MARK SMITH VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION(NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1684-14T2
MARK SMITH and KATHERINE SMITH,
Appellants,
v.
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Respondent.
________________________________
Argued November 2, 2017 – Decided December 1, 2017
Before Judges Simonelli, Haas and Rothstadt.
On appeal from New Jersey Department of
Environmental Protection.
Bruce I. Afran argued the cause for
appellants.
Elspeth L. Faiman Hans, Deputy Attorney
General, argued the cause for respondent
(Christopher S. Porrino, Attorney General,
attorney; Melissa Dutton Schaffer, Assistant
Attorney General, of counsel; Ms. Hans, on the
brief).
PER CURIAM
Appellants Mark and Katherine Smith appeal from the New Jersey
Department of Environmental Protection's (DEP's) October 23, 2014
grant of a Soil Remediation Action Permit (the Permit) to the
Trustees of Princeton University (the University) in connection
with a soil remediation project it completed under the supervision
of a Licensed State Remediation Professional (LSRP) pursuant to
the Site Remediation Reform Act (SRRA), N.J.S.A. 58:10C-1 to -28.
The Permit established the monitoring, maintenance, and evaluation
requirements the University had to meet in the future in order to
ensure that its remedial action continued to be protective of the
public health, safety, and environment. We affirm.
I.
We begin by providing a brief overview of the regulatory
changes the SRRA made to the way contaminated sites are remediated
in New Jersey following its enactment in 2009, and its full
implementation in 2012. Prior to the SRRA, the party responsible
for contaminating a site was required to remediate the problem on
their property under DEP's strict supervision. The responsible
party had to notify DEP of the contamination and DEP would inspect
the property, decide how the contamination would be remediated,
supervise the remediation as it proceeded and, at the conclusion
of the project, determine whether the remediation had ameliorated
the problem. See generally N.J.S.A. 13:1K-6 to -14 (the Industrial
Site Recovery Act); N.J.S.A. 58:10B-1 to -31 (the Brownfield and
Contaminated Site Remediation Act).
2 A-1684-14T2
The SRRA completely changed the remediation paradigm. "In
2009, the Legislature enacted SRRA, in an effort to further improve
the efficiency and speed with which environmental sites are
remediated." Des Champs Labs, Inc. v. Martin, 427 N.J. Super. 84,
99 (App. Div. 2012). Under SRRA, DEP no longer directly supervises
the remediation efforts at a contaminated site. Morristown Assocs.
v. Grant Oil Co., 220 N.J. 360, 378 n.5 (2015). Instead, SRRA
shifted primary supervision for site cleanup of contaminants from
the DEP to certified specialists known as LSRPs. Des Champs,
supra, 427 N.J. Super. at 99.
Following the enactment of SRRA, a responsible party must
hire a LSRP to supervise the remediation of a site in accordance
with DEP's regulations. N.J.S.A. 58:10B-1.3(b)(1). LSRPs "are
individuals who independently oversee the cleanup of contaminated
sites, ensuring that the process is conducted effectively and in
compliance with New Jersey statutes and regulations." Magic
Petroleum Corp. v. Exxon Mobil Corp., 218 N.J. 390, 400 n.2
(2014).1
The remediation activities proceed "without prior approval
from DEP." Morristown Assocs., supra, 220 N.J. at 378 n.5; see
1
The New Jersey Site Remediation Professional Licensing Board is
responsible for establishing licensing requirements for LSRPs.
N.J.S.A. 58:10C-3(a). The Board adopted these standards in January
2016. N.J.A.C. 7.26I-1.1 to -9.3.
3 A-1684-14T2
also N.J.S.A. 58:10B-1.3(b)(3). When the LSRP is satisfied that
the site has been remediated in accordance with all applicable
statutes and regulations, the LSRP issues a Response Action Outcome
(RAO)2 to the responsible party certifying its compliance with the
law. Matejek v. Watson, 449 N.J. Super. 179, 182 (App. Div. 2017);
see also N.J.S.A. 58:10C-14(d); N.J.A.C. 7:26C-2.3(a); N.J.A.C.
7:26B-1.10.3
In some cases, the LSRP will determine that the best
"[e]ngineering control" to remediate contamination on a site is
to leave it in place or congregate it in one area of the property
and then "cap" it. N.J.A.C. 7:26E-1.8. A cap is a protective
barrier that is placed over contaminated material in order to
safely contain and control the material in one location. "[W]here
the residual contaminant concentrations remaining [on the site
after the contamination is capped] exceed the [applicable]
residential direct contact soil remediation standards[,]" N.J.A.C.
