RHODIA, INC. v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6766-04T36766-04T3

RHODIA, INC.,

Appellant,

v.

NEW JERSEY DEPARTMENT OF

ENVIRONMENTAL PROTECTION,

Respondent.

__________________________________

 

Argued January 22, 2007 - Decided February 23, 2007

Before Judges Lintner, S.L. Reisner, and Seltzer.

On appeal from a Technical Review Panel, Department of Environmental Protection.

Brian S. Montag argued the cause for appellant (Kirkpatrick & Lockhart Nicholson Graham, attorneys; Mr. Montag, Catherine A. Trinkle, and Stephanie M. Haggerty, on the brief).

Joseph C. Fanaroff, Deputy Attorney General, argued the cause for respondent (Stuart Rabner, Attorney General, attorney for respondent; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Fanaroff, on the brief).

Reed Smith, attorneys for amicus curiae Chemistry Council of New Jersey (Steven J. Picco, on the brief).

PER CURIAM

Rhodia, Inc., formerly known as Rhone-Poulenc, Inc., appeals from a decision of a Technical Review Panel (TRP) of the New Jersey Department of Environmental Protection (Department). The TRP concluded that, under the Brownfield and Contaminated Site Remediation Act (the Brownfield Act), N.J.S.A. 58:10B-1 to -31, Rhodia is required to address the contaminated historic fill along the banks of Mile Run Brook (MRB), which runs through the site, with both an institutional control and an engineering control. The institutional control required the providing of a deed notice of the presence of the contaminated fill for the benefit of future owners of the property, while the engineering control required capping the fill. Rhodia and the Chemistry Council of New Jersey contend that the Department's administrative regulation purporting to require both types of controls on a mandatory basis goes beyond the enabling statutory authority, specifically, the Brownfield Act. Rhodia also asserts that the TRP's decision was arbitrary, capricious, unreasonable, and fundamentally unfair, thus violating due process. We disagree and affirm.

In the early 1950s, on its fenced twenty-acre property located in New Brunswick, Rhone-Poulenc, Inc. began manufacturing a number of intermediate chemicals for use in the formulation of fragrances and cosmetics. The property is located in a heavy industrial area, although there are residential developments to the west of the site across Jersey Avenue and on the other side of the railroad tracks abutting its eastern boundary. MRB, a tributary of the Raritan River, transects the property in a north-south direction for a distance of nearly 2000 feet. Originally, the property's land surface sloped steeply towards MRB. However, in 1919, prior to Rhodia's ownership, fill was placed adjacent to the brook to raise and level the property for construction purposes. The fill was soil-like, and contained varying amounts of cinders, ash, coal, rubble, macadam, concrete, wood, and glass. The depth of the layer of fill increased with proximity to MRB to more than fourteen feet and resulted in brook banks that were, in places, very steep and high.

On May 7, 1986, Rhodia entered into an agreement to sell 5.6 acres of its property to Lyons Fedelco Limited Partnership (Lyons Fedelco) and, in accordance with the Environmental Cleanup and Responsibility Act (ECRA), N.J.S.A. 13:1K-6 to -35, now known as the Industrial Site Recovery Act (ISRA), submitted the necessary notice to the Department. It was determined that the fill along MRB was contaminated with, among other things, concentrations of three inorganic metals, including, arsenic, and five carcinogenic polyaromatic hydrocarbons (cPAHs), most notably benzo(a)pyrene (BaP), which were in excess of the residential and non-residential direct contact soil cleanup criteria.

On April 2, 1987, Rhodia entered into an Administrative Consent Order (ACO), bearing the date March 24, 1987, with the Department. Under the ACO, Rhodia was permitted to consummate the sale to Lyons Fedelco prior to the completion of a cleanup, subject to the Department's right to void the sale if Rhodia failed to submit an approved plan. Rhodia also agreed to remediate the entirety of its property (as opposed to just the sale portion), however, no specific cleanup requirements were delineated. Rhodia agreed to implement any Department approved cleanup plan and "use its best efforts to comply with said requirements" imposed by the ACO. The Department agreed "not to act unreasonably in the enforcement and implementation of [the] ACO." Rhodia agreed "not to contest the authority or jurisdiction of the Department to issue" the ACO or contest "the terms of [the] ACO in any act to enforce its provisions." Under the ACO, Rhodia was obligated to obtain either a surety bond or letter of credit for $4,000,000, with the proceeds to be placed in trust with the understanding that the Department would be permitted to draw upon the fund if Rhodia failed to perform.

On February 6, 1999, Rhodia requested that its obligation to remediate the historic fill along MRB be limited to a deed notice, thus allowing the fill to remain on-site, without remediation to accepted non-residential direct contact soil clean-up criteria (NRDCSCC). The Department rejected Rhodia's proposal, noting that because the targeted contaminants, (arsenic and BaP) were in concentrations above the NRDCSCC, N.J.A.C. 7:26E required engineering controls (a cap) in addition to the requested institutional control of a deed notice.

