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Monday, November 21, 2016

CUMBERLAND FARMS, INC. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL. A-4335-14T2

CUMBERLAND FARMS, INC. VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, ET AL.
A-4335-14T2
In this opinion, we conclude that plaintiff, the owner of convenience stores and gas stations throughout the State, failed to establish that it had an enforceable settlement agreement with the New Jersey Department of Environmental Protection ("the DEP") that purportedly resolved natural resource damage claims the DEP had asserted under the New Jersey Spill and Compensation Act, N.J.S.A. 58:10-23.11 to -23.50. Although the DEP sent plaintiff a draft settlement agreement for review, plaintiff never formally responded to the DEP's overtures and never sought
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to participate in the negotiations necessary to complete the process.
We also address the applicability of N.J.S.A. 58:10-23.11e2 to the settlement process. That provision, which went into effect in April 2006, requires the DEP to publish public notice concerning the terms of a proposed settlement at least thirty days prior to its agreement to any settlement. Here, we hold that the parties never agreed upon the terms of the settlement and, therefore, the DEP was not required to publish notice of the proposed settlement pursuant to the statute. However, we make clear that had the parties agreed upon the settlement terms and published those terms for public comment, the DEP would have had the authority to thereafter consummate, withdraw from, or modify the agreement based upon the responses received during the public comment period.