7:26E-5.2(a)(4), the responsible party and the LSRP must file and
2
A RAO has the same legal effect as "a covenant not to sue" had
with regard to property that was remediated under the Industrial
Site Recovery Act before LSRPs took over this responsibility.
N.J.S.A. 58:10B-13.2(a).
3
When the Legislature enacted SRRA in 2009, it also amended the
Brownfield and Contamination Site Remediation Act to require use
of an LSRP to perform the remediation, to provide notice to the
DEP, and to pay fees and oversight costs, among other requirements.
N.J.S.A. 58:10B-1.3(b)(1)-(9).
4 A-1684-14T2
record a deed notice "with the office of the county recording
officer, in the county in which the property is located[.]"
N.J.S.A. 58:10B-13(a)(2). The deed notice acts
to inform prospective holders of an interest
in the property that contamination exists on
the property at a level that may statutorily
restrict certain uses of or access to all or
part of that property, a delineation of those
restrictions, a description of all specific
engineering or institutional controls at the
property that exist and that shall be
maintained in order to prevent exposure to
contaminants remaining on the property, and
the written consent to the notice by the owner
of the property.
[Ibid. (emphasis added).]
After the LSRP files the deed notice with the county, he or
she must submit an application to DEP for the issuance of a
remedial action permit, which sets the "institutional controls"
that the responsible party must maintain to ensure that the
environmental control selected by the LSRP, in this example a cap,
continues to "prevent exposure to contaminants remaining on the
property[.]" Ibid.; see also N.J.A.C. 7:26C-7.5(b) (describing
the documentation that must be submitted to DEP with the
application). The controls and conditions that may be included
in a permit are set forth in N.J.A.C. 7:26C-7.7 ("[g]eneral
conditions applicable to all remedial action permits"), and
N.J.A.C. 7:26C-7.8 ("[s]pecific conditions applicable to soil
5 A-1684-14T2
remedial action permits"). As aptly described in the general
language contained in each permit, a remedial action "permit is
the regulatory mechanism used by [DEP] to help ensure that [the
responsible party's] remedial action will be protective of human
health and the environment."
After a remediation action permit is granted, the LSRP may
issue the RAO to the responsible party "[w]hen, in the opinion of
the [LSRP], the site or area of concern has been remediated[.]"
N.J.A.C. 7:26C-6.2(a). If the responsible party thereafter fails
to maintain the remediation controls required by the permit, DEP
may take appropriate enforcement action, including the imposition
of civil administrative penalties, against that party. N.J.A.C.
7:26C-9.1 to -9.10.
To summarize, under SRRA, DEP's role in the remediation
process has been drastically minimized. Prior DEP approval is not
needed for the remediation action. Instead, site cleanups are
initiated and completed under the direction of a LSRP, who has
responsibility for oversight of the environmental investigation
and remediation of the problem at a site. DEP receives the LSRP's
reports as the project progresses and remediation milestones are
reached. In some cases, DEP is required to issue a remedial action
permit that establishes long-term monitoring and reporting
requirements as "institutional controls" designed to ensure that
6 A-1684-14T2
the remedial actions and environmental controls chosen by the LSRP
continue to be protective of the public health, safety, and
environment in the ensuing years.
II.
With this essential regulatory background in mind, we now
turn to the facts of the present case. Since 2003, the University
has been interested in developing the "Princeton Nurseries" site,
a large parcel of land it owned in South Brunswick.4 In 2007, the
University retained a consultant, Ransom Environmental (Ransom),
to investigate whether there was any contamination on Block 99,
Lot 14, a seventy-four-acre portion of the site.
This lot had previously been used for nursery and farming
operations and contained two pesticides that had contaminated the
soil. Ransom's soil sample tests "identified dieldrin as the
primary contaminant concern in [the] soil as a result of historic
pesticide use" on the property. According to materials in the
record, "[d]ieldrin is an organochlorine pesticide that was
historically used against insects on field, forage, vegetable, and
fruit crops." The United States Environmental Protection Agency
4
The history of this development process is set forth in detail
in our recent unpublished opinion in Smith v. South Brunswick
Twp., Nos. A-1218-15 and A-3014-15 (App. Div. May 18, 2017) (slip
op. at 3-17) and, therefore, it need not be repeated here.
