IN THE MATTER OF HAZARDOUS DISCHARGE SITE REMEDIATION FUND REQUEST FOR THE INNOCENT PARTY GRANT APPLICATION (NJ DEPARTMENT OF ENVIRONMENTAL PROTECTION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2844-16T3
IN THE MATTER OF HAZARDOUS
DISCHARGE SITE REMEDIATION
FUND REQUEST FOR THE INNOCENT
PARTY GRANT APPLICATION.
___________________________________
Argued January 10, 2019 – Decided April 25, 2019
Before Judges Whipple and DeAlmeida.
On appeal from the New Jersey Department of
Environmental Protection.
George J. Tyler, argued the cause for appellant RAW,
Inc. (Tyler & Carmeli, PC, attorneys; George J. Tyler,
of counsel and on the brief; James Aversano III, on the
brief).
Bethanne S. Prugh, Deputy Attorney General, argued
the cause for respondent Department of Environmental
Protection (Gurbir S. Grewal, Attorney General,
attorney; Melissa H. Raksa, Assistant Attorney
General, of counsel; Mark S. Heinzelmann, Deputy
Attorney General, on the brief).
PER CURIAM
Appellant RAW, Inc., a/k/a Roxbury Auto Wreckers (RAW), appeals
from the August 29, 2017 final agency decision of the Department of
Environmental Protection (DEP) denying its application for an innocent party
grant (IPG) from the Hazardous Discharge Site Remediation Fund (Fund). We
dismiss the appeal as moot.
I.
RAW is the owner of real property in Morris County. It is undisputed that
hazardous substances were discharged in both the soil and groundwater at the
property, necessitating remediation under the Spill Compensation and Control
Act, N.J.S.A. 58:10-23.11 to -23.24. There is contamination from both historic
fill of a canal that once crossed the property and RAW's use of the parcel for
commercial purposes.
On July 6, 2016, RAW filed an application with DEP for an IPG pursuant
to the Brownfield and Contaminated Site Remediation Act (Act), N.J.S.A.
58:10B-1 through -31, in the amount of $177,850, to cover a portion of the cost
of investigating and remediating only the historic fill at the property. At the
time of the application, the Act authorized grants to an "innocent party," as that
term was defined in N.J.S.A. 58:10B-6(a)(4) (2010). To receive funding, an
applicant had to establish, among other criteria, that the hazardous substances
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to be remediated were not used by the applicant at the property and that the
applicant did not discharge any hazardous substances at the area where the
historic discharge was discovered. N.J.S.A. 58:10B-6(a)(4) (2010). When DEP
determined that an IPG grant application was eligible for funding, it would
recommend the grant to the New Jersey Economic Development Authority
(EDA) to be funded. See N.J.A.C. 19:31-8.9. EDA had the discretion to take
final action to issue the grant. Ibid.
On January 27, 2017, DEP denied RAW's IPG application. The agency
provided a written determination that RAW "ha[d] not shown that the
contamination from [its] operations is separate and distinct from the
contamination caused by historic fill." In addition, DEP found that RAW "ha[d]
not shown that the contaminants found in the historic fill area were not caused
by [its] operations[,]" leaving the agency "unable to determine if the
contamination that is the subject of the IPG application was caused by RAW,
Inc. operations or historic fill." In light of these findings, DEP did not review
the financial aspects of RAW's application or recommend it to EDA for funding.
On August 29, 2017, DEP denied RAW's request for reconsideration.
This appeal followed. RAW argues that DEP's final agency decision is
contrary to a statute and DEP regulations defining historic fill. In addition,
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RAW argues that DEP's factual determinations with respect to the contamination
at the property are not supported by substantial credible evidence.
Before the parties filed briefs, on January 16, 2018, the Legislature
enacted L. 2017, c. 353, which amended the Act to, among other things,
eliminate the IPG program (the Amendment). Section 6 of the Amendment
provides:
This act shall take effect immediately and shall apply
to any application for financial assistance or a grant
from the [Fund] pending before the [DEP] on the
effective date of this act, or submitted on or after the
effective date of the act, but shall not apply to any
application determined to be technically eligible and
recommended for funding by the [DEP] and pending
before the [EDA] on the effective date of this act.
[L. 2017, c. 353, § 6.]
