IN THE MATTER OF SPILL FUND LIEN, DJ NO. 129570-02 954 ROUTE 202, BLOCK 44, LOT 30, BRANCHBURG TOWNSHIP, SOMERSET COUNTY (NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION)

NOT FOR PUBLICATION WITHOUT THE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
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2665-15T1
IN THE MATTER OF SPILL
FUND LIEN, DJ NO. 129570-02;
954 ROUTE 202, BLOCK 44,
LOT 30, BRANCHBURG
TOWNSHIP, SOMERSET
COUNTY.
_____________________________
Argued November 14, 2018 – Decided August 13, 2019
Before Judges Ostrer, Currier and Mayer.
On appeal from the New Jersey Department of
Environmental Protection, Spill Compensation Fund.
Stuart J. Lieberman argued the cause for appellant
Branch 2002, LLC (Lieberman & Blecher, PC,
attorneys; Stuart J. Lieberman, of counsel and on the
brief; Jordan M. Asch, on the briefs).
Thomas P. Lihan, Deputy Attorney General, argued the
cause for respondent New Jersey Department of
Environmental Protection (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Matthew D. Orsini,
Deputy Attorney General, on the briefs).
PER CURIAM
Branch 2002 LLC appeals from a final agency decision of the Spill
Compensation Fund (Fund). The Fund rejected Branch's contest of a lien filed
against its property and revenues to recover pollution remediation costs that the
Fund expended. Branch challenges the decision on three grounds. First, citing
N.J.S.A. 58:10-23.11f(f), it contends the Spill Compensation and Control Act
(Spill Act) authorizes pre-judgment liens only against the property or revenues
of a "discharger," and the Fund did not contend Branch was a discharger; rather,
it contended Branch was a person in any way responsible for hazardous
substances. Second, Branch contends the lien contest procedures denied it due
process, and the Fund was obliged to establish the reasonableness of its cleanup
and removal costs before filing a lien. Third, Branch argues that the Fund was
barred from filing the lien because the Department of Environmental Protection
(Department) knew that a third party agreed to indemnify Branch for the Fund's
claims. Having reviewed Branch's arguments in light of the record and
applicable principles of law, we affirm.
I.
The case involves the discharge of various hazardous substances at a gas
station in Branchburg. In 1988, the owner, Daniel Shoplock, discovered the
discharge while removing three underground storage tanks, and notified the
A-2665-15T1
2
Department. Following monitoring, sampling and testing, the Department in
1991 ordered Shoplock to conduct a remedial investigation and remove or treat
the contaminated soil. Shoplock's consultant conducted some analysis of the
site, but the Department, not Shoplock, performed remediation with Fund
resources. At one point, the Department had to seek judicial relief to access the
property to remediate it.
In the meantime, control of the property changed hands. In 1993,
Shoplock entered into a lease-purchase agreement with John & Jerry, Inc., which
thereafter leased and operated the gas station (and, for a time, entered into a
sublease with an automobile repairer). There is some evidence in the record that
discharges continued after John & Jerry took over, but that point is disputed. On
April 23, 2004, John & Jerry purchased the property from Shoplock for
$448,000. Branch alleges that Shoplock and its insurer agreed to indemnify
John & Jerry for any liability arising out of Shoplock's discharge. 1 Within a
week of acquiring title, John & Jerry transferred the property to Branch for token
1
The record includes a copy of an indemnification agreement, but it is not fully
executed.
A-2665-15T1
3
or no consideration.2 Peter Singh was John & Jerry's sole shareholder, and,
apparently, Branch's sole member. Branch admits it is the successor to John &
Jerry and continued to operate the gas station.
In May 2002, while Shoplock was still the title owner, the Fund
Administrator filed the Fund's first notice of lien against the property "for all
expenditures made as of April 15, 2002, from the Fund in connection with the
discharge of hazardous substances at or from" the property. The notice stated
that the expenditures totaled $48,601, but the "lien may be amended from time
to time as additional expenditures and/or commitments are incurred by the Fund
in connection with the discharge of hazardous substances at or from" the
property. The notice characterized Shoplock as "the discharger," and requested
the Superior Court Clerk to enter Shoplock's name and address in the record of
docketed judgments and the amount of the debt. The notice did not mention
John & Jerry or Singh.
