Congratulations to environmental attorneys John M. Scagnelli and William A. Baker of the Environmental and Land Use Group in a successful appeal for R&K Associates, LLC (“R&K”). Scagnelli and Baker represented R&K, the current owner of industrial property in Livingston, New Jersey, in a successful appeal brought before the New Jersey Superior Court, Appellate Division in R&K Associates, LLC v. New Jersey Department of Environmental Protection, and Des Champs Laboratories, Inc., Docket No. A-0413-12T3.

R&K's appeal followed last year’s Appellate Division decision in Des Champs Lab, Inc. v. Martin (“Des Champs I”), 427 N.J. Super. 84, (App. Div. 2012) in which the Appellate Division invalidated NJDEP’s regulation requiring that a property be free from contamination as a condition to receiving a de minimis quantity exemption (“DQE”) from environmental cleanup obligations under the New Jersey Industrial Site Recovery Act (“ISRA”) statute. While the Appellate Division invalidated NJDEP’s regulation that a property be free from contamination as a condition to receiving an ISRA DQE, it remanded the case to NJDEP for further consideration of whether Des Champs’, qualified for an ISRA DQE, and R&K’s arguments. NJDEP, instead of holding a remand proceeding, and despite R&K’s request to be included in one, went ahead and issued the ISRA DQE to Des Champs without affording R&K an opportunity to participate and be heard. The Court ruled that NJDEP acted “arbitrarily and capriciously by shutting out R&K from the remand process.”

The Appellate Division reversed NJDEP’s issuance of an ISRA DQE to Des Champs, and directed that NJDEP hold a remand proceeding to consider the facts supporting Des Champs’ ISRA DQE application including the possible initiation of an Office of Administrative Law (OAL) proceeding.