DEP argues that the Amendment renders RAW's appeal moot because its
application was neither recommended for funding by DEP nor pending before
EDA as of January 16, 2018. In addition, DEP argues that its technical review
of RAW's application was not completed. Once the agency determined that
RAW did not meet the statutory criteria for eligibility, it did not undertake the
"time-consuming process" of analyzing the financial aspects of the application
necessary to recommend it for funding by the EDA. Thus, the agency argues,
RAW cannot be awarded an IPG, even if successful on appeal, because there is
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no legislative authorization for DEP to continue processing RAW's application
or to expend public funds on a grant to RAW.
RAW argues its appeal is not moot because Section 6 does not expressly
exclude funding for applications that were denied by DEP but under judicial
review at the time the Amendment was enacted. In addition, RAW contends
that its application falls within the grandfather provision of Section 6 because
had DEP correctly applied the law, it would have recommended the application
for funding to the EDA, and the application would have been pending there on
January 16, 2018. Finally, RAW argues that applying the Amendment to its IPG
application would constitute a manifest injustice.
II.
Our courts "refrain from rendering advisory opinions, from deciding moot
cases, or generally from functioning in the abstract, and . . . decide only concrete
contested issues conclusively affecting adversary parties in interest[.]" N.J.
Tpk. Auth. v. Parsons, 3 N.J. 235 (1949) (quotation omitted); see also N.Y.
Susquehanna & W. Ry. Corp. v. Dep't of Treasury, Div. of Taxation, 6 N.J. Tax
575, 582 (Tax 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985). A case is
moot "when the decision sought in a matter, when rendered, can have no
practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corrs.,
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382 N.J. Super. 254, 258 (App. Div. 2006) (quoting N.Y. Susquehanna, 6 N.J.
Tax at 582).
The mootness of RAW's appeal depends on whether RAW's application
falls within the grandfather provision in Section 6. It is well settled that the
primary purpose of "statutory interpretation is to determine and 'effectuate the
Legislature's intent.'" State v. Rivastineo, 447 N.J. Super. 526, 529 (App. Div.
2016) (quoting State v. Shelley, 205 N.J. 320, 323 (2011)). We start by
considering "the plain 'language of the statute, giving the terms used therein
their ordinary and accepted meaning.'" Ibid. (quoting Shelley, 205 N.J. at 323).
Where "the Legislature's chosen words lead to one clear and unambiguous result,
the interpretive process comes to a close, without the need to consider extrinsic
aids." Ibid. (quoting Shelley, 205 N.J. at 323). We do "not 'rewrite a plainly-
written enactment of the Legislature [or] presume that the Legislature intended
something other than that expressed by way of the plain language.'" Id. at 529-
530 (alternation in original) (quoting Marino v. Marino, 200 N.J. 315, 329
(2009)).
The plain language of Section 6 renders RAW's appeal moot. The
Legislature exercised its prerogative to eliminate the IPG program and
grandfathered only those IPG applications that were: (1) determined by DEP to
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be technically eligible; (2) recommended for funding by DEP; and (3) pending
before EDA on January 16, 2018. RAW's application satisfied none of these
criteria. On January 16, 2018, DEP had determined that RAW's application did
not satisfy the then-controlling statutory eligibility requirements for an IPG.
The agency, therefore, did not complete its review of the application and did not
recommend it for funding to the EDA.
We do not agree with RAW's argument that the Legislature impliedly
included in Section 6 IPG applications erroneously denied by DEP and under
judicial review as of January 16, 2018. There is nothing in Section 6 remotely
suggesting such an interpretation of the statute was intended. To the contrary,
the Legislature defined in clear terms the category of grant applications for
which funding was preserved. Only those IPG applications that advanced to
EDA with a recommendation for funding from DEP are authorized to proceed.
We cannot rewrite the unambiguous provisions of Section 6 to say, in effect,
that funding is authorized for applications that "should have been" found
technically eligible and recommended for funding by DEP on the effective date
of the statute. Nor can we find in Section 6 authorization for DEP to expend
funds to complete its review of the financial aspects of RAW's application, were
we to determine that the agency erred in its interpretation of the statutory
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eligibility criteria. It is reasonable to conclude that the Legislature was aware
of the possibility that at the time that Section 6 was enacted DEP had erroneously
denied one or more IPG applications and that the agency's error would be
discovered after January 16, 2018. Yet, the Legislature did not include language
in Section 6 preserving funding for those circumstances.
