NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION v. THE POLE TAVERN MOBIL SITE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2239-10T2

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Petitioner-Respondent,

v.

THE POLE TAVERN MOBIL SITE, NANAK

AUTO FUEL CO., and HARMEET KOHLI,

Respondents-Appellants.

____________________________________

December 12, 2012

Argued May 30, 2012 - Decided

Before Judges Espinosa and Kennedy.

On appeal from the New Jersey Department of Environmental Protection.

Harmeet Kohli, argued the cause pro se for appellants.

Joanna E. Grayer, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Melissa H. Raksa, Assistant Attorney General, of counsel; Ms. Grayer, on the brief).

PER CURIAM

Defendants appeal from the final agency decision of the New Jersey Department of Environmental Protection (NJDEP) requiring compliance with an administrative consent order and imposing a $5,000 civil administrative penalty for failure to maintain a remediation funding source of $50,000, as required by the order. After considering the arguments presented in light of the record and applicable law, we affirm.

Harmeet Kohli (Kohli) purchased the "Pole Tavern Mobil Site" in Upper Pittsgrove on June 27, 2002, and Nanak Auto Fuel, Inc., (Nanak)1 operates a gas station on the property, which contains an underground storage tank system. In 2004, the NJDEP issued an Administrative Order and Notice of Civil Administrative Penalty Assessment (AONOCAPA) with respect to the property. On November 16, 2006, Kohli, individually and on behalf of Nanak, signed an administrative consent order (ACO) with the NJDEP in order to "settle the outstanding issues" pertaining to the 2004 AONOCAPA. Among other things, the ACO required Kohli to conduct a remedial investigation of the property, submit a remedial action work plan and implement the plan pursuant to NJDEP approval.

Under paragraph 28 of the ACO, Kohli agreed to establish and maintain a "remediation funding source" for the duration of the order and further "agree[d] that the initial remediation funding source is $50,000."2 On January 10, 2007, the NJDEP received a copy of a "line of credit agreement" between Nanak and Sun National Bank establishing a $50,000 line of credit for "remediation of the site pursuant to [the ACO]." The line of credit agreement stated it would expire on December 28, 2007, and, consequently, the NJDEP wrote to Kohli on January 31, 2007, requiring evidence of the continuation of the line of credit for the next year to be submitted no later than November 1, 2007.

Neither Kohli nor Nanak provided evidence of the continuation of the line of credit, and on April 14, 2008, the NJDEP issued a notice of violation, but stated it would not assess a penalty if, within 30 days, Nanak paid the surcharge and provided evidence of the remediation funding source for the next year.

By May 2008, Nanak paid the $500 surcharge, but in a letter to the NJDEP dated May 21, 2008, Kohli asked the department to "waive the requirement for [a] line of credit" because "Nanak has already spent $25,000 to [$]35,000 in remediation work" on the property. On June 1, the NJDEP advised Kohli and Nanak that it would not waive or reduce the remediation funding source requirement set forth in the ACO. Later that month, Sun National Bank advised the NJDEP that Kohli and Nanak had "set aside $25,000 for the purpose of [r]emediation." However, the bank did not thereafter provide any documentation supporting its assertion or evidencing the establishment of a new line of credit.

On August 18, 2008, the NJDEP issued an AONOCAPA to Kohli and Nanak based on their failure to maintain a remediation funding source, as required by the ACO, ordering compliance and assessing a penalty of $5000. Kohli and Nanak submitted a hearing request and asserted that a $25,000 funding source was "sufficient" and that they could not afford to establish a $50,000 line of credit, despite their agreement in the ACO.

The matter was transferred to the Office of Administrative Law and on October 7, 2010, the administrative law judge (ALJ) issued a decision in which he found that merely because the costs of remediation exceeded expectations, "that is not a defense under the consent order." Moreover, as to the denials by Kohli and Nanak of "culpability for the [hazardous] discharges," the ALJ determined that while such arguments may have had relevance to the 2004 AONOCAPA, "[t]hey cannot undo the [ACO]." He added that neither Kohli nor Nanak substantiated financial hardship, and that the penalty of $5000 was a "measured response" to the violation and, indeed, was less than the NJDEP could have sought under N.J.A.C. 7:26C-9.5.

Kohli and Nanak filed exceptions to the ALJ decision, and on November 22, 2010, the NJDEP Commissioner issued a final agency decision adopting the ALJ decision in its entirety. This appeal followed. On appeal, Kohli and Nanak contend that they were not responsible for the discharge of hazardous material and that their prior environmental consultants were "fraudulent and inefficient." We reject these arguments.

The scope of review of an administrative agency's final determination is limited. In re Carter, 191 N.J. 474, 482 (2007) (citing Aqua Beach Condo. Ass'n v. Dep't of Cmty. Affairs, 186 N.J. 5, 15-16 (2006)). We accord an agency's exercise of its statutorily delegated responsibilities a strong presumption of reasonableness. City of Newark v. Natural Res. Council, 82 N.J. 530, 539, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980). The burden of showing the agency's action was arbitrary, unreasonable, or capricious rests upon the appellant. See Barone v. Dep't of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super. 276, 285 (App. Div. 1986), aff'd, 107 N.J. 355 (1987).

The reviewing court "should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Application of Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008) (citations omitted); see also Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9-10 (2009) (citations omitted).

The court "may not vacate an agency determination because of doubts as to its wisdom or because the record may support more than one result," but is "obliged to give due deference to the view of those charged with the responsibility of implementing legislative programs." In re N.J. Pinelands Comm'n Resolution PC4-00-89, 356 N.J. Super. 363, 372 (App. Div.) (citing Brady v. Bd. of Review, 152 N.J. 197, 210 (1997)), certif. denied, 176 N.J. 281 (2003).

Guided by these principles, we find nothing in the record to suggest that the NJDEP Commissioner, in issuing the final agency decision at issue, acted arbitrarily, unreasonably or capriciously, or that the decision was not supported by evidence in the record. Moreover, the argument by Kohli and Nanak that they should not be held to the settlement they reached with the NJDEP and memorialized in the ACO, based on their claimed substantive defenses to the 2004 AONOCAPA, is utterly unpersuasive. Where parties have agreed to the terms of a settlement, "second thoughts are entitled to absolutely no weight as against our policy in favor of settlement." Dep't of Pub. Advocate v. N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 530 (App. Div. 1985).

The remainder of the arguments advanced on appeal are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 In the caption, this entity is identified as Nanak Auto Fuel Co.

2

See N.J.A.C. 7:26C-5.2(a) requiring persons responsible for conducting remediation to "establish and maintain a remediation funding source . . . ." This regulation was formerly set forth at N.J.S.A. 7:26C-7.2(a), but was re-codified on November 3, 2009. 41 N.J.R. 4467(a).