Search Site
Menu

Court Affirms DEP Direct Oversight of Remediation Efforts of PFAS Polluting Plant

 

This week, in In re Dep’t of Envtl. Prot. Direct Oversight Determination, No. A-0635-20, 2023 WL-125229 (App. Div. Jan. 9, 2023), New Jersey’s Appellate Division affirmed a Department of Environmental Protection (DEP) determination that a manufacturing plant was subject to direct oversight of its remediation of discharged hazardous substances.

In 2019, the DEP issued a Statewide PFAS Directive to Solvay Specialty Polymers USA, LLC (Solvay), the owner of a plant along the Delaware River, stating that Solvay was responsible for PFAS contamination at the Site and its surrounding areas and providing steps to be taken within site-specific timeframes. In response, Solvay asserted good cause defenses. The DEP then issued a Direct Oversight Determination, contending that it was triggered by Solvay’s failure to comply with the Directive’s site-specific timeframes and because sensitive natural resources had been injured by contamination from the plant.

Solvay filed a notice of appeal, arguing that the Determination violated its due process rights as established in In re Kimber Petroleum Corp., 110 N.J. 69 (1988) by requiring it to comply with the Determination before it had an opportunity to have its good-cause defenses adjudicated and because the Determination was arbitrary, capricious, and unreasonable.

The Appellate Division disagreed. The court acknowledged that while Kimber places constitutional limits on damages in a DEP enforcement action after a responsible party does not comply with a directive where the responsible party asserts a good-cause defense, it does not excuse a responsible party from compliance just because it has asserted good-cause defenses that have not yet been adjudicated. Likewise, the DEP may enforce a directive after a party has asserted good-cause defenses. The mere issuance of a Determination does not trigger Kimber’s due process protections.

The court also disagreed that the Determination was arbitrary, capricious, and unreasonable. Instead, the DEP’s broad statutory authority to oversee the remediation of contaminated sites includes the power to establish site-specific timeframes for actions identified in a Statewide Directive. Failure to comply with timeframes constitutes a sufficient basis for the DEP’s conclusion that its direct oversight of Solvay’s remediation of the Site was mandated.

Finally, the court found that the DEP’s discretionary oversight determination was supported by substantial, credible evidence that surface water had been injured by PFAS that came from the Site because there was evidence that the Delaware River and its fish contained high levels of PFNA, a type of PFAS produced by the plant. Thus, imposition of direct oversight of Solvay’s remediation was not a mistaken exercise of the DEP’s discretion.

Our Attorneys

Recent Twitter Posts

  • New Jersey sets emergency water standards for new chemicals. https://t.co/trgaaLL1mD
    1 year ago
  • How will New Jersey manage stormwater as the climate changes and flooding increases? https://t.co/dhVLALyzZ2
    1 year ago
  • Unprecedented storms are slamming NJ – learn how to be the best advocate for your clients when the next flood hits.… https://t.co/TicH6iAjP0
    1 year ago
  • Trenton Water Works has removed 25 percent of lead pipes throughout its service area. https://t.co/KUvhMsJlvU
    1 year ago

Recent Blog Posts

When A First Right of Refusal Is Too Late

On December 22, 2022, the Superior Court of New Jersey, Appellate Division decided the case Saadia Square LLC v. SM Logistics Member LLC et. al. This case arises out of a
Read More
When A First Right of Refusal Is Too Late

Indemnification Provision Entitles Former Condominium Association Trustee to Recover Certain Fees and Costs for First-Party Claim

Last week, New Jersey’s Appellate Division found that a former trustee of a condominium association’s board was entitled to recover certain fees and costs pursuant to the association’s indemnification provision. In
Read More
Indemnification Provision Entitles Former Condominium Association Trustee to Recover Certain Fees and Costs for First-Party Claim

Court Affirms DEP Direct Oversight of Remediation Efforts of PFAS Polluting Plant

  This week, in In re Dep't of Envtl. Prot. Direct Oversight Determination, No. A-0635-20, 2023 WL-125229 (App. Div. Jan. 9, 2023), New Jersey’s Appellate Division affirmed a Department of Environmental
Read More
Court Affirms DEP Direct Oversight of Remediation Efforts of PFAS Polluting Plant

What to do if a certificate of occupancy has been incorrectly issued?

Town rescinds certificate of occupancy for former motel On January 5, 2023, the Superior Court of New Jersey Appellate Division decided the case Department of Community Affairs, etc v. Kenneth D. Roberts, etc. In this case, Defendant
Read More
What to do if a certificate of occupancy has been incorrectly issued?

In The Media

  • Gulf Coast Town Center facing foreclosure

    Naples Daily News, September 16, 2015

    Wells Fargo filed a lawsuit Sept. 8 against an affiliate of CBL & Associates, the owners of the decadeold, 1.2 million-square-foot mall in south Fort Myers for a $190.9 million unpaid loan. The center has 94 stores on 204 acres, with such anchors as Super Target, Belk, Best Buy, Dick’s Sporting Goods, Marshalls and Costco...

    Read More
  • Town liable for private company's leaking underground tanks, court rules

    NJ.com Jul 26, 2017

    CRANFORD -- A couple that owned a businesses in town and became sick from leaking underground tanks owned by an adjacent business can sue the township for damages because the tanks were partially ...

    Read More
  • Dark Waters: How a Class Action Catapulted NJ to Forefront of 'Forever Chemicals' Battle

    NJ Law Journal Jan 09, 2020

    As property owners become increasingly aware of PFAS contamination, and as individuals exposed to PFAS learn of the health risks associated with exposure, liability will likely affect entire supply chains.

    Read More
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
Contact Our Firm

Quick Contact Form