7 A-1684-14T2
(EPA) banned dieldrin's use on food crops in 1974, and banned this
substance entirely in 1987.
Ransom also detected a contaminant known as "chlordane" on
other portions of the site. "Chlordane is a mixture of compounds
used on a wide variety of crops and on home lawns and gardens from
1948 to 1988. From 1983 to 1988, chlordane's only permitted use
was for termite control, and the [EPA] banned all use starting in
1988." Ransom determined that "all locations impacted by chlordane
[on the site] were also impacted by dieldrin."
In 1999, the DEP Commissioner created "the Historic Pesticide
Contamination Task Force to help [DEP] identify technically and
economically viable alternative strategies that will be protective
of human health and the environment for sites with contamination
due to historical use of pesticides." Historic Pesticide
Contamination Task Force, Findings and Recommendations for the
Remediation of Historic Pesticide Contamination, Final Report, 1
(1999),www.state.nj.us/dep/special/hpctf/final/hpctf99.pdf (last
visited Nov. 8, 2017). The Task Force explained that pesticides
like dieldrin and chlordane "become tightly bound to soil particles
so that migration of the contaminant down deeper into the soil is
limited." Id. at 9. The Task Force also concluded that
"organochlorine pesticides are not particularly water soluble and
therefore pose minimal threat to ground water." Ibid.
8 A-1684-14T2
In 2008, Ransom submitted a remedial investigation report and
remedial action work plan to DEP outlining its findings. DEP
reviewed Ransom's remediation plan, which proposed the
construction of a land berm to cap the contamination, and approved
the plan in 2012.
However, the University did not proceed with the remediation.
Instead, it decided to sell a 7.369 acre portion of its property,
known as Area 3 of Lot 14, to PSE&G, which planned to construct
an electrical substation on the site. Smith, supra, (slip op. at
8-9). Due to the pending sale of the property,5 the University
again retained Ransom to conduct a further study to determine the
best means of remediating the contamination caused by the
pesticides still bound to the soil. Because SRRA was now fully
effective, Ransom engaged Kenneth Goldstein, a professional
engineer and LSRP, to be responsible for, and oversee, the
remediation.6
As detailed in its August 2014 Remedial Investigation Report
Addendum and Remedial Action Report (the August 2014 report),
Ransom conducted further tests of the site and again found
5
PSE&G "completed the purchase and acquired title to the property
on May 29, 2015." Smith, supra, (slip op. at 8).
6
For ease of reference, we collectively refer to Ransom and
Goldstein as "Ransom."
9 A-1684-14T2
pesticide contamination caused by the historic agricultural
activities conducted on the property. Based upon its review,
Ransom decided to proceed to cap the contaminants in a land berm.
As required by N.J.A.C. 7:26C-1.7(h)(2), Ransom sent letters
to each property owner and tenant who resided within 200 feet of
the contaminated site to notify them of the site conditions that
led to the determination to excavate the contaminated soil from
the property and consolidate it into a berm. Appellants received
a copy of this April 25, 2014 notification, but took no action at
that time.
Ransom then proceeded to remediate the site. As noted above,
Ransom conducted this remediation without DEP's prior approval.
N.J.S.A. 58:10B-1.3(b)(3). During the project, Ransom excavated
9547 cubic yards of contaminated soil and consolidated it "into a
berm adjacent to the northwest side of the PSE&G parcel." South
Brunswick Township (the Township) required Ransom to build the
400-foot by 100-foot berm at least ten feet high "to protect the
views of residences located along Ridge Road to the north" of the
PSE&G property. As Ransom stated in its August 2014 report, the
"placement of the impacted soils into a berm at this location
allowed remediation of both the proposed PSE&G parcel and berm
area, while also meeting the Township requirement to construct a
berm at this location."
10 A-1684-14T2
Prior to constructing the berm, Ransom covered the berm area
"with a permeable geotextile fabric to demarcate the pre-existing
grade from the imported soils." The workers then placed the
contaminated soil on the fabric, spread it with a bulldozer, and
"rolled [it] in lifts for compaction." The contaminated soil was
next "covered with an orange, permeable geotextile fabric to
demarcate the boundary between the impacted and the overlying
clean soil cap." The cap consisted of 1540 cubic yards of
certified clean soil "at a minimum thickness of [twelve] inches."
