NJ Environmental Attorneys Successful in Office of Administrative Law

Scarinci Hollenbeck Achieves Successful Result on Behalf of R&K Associates, LLC in a Case Tried in the Office of Administrative Law (“OAL”)

Scarinci Hollenbeck is pleased to announce that John M. Scagnelli and William A. Baker of the firm’s Environmental & Land Use Law practice group achieved a successful result on behalf of R&K Associates, LLC in a case tried in the Office of Administrative Law (“OAL”) and upheld in a Final Decision by Katherine R. McCabe, Commissioner of NJDEP.  The case is captioned R&K Associates, LLC v. New Jersey Department of Environmental Protection and Des Champs Laboratories, Inc., OAL Dkt. No. ESR-13443-17.  To date, there have been three Appellate Division decisions, an OAL trial and an OAL hearing.

The case involves the interpretation of the New Jersey Industrial Site Recovery Act (“ISRA”) de minimis quantity exemption statute.  R&K is the owner of a property with groundwater contamination.  Des Champs Laboratories, the prior property owner, sold the property to R&K in 1997 and obtained ISRA compliance with a negative declaration NFA approval.  In 2008, NJDEP rescinded Des Champs’ NFA approval and ordered Des Champs to undertake groundwater remediation.  Des Champs argued that it qualified retroactively for an ISRA de minimis quantity exemption and did not have to remediate the groundwater.  The OAL and the NJDEP Commissioner, in her Final Decision, ruled that Des Champs failed to meet its burden of proof by a preponderance of the evidence to show that it met the criteria for an ISRA de minimis quantity exemption.

According to Mr. Scagnelli and Mr. Baker, the Commissioner’s Final Decision is significant because it establishes a burden of proof standard for parties applying for a de minimis quantity exemption under the ISRA statute.