TAC Associates v. New Jersey Department of Environmental Protection

998 A.2d 450, 202 N.J. 533, 2010 N.J. LEXIS 592
CourtSupreme Court of New Jersey
DecidedJuly 15, 2010
StatusPublished
Cited by2 cases

This text of 998 A.2d 450 (TAC Associates v. New Jersey Department of Environmental Protection) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
TAC Associates v. New Jersey Department of Environmental Protection, 998 A.2d 450, 202 N.J. 533, 2010 N.J. LEXIS 592 (N.J. 2010).

Opinions

Justice LONG

delivered the opinion of the Court.

The Department of Environmental Protection (DEP) rejected an application for an Innocent Party Grant (IPG), a remedy under the Brownfield and Contaminated Site Remediation Act (BCSRA or “the Act”) intended to help certain owners of contaminated property defray the cost of remediation. N.J.S.A. 58:10B-5(d). The rejection was based on the fact that the applicant no longer owned the property and “[pjursuant to the N.J.S.A. 58:10B, the IPG only applies to a property owner who meets the eligibility criteria.” The applicant appealed and the Appellate Division reversed and remanded. TAC Assocs. v. N.J. Dep’t. of Envtl. Prot., 408 N.J.Super. 117, 973 A.2d 969 (App.Div.2009). The State filed a petition for certification, which we granted. 200 N.J. 549, 985 A.2d 647 (2009). Because the applicant did not own the property at the time of the application, it was ineligible for an IPG grant under the Act and thus we reverse.

I.

Our starting point is a brief overview of the statutory and regulatory schemes that govern hazardous or contaminated site remediation in New Jersey. In 1983, the Environmental Cleanup Responsibility Act (ECRA) was enacted to address the remediation of contaminated sites. L. 1983, c. 330, §§ 1-11. In 1993, ECRA was revised and renamed the Industrial Site Recovery Act (ISRA). L. 1993, c. 139, §§ 1-49. The enactment of ISRA established the Hazardous Discharge Site Remediation Fund (HDSRF). L. 1993, c. 139, § 26. The HDSRF was intended to provide financial assistance or grants “for the purpose of financing remedí[537]*537ation activities at sites at which there is, or is suspected of being, a discharge of hazardous substances or hazardous wastes.” L. 1993, c. 139, § 26 (N.J.S.A. 58:10B-4).

In 1998, BCSRA went into effect and several ISRA provisions, including the HDSRF, were denominated as part of BCSRA. See L. 1997, c. 278, § 12; N.J.S.A. 58:10B-1.1. One of the grants available under the HDSRF is an IPG. BCSRA defines who is eligible to receive an IPG in two sections.

The first section, N.J.S.A. 58:10B-5, provides:1

Grants may be made from the remediation fund to persons who own real propeity on which there has been a discharge of a hazardous substance or a hazardous waste and that person qualifies for an innocent party grant pursuant to [N.J.S.A 58:10B-6].
[N.J.S.A 58:10B-5(d) (emphasis added).]

N.J.S.A 58:10B-6, in turn, reiterates the ownership requirement and sets forth what an applicant must show in order to establish innocence:

Moneys shall be allocated for grants to persons who own real property on which there has been a discharge of a hazardous substance or a hazardous waste and that person qualifies for an innocent party grant. A person qualifies for an innocent party grant if that person acquired the property prior to December 31, 1983, the hazardous substance or hazardous waste that was discharged at the property was not used by the person at that site, and that person certifies that he did not discharge any hazardous substance or hazardous waste at an area where a discharge is discovered. A grant authorized pursuant to this paragraph may be for up to 50% of the remediation costs at the area of concern for which the person qualifies for an innocent party grant, except that no grant awarded pursuant to this paragraph to any person may exceed $1,000,000[J
[N.J.S.A. 58:10B-6(a)(4) (amended by L. 2009, c. 303, § 1) (emphasis added).]

Two agencies are responsible for the implementation of the HDSRF: the DEP and the New Jersey Economic Development Authority (EDA). N.J.S.A. 58:10B-1, -4.2 The DEP reviews [538]*538grant applications and refers applications it deems eligible to the EDA. See N.J.A.C. 19:31-8.9; N.J.A.C. 7:26C-11.2. The EDA takes final action on all eligible grant applications. See N.J.AC. 19:31-8.9.

In furtherance of its mission, the EDA is empowered to adopt any requirement “the [Ajuthority shall deem necessary or appropriate in carrying out the purposes for which the Hazardous Discharge Site Remediation Fund was created.” N.J.S.A 58:10B-8(a)(8). Pursuant to that power, in 1994 the EDA promulgated N.J.AC. 19:31-8 to implement the provisions of the HDSRF. See 26 N.J.R. 1706, 1708 (Apr. 18, 1994) (adopted as R. 1994 d. 192). In line with the statute, that regulation provided the eligibility criteria for the grant of an IPG. Specifically, where non-public entities are concerned, N.J.A.C. 19:31-8.3(e) established that

(c) Grants from the Fund may be made to:
2. Persons ... who oum real property on which there has been a discharge of a hazardous substance or a hazardous waste and that person qualifies for an innocent party grant pursuant to section 28 of the Act.
[N.J.A.C. 19:31-8.3(c) (1994) (emphasis added); see also 26 N.J.R. 1706, 1709 (Apr. 18,1994) (amended as N.J.AC. 19:31-8.3(d)).]

The regulation also contained the following definition of “innocent party”:

[A] person who acquired the property prior to December 31, 1983, who can demonstrate that the hazardous substance or hazardous waste that was discharged at the property was not used by the person, or any person with operational control, and who can demonstrate that he or any person with operational control at that site, and that person certifies that he, or any person with operational control, did not discharge any hazardous substance or hazardous waste at an area where a discharge is discovered.
[N.J.A.C. 19:31-8.2 (1994); see also 26 N.J.R. 1706, 1709 (Apr. 18, 1994).]

In 2006, N.J.A.C. 19:31-8.2 amended the definition of innocent party to read as follows:

1. Acquired the real property prior to December 31, 1983 and continues to oum the real property at least until the Authority renders final approval to the grant;
2. Demonstrates that the hazardous substance or hazardous waste that was discharged at the real property was not used by that person, or by any person that had permission to use the site from the applicant; and
[539]*5393. Certifies that the applicant or any person that had permission to use the site from the applicant did not discharge any hazardous substance or hazardous waste at an area where a discharge is discovered.
[N.J.A.C. 19:31-8.2 (emphasis added); see also 38 N.J.R. 4267, 4504 (Oct. 16, 2006).]

On January 17, 2010, the Legislature amended BCSRA to mirror the regulation’s revised ownership language. N.J.S.A. 58:10B-6(a)(4) (amended by L. 2009, c. 303, § l).3

II.

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998 A.2d 450, 202 N.J. 533, 2010 N.J. LEXIS 592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tac-associates-v-new-jersey-department-of-environmental-protection-nj-2010.