Remediation continued at the site in the years that followed. In March
2015, almost thirteen years after filing the initial lien, the Department wrote to
Branch, John & Jerry, and Shoplock, advising them that as of March 16, 2015,
2
The deed is not in the record. The agency contends the property was
transferred for $1. However, hearsay documents indicate the property was
transferred for zero dollars.
A-2665-15T1
4
the Fund's expenditures at the site reached $1,876,689.77. The Department
sought reimbursement and advised that if the costs were not paid within thirty
days, the Department would amend its prior lien on the Branchburg property and
on Branch's other real or personal property. The letter also advised Branch that
it was responsible for further remediation of the site, including hiring its own
licensed site remediation professional; and its failure to remediate "may cause
the Department to incur additional cleanup and removal costs at the site, which
would increase [Branch's] debt to the State and the Spill Fund."
On June 5, 2015, the Administrator filed its notice of amended first
priority lien with the Superior Court. This time, the notice asked the clerk to
enter "the names and addresses of the responsible parties" including Shoplock,
as "Discharger"; John & Jerry as "A Person in Any Way Responsible"; and
Branch as "Owner(s) and A Person in Any Way Responsible".
Ten days later, the Department notified Branch in writing that it had filed
the amended lien, and the lien against the Branchburg property had first priority
over all other claims or liens that may have been filed against the property; but
the lien also attached – without asserting first priority status – to Branch's
revenues and other real and personal property. The Department advised Branch
it could contest the lien if it believed "the Department did not have a reasonable
A-2665-15T1
5
basis to file the lien." It also advised Branch that it could obtain the "Lien Filing
Record," which contained documents related to the agency's decision to file the
lien.
The lien contest procedure – which we discuss at greater length below –
consists of written submissions to a "neutral agency officer," who then submits
a recommended decision to the Administrator. Spill Act Lien Administrative
Guidance (Feb. 4, 2016), https://www.nj.gov/dep/srp/guidance/srra/spill_act_
lien_guidance.pdf. In opposing the lien, Branch contended it was not a
"discharger" as the Spill Act's plain language required; the lien amount was
grossly inflated – although Branch did not identify which costs were excessive
or inflated; and the agency acted in bad faith in pursuing Branch while aware of
Shoplock's and its insurer's agreement to indemnify Branch.
In response, the Department, through the Attorney General, contended
that Branch purchased the property subject to the initial lien. As the lien was
amendable and not discharged, the increased lien properly encumbered the
property. The Department addressed Branch's three points. The Department
argued that even if Branch were not a "discharger" – a point the Department did
not concede – it was a person "in any way responsible" and therefore subject to
a lien. The Department asserted that Branch's objection to the Fund's costs
A-2665-15T1
6
should be heard in a cost recovery action, because in a lien contest, "it is enough
that the Department can prove it actually incurred the costs." Also, the
Department argued that Branch's indemnification agreement did not bind or
restrict the Department. In reply, Branch reiterated its objections, and
highlighted that the lien notice did not call Branch a discharger.
In a written recommendation, the neutral agency officer reviewed the
evidence of the discharge, the Department's response, and the property's
ownership. The officer concluded that "substantial credible evidence in the
Record support[ed] the Administrator's filing of the Amended First Priority
Lien." She stated that the evidence established that the property was polluted,
and Branch was a responsible party by virtue of its knowing purchase of the
polluted property. The Department remediated the property and adequately
notified Branch of the costs it incurred. Branch's claim that the costs were
excessive was "not an issue for th[e] lien contest," but an appropriate defense in
any cost recovery action. The officer found that the indemnification agreement
did not bind the agency. Finally, the officer declined to address Branch's
contention that the Spill Act only authorized liens against property that a
discharger owned, concluding it was a "legal issue beyond the scope" of her
review.
A-2665-15T1
7
The Fund's assistant director, ostensibly acting on behalf of the
Administrator, adopted the officer's recommendation in a Lien Contest Final
Decision. The assistant director noted that his decision was "narrowly limited
to the issue of whether or not the Spill Fund had a reasonable basis" to file the
lien, and did not preclude any defenses Branch may have in subsequent cost
recovery or enforcement proceedings.
This appeal followed.
II.
We first consider Branch's point that the lien was unreasonable because
the Spill Act authorizes liens only on the property and revenues of a
"discharger," and no one else. The lien notice expressly characterized Branch
as a "person in any way responsible," not as a "discharger." We reject Branch's
argument because the Supreme Court has held that a "discharger" includes a
person in "any way responsible." In re § Petroleum Corp., 110 N.J. 69, 73
(1988).