Ransom then "hydroseeded" the berm with a blend of grass seed to
prevent erosion.
Because the capped contamination "exceeded [applicable]
residential direct contact soil remediation standards[,]" Ransom
filed a deed notice with the Middlesex County Clerk's Office on
August 14, 2014. See N.J.A.C. 7:26E-5.2(a)(4). As explained in
Ransom's August 2014 report, this deed notice would "serve as an
institutional control to restrict access to the impacted soil and
to provide long-term protection of the engineered capping system."
After filing the deed notice, Ransom submitted its application for
a Soil Remedial Action Permit Application to DEP, together with a
copy of its August 2014 report, the deed notice, and all other
required documentation. See N.J.A.C. 7:26C-7.5(b).
11 A-1684-14T2
During this period, appellants were contesting PSE&G's
efforts to build an electrical substation on the parcel of land
it purchased from the University. Smith, supra, (slip op. at 2-
3). Seeking to open another front in their attack on the
substation project, appellants submitted a request to DEP in
September 2014 under the Open Public Records Act, N.J.S.A. 47:1A-
1 to -13 (OPRA), for all documents in the agency's possession
concerning Ransom's and the University's remediation of the site.
DEP fully complied with this request. Thereafter, appellants
assert they spoke to a DEP employee by telephone on two occasions
to express their opposition to the remediation of the contaminants
on the property.
On October 23, 2014, DEP issued the Permit to the University.
In the Permit, DEP directed the University to comply with the
general and specific conditions set forth in N.J.A.C. 7:26C-7.7
and N.J.A.C. 7:26C-7.8. Among other things, the University was
required to: conduct periodic inspections, monitoring, and
maintenance of the berm; prepare and submit a Remedial Action
Protectiveness/Biennial Certification Form to DEP every two years;
and hire a LSRP "to prepare and certify that the remedial action
12 A-1684-14T2
continues to be protective of the public health and safety and the
environment." This appeal followed.7
III.
On appeal, appellants assert that DEP improperly granted the
Permit because: (1) the written notification Ransom provided to
nearby property owners about the remediation project was
inadequate; (2) Ransom's application for the Permit "failed to
identify the potable wells on the neighboring residences as
required by DEP remediation regulations"; (3) Ransom did not
identify and report a State park known as the "Cook Natural Area"
in the application; and (4) Ransom's and the University's
construction of the berm violated the Township's zoning
ordinances. All of these contentions lack merit.
"Established precedents guide our task on appeal. Our scope
of review of an administrative agency's final determination is
limited." Capital Health Sys. v. N.J. Dep't of Banking & Ins.,
445 N.J. Super. 522, 535 (App. Div.), (citing In re Stallworth,
208 N.J. 182, 194 (2011)), certif. denied, 227 N.J. 381 (2016).
7
Throughout their brief, appellants state they are challenging
DEP's "approval of the berm." As discussed above, however, Ransom
completed the berm without any prior DEP approval, and the Permit
issued by DEP on October 23, 2014, which is the only agency action
involved in this appeal, merely established institutional controls
that the University had to employ in the future to ensure the
continued protectiveness of the remedy chosen by Ransom to address
the contamination on the site.
13 A-1684-14T2
We will not upset the ultimate determination of an agency unless
it is shown it was arbitrary, capricious, or unreasonable, or that
it violated legislative policies expressed or implied in the
statutes governing the agency. Seigel v. N.J. Dep't of Envtl.
Prot., 395 N.J. Super. 604, 613 (App. Div.), certif. denied, 193
N.J. 277 (2007). "The fundamental consideration in reviewing
agency actions is that a court may not substitute its judgment for
the expertise of an agency so long as that action is statutorily
authorized and not otherwise defective because [it is] arbitrary
or unreasonable." In re Distrib. of Liquid Assets, 168 N.J. 1,
10 (2001) (citation omitted).
