On October 19, 1995, the Appellate Division upheld NJDEP's rescission of both a Letter of Non-Application (LNA) and a Negative Declaration that had been issued to Cadgene Family Partnership Industrial Establishment (Cadgene). NJDEP concluded that Cadgene had withheld material information when applying for the approvals.
Cadgene had certified to NJDEP that a portion of the property, which Cadgene knew had been used by an industrial tenant, was vacant and, thereby, exempt from ECRA. Based on Cadgene's submission, NJDEP approved an LNA. Cadgene then sought an administrative consent order, which would allow the sale of the remainder of the property to proceed before full compliance with ECRA. Cadgene submitted documents in support of its negative declaration which stated that there had been no recorded spills or discharges, and no sampling plan was needed. Cadgene made these submissions despite having been warned in writing by its environmental consultant of several areas of environmental concern.
On appeal, Cadgene contended, among other things, that NJDEP abused its discretion by reopening the case, and that the regulations in effect at the time Cadgene applied for the LNA and negative Declaration were unduly vague. The court rejected these arguments and upheld the agency's decision to rescind the approvals, noting that an agency has inherent authority to rehear and modify orders its has previously entered, and that, even if the regulations were unduly vague, the statutory definition of "industrial establishment" was abundantly clear.