The lien provision, N.J.S.A. 58:10-23.11f(f), instructs the Administrator
to file a pre-judgment lien with the Superior Court Clerk against property and
revenues of a "discharger" for the amounts the State committed for cleanup and
A-2665-15T1
8
removal. The first unnumbered paragraph of subsection (f) defines a
discharger's debt as a lien, stating:
Any expenditures of cleanup and removal costs and
related costs made by the State pursuant to this act shall
constitute, in each instance, a debt of the discharger to
the fund. The debt shall constitute a lien on all property
owned by the discharger when a notice of lien,
incorporating a description of the property of the
discharger subject to the cleanup and removal and an
identification of the amount of cleanup, removal and
related costs expended by the State, is duly filed with
the clerk of the Superior Court. . . . [T]he lien, to the
amount committed by the State for cleanup and
removal, shall attach to the revenues and all real and
personal property of the discharger, whether or not the
discharger is insolvent.
The second paragraph of subsection (f) addresses the priority of the lien .
As to the polluted property (other than certain residential properties), the lien
supersedes all other claims or liens, even if filed before the Spill Act lien;3 as to
other property, the lien takes its place in line. 4
3
As the lien supersedes previously-filed liens, it is known as a "superlien," see
13C New Jersey Practice, Real Estate Law and Practice § 46:177 (Matthew S.
Slowinsky & Henry C. Walentowicz) (2014), or a lien with "superpriority," 2
Environmental Law in Real Estate & Business Transactions § 13.04 (2019).
4
As originally enacted, the lien had such superpriority status against all the
discharger's property. L. 1979, c. 346, § 4. Concerned that the provision
negatively affected the availability of mortgage funds, the Legislature in 1985
amended the statute to limit the superlien to the polluted property (except for
A-2665-15T1
9
The Spill Act does not define "discharger," but it defines "discharge" as
"any intentional or unintentional action or omission resulting in the releasing,
spilling, leaking, pumping, pouring, emitting, emptying or dumping of
hazardous substances into the waters or onto the lands of the State" or out -of-
state waters when it causes damage to in-state "lands, waters or natural
resources." N.J.S.A. 58:10-23.11b.
The Legislature first authorized liens against a discharger's property in a
1979 amendment to the Spill Act, which was enacted three years earlier. L.
1979, c. 346, § 4, then codified as N.J.S.A. 58:10-23.11f(e), amending L. 1976,
c. 141, § 7. In the same legislation, the Legislature amended the strict liability
section of the Spill Act, which initially applied only to "any person who has
discharged a hazardous substance." Compare L. 1976, c. 141, § 8(c) with L.
1979, c. 346, § 5, codified at N.J.S.A. 58:10-23.11g(c). Under the amendment,
strict liability also applied to "any person who . . . is in any way responsible for
any hazardous substance." L. 1979, c. 346, § 5. The Supreme Court recognized
this expansion of liability. "With its 1979 amendment . . . [n]o longer was
liability limited to those who had actively discharged hazardous substances.
certain residential property). L. 1985, c. 11, § 1; see also Sponsor's Statement
to Senate Bill 1423 (Feb. 27, 1984).
A-2665-15T1
10
Rather, one was strictly liable if one was 'in any way responsible for any
hazardous substance which the [Department] has removed or is removing
pursuant to . . . this act." Marsh v. N.J. Dep't of Envtl. Prot., 152 N.J. 137, 146
(1997) (quoting L. 1979, c. 346, § 8c) (alterations in original). See also Dep't
of Envtl. Prot. v. Ventron Corp., 94 N.J. 473, 494 (1983) (discussing 1979
amendment).
One may plausibly argue that if the Legislature intended liens to attach to
property or revenues of a person "in any way responsible", it could have said so,
as it did expressly in the section on strict liability. Branch highlights a
subsequent amendment to subsection (a) of N.J.S.A. 58:10-23.11f. It authorized
a "discharger or person" who has performed a cleanup or removal to seek
contribution from "all other dischargers and persons in any way responsible for
a discharged hazardous substance or other persons who are liable for the cost of
the cleanup and removal of that discharge of a hazardous substance." L. 1991,
c. 372, § 1, codified at N.J.S.A. 58:10-23.11f(a)(2)(a). Relying on the statutory
construction canon expressio unius est exclusio alterius – the expression of one
thing implies the exclusion of others – Branch argues that, in using only
"discharger" in subsection (f), in contrast to subsection (a)(2), the Legislature
intended to exclude persons "in any way responsible" from the lien provision.