Nor do we agree that dismissal of RAW's appeal would constitute a
manifest injustice. The manifest injustice doctrine was examined by our
Supreme Court in Oberhand v. Director, Div. of Taxation, 193 N.J. 558 (2008).
Although the Court did not issue a majority opinion, three Justices held that the
doctrine allows a court to bar retroactive application of a statute as an equitable
remedy "to prevent unfair results that do not necessarily violate any
constitutional provision." Oberhand, 193 N.J. at 572 (quoting State Troopers
Fraternal Ass'n v. State, 149 N.J. 38, 54 (1997)). A fourth Justice issued a
concurring opinion stating that the doctrine allows a judicial remedy where
retroactive application of a statute would violate the constitutional right to
fundamental fairness and due process of law. Id. at 575 (Albin, J., concurring).
Although no opinion in Oberhand was joined by four
Justices, a majority of the Court held that the
retroactive application of a . . . statute can be precluded
by judicial action in circumstances where the
retroactive [application] is manifestly unjust – whether
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under a common law notion of fairness or as a matter
of State Constitutional principle.
[Leger v. Dir., Div. of Taxation, 29 N.J. Tax 354, 366
(Tax 2016).]
Before giving relief under the doctrine a court must "weigh[] the competing
factors of the public interest in the retroactive application of the amended
statute, the affected parties' reliance on the previous law, and the consequences
of that reliance." Id. at 365. The court may block retroactive application of a
statute if doing so would be "harsh and unfair[.]" Oberhand, 193 N.J. at 574.
Here, the Amendment does not have a provision applying the statute
retroactively. To the contrary, the removal of authorization to process and fund
IPGs is effective upon enactment of the Amendment. The Legislature did not
defund grants awarded prior to the statute's date of enactment. Instead, Section
6 authorizes DEP and EDA to process and fund IPG applications that have
advanced to an identified point in the approval process, but for which funding
was not yet finalized as of the date of enactment of the statute. RAW's IPG
application had not advanced far enough when the Amendment was enacted to
fall within Section 6.
Moreover, prior to enactment of the Amendment, RAW did not have a
right to an IPG, even if its application technically complied with the statute.
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Funding of an IPG was dependent on approval by the members of the EDA. A
regulation established the process for EDA review of IPGs recommended for
funding by DEP:
Applications are processed through several layers of
staff review, and may then be recommended for
consideration and official action of the Authority
Members at a public meeting. Within [forty-five] days
of the receipt of a completed application, a
determination will be made to recommend approval to
the Members or deny the application. The applicant has
no right to have its application presented to the
Members.
[N.J.A.C. 19:31-8.9(h).]
At the time the Amendment was enacted, RAW had only an expectation that its
application might be found to be technically complete, might be presented by
EDA staff to the authority's members, and that those authority members might
decide to approve funding.
The Amendment, therefore, differs from the statutes at issue in Oberhand,
which applied a tax to estates of decedents who died six months before
enactment of the statute and, as a result, did not have the opportunity to revise
their wills to avoid the tax, 193 N.J. at 565-66, and Leger, which applied a tax
to lottery winnings from prizes awarded six months prior to enactment of the
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statute when such winnings were tax exempt, 29 N.J. Tax at 359. We do not
view the manifest injustice doctrine to apply in the circumstances before us.
We also note that the Amendment reflects the exercise of the Legislature's
fundamental constitutional authority to make fiscal decisions. The Legislature
has the sole power and responsibility to raise revenue and appropriate funds for
the operation of our State government. N.J. Const. art. VIII, §2, ¶2; see City of
Camden v. Byrne, 82 N.J. 133, 149 (1980) (holding "[t]here can be no redress
in the courts to overcome either the Legislature's action or refusal to take action
pursuant to its constitutional power over state appropriations"). The prohibition
on the expenditure of State funds without legislative authorization is "the center
beam of the State's fiscal structure." Byrne, 82 N.J. at 146. The Legislature
decided not to fund IPGs as of the effective date of the Amendment, with limited
exceptions not applicable here. Nothing in Oberhand suggests that the manifest
injustice doctrine may be applied to, in effect, authorize the expenditure of
public funds in the face of express legislative intent to the contrary.
To the extent we have not specifically addressed any of RAW's remaining
arguments with respect to mootness, we conclude they lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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