Rhodia submitted an Ecological Risk Assessment (ERA) in May 2001, and a Human Health Evaluation (HHE) in October 2001. The ERA focused on the risks to plants and wildlife from the on-site soil, sediment, and water contamination, while the HHE addressed the risks to humans from contact with the on-site contamination. Upon its review of each report, the Department adhered to its position that engineering controls were required along the banks of MRB.

On June 16, 2003, Rhodia again asserted that engineering controls were not necessary. Relying upon its expert report of January 16, 2003, it submitted a risk assessment evaluation for exposure to sediment from eroding banks, rather than direct contact. Because the report concentrated on sediment, it used exposure point concentrations (the average contaminant concentration likely to be encountered), rather than the maximum concentration found on the site. It concluded that an engineered cap was not required along the banks of MRB.

The Department again rejected Rhodia's position, explaining that: (1) at no time did the Department express that it was not concerned with a perceived risk of direct contact with the soil; (2) Rhodia's experts' reliance upon exposure point concentrations rather than maximum concentrations was improper and their focus should have been on direct contact with fill soils, not just sediment; (3) the concentrations of metals and cPAHs in the fill along MRB exceeded the NRDCSCC; and (4) capping of the bank was required to prevent further degradation of MRB through bank erosion, as well as exposure by direct contact.

On September 17, 2003, Rhodia requested that the Department convene a TRP to consider: (1) the validity of the Department's policy, under N.J.A.C. 7:26E-6.2(c), requiring both engineering and institutional controls for historic fill containing contaminants that exceed the Department's NRDCSCC; and (2) whether Rhodia had sufficiently demonstrated that the historic fill on the banks of MRB did not adversely impact human health and the environment. The Department granted Rhodia's request.

Following a January 13, 2004, meeting with the TRP, Rhodia prepared a risk assessment for the historic fill. That report, entitled "HUMAN HEALTH EVALUATION OF HISTORIC FILL ALONG MILE RUN BROOK," was submitted to the TRP on February 19, 2004. The assessment did not address the risk from direct contact exposure to fill soils. Rather, it focused on the risk to trespassing adults, as well as children aged six to sixteen years wading into MRB and being exposed to brook sediment containing eroded bank material. Since there were no existing sediment cleanup criteria, the report set forth proposed sediment criteria that were premised upon the assumption that sediment exposure would occur five days a week for a period of three months (sixty-three days per year) at a rate of twenty milligrams per day for children and ten milligrams per day for adults (10% of the EPA's standard daily soil intake assumptions for children and adults). The report asserted that there was no reason to consider an outdoor worker exposure scenario because any such exposure would be limited at this "inactive facility" and thus "not consistent with the exposure assumptions used to develop [Department] health-based soil cleanup criteria."

The report acknowledged that, under Department guidelines, average soil contaminant concentrations (exposure point concentrations) "cannot be applied to arsenic and [BaP] when comparisons are made to the [Department] Soil Cleanup Criteria or Residential Direct Contact Cleanup Criteria (RDCCC)." However, the report claimed that average concentrations could be used "with the receptor-specific sediment criteria for these [same] constituents." (emphasis added). Thus, the report pointed out that "[s]ince these are risk- or hazard-based criteria, exposure point concentrations (EPC) rather than maximum concentrations are appropriate for assessing the potential impact to the receptor." The report acknowledged that the maximum concentrations of arsenic and BaP exceeded the recreational receptor criteria, however, it indicated that "none of the average or exposure point concentrations . . . exceeded the recreational criteria for sediment contact." Accordingly, the report concluded that "there [was] no unacceptable impact to human health from exposure to the historic fill if it becomes sediment in the [MRB]."

The Department's Bureau of Environmental Evaluation and Risk Assessment/Environmental Toxicology and Risk Assessment Unit (BEERA/ETRA) prepared an internal memo dated March 30, 2004, rejecting Rhodia's evaluation. It determined that "[h]uman health impacts associated with the bank soils must also be evaluated after consideration of direct human contact to the bank soils rather than Rhodia's evaluation of the soils as potential sediment in the brook." It then provided its calculations for direct contact by both children aged six to sixteen years and outdoor workers, concluding that the levels of arsenic and BaP demonstrated the potential for human health impacts associated with MRB bank soils. The TRP rendered its opinion on August 4, 2004. Adopting the BEERA/ETRA memo, the TRP concluded that Rhodia's "plan to leave contamination above a non-residential cleanup criteria . . . require[d] both engineering and institutional controls to eliminate future risk." It determined that "uncontrolled erosion of solid waste to MRB must be stopped." Finally, it noted that the Department was "willing to discuss options of slope stabilization that could be combined with security fencing that could accomplish engineering requirements." In reaching its decision, the TRP gave the following explanation:

The Department has allowed Rhodia to propose an alternate remediation criteria (ARC) for this site. The Department has reviewed the submitted risk assessment titled "Human Health Evaluation of Historic Fill Along Mile Run Brook" dated February 19, 2004. The stated purpose of the risk assessment is to evaluate surface runoff/erosion from the bank soils to human receptors and to determine if the historic fill (from bank soils) poses unacceptable risks, when or if, the soils become brook sediments. The contamination in question is located in historic fill as bank soils. The risk assessment limits the amount of sediment ingestion to 10 mg/day for adults and 20 mg/day for children. In addition, Rhodia did not consider a worker scenario since the facility is inactive with a fence and security. The Department disagrees with the basic pathways of exposure, risk assessment scenarios and ingestion rates.

The evaluation of human health impacts from sediment is rarely considered in a risk assessment since there are no standardized exposure variables for evaluating dermal contact and incidental ingestion of sediments. There is also great uncertainty concerning the assumptions used in the calculations of the exposure pathways (e.g., adherence factors, exposure time and duration for sediments). Exposure to sediments has generally been found to contribute less to human health risk than through the soil direct contact pathway, due to the length of time exposed. Impacts from contaminated sediment in a brook are more appropriately evaluated for ecological concerns through comparison to the Department's sediment screening criteria.

The Department's position, consistent with USEPA's recommendations, is to utilize a soil ingestion rate of 100 mg/day for the evaluation of a "Trespasser" and "Outdoor Worker" scenarios. The USEPA's outdoor worker exposure scenario includes an ingestion rate of 100 mg/day and an exposure frequency of 225 days/year for 25 years as outlined in the USEPA's Supplemental Guidance for Developing Soil Screening Levels for Superfund Sites, August 2001. Using these two scenarios, the Department recalculated the direct contact alternate remediation criteria for [benzo(a)pyrene] (BaP) and arsenic since they represented the more critical contaminants of concern. An average body weight of 42 kilograms was utilized for the 6-16 year old trespasser scenario consistent with EPA's Exposure Factors Handbook dated August 1997. In addition, exposure to bank soils was based on two days per week for the trespasser scenario.

The trespasser scenario results in an ARC ranging from 0.7 to 1.41 ppm for BaP based on the applicable exposure frequency. These ARC are above the [Department]'s current Direct Contact Soil Cleanup Criteria (DCSCC) of 0.66 ppm that is based on the analytical practical quantitation limit (PQL) for BaP. The Department's recalculation also indicates that the outdoor worker scenario results in an ARC of 0.44 ppm. The outdoor worker based ARC would default to the BaP PQL based on the DCSCC of 0.66 ppm.

The trespasser scenario ARC ranged from 3.42 to 6.88 ppm for arsenic. These values are below the current arsenic DCSCC of 20 ppm, which is based on statewide natural background level of arsenic. For arsenic, the outdoor worker resulted in an ARC of 2.12 ppm. The outdoor worker based ARC would default to the current arsenic DCSCC of 20 ppm. The recalculation of the ARC shows that the risk assessment provides no relief to Rhodia in disputing the potential future exposure using either a trespasser or outdoor worker scenario. The presence of elevated levels of arsenic up to 51 ppm and BaP up to 4.6 ppm, as indicator chemicals at the site, demonstrates the potential for human health impacts associated with direct contact exposure to the bank soils. Therefore, as a minimum remedial remedy, an engineered cap will be required to address the historic fill related contaminants. By allowing the submittal of the above referenced risk assessment, the Department has allowed Rhodia to evaluate site specific impacts to receptors.

Rejecting Rhodia's assertions that the Department lacked legal authority to require both engineering and institutional controls in connection with historic fill, and that N.J.A.C. 7:26E-6.2(c) does not comport with its enabling legislation under the Brownfield Act, the TRP directed Rhodia's attention to the definition of a "[r]estricted use remedial action" found in N.J.S.A. 58:10B-1. It further noted that because the Department "has determined that the site does present a risk to human health," it has the authority to direct "Rhodia to meet the required health risk standards." After receiving the TRP's decision, Rhodia requested clarification. The Department responded, advising in pertinent part:

1. The 100 mg per day soil ingestion rate is used by the [Department] for adults as recommended by the USEPA in the 2001 Supplemental Guidance For Developing Soil Screening Levels for Superfund Sites for outdoor exposure.

2. The recreational exposure frequency of 2, 3 or 4 days a week is determined on a site specific basis after consideration of potential current and anticipated future use of a site.

3. The [Department] does not use [exposure point concentrations] or average values for soil direct contact except as noted for compliance averaging in the Technical Requirements.