A-2665-15T1
11
However, we do not write on a clean slate. The Supreme Court defined
"discharger" as used in N.J.S.A. 58:10-23.11f to include a person "in any way
responsible." In re Kimber Petroleum, 110 N.J. at 73. The Court quoted and
reconciled the subsection that authorized treble damages against "dischargers"
only, N.J.S.A. 58:10-23.11f(a), and the strict liability provision in N.J.S.A.
58:10-23.11g(c) that imposed strict liability on a person "in any way responsible
for any hazardous substance which the department has removed or is removing"
as well as "any person who has discharged a hazardous substance." In re Kimber
Petroleum, 110 N.J. at 73. Rather than hold that the former applied to a narrower
universe of persons, the Court merged the concepts: "Thus under these provisions a
'discharger' is one who has 'discharged a hazardous substance or is in any way
responsible' for such a discharge." Ibid.
We recognize that the Supreme Court was interpreting "discharger" as used
in subsection (a) pertaining to treble damages, as opposed to subsection (f)
pertaining to liens. However, we discern no compelling basis to assign a different
meaning to the same word in the same section. See Feuer v. Merck & Co., 455 N.J.
Super. 69, 79 (App. Div. 2018) (stating that absent a "clear indication to the
contrary," the court presumes that a phrase used in two subsections means the same),
aff'd o.b., 238 N.J. 27 (2019).
A-2665-15T1
12
Also, one may argue that the Court's definition of "discharger" was not
essential to its holding in In re Kimber Petroleum. The case pertained to the agency's
power to order installation of a replacement water supply, and a discharger's due
process right to contest the directive without subjecting itself to treble damages. 110
N.J. at 73-87. However, we are bound by the Supreme Court's considered dictum.
State v. Dabas, 215 N.J. 114, 136-37 (2013) (stating that "appellate and trial courts
consider themselves bound by this Court's pronouncements, whether classified as
dicta or not").5
Branch does not dispute that it is a person "in any way responsible."
Therefore, we need not determine whether Branch "discharged" hazardous
substances, as contemplated by the definition of "discharge" in N.J.S.A. 58:10-
23.11b, in order to decide whether it was subject to the lien as a "discharger" under
N.J.S.A. 58:10-23.11f(f). Consistent with the Supreme Court's definition of
5
We note that the Department, in its briefing before us, did not rely on the
definition of "discharger" found in In re Kimber Petroleum. Instead, the
Department argued that, liberally construing the lien provision, consistent with
the Spill Act's command, see N.J.S.A. 58:10-23.11x, we should find, essentially,
that where there is liability – as authorized by the strict liability provision – there
should be lienability. Otherwise, the efficacy of the cost-recovery scheme
would be impaired. The Department's argument lends further support to the
Supreme Court's explicit pronouncement.
A-2665-15T1
13
"discharger" in In re Kimber Petroleum, the Department could file a lien against
Branch as a person "in any way responsible."
III.
We reject Branch's argument that the Fund denied its due process right to
contest the costs and reasonable basis for the lien.
A due process analysis is triggered upon a finding that the statute affects
a significant property interest. See Reardon v. United States, 947 F.2d 1509,
1517 (1st Cir. 1991) (en banc). We accept the premise that the Fund's
prejudgment lien on a discharger's property and revenues triggers a right to
adequate notice and an opportunity to be heard. See Connecticut v. Doehr, 501
U.S. 1, 12 (1991) (stating that "state procedures for creating and enforcing
attachments, as with liens, are subject to the strictures of due process"); United
States v. 150 Acres of Land, 204 F.3d 698, 710 (6th Cir. 2000) (applying due
process analysis to a lien filed pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA)); Reardon, 947 F.2d at
1518 (stating that a CERCLA lien implicates due process concerns); Sherwood
Court v. Borough of S. River, 294 N.J. Super. 472, 482 (App. Div. 1996)
(applying due process analysis to a lien used to secure payment of unpaid utility
A-2665-15T1
14
charges). A CERCLA lien "cloud[s] title, [and] limit[s] alienability." Reardon,
947 F.2d at 1518. The same is true of a Spill Act lien.
The question is what process is due. The answer is found by applying the
three factors in Mathews v. Eldridge, 424 U.S. 319, 335 (1976): (1) "the private
interest that will be affected by the official action"; (2) "the risk of an erroneous
deprivation of such interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards"; and (3) "the
Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement
would entail."