Where an agency's expertise is a factor, we will defer to
that expertise, particularly in cases involving technical matters
within the agency's special competence. In re Freshwater Wetlands
Prot. Act Rules, 180 N.J. 478, 489 (2004). This deference is even
stronger when the agency, like DEP, "has been delegated discretion
to determine the specialized and technical procedures for its
tasks." City of Newark v. Natural Res. Council in the Dep't of
Envtl. Prot., 82 N.J. 530, 540, cert. denied, 449 U.S. 983, 101
S. Ct. 400, 66 L. Ed. 2d 245 (1980). Moreover,
[w]hen an administrative agency interprets and
applies a statute it is charged with
administering in a manner that is reasonable,
not arbitrary or capricious, and not contrary
to the evident purpose of the statute, that
14 A-1684-14T2
interpretation should be upheld, irrespective
of how the forum court would interpret the
same statute in the absence of regulatory
history.
[Reck v. Dir., Div. of Taxation, 345 N.J.
Super. 443, 448 (App. Div. 2001) (quoting
Blecker v. State, 323 N.J. Super. 434, 442
(App. Div. 1999)), aff’d, 175 N.J. 54 (2002)]
Applying these principles, we discern no reason to disturb
DEP's decision to grant the Permit to the University.
IV.
Appellants first argue that the written notice Ransom sent
them on April 25, 2014 did not "adequately summarize the site
conditions" or provide enough information about the remedial
actions Ransom would perform on the site. We disagree.
N.J.S.A. 58:10B-24.3(a) states that "[a]ny person who is
responsible for conducting a remediation of a contaminated site
shall be responsible for notifying the public of the remediation
of the contaminated site pursuant to rules and regulations adopted
by" DEP. In accordance with this statute, DEP adopted N.J.A.C.
7:26C-1.7(h)(2), which in pertinent part provides that the
responsible party shall
[w]ithin 14 days prior to commencing field
activities associated with the remedial
action, provide notification to any local
property owners and tenants who reside within
200 feet of the contaminated site, and to the
[municipal clerk of each municipality in which
the site is located, the county health
15 A-1684-14T2
department, and the local health agency]. The
notification shall summarize site conditions
and describe the activities that are to take
place to remediate the site and shall either
be in the form of written correspondence or
the posting of a sign visible to the public,
which shall be located on the boundaries of
the contaminated site.
On its website, DEP has published additional guidance about
the content of the written notifications required by N.J.A.C.
7:26C-1.7(h)(2). N.J. Dep't of Envtl. Prot., Guidance for Sending
Notification Letters, 222 nj.gov/dep/srp/guidance/public_
notification/letters.htm (last visited Nov. 8, 2017). This
guidance instructs that
[t]he [notification] letter must summarize
site conditions and describe activities that
are to take place to remediate the site. The
letter must also include contact information
for both the person responsible for conducting
the remediation and the [LSRP] of record for
the site.
Although no additional wording is required,
the following is recommended for inclusion in
the letters:
[1] Name and address of site[.]
[2] Tax block and lot[.]
[3] The Department's Preferred ID number as
provided in the most recent edition of
the "Department's Known Contaminated
Sites in New Jersey" report found at
http://www.nj.gov/dep/srp/kcs-nj/ .
16 A-1684-14T2
[4] Description of contaminants detected, in
common language and environmental media
affected[.]
[5] Current remedial phase, date field
activities are expected to begin, a
schedule of future activities and hours
of operation[.]
[6] Source of contamination and/or type of
case[.]
[7] Statement that contamination has not left
property of the discharge, if
appropriate[.]
[8] Intended Reuse[.]
The issue of adequacy of notice is a question of law subject
to our de novo review. Pond Run Watershed Ass'n v. Twp. of
Hamilton Zoning Bd. of Adjustment, 397 N.J. Super. 335, 350 (App.
Div. 2008). We have not previously construed the notification
requirements imposed by N.J.S.A. 58:10B-24.3(a), the regulation
implementing it, N.J.A.C. 7:26C-1.7(h)(2), or the DEP guidance
discussed above. Under somewhat analogous circumstances, however,
we have interpreted similar notice requirements included in the
Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163.
For example, N.J.S.A. 40:55D-12(a) requires a municipality
to provide public notice of hearings concerning zoning and land
use permit applications. In cases involving this statute, we have
routinely held that proper notice is a jurisdictional prerequisite
to a land-use board's authority to conduct a hearing on an
17 A-1684-14T2
application. Twp. of Stafford v. Stafford Twp. Zoning Bd. of
Adjustment, 154 N.J. 62, 79 (1998); Perlmart of Lacey, Inc. v.
Lacey Twp. Planning Bd., 295 N.J. Super. 234, 236 (App. Div. 1996).
