The Appellate Division Limits DEP’s Powers

Des Champs Laboratories, Inc. v. Martin, 427 N.J. Super. 84 (App. Div. 2012).  This opinion by Judge Sabatino, for a unanimous Appellate Division panel, may lead to one of the most important Supreme Court decisions in years in the areas of administrative and environmental law.  The panel held that the New Jersey Department of Environmental Protection (“NJDEP”) lacked authority to promulgate regulations that require property owners who apply for a “de minimis quantity exemption” (“DQE”) from environmental cleanup laws to certifiy that the property is now “clean” of contaminants.

The 36-page opinion, though actually one of Judge Sabatino’s shorter published decisions, exhaustively catalogs the history of environmental cleanup statutes in New Jersey, beginning with ECRA, the Environmental Cleanup Responsibility Act of 1983, N.J.S.A. 13K:1 et seq., through ISRA, the Industrial Site Recovery Act of 1993, N.J.S.A. 13:1K-6 et seq., to SRRA, the Site Remediation Reform Act of 2009, N.J.S.A. 58:10C-1 et seq.  In summary, Judge Sabatino concluded that while the Legislature, in ECRA, had given NJDEP broad power to require a certification such as the one in question, the Legislature reduced NJDEP’s authority in that regard as a result of the subsequent enactment of ISRA.

NJDEP had argued that ISRA gave the agency implied authority to require the certification, and that significant public policy considerations supported NJDEP’s power to do so.  The panel recognized that “[t]he absence of of an express statutory authorization in the enabling legislation will not preclude administrative agency action where, by reasonable implication, that action can be said to promote or advance the policies and findings that served as the driving force for the enactment of the legislation.”  Nonetheless, Judge Sabatino held, NJDEP had exceeded the power granted it by statute “by injecting into the DQE process a requirement that the governing statutes do not authorize.”

The opinion also contains a comprehensive catalog of principles of administrative law and related doctrines of the scope of judicial review of administrative agency actions and regulations.  Parties on any side of an administrative law matter will be able to draw on this opinion for such principles.

The panel recognized the potentially broad import of its decision by staying its effect for thirty days, in order to allow time for a petition for certification to the Supreme Court.  NJDEP seems likely to fiile such a petition, and if a petition is filed, it appears likely to be granted.  Indeed, such a petition should be granted so that the Supreme Court will have the last word, one way or the other, on the important issues of this case.