Other courts, applying the Mathews factors, have held that an
environmental lien affects a significant property interest worthy of due process
protection, and have reached varying conclusions as to whether the procedure
afforded satisfied due process. See 150 Acres of Land, 204 F.3d at 710-11
(finding a CERCLA lien deprived property owners of "a significant property
interest" but the hearing before a regional judicial officer "afforded sufficient
due process"); Reardon, 947 F.2d at 1518-19 (finding a CERCLA lien affected
significant private interests, especially because the lien lacked a definite sum,
and procedures then in place, which afforded "no pre-deprivation proceedings
A-2665-15T1
15
at all," were inadequate to protect due process); Van Horn v. Dep't of Toxic
Substances Control, 180 Cal. Rptr. 3d 416, 423 (Ct. App. 2014) (finding that a
lien under California's counterpart to CERCLA affected a significant private
interest (citing Reardon), and its procedures were inadequate to protect due
process).
Applying the Mathews factors to the Department's procedure as applied
to the case before us, we discern no constitutional violation. Turning to the first
factor, we agree with the cited federal and California courts that the private
interest affected by the lien may be significant. See also Doehr, 501 U.S. at 12
(holding that an interest may be significant notwithstanding that the lien's
"effects do not amount to a complete, physical or permanent deprivation of real
property"). A lien of any amount encumbers a responsible party's property and
its revenue. The precise amount of the lien may heighten the impact on property
rights. If it far exceeds the value of the property subject to the lien, then the lien
may render that property unmarketable. On the other hand, if the amount is
minimal, compared to the overall value of the property, the lien could be a
manageable impediment to marketing the property. But, given its superpriority
status regarding the polluted property, a lien of any amount may constitute a
default under a first mortgage lien.
A-2665-15T1
16
Here, Branch has not asserted that the lien has interfered with actual
efforts to sell or mortgage the property. Since John & Jerry transferred the
property for, at most, nominal consideration, we presume there is no mortgagee
whom the lien has rendered insecure, and Branch has not identified one.
Furthermore, Branch has not alleged that it owns any other real property affected
by the lien, or that the lien has affected its revenues. Thus, although the mere
presence of the lien affects Branch's private interests, those interests are not as
significant as they might have been under other circumstances.
In order to analyze the second Mathews factor, we must review the process
provided. The Department provides two notices – as it did here, in March and
June 2015 – one at least thirty days before filing the lien and one within thirty
days after. Spill Act Lien Administrative Guidance § 4-5. The first notifies the
property owner of the amount of the lien, and provides a summary and invoice
detailing the Department's cleanup costs. The second notice informs the
recipient of the lien filing, and advises the recipient that it may contest the lien
and obtain the lien filing record. Id. at § 5. The recipient has sixty days
thereafter to contest the lien, by providing "[a] statement of the specific reasons
that the property owner believes, based upon the factual information in the lien
filing record, that the Department did not have a reasonable basis for filing the
A-2665-15T1
17
Spill Act lien." Id. at § 7. Within thirty days, the Department may respond with
a written submission to a neutral agency officer who is unfamiliar with the site
and the property owner. Ibid. The challenger then has ten days to reply. Ibid.
Once the lien filing record is closed, the neutral agency officer "will then
review the lien filing record and make a recommendation to the Administrator
[of the Fund] whether the Department had a reasonable basis to file a Spill Act
lien against the property based upon substantial credible evidence in the lien
filing record." Id. at § 8. Notably, the guidance document does not define what
constitutes such a "reasonable basis" for filing a lien. The Administrator then
reviews and adopts, rejects, or modifies the officer's recommendation in a final
agency action. Id. at § 9.
The Department adhered to those procedures here. It gave Branch
advance notice of the lien filing. It provided Branch access to the detailed
records of the Fund's expenditures. Branch also knew a lien encumbered the
property when Branch bought it; and surely, Branch knew that remediation was
ongoing. Although the neutral hearing officer did not expressly define a
"reasonable basis" for the lien, she found that "substantial credible evidence in
the Record support[ed]" the filing, based on the evidence of the hazardous
A-2665-15T1
18
substance discharge, the costs incurred, and the property's ownership, including
Branch's knowing purchase of contaminated property.