If the content of the notice is defective or those entitled to
receive notice are not served, the notice is invalid and the board
is not authorized to act on the application. Stafford, supra, 154
N.J. at 79.
N.J.S.A. 40:55D-11 establishes the required content for these
notices. Similar to what DEP has required in its regulation in
this case, N.J.S.A. 40:55D-11 states that the notice must
state the date, time and place of the hearing,
the nature of the matters to be considered
and, . . . an identification of the property
proposed for development by street address,
if any, or by reference to lot and block
numbers as shown on the current tax duplicate
in the municipal tax assessor's office, and
the location and times at which any maps and
documents for which approval is sought are
available [for review.]
We have interpreted N.J.S.A. 40:55D-11 to require "an
accurate description of what the property will be used for under
the application." Perlmart, supra, 295 N.J. Super. at 238
(citation omitted). To fulfill that prerequisite, the application
must describe "the nature of the matters to be considered" in such
a "common sense description of the nature of the application
. . . that the ordinary layperson could understand its potential
18 A-1684-14T2
impact upon him or her." Id. at 236, 239; Shakoor Supermarkets,
Inc. v. Old Bridge Twp. Planning Bd., 420 N.J. Super. 193, 201
(App. Div.), certif. denied, 208 N.J. 598 (2011).
Contrary to appellants' contention, the notice provided to
property owners should not be overly technical. As we observed
in Perlmart,
[w]hen a statute requires a notice to be given
to the public, such a notice should fairly be
given the meaning it would reflect upon the
mind of the ordinary lay[person], and not as
it would be construed by one familiar with the
technicalities solely applicable to the laws
and rules of the zoning commission.
[Supra, 295 N.J. Super. at 238 (alteration in
original) (citation omitted).]
Similarly, municipalities seeking to enact zoning ordinances
must provide notice to the public. In this regard, N.J.S.A. 40:49-
2.1(a) states that these notices must cite the proposed ordinance
by title, provide "a brief summary of the main objectives or
provisions of the ordinance," advise that the ordinance is
available for public examination, and set "the time and place for
the further consideration of the proposed ordinance[.]" In
construing this notice requirement, we have held that "[a] notice
of a proposed change in the zoning laws must be reasonably
sufficient and adequate to inform the public of the essence and
scope of the proposed changes." Wolf v. Shrewsbury, 182 N.J.
19 A-1684-14T2
Super. 289, 296 (App. Div. 1981), certif. denied, 89 N.J. 440
(1982). At a minimum, municipalities must substantially comply
with statutory published notice requirements. Id. at 295.
"Failure to substantially comply with the requirements of a statute
requiring publication renders the ordinance invalid." Ibid.
Applying these principles to the notification requirement set
forth in N.J.A.C. 7:26C-1.7(h)(2), we conclude that Ransom's April
25, 2014 letter was clearly sufficient and provided appellants
with more than adequate notice of the remediation project. In the
notification letter, Ransom stated:
On behalf of The Trustees of Princeton
University, I[8] am writing to inform you that
the remediation of environmental
contamination on a portion of the former
Princeton Nurseries property located at 4405
US Route 1, in the Township of South
Brunswick, New Jersey (Block 99, Lot 14) is
planned to begin in May 2014. The work is
being performed pursuant to rules established
by the New Jersey Department of Environmental
Protection (NJDEP). The NJDEP has assigned
Site Remediation Program (SRP) Preferred
Identification (PI) Number 462273 to the
property.
Thus, the notification letter plainly advised appellants that
remediation work was going to occur on the Princeton Nurseries
property, and gave them the address and specific block and lot
8
The notification letter was signed by Ransom's project manager.
20 A-1684-14T2
number for the site. It also provided the identification number
for the project.
The next section of the notification letter stated:
The remediation is prompted by the presence
of residual pesticide compounds in soil at
concentrations above NJDEP cleanup criteria.
These compounds are present as a result of
historic agricultural activities. The
impacted soil will be excavated and
consolidated into a berm, which will then be
capped with certified clean soil. This clean
soil cap will serve as a control to prevent
direct contact with and migration of the
impacted soil. The investigation and
remediation of the Site is being performed
under the oversight of Mr. Kenneth Goldstein,
P.E., a New Jersey Licensed Site Remediation
Professional (LSRP) in accordance with New
Jersey regulations and NJDEP guidance.