On March 24, 2005, Rhodia requested that the TRP reconsider its decision, arguing that, in arriving at its alternate clean-up standard, the TRP had essentially failed to consider: (1) the non-residential location of the property; (2) the fact that it is situated in a flood plain and "regularly covered with water as a result of heavy rain events"; (3) the fact that the banks of MRB are "steep, unstable and vegetated"; and (4) Rhodia's intention to restrict the use of the property to industrial uses. Rhodia further maintained that, in assessing trespasser frequency, the TRP should have taken into account snow cover or vacation time, as the EPA does in outside worker scenarios, or simply relied upon the seventy-five days cited by the EPA for general guidance in addressing recreational scenarios. Rhodia also maintained that the TRP did not provide a satisfactory explanation for its decision to consider an outdoor worker scenario, rather than just a recreational/ trespasser scenario, and improperly applied the EPA outside worker ingestion rate to a recreational receptor. Additionally, Rhodia insisted that the TRP erred in relying upon the maximum concentrations of arsenic and BaP found in the fill, rather than average concentrations. Finally, Rhodia argued that the Department was treating its property differently from various other contaminated properties, including the Anderson Farm site, the Upper Echo Lake site, and the Laser Diode site.

By letter dated July 14, 2005, the TRP affirmed its decision of August 4, 2004, requiring the implementation of engineering and institutional controls. The TRP gave the following explanation:

Rhodia has failed to provide any site-specific justification as to why the Department's evaluation was inappropriate based on the site location and that it was performed and employed in an inconsistent manner. It is the Department's understanding that while portions of the fill area along the brook may be subject to some flooding, one cannot make the assumption that this area is subject to flooding for most of the year. By policy, the Department also applies the SCC [soil cleanup criteria] to sediment that may dry out portions of the year, due to the potential exposure that may occur when the sediment is dry. This is consistent with how the Rhodia case and other sites have been handled (such as the Jersey Tyler Foundry Company referenced in Rhodia's letter).

In addition, it is also the Department's understanding that while the area along the brook are steeply sloped in some areas it is less sloped and more accessible in other areas of the bank. Also, although Rhodia is focusing their discussion of the fill within the bank slopes, the fill material is known to extend away from the top of the bank upwards of 100 feet on either side of the brook. The applicable criteria and remedy discussed by the Department for the sloped areas of the bank, also applies to the portion of the site fill material where there is little or no slope.

Regarding the employed assumptions and parameters used in the calculations by the Department in the sensitive receptor evaluation, these are based on EPA recommendations under the current/future trespasser and the outdoor worker scenario, as discussed in more detail in the following item.

Regarding the area along the bank that Rhodia describes as steep, unstable and vegetated, the Department has not historically used the presence of a steep grade at a site as a justification that exposure, such as that to the outdoor worker, will not occur.

. . . .

As Rhodia notes in their response letter, the Department does not have a standard exposure scenario for the recreational user or trespasser at a site and therefore evaluates these scenarios on a case specific basis. Consistent with the way other sites have been handled[,] the Department evaluated the most reasonable and appropriate, current/future exposure scenarios applicable to the site. It was determined that both the potential trespasser and the outdoor worker exposure scenario were of concern and to be included in the ARC evaluation.

The potential trespasser is an appropriate exposure scenario due to the presence of the brook and residential uses in the area. Rhodia also included the evaluation of a trespasser scenario citing potential exposure to children/adolescents aged 6 to 16 years old as the receptors of concern. However, the Department also evaluated potential exposure to the outdoor worker due to the potential for current and future outdoor workers to come in contact with the historic fill along the brook. Rhodia did not consider the worker in the evaluation based on the assumed limited exposure of workers to the fill along the brook. The presence of historic fill along the brook (both along the banks and areas toward the main area of the site) offers the potential for the outdoor site worker (along with the trespasser) to be exposed through activities (i.e., walking, digging, climbing) in the impacted fill area. As a result, the consideration of potential exposure to site outdoor workers and the trespasser is reasonable and appropriate in the ARC evaluation.

The attached spreadsheet includes the assumptions used by the Department in the evaluation of the above receptors. The parameters used in the calculations are based on EPA recommendations under the current/future trespasser and the outdoor worker scenario. As noted in the attached spreadsheets, the outdoor worker is the more sensitive receptor and the primary drivers of remedial requirements at the site. Rhodia was previously provided these spreadsheets.

. . . .

