -13.

The Euns contested the lien to the extent it named them

personally, and alleged a limited liability company owned the

property. Their attorney stated in a letter to the Department:

Mr. and Mrs. Eun object to the filing of this amended lien and any liens which name them individually.

The subject property has been held by a limited liability company. There is no personal liability here. Accordingly, Mr. and Mrs. Eun demand that the liens be amended to remove any reference to them personally.

The attorney did not identify the LLC, nor attach documentary

support for the assertion that it owned the property.

The Department referred the matter to a Neutral Agency Officer

— according to the Department's Spill Act Administrative Guidance,

"a State employee, who has no prior involvement in the decision

making concerning the initial filing of a Spill Act lien, and who

has no prior involvement with the affected site and property

3 A-2206-15T1 owner." After reviewing the case, the officer recommended

retaining the lien. The officer noted that contamination on the

property violated state law; the Department spent $856,547.78 in

public funds to assess and remove the contamination; and the Euns

– not an LLC – owned the property. The Spill Compensation Fund's

assistant director approved the officer's conclusions in a January

11, 2016 final agency action. The assistant director noted his

decision was "not a binding determination of liability" nor did

it have "preclusive effect" on a "subsequent cost recovery or

enforcement proceedings."

The Euns then appealed. Without directly contesting the

Department's expenditures or its right to a lien, they challenge

the process they were afforded. They argue they were entitled to

a hearing before OAL or the Department, although they did not seek

an OAL hearing before their appeal. In a reply brief, they add

that the Department was required to adopt its administrative

guidance as a formal regulation, pursuant to the Administrative

Procedure Act and case law.

Absent a compelling public interest or a jurisdictional

question, we rarely will address matters raised for the first time

on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973). Also, "[i]t is improper to introduce new issues in a

reply brief." In re Bell Atlantic-New Jersey, Inc., 342 N.J.

4 A-2206-15T1 Super. 439, 442 (App. Div. 2001). As appellants' arguments violate

these principles, we decline to consider them here and affirm the

Department's decision. See Sell v. N.J. Transit Corp., 298 N.J.

Super. 640, 649-50 (App. Div. 1997) (declining to consider argument

that agency hearing should have been a contested case under the

APA, as the petitioner raised the issue for the first time on

appeal, and "did not seek to have his case referred to the Office

of Administrative Law for a hearing").

We add only that the Euns' claim to a contested case hearing

is undermined by their failure to raise a material issue of fact.

"The right to a full trial-type hearing . . . is generally limited

to the situation where adjudicatory facts . . . are in issue."

High Horizons Dev. Co. v. State, 120 N.J. 40, 49 (1990) (internal

quotation marks and citation omitted). "[I]t is the presence of

disputed adjudicative facts, not the vital interests at stake,

that requires the protection of formal trial procedure." Id. at

53; see also In re NJPDES Permit No. NJ00025241, 185 N.J. 474, 486

(2006); In re Solid Waste Util. Customer Lists, 106 N.J. 508, 517

(1987).

The Euns attempted to raise only one factual issue to the

Department, contending that an LLC, not they, owned the property.

Yet, they did not name the company, nor submit proof of its alleged

ownership. On appeal, the Euns merely document the LLC's name and

5 A-2206-15T1 its formation after the Euns' 1996 purchase.1 Furthermore, they

concede in their brief "it is not clear whether the property was

ever transferred" to the LLC.

By contrast, Mr. Eun acknowledged his ownership in the

Memorandum of Agreement he signed. The Department points to a

Monmouth County tax record that clearly lists the Euns as the

purchasers in 1996, and owners as of 2014. Thus, the Euns' bare

assertion of non-ownership is contradicted by the record, and

falls short of creating a factual dispute that would entitle them

to a hearing.

Affirmed.

1 They did so by inappropriately expanding the record. See R. 2:5-5.

6 A-2206-15T1