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

377 N.J. Super. 78, 871 A.2d 711 (App. Div. 2005)

ENVIRONMENTAL LAW; BROWNFIELD ACT —Under the New Jersey Brownfield and Contaminated Site Remediation Act, the New Jersey Department of Environmental Protection may adopt strict regulations regarding remediation standards for the cleanup of contaminated property.

The New Jersey Department of Environmental Protection (DEP) adopted a regulation which was codified in N.J.A.C. 7:26E-1.13. The purpose of the regulation was to implement provisions of the New Jersey Brownfield and Contaminated Site Remediation Act (Brownfield Act). The regulation provided minimum ground water and surface water remediation standards for the cleanup of contaminated property under all New Jersey environmental laws, including the New Jersey Industrial Site Recovery Act (ISRA). An electric company and the New Jersey State Chamber of Commerce appealed the DEP’s adoption of the regulation to the Appellate Division. They argued that the regulation violated the Brownfield Act because it applied preexisting ground water remediation standards for the cleanup of industrial sites under ISRA, instead of adopting new and less stringent standards. They further argued that the language of the Brownfield Act indicated that the legislature intended DEP to relax remediation standards, as opposed to enforcing strict standards for cleanups.

The Appellate Division ruled in favor of DEP. In reaching its decision, it first analyzed the power granted to DEP under the Brownfield Act. The Act provides that: “the state needs to ensure that the public health and safety and the environment are protected from the risks posed by contaminated sites and that strict standards couple with a risk based and flexible regulatory system will result in more cleanups. . .” The Court held that the language “strict standards” in the Act fully supported DEP’s adoption of the strict remediation standards. It rejected the electric company’s and the chamber of commerce’s assertion that the provisions of the Brownfield Act required DEP to adopt relaxed remediation standards. As a result, the Court held that the regulation did not violate the Brownfield Act and it affirmed the adoption of the regulation.


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