The three trespasser scenario options based on the use of three exposure frequency values (2 to 4 times a week) for the site are included in the attached spreadsheets. These options are based on increasing potential site exposure associated with an individual having direct contact with the soils from two days per week through passively walking in an area during the weekend to three/four days a week based on the presence of nearby sensitive uses (fields)/residents along the brook. These three exposure frequencies are consistent with those values currently used by the Department in the evaluation of other sites under a recreational/trespasser scenario based on anticipated uses/receptors in the area. A range of exposure frequencies were provided in the calculations since Rhodia's submissions did not include a map or any information clarifying the presence and location of sensitive receptors in the area of the site. Justification of the basis of the trespasser ARC values (and the exposure frequencies used) becomes moot since the outdoor worker is the more sensitive exposure scenario at the site. In addition, the arsenic and benzo(a)pyrene outdoor worker based ARC values . . . are below the Department's SCC values and therefore default to the Department's SCC levels.

. . . .

Rhodia's current and previous submissions include an ingestion rate for sediment along the brook based on 10-20% of the EPA outdoor worker daily soil ingestion rate, since Rhodia indicates that the trespasser/ recreational receptor would spend less time at the site. As discussed above, the adult outdoor worker is the receptor of concern where use of the 100 mg ingestion rate (consistent with EPA) is appropriate in the ARC calculations.

It should be stated that, also consistent with EPA, the Department used a soil ingestion rate of 100 mg per day for the trespasser/recreational receptor at the Rhodia site (and other sites). [Rhodia's] argument that the trespasser spends less time at the site resulting in the ingestion of less soil is not necessarily true, especially if you are dealing with a child/adolescent trespasser who may be involved with digging and climbing on the fill impacted soils along the brook. As previously noted, by policy, the Department also compares sediment that dries out portions of the year to the SCC, due to the potential for exposure to the dry sediment, as one would be exposed to site soils. Furthermore, the above trespasser related issues become moot since the outdoor worker is the receptor of concern at the site.

. . . .

To determine whether additional actions are necessary at a site, the Department compares the applicable SCC or site specific ARC to all available site analytical data, including the maximum detected concentrations. Any averaging of the data proposed by Rhodia must comply with N.J.A.C. 7:26E-4.8(c)3i. The basis of the averaging proposal was unclear in the original submission along with how well the areas included in the averaging scheme reflect the potential for exposure to individuals to impacted areas along the brook. The more recent submission has not provided any additional clarification. Please also note that in accordance with the [Department] Site Remediation News-Spring 1995 article, any averaging of arsenic or BaP contamination would require comparison against health based concentrations established by the [Department]. However, even if the Department agreed with the EPC of 1. 2 PPM for BaP and 31 ppm for arsenic, which the [Department] has not approved, the remedial requirements would not change. The proposed EPC levels are clearly above the [Department] soil cleanup criteria established for this site. The arsenic EPC that Rhodia has calculated exceeds the calculated SCCs for the site (outdoor worker and all trespasser exposures) even the least conservative exposure scenario evaluated as provided in the [Department] SCC Spreadsheet.

. . . On review, the [Rhodia] memorandum failed to provide any site-specific information that would justify a modification to the Department's findings stated in the TRP's August 2004 letter. As stated earlier in this letter, the most sensitive potential receptor at the site is the outdoor worker. An evaluation of the historic fill soils under an outdoor worker exposure scenario demonstrates that the Department's DCSCC continues to apply to the fill at this site and that the non-residential DCSCC of 20ppm for arsenic and 0.66ppm for [benzo(a)pyrene] (BaP) requires engineering, as well as, institutional controls. . . .

On August 29, 2005, Rhodia filed its notice of appeal. By orders of November 18, 2005, we denied Rhodia's motion to accelerate the appeal and the Department's cross-motion to dismiss. Because we affirm the determination of the Department on the merits, we need not address the Department's contention that Rhodia's challenge is procedurally premature as constituting an improper pre-enforcement review of a remedial decision. We note in passing, however, that the only waiver found in the ACO was that Rhodia would not "contest the authority or jurisdiction of the Department to issue [the] ACO" or "contest the terms of [the] ACO in any act to enforce its provisions." The ACO itself did not set forth a specific cleanup plan. Under the circumstances, we decline to address any request to reconsider our previous decision denying the Department's motion to dismiss this appeal.

