In re Adoption of N.J.A,C. 7:26E-1.13 A-20/21-05)

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

(NOTE: This Court wrote no full opinion in this case. Rather, the Court's affirmance of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Coburn's written opinion below.)

Argued January 31, 2006 -- Decided February 28, 2006

PER CURIAM

The issue before the Court is the validity of regulation N.J.A.C. 7:26E-1.13, adopted by the New Jersey Department of Environmental Protection (DEP) on February, 3, 2003.

N.J.A.C. 7:26E- 1.13 (the regulation) was intended to implement key provisions of the Brownfield and Contaminated Site Remediation Act, N.J.S.A. 58:10B-1 to -31, (Brownfield Act or statute). To that end, it sets minimum ground water and surface water remediation standards for the cleanup of contaminated property under all New Jersey environmental remediation laws, including the Industrial Site Recovery Act (ISRA).

In the Brownfield Act, the Legislature defined "brownfields" as "urban and suburban areas formerly used for commercial and industrial purposes" that are "underused or abandoned" and are often "contaminated with hazardous substances" that "pose a health risk to nearby residents and a threat to the environment[.]" The Legislature declared that the State needs to ensure the protection of the environment and the public health and safety from the risks posed by contaminated sites and that "strict standards coupled with a risk based and flexible regulatory system" will result in more cleanups and the elimination of the public's exposure to these hazardous sites and the degradation to the environment caused by contamination.

In its appellate review of the regulation, the Appellate Division noted that the case turns on the legislative meaning of the statutory" language: "strict standards coupled with a risk based and flexible regulatory system.." Appellants, Federal Pacific Electric Company and the New Jersey State Chamber of Commerce, argued on appeal that the regulation violates the Brownfield Act by its insistence on a level of remediation intended to make ground water under contaminated brownfield sites eventually safe to drink. More specifically, they claim that the DEP violated the Brownfield act by applying pre-existing found water standards for potable water to remediation of industrial sites under ISRA, instead of promulgating new, less stringent, site specific standards.

According to the Appellate Division, neither the regulation nor the Brownfield Act could be understood without considering the administrative process surrounding the proposal of the regulation and without placing both in the context of the State's ongoing legislative and administrative efforts to cleanup hazardous waste emanating from industrial sites. In its review of the statute and the regulation in that context, the Appellate Division concluded that the regulation is valid.

In reaching its decision, the panel looked to the principles of law governing appellate review of administrative lawmaking, noting that an administrative regulation is presumed valid unless it alters a statute, frustrates legislative policy, or is otherwise arbitrary, capricious, or unreasonable. When reviewing a regulation concerning complex technical matters, judicial deference to administrative agencies stems from the recognition that agencies have the specialized expertise to enact regulations dealing with technical matters. Substantial deference is also accorded to an agency's interpretation of a statute that it is charged to enforce provided that the regulation is "within the fair contemplation of the delegation of the enabling statute." According to the panel, deference is particularly appropriate when, as here, the agency must construe and implement a new statute or when that agency has been delegated discretion to determine the specialized and technical procedures for its tasks.

In upholding the regulation, the Appellate Division reasoned that the Brownfleld Act is a new statute that addresses highly specialized and technical matters that have been submitted in broad terms to the expertise of the enforcing agency, and although some of appellants' arguments in respect of the l eNslarive intent of the statute are plausible, plausibility is not sufficient to overturn the regulation. Appellants' failed to meet their burden of proving that the regulation violates the statute. HELD: Judgment of the Appellate Division is affirmed substantially for the reasons provided in Judge Coburn's written opinion. DEP Regulation N.J.A.C. 7:26E-1.13 did not violate the Brownfield Act and is, therefore, valid.

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join in this PER CURIAM opinion.

SUPREME COURT OF NEW JERSEY
A-20/21 September Term 2005

IN RE ADOPTION OF
N.J.A.C. 7:26E-i.13

Argued January 31, 2006 - February 28, 2006

On certification to the Superior Court, Appellate Division, whose opinion is reported at 377 N.J. Super. 78 (2005).

Dennis J. Krumholz argued the cause for appellant Federal Pacific Electric Company (Riker, Danzig, Scherer, Hyland & Perretti, attorneys; Mr. Krumholz and Marilynn R. Greenberg, of counsel; Steven T. Senior, on the briefs).

Edward F. McTiernan argued the cause for appellant New Jersey State Cham~er of Commerce (Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Mr. McTiernan and Paul M. Hauge, on the briefs).

Jane F. Engel, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Zulima V. Farber, Attorney General of New Jersey, attorney; Michael J. Haas, Assistant Attorney General, of counsel).

Thomas J. Burns III submitted a letter in lieu of brief on behalf of amici curiae American Petroleum Institute and Chemistry Council of New Jersey (Reed Smith, attorneys).

Susan J. Kraham, Staff Attorney, Rutgers Environmental Law Clinic, submitted a letter in lieu of brief on behalf of amici curiae Edison Wetlands Association, New York/New Jersey Baykeeper, New Jersey Environmental Federation, New Jersey Work Environment Council, New Jersey Environmental Justice Alliance and Ironbound Community Corporation.

Stephen W. Smithson submitted a brief on behalf of amicus curiae Technical Regulations Advisory Coalition (Lowenstein Sandler, attorneys) .

PER CURIUM

The judgment is affirmed, substantially for the reasons expressed in Judge Coburn's opinion for the Appellate Division, reported at 377 N.J. Super. 78 (2005).

CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, WALLACE and RIVERA-SOTO join in this PER CURIAM opinion.

NO.A-20/21 SEPTEMBER TERM 2005

ON CERTIFICATION TO Appellate Division, Superior Court

In re Adoption of N.J.A.C. 7:26E-1.13

DECIDED February 28, 2006
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY