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TAC Associates v. New Jersey Department of Environmental Protection

202 N.J. 533, 998 A.2d 450

BROWNFIELD; REMEDIATION — Under the New Jersey Brownfield and Contaminated Site Remediation Act, an applicant for an Innocent Party grant must actually own the property to be remediated on the day it applies for the grant even if it would otherwise have been eligible.

A company owned an industrial site for almost thirty years. It submitted a notice to the New Jersey Department of Environmental Protection (DEP) advising the DEP that it was ceasing operations at the facility and that the property was subject to sale. The company discovered hydrocarbons (hazardous substances) on its site, and in response the company and the property buyer established remediation trust accounts in anticipation of remediation costs.

Four years after completing its sale, the trust funds ran out, and the seller applied to the DEP for state funds pursuant to a remediation grant known as an Innocent Party grant. These are available under the New Jersey Brownfield and Contaminated Site Remediation Act. The Act is intended to help certain owners of contaminated property pay for remediation. The company certified that it had never used or permitted the use of the hydrocarbons that had been discovered on the property. The DEP denied the application, ruling the company was ineligible for the grant because, at the time it applied for the grant, it had already sold the property.

The company appealed, arguing the Act does not require that an applicant still be the present owner of the property when it files a grant application. The Appellate Division reversed the DEP’s denial of the grant. The New Jersey Supreme Court agreed to hear the case.

The New Jersey Supreme Court held that the Act requires that when it applies for the grant, the applicant for an Innocent Party grant must own the property to be remediated. As the company sold the property four years before it applied for a grant, it was ineligible for the program. The Court examined the plain language of the Act in effect when the application was filed. The Act authorized this grant only to those persons who “own” property in which there has been a hazardous substance discharge. The Act’s use of the present tense “own” was persuasive to the Court. The Court also indicated that statutory amendments carry great weight in determining the intention of its original statute. The New Jersey Legislature had amended the Act subsequent to the company’s filing, now clearly requiring “continuous ownership” to the point of the application filing. To the Court, this left no doubt that prior ownership of the damaged property would not qualify the applicant for funds under the grant program. The Court further indicated that the DEP’s interpretation of the Act (before it was amended) was a permissible construction of the Act and courts, in recognition of the DEP’s expertise in executing the law. Thus, the Court reversed the Appellate Division’s holding and reinstated the decision of the DEP.

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