We address Rhodia's contention that N.J.A.C. 7:26E-6.2(c) is inconsistent with the Brownfield Act and its enabling legislation because it requires both engineering and institutional controls at historic fill sites. We restate the applicable principles. "Administrative regulations are accorded a presumption of validity." N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999). "An administrative agency's interpretation of statutes and regulations within its implementing and enforcing responsibility is ordinarily entitled to our deference." In re Appeal by Progressive Cas. Ins. Co., 307 N.J. Super. 93, 102 (App. Div. 1997); see also Krupp v. Bd. of Educ. of Union County Reg'l High Sch. Dist. #1, 278 N.J. Super. 31, 37-38 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). "Further, we must defer to the administrative agency's expertise in relation to technical matters." In re Petition of Adamar of N.J., Inc., 222 N.J. Super. 464, 470 (App. Div. 1988). This deference "stems from the recognition that agencies have the specialized expertise necessary to enact regulations dealing with technical matters and are 'particularly well equipped to read and understand the massive documents and to evaluate the factual and technical issues that . . . rulemaking would invite.'" N.J. League of Municipalities, supra, 158 N.J. at 222 (quoting Bergen Pines County Hosp. v. N.J. Dep't of Human Servs., 96 N.J. 456, 474 (1984)).
However, our inclination toward deference is not without limits. Ibid. "[A]dministrative regulation[s] 'must be within the fair contemplation of the delegation of the enabling statute.'" N.J. Guild of Hearing Aid Dispensers v. Long (N.J. Guild), 75 N.J. 544, 561-62 (1978) (quoting S. Jersey Airways, Inc. v. Nat'l Bank of Secaucus, 108 N.J. Super 369, 383 (App. Div. 1970)). The statutory grant of power by the Legislature to an agency can be either express or implied. N.J. Dep't of Labor v. Pepsi-Cola Co., 170 N.J. 59, 61 (2001); N.J. Guild, supra, 75 N.J. at 562. "[T]he absence of an express statutory authorization in the enabling legislation will not preclude administrative agency action where, by reasonable implication, that action can be said to promote or advance the policies and findings that served as the driving force for the enactment of the legislation." A.A. Mastrangelo, Inc. v. Comm'r of Dep't of Envtl. Prot., 90 N.J. 666, 683-84 (1982). A court should "consider not only the particular statute in question, but also the entire legislative scheme of which it is a part." Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 129 (1987). "'[E]very effort should be made to harmonize the law relating to the same subject matter.'" In re Adoption of N.J.A.C. 7:26B, 128 N.J. 442, 469 (1992) (quoting Superior Air Prods. Co. v. NL Indus., Inc., 216 N.J. Super. 46, 63-64 (App. Div. 1987)). In other words, a "court may look beyond the specific terms of the enabling act to the statutory policy sought to be achieved by examining the entire statute in light of its surroundings and objectives." N.J. Guild, supra, 75 N.J. at 562; accord E.I. du Pont de Nemours & Co. v. State, 283 N.J. Super. 331, 340 (App. Div. 1995). In that manner, "courts should readily imply such incidental powers as are necessary to effectuate fully the legislative intent." N.J. Guild, supra, 75 N.J. at 562. That is because "the grant of authority to an administrative agency is to be liberally construed in order to enable the agency to accomplish its statutory responsibilities." Ibid.

Our task is to decide "whether the agency's interpretation is permissible under the broad language of the statute." In re N.J.A.C. 7:26B, supra, 128 N.J. at 450. In that endeavor, our courts have recognized that matters affecting public health, the combating of pollution, and the clean-up of hazardous materials involve "the delicate balance of environmental protection," which triggers "concerns for the State's economy and public health" that are so complicated as to call "for the expertise of an administrative agency." Id. at 451. Similarly, in Lom-Ran Corp. v. Dep't of Envtl. Prot., 163 N.J. Super. 376, 385 (App. Div. 1978), we determined that the Department has a duty to prevent pollution and is provided wide latitude in protecting public health by controlling pollution.

The Brownfield Act defines a "[r]emedial action" as

those actions taken at a site or offsite if a contaminant has migrated or is migrating therefrom, as may be required by the department, including the removal, treatment, containment, transportation, securing, or other engineering or treatment measures, whether to an unrestricted use or otherwise, designed to ensure that any discharged contaminant at the site or that has migrated or is migrating from the site, is remediated in compliance with the applicable health risk or environmental standards[.]

[N.J.S.A. 58:10B-1.]

The statute establishes and defines three types of remedial actions:

"Limited restricted use remedial action" means any remedial action that requires the continued use of institutional controls but does not require the use of an engineering control;

. . . .

"Restricted use remedial action" means any remedial action that requires the continued use of engineering and institutional controls in order to meet the established health risk or environmental standards.

. . . .

"Unrestricted use remedial action" means any remedial action that does not require the continued use of engineering or institutional controls in order to meet the established health risk or environmental standards[.]

[Ibid. (emphasis added).]

In N.J.S.A. 58:10B-1.2, our Legislature set forth its recognition "that due to New Jersey's industrial history" there are "large . . . urban and suburban areas . . . referred to as brownfields" and that "there are legal, financial, technical, and institutional impediments to the efficient and cost-effective cleanup" of those sites. Additionally, the Legislature emphasized the

need[] to ensure that the public health and safety and the environment are protected from the risks posed by contaminated sites and that strict standards coupled with a risk based and flexible regulatory system will result in more cleanups and thus the elimination of the public's exposure to these hazardous substances and the environmental degradation that contamination causes.

[Ibid.]

