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.