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Tuesday, July 17, 2012

DES CHAMPS LABORATORIES, INC. VS. ROBERT MARTIN COMMISSIONER, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION A-3235-10T4


DES CHAMPS LABORATORIES, INC. VS. ROBERT MARTIN COMMISSIONER, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION A-3235-10T4

We hold that the Department of Environmental Protection lacks the statutory authority under the Industrial Site Recovery Act of 1993 ("ISRA"), N.J.S.A. 13:1K-6 to -14, or under the Site Remediation Reform Act of 2009 ("SRRA"), N.J.S.A. 58:10C-1 to -29, to require an owner or operator of an industrial establishment, which stored or handled only small quantities of hazardous substances below certain levels prescribed in N.J.S.A.
13:1K-9.7, to certify to the best of its knowledge that the site is free from contamination as a condition of obtaining a "de minimis quantity exemption" ("DQE") from ISRA requirements when seeking to transfer title or to cease operations at the site. The imposition of such an obligation as a condition of DQE approval is inconsistent with ISRA and SRRA, statutes which are designed, among other things, to streamline the regulatory process and, as ISRA proclaims, "minimize governmental involvement in certain business transactions." N.J.S.A. 13:1K- 7. The Department remains free, however, to seek remedial measures against the owner or operator under other environmental
statutes and regulations that are not tied to the DQE approval process. We further declare invalid similar provisions within N.J.A.C. 7:26- 5.9, recently adopted in May 2012, requiring a "contamination free"certification by the applicant. 07-06-12