The Legislature then declared

that strict remediation standards are necessary to protect public health and safety and the environment; that these standards should be adopted based upon the risk posed by discharged hazardous substances; that unrestricted remedies for contaminated sites are preferable and the State must adopt policies that encourage their use; that institutional and engineering controls should be allowed only when the public health risk and environmental protection standards are met; and that in order to encourage the cleanup of contaminated sites, there must be finality in the process, the provision of financial incentives, liability protection for innocent parties who clean up, cleanup procedures that are cost effective and regulatory action that is timely and efficient.

[Ibid. (emphasis added).]

Under N.J.S.A. 58:10B-12d, the Department is mandated to "develop minimum remediation standards for soil, groundwater, and surface water intended to be protective of public health and safety" by setting up

minimum soil remediation health risk standards for both residential and nonresidential uses that:

(1) for human carcinogens, as categorized by the United States Environmental Protection Agency, will result in an additional cancer risk of one in one million;

(2) for noncarcinogens, will limit the Hazard Index for any given effect to a value not exceeding one.

N.J.S.A. 58:10B-12g sets forth a preference for unrestricted and limited restricted use remedial actions over restricted use remedial actions. It mandates:

The choice of the remedial action to be implemented shall be made by the person performing the remediation in accordance with regulations adopted by the department and that choice of the remedial action shall be approved by the department if all the criteria for remedial action selection enumerated in this section, as applicable, are met. . . .

[N.J.S.A. 58:10B-12g.]

N.J.S.A. 58:10B-12h addresses historic fill by setting up a rebuttable presumption in favor of the property owner against the removal of historic fill:

h. (1) The department shall adopt regulations which establish a procedure for a person to demonstrate that a particular parcel of land contains large quantities of historical fill material. Upon a determination by the department that large quantities of historic fill material exist on that parcel of land, there is a rebuttable presumption that the department shall not require any person to remove or treat the fill material in order to comply with applicable health risk or environmental standards. In these areas the department shall establish by regulation the requirement for engineering or institutional controls that are designed to prevent exposure of these contaminants to humans, that allow for the continued use of the property, that are less costly than removal or treatment, which maintain the health risk standards as established in subsection d. of this section, and, as applicable, are protective of the environment. The department may rebut the presumption only upon a finding by the preponderance of the evidence that the use of engineering or institutional controls would not be effective in protecting public health, safety, and the environment. The department may not adopt any rule or regulation that has the effect of shifting the burden of rebutting the presumption. . . . (emphasis added).

N.J.S.A. 58:10B-13a provides for the use of a deed notice in addition to engineering controls utilized to remediate nonresidential property:

a. When real property is remediated to a nonresidential soil remediation standard or engineering or institutional controls are used in lieu of remediating a site to meet an established remediation standard for soil, groundwater, or surface water, the department shall, as a condition of the use of that standard or control measure:

(1) require the establishment of any engineering or institutional controls the department determines are reasonably necessary to prevent exposure to the contaminants, require maintenance, as necessary, of those controls, and require the restriction of the use of the property in a manner that prevents exposure;

(2) require, with the consent of the owner of the real property, the recording with the office of the county recording officer, in the county in which the property is located, a notice to inform prospective holders of an interest in the property that contamination exists on the property. . . .

The Legislature has given the Department a wide array of power to address soil remediation and to promulgate rules to protect the public health and safety and the environment from risks posed by contamination. We read the relevant statutory scheme, of course, in pari materia. Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 14-15 (2005) ("'[S]tatutes that deal with the same matter or subject should be read in pari materia . . . .'" (quoting In re Adoption of a Child by W.P. & M.P., 163 N.J. 158, 182-83 (2000) (Poritz, C.J., dissenting)). N.J.A.C. 7:26E-6.2(c) provides in pertinent part:

If historic fill material will not be treated or removed from the site, engineering and institutional controls shall be proposed in accordance with the Department's procedures in effect at the time of proposal . . . . (emphasis added).

In our view, the only way to fully promote the legislative policy, fulfill its objectives, and effectuate its intent set forth in the Brownfield Act is to read the word "or" used in N.J.S.A. 58:10B-12h(1), together with the word "and" used in the challenged regulation, in the conjunctive rather than disjunctive and thus interchangeable as "and/or." See Pine Belt Chevrolet, Inc. v. Jersey Cent. Power & Light Co., 132 N.J. 564, 578 (1993). Only then does a reading of the other individual cited portions of the Brownfield Act become "consistent with the whole." Id. at 579 (citing Febbi v. Bd. of Review, 35 N.J. 601, 606 (1961)). By so doing, engineering controls, in conjunction with institutional controls, would only be required when warranted by the level of contamination on the subject property. So construed, we are satisfied that N.J.A.C. 7:26E-6.2(c), as promulgated, is consistent with the Brownfield Act and falls within the scope of the Department's statutorily delegated authority. Accordingly, we conclude that N.J.A.C. 7:26E-6.2(c) is valid and not ultra vires.

