You be the Judge: Contaminated Property

If you own contaminated property, this may interest you.

The statutes enacted by the Legislature often contain provisions that delegate power to administrative agencies to promulgate additional regulations in furtherance of the statutory purpose.

Pursuant to such a delegation, the New Jersey Department of Environmental Protection (DEP) promulgated  "mercury rules" which set emission limits of mercury from iron and steel melters.  The rules exceeded federal requirements.

In a recent lawsuit, the Appellate Division of the Superior Court was asked to set the rules aside as being beyond the agency's power.

YOU BE THE JUDGE:  Does DEP have unlimited power to affect the ownership and operation of property in an effort to deal with pollution?

The Court sustained the rules, noting that DEP was given broad discretion by the Legislature.  In that regard, DEP's power was not limited to the enactment of standards adopted by the federal government. 

And DEP's discretion was entitled to judicial deference in the absence of evidence that DEP had acted arbitrarily or capriciously.  The evidence in the case showed DEP relied upon task force reports and health analyses.  In light of this investigation, the agency had set standards in the rules which were attainable based on reasonably available control technology.  

The decision points out that a courtroom can bring justice and may be the only way to protect your rights. We know courtrooms; we have harnessed the power of the law in courtrooms to bring justice for our clients for decades. Please contact us to discuss how we can help you in a new lawsuit or provide a "second opinion" about your pending lawsuit. There is no obligation for the initial consultation.