Based on this clearly-worded letter, appellants were made
aware that the remediation was necessary because pesticides were
found in the soil on the site. The letter explained that the
pesticides were present on the land because the property had
previously been used for agricultural activities. Ransom next
explained that it was going to excavate the contaminated soil,
consolidate that soil into a berm, and then cap the berm with
clean soil in order to control the contamination and prevent it
from migrating to another location. The letter also gave
appellants the name of the LSRP Ransom retained to oversee the
project.
21 A-1684-14T2
The April 25, 2014 notification letter concluded by stating:
Upon the request of the Township of South
Brunswick, copies of pertinent environmental
reports regarding the work will be made
available to the Township. Should you have
any questions regarding the work, you can
contact Mr. Curt Emmich of Princeton Forrestal
Center at [the provided telephone number].[9]
Thus, appellants were advised before the project began that
more technical environmental reports describing the work to be
performed would be made available to the Township. As noted above,
appellants did not seek any further information about the
remediation project until after Ransom completed the berm.
Under these circumstances, Ransom's notification letter
provided an accurate, detailed description of the remedial project
that would be undertaken in layperson's terms that fully met the
requirements of N.J.A.C. 7:26C-1.7(h)(2). Therefore, we reject
appellants' contentions on this point.
V.
Appellants next assert that DEP should have denied the
University's application because Ransom "failed to identify the
potable wells on the neighboring residences as required by DEP
remediation regulations." Again, we disagree.
9
As required by N.J.A.C. 7:26C-1.7(h)(2), Ransom sent a copy of
the notification letter to the Township Municipal Clerk, the
Township Health Officer, and the Middlesex County Health
Department.
22 A-1684-14T2
DEP's requirements for conducting a ground water receptor
evaluation, which includes identification and sampling of potable
and irrigation wells, are set forth in N.J.A.C. 7:26E-1.14 which,
in pertinent part, states that "[t]he person responsible for
conducting the remediation shall conduct a receptor evaluation of
ground water when any contaminant is detected in ground water in
excess of any [applicable] ground water quality standard[.]"
N.J.A.C. 7:26E-1.14(a). The rest of the regulation repeats the
instruction that "a well search to identify wells that may be
impacted by contamination from the site" is only required if
"ground water contamination is detected" on the site. N.J.A.C.
7:26E-1.14(a)(1); see also N.J.A.C. 7:26E-1.14(a)(2).
Here, Ransom performed "a site investigation of soil by
sampling the soil in each potentially contaminated area of concern"
as required by N.J.A.C. 7:26E-3.4(a). It also evaluated the site
"to determine if there [was] the potential that ground water [had]
been contaminated[.]" N.J.A.C. 7:26E-3.5(a). After conducting a
complete evaluation of the soil contamination, Ransom determined
that the requirement to identify wells in the area had not been
triggered. As discussed above, neither of the pesticides found
on the property was water soluble. As stated in Ransom's August
2014 report, it also determined that the consolidation of
23 A-1684-14T2
contaminated soils in the berm would not cause any impact to ground
water.10
In support of their contrary allegation, appellants
mistakenly rely upon N.J.A.C. 7:26E-1.16(a)(1)(ii), which states
that "[t]he person responsible for conducting the remediation
shall conduct an ecological receptor evaluation [to] . . .
[d]etermine if any environmentally sensitive natural resource,
other than ground water . . . [is] adjacent to the site or area
of concern[.]" (emphasis added). In this portion of their
argument, however, appellants ignore the fact that this
requirement only applies if the "environmentally sensitive natural
resource" to be evaluated is something "other than ground water."
As discussed above, Ransom determined following its comprehensive
evaluation that the remedial action posed no danger to the ground
water. Therefore, Ransom was not required to conduct a well
search. N.J.A.C. 7:26E-1.14(a)(1).
VI.
Turning to appellants' next allegation, the University's
permit application contained a section which asked, "Have any of
10
In its August 2014 report, Ransom noted that DEP only required
that there be a four-foot buffer between contaminated soil in the
berm and the seasonal high water table below. Here, the seasonal
water table was "over [thirty] feet below grade."
24 A-1684-14T2
the following been identified within 200 feet of the site
boundary?"11 In response, Ransom did not check off the box next
to "Public parks and playgrounds." Appellants assert there was a
public park within 200 feet of the site boundary called the Cook
Natural Area, which they state "is a component of the Delaware &
Raritan Canal State Park." Because Ransom did not check the box
indicating the presence of this park in the vicinity, appellants
contend that DEP issued the Permit based upon faulty information
and, therefore, it must be vacated. This contention lacks merit.