Turning to Rhodia's assertion that the Department's decision was arbitrary, capricious, or unreasonable and represented a denial of due process, we first restate the well-established principles regarding review of administrative decisions. Our role in reviewing a final decision of an agency is a limited one. In re Taylor, 158 N.J. 644, 656 (1999). We will not reverse an agency decision unless it is arbitrary, capricious, or unreasonable, or is not supported by substantial credible evidence in the record as a whole. Ibid.; Brady v. Bd. of Review, 152 N.J. 197, 210-11 (1997). If we find sufficient credible evidence to support the agency's conclusions, we must uphold those findings even though we might have reached a different result. In re Taylor, supra, 158 N.J. at 657. Moreover, decisions of administrative agencies like the Department carry with them 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). Where expertise of the administrative agency is a pertinent factor, we must accord the agency due regard in that respect. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965).

Rhodia argues that site conditions that limit accessibility to the fill, including perimeter fencing, full-time security, regular flooding events, and steep terrain, together with snow cover during the winter months, limit the recreation/trespasser exposure to two days per week for nine months, totaling seventy-five days. It also asserts that the Department's decision (1) is inconsistent with the Department's consideration of site conditions at other sites such as the Anderson Farm, Upper Echo Lake, and Laser Diode sites; (2) incorrectly used maximum rather than average concentrations for arsenic and BaP; and (3) incorrectly relied on an outdoor worker exposure scenario because the site conditions, specifically the steep bank, do not allow for regular access.

In its decision, the Department concluded that the outdoor worker is the most sensitive receptor at the property, rather than the recreational user/trespasser, and runs the greatest risk of exposure to the contaminated fill. Rhodia does not argue that there are no outdoor workers presently at the site or that there will never be any such workers at the site in the future. Indeed, it concedes in its appellate brief that it "fully intends to restrict the use of the Site to . . . industrial uses." It also ignores that the presence of fill is not just confined to the immediate banks but extends away from the brook to both the east and west.

The Department provided a thorough assessment and evaluation supporting its conclusion that the subject site qualified for restricted use remedial action, thus requiring both an engineering and institutional control for continued use. We find no basis in this record to intervene. Accordingly, we affirm substantially for the reasons expressed by the decision of August 4, 2004, and reevaluation of July 14, 2005.

Finally, Rhodia's argument that the Department's decision to require both engineering and institutional controls is fundamentally unfair and violative of basic principles of due process, lacks sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(D) and (E). Rhodia essentially rehashes its contentions that the site conditions did not call for both engineering and institutional controls and that it should be permitted to remediate the site by the filing of a deed notice. We find those contentions clearly without merit. The record reflects that Rhodia was given numerous opportunities to make its case and was furnished with exhaustive decisions by the Department. There was no fundamental unfairness in the manner in which the Department arrived at its determination.

Affirmed.

 

Pursuant to N.J.A.C. 7:26E-1.8, "[h]istoric fill material" is defined as

non-indigenous material, deposited to raise the topographic elevation of the site, which was contaminated prior to emplacement, and is in no way connected with the operations at the location of emplacement and which includes, without limitation, construction debris, dredge spoils, incinerator residue, demolition debris, fly ash, or non-hazardous solid waste. . . .

Assorted chemical and engine manufacturing was also performed at the property prior to Rhodia's ownership.

The metals included chromium and lead in addition to the arsenic. The cPAHs included benzo(a)anthracene, benzo(b)fluoranthene, benzo(k)fluoranthene, and indeno(1,2,3-cd)pyrene in addition to the BaP. A March 30, 2004, report from Diane Groth of the Department Bureau of Environmental Evaluation and Risk Assessment/Environmental Toxicology and Risk Assessment Unit identified arsenic and BaP as "indicator chemicals," demonstrating "the potential for human health impacts associated with exposure to the bank soils."

See FN 3

Although the HHE indicated that direct human exposure to cumene (isopropyl benzene), camphene, camphor, and coumarin, posed no concern for health risks, it made no mention of the risk posed by exposure to non-site-related (fill) constituents such as arsenic and BaP.

In a later letter challenging the TRP's ultimate findings, Rhodia asserted that it selected a lower ingestion rate not because sediment, rather than soil, was involved, but because a recreational/trespasser receptor would spend less time on the property than an outside worker.

Rhodia also notified the Department in April 2004 that the New Jersey Department of Health and Senior Services had concluded, in a 2002 Health Consultation/Exposure Investigation for the Rhodia site, that the "contaminants detected in soil and surface water of [MRB] posed No Apparent Public Health Hazard." However, within that report it is specifically noted, "this determination was based on limited off-site data."

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A-6766-04T3

February 23, 2007