Court invalidates regulatory provisions DEP used in dispute with former laboratory site in Livingston

TRENTON – A state appeals court has dealt a setback to the Department of Environmental Protection regarding implementation of regulations that require parties to certify their property is not contaminated.

Ruling today in a case involving Des Champs Laboratories in Livingston, the court invalidated regulations used by DEP, and said forcing parties to certify that properties are contaminant-free is inconsistent with the statutes that have been in place.

Those rules, the court said, are in fact designed to minimize governmental involvement and streamline processes.

As a result, the court today overturned DEP’s denial of an exemption from those regulations, and handed the matter back to DEP for further consideration.

The court  in its ruling also stated that there is nothing that prevents the Legislature from enacting a law that explicitly requires that parties certify a property is “clean’’ before a sale or closure.

In this case, Des Champs operated an industrial facility from 1982 to 1996 where it assembled heat-recovery ventilators.

The Industrial Site Recovery Act of 1993 and the Site Remediation Reform Act of 2009 came into play when the owners planned to cease operations.

The property was eventually sold to R&K Associates LLC.

Eight years later DEP investigated groundwater contamination in Livingston, and determined it originated at the Des Champs site, and issued a letter in 2009 requiring several things, including completing an application for a remediation agreement.

But DEP was opposed, in part, because Des Champs argued it was exempt from the regulations because of the quantity of hazardous substances involved.

Court invalidates regulatory provisions DEP used in dispute with former laboratory site in Livingston