MARK SMITH VS. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION(NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION), A-1684-14T2

Background

Trustees of Princeton University retained Ransom Environmental (with LSRP Kenneth Goldstein) to remediate historic pesticide contamination (dieldrin and chlordane) on a 74-acre parcel in South Brunswick; contamination was capped by consolidating ~9,547 cy of impacted soil into a berm and covering with certified clean soil.
Ransom sent written notice to owners/tenants within 200 feet before field activities, filed a deed notice (because residual concentrations exceeded residential direct-contact standards), and applied to DEP for a Soil Remediation Action Permit after completing the berm.
DEP issued the Permit on October 23, 2014, imposing monitoring, maintenance, biennial certifications, and LSRP oversight as institutional controls to ensure continued protectiveness.
Mark and Katherine Smith (appellants), opposing a separate PSE&G substation project on part of the parcel, challenged DEP’s issuance of the Permit on four grounds: (1) inadequate pre-construction notice; (2) failure to identify neighboring potable wells; (3) failure to identify a nearby state park (Cook Natural Area); and (4) berm construction violated local zoning.
The Appellate Division affirmed DEP, holding the notice satisfied regulatory and guidance requirements, well-identification duties were not triggered (no groundwater exceedances), the park was shown on submitted maps so DEP was aware, and the berm did not violate municipal law (and the Township had been involved/aware).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Adequacy of written notice under N.J.A.C. 7:26C-1.7(h)(2)	Smiths: April 25, 2014 letter failed to adequately summarize site conditions and remedial activities	DEP/Ransom: letter gave site address, block/lot, SRP ID, contaminants in lay terms, planned excavation/consolidation/capping, LSRP contact, and availability of technical reports	Held: Notice met regulatory and DEP guidance standards; adequate for lay recipients.
Identification of potable wells (groundwater receptor evaluation)	Smiths: Application failed to identify neighboring potable wells as required	DEP/Ransom: Well search is required only if groundwater contamination detected; pesticides were not water‑soluble and investigation showed no groundwater impact, so requirement not triggered	Held: No well identification required because no groundwater exceedances; regulation not triggered.
Identification of nearby public park (Cook Natural Area) in application	Smiths: Failure to check park box misled DEP and warrants vacatur	DEP/Ransom: Park was shown on schematic map and explicitly referenced in the report; DEP was aware regardless of the unchecked box	Held: Even if box omitted, DEP knew of nearby park from submitted materials; no vacatur.
Berm construction and local zoning compliance	Smiths: Berm is not a permitted use under Township code so Permit should be invalid for noncompliance with local law	DEP/Ransom: Remediation did not change property use; Township required/required berm height and had knowledge; local code permits soil movement with approvals and some remediation exemptions apply; no municipal enforcement was pursued	Held: Berm did not render Permit invalid; no demonstrated zoning violation and remediation activities were permitted/approved or exempt.

Key Cases Cited

Des Champs Labs, Inc. v. Martin, 427 N.J. Super. 84 (App. Div. 2012) (discussing SRRA’s shift to LSRP oversight)
Morristown Assocs. v. Grant Oil Co., 220 N.J. 360 (2015) (noting DEP no longer directly supervises site cleanups under SRRA)
Magic Petroleum Corp. v. Exxon Mobil Corp., 218 N.J. 390 (2014) (definition/role of LSRPs)
Matejek v. Watson, 449 N.J. Super. 179 (App. Div. 2017) (RAO issuance practice under SRRA)
Capital Health Sys. v. N.J. Dep't of Banking & Ins., 445 N.J. Super. 522 (App. Div.) (scope of review for agency decisions)
In re Stallworth, 208 N.J. 182 (2011) (standard for appellate review of agency action)
In re Freshwater Wetlands Prot. Act Rules, 180 N.J. 478 (2004) (deference to agency expertise on technical matters)
City of Newark v. Natural Res. Council in the Dep't of Envtl. Prot., 82 N.J. 530 (1980) (agency delegated discretion and technical determinations)
Reck v. Dir., Div. of Taxation, 345 N.J. Super. 443 (App. Div. 2001) (agency statutory interpretation deference)
Perlmart of Lacey, Inc. v. Lacey Twp. Planning Bd., 295 N.J. Super. 234 (App. Div. 1997) (notice must be understandable to ordinary layperson)
Twp. of Stafford v. Stafford Twp. Zoning Bd. of Adjustment, 154 N.J. 62 (1998) (notice as jurisdictional prerequisite for land-use boards)
Wolf v. Shrewsbury, 182 N.J. Super. 289 (App. Div. 1981) (published notice must be reasonably sufficient to inform public)
Washington Commons v. Jersey City, 416 N.J. Super. 555 (App. Div. 2010) (zoning enforcement duties rest with municipal officials)