The Appellate Division of the Superior Court of New Jersey recently rejected the industry challenge to the NJDEP's regulations for natural resource damages ("NRD"). New Jersey Site Remediation Network v. NJDEP, Dkt. No. A-5272-97T3 (Slip op., April 17, 2000). The coalition of industry members has filed a petition for certification to the New Jersey Supreme Court.
Under NJDEP's regulations and policies, a responsible party conducting site remediation must characterize and restore NRD prior to obtaining an unconditional No Further Action Letter ("NFA"). The industry coalition's principal argument was that this regulatory mandate amounted to "remediation standards protective of the environment" or "ecology based" regulation, which NJDEP currently is prohibited from proposing. The coalition also contended that NJDEP improperly usurped the judiciary's power to adjudicate NRD claims, and that the agency promulgated the regulations in violation of the Administrative Procedure Act ("APA").
The Court rejected all of the coalition's arguments. The Court held that the NRD requirements are not proscribed ecology-based remediation standards, but rather are generic procedures authorized by the controlling statutes, under which a responsible party merely describes risks and injuries to the environment. The Court also found statutory support for NJDEP's decision to withhold or condition an NFA until NRD is addressed. Rejecting the coalition's argument that NJDEP supplanted judicial power, the Court stated that the courts would review NJDEP's determinations in enforcement actions and challenges to NRD decisions. Finally, the Court rejected the APA argument, stating that NJDEP both foreshadowed the NRD proposal in earlier rulemakings and gave adequate notice of the specific proposal, and stating that the differences between the regulations as proposed and adopted were minor.
Despite the victory in the Appellate Division, NJDEP has not yet implemented the NRD requirements on a program-wide basis in the Site Remediation Program, nor has it announced its intention to do so.