From the schematic map Ransom included in its application
materials, it does not appear to us that the Cook Natural Area is
within 200 feet of the property boundary. Therefore, Ransom
correctly left the box for "Public parks and playgrounds" unmarked.
However, even if the Cook Natural Area did fall within the
200-foot area, and Ransom therefore mistakenly failed to check the
appropriate box, we discern no basis to vacate the Permit on this
ground. As appellants candidly concede, the Cook Natural Area is
specifically identified on the map included in the application
materials. Therefore, DEP surely knew of its presence near the
site when it considered the application.
11
N.J.A.C. 7:26E-1.13(a)(2) requires the responsible party to
identify every park that is located "within 200 feet of the
property boundary."
25 A-1684-14T2
In addition, Ransom's August 2014 report clearly states that
the University property is bordered "by dedicated open space
property and Delaware and Raritan (D&R) Canal State Park property
to the west[.]" Appellants have not asserted that the D&R Canal
State Park is located within 200 feet of the site. However,
Ransom's specific mention of this parkland which, according to
appellants, includes the Cook Natural Area, supports the
conclusion that DEP was aware of nearby parks when it considered
the application. Therefore, we reject appellants' contention.
VII.
Finally, appellants unpersuasively argue that a "pollution
containment berm is not a permitted use under the [Township] zoning
ordinance that governs this site." Because N.J.A.C. 7:26E-
5.1(d)(5) provides that a responsible party must comply "with
applicable Federal, State, and local laws and regulations,"
appellants argue that the Permit should be vacated. This
contention fails for several reasons.
First, appellants' argument ignores the fact that the
University's "use" of the property did not change when it
remediated the soil contamination on the site. As detailed in
Ransom's August 2014 report, this contamination existed in the top
soil on the site for decades. Thus, the fact that the
26 A-1684-14T2
contamination is now contained in a protective berm was not a
change in "use" as appellants assert.
Moreover, appellants ignore S.B. Code12 § 42-183(a), which
permits a property owner to "move, deliver, fill, place, or remove
soil or otherwise disturb, cause, allow, or permit material to be
moved or placed on or removed from any property in the [T]ownship
[after] obtaining approval from the soil conservation district and
the [T]ownship zoning officer." Thus, the construction of a berm,
especially one designed to protect the environment, was a permitted
activity on the property.
Indeed, Ransom's August 2014 report specifically states that
the Township required it to build the berm, and to build it at
least ten feet high, which evidences the Township's awareness, and
at least tacit approval, of the project.13 Therefore, appellants
have failed to demonstrate that the project violated any of the
Township's zoning ordinances.
12
We use the citation "S.B." to refer to the Township Municipal
Code.
13
Appellants do not assert that the University failed to obtain
any appropriate permit from the Township prior to the construction
of the berm. As set forth in S.B. Code § 42-195(6), another
provision which appellants ignore, remediation projects are exempt
from Section 42 requirements and, therefore, it is likely that no
municipal permit was even required before Ransom constructed the
berm.
27 A-1684-14T2
Just as importantly, appellants never reported any alleged
violation of a zoning ordinance to the Township's zoning officer.
As we have recognized, conditions placed on the use of property
by a zoning code "are not self-executing." Washington Commons v.
Jersey City, 416 N.J. Super. 555, 561 (App. Div. 2010), certif.
denied, 205 N.J. 318 (2011). If a party suspects that a violation
has occurred, he or she should report the matter "to the zoning
officer or other official of the municipality charged with the
enforcement of the zoning . . . ordinance." Cox, N.J. Zoning &
Land Use Administration § 19-6.8 (2017). If the municipality
determines that a violation of a zoning ordinance has occurred,
it "may institute a suit for injunctive relief or may institute
any other appropriate action, including [filing a] complaint in
the municipal court." Ibid. Nothing in the record establishes,
or even suggests, that the Township ever detected any violation
of its zoning code in connection with this well-publicized, and
fully completed, remediation project. Therefore, we reject
appellants' contention on this point.
In sum, we conclude that DEP properly issued the Permit to
the University in compliance with all applicable statutory and
regulatory requirements.
Affirmed.
28 A-1684-14T2