The risk that the procedure would produce an erroneous result takes two
forms. The risk of error may arise from the nature of the procedure itself.
Whether it occurs pre- or post-deprivation; and whether it allows discovery, live
testimony, the right to cross-examine, and other procedural rights may limit the
procedure's truth-finding ability. The risk of error also may arise if certain
issues are placed outside the scope of the procedure, regardless of its limitations.
Regarding the nature of the procedure, the absence of a hearing before the
lien is in place contributes to the risk of an uncorrected error. However, the
Department offers a prompt post-filing review by a neutral agency officer. By
contrast, under the procedure reviewed in Reardon, 947 F.2d at 1519, the first
hearing a property owner would get to review a lien would occur "at the
enforcement proceeding, or cost recovery action, . . . [which] may be brought
several years after notice of the lien is filed."
Furthermore, if essential facts are disclosed in business records and other
reliable documentary evidence, then the risk of error in a purely paper-based
review may be minimal. We perceive such minimal risk here regarding the fact
of the discharge; Branch's notice of it; Branch's ownership; the clean -up and
A-2665-15T1
19
removal actions taken; and the costs incurred (putting aside whether they were
justified or excessive). Those facts, upon which the lien filing is predicated, are
all verifiable by a review of public records, and the Department's file. See
Reardon, 947 F.2d at 1519 (stating the "[o]wnership of land, and the physical
presence of hazardous substances on land, are matters that are subject to
relatively simple resolution"); see also Doehr, 501 U.S. at 14 (contrasting the
risk of error in a pre-judgment lien under Connecticut law against a defendant's
property based on a personal injury claim, and "'ordinarily uncomplicated
matters that lend themselves to documentary proof,'" such as "the existence of a
debt or delinquent payments" (quoting Mitchell v. W.T. Grant Co., 416 U.S.
600, 609 (1974))); Sherwood, 294 N.J. Super. at 483 (distinguishing the risk of
error of the lien reviewed in Doehr, and the New Jersey lien for unpaid utility
bills). Granting a party like Branch the ability to engage in discovery, and to
call and cross-examine witnesses, would not significantly enhance the
procedure's capacity to accurately find those facts.
However, completely excluding certain issues from the procedure leaves
their determination untested, and creates a risk of error. The Department
excludes from the lien contest procedure the issue of the excessiveness of the
Fund's costs, although a lienee apparently may challenge the amount of the lien
A-2665-15T1
20
on other grounds, for example, that the Department miscalculated the amounts
expended, or misallocated costs from one cleanup to another. According to the
neutral agency officer's proposed decision, which the Fund adopted, the
reasonableness of the costs is left for a cost recovery action. In the meantime,
barring an excessiveness determination may result in a larger-than-needed
burden on property rights, if the actual debt is later found to be less in a cost
recovery action.
Yet, expanding the scope of the lien contest procedure to permit review
of an excessiveness claim may significantly burden the government's interest in
swiftly cleaning up and removing hazardous substances when those who have
discharged them, or are in any way responsible for them, have failed to do so.
In contrast to the existence of liability, the issue of excessiveness is not likely
to be susceptible to resolution on a documentary record alone. Reardon, 947
F.2d at 1519 (stating that the amount, as opposed to the existence of liability, is
a "highly factual" issue). Litigating such a disputed claim in a plenary hearing,
while cleanup and removal actions are ongoing, may divert agency resources
and personnel and delay remediation efforts.
Postponing resolution of the amount of a lienee's debt until a cost recovery
action is not enough to render the lien contest procedure unconstitutional. The
A-2665-15T1
21
Supreme Court has held that, in the tax context, "[m]ere postponement of
judicial enquiry is not a denial of due process, if the opportunity given for
ultimate judicial determination of liability is adequate." Phillips v. Comm'r, 283
U.S. 589, 596 (1931); N.Y., Susquehanna & W. R.R. Co. v. Vermeulen, 44 N.J.
491, 501 (1965) ("[D]ue process does not forbid compulsion to pay taxes now
and litigate later.").
We conclude that the lien contest procedure afforded Branch in this case
was sufficient to protect its right to due process. In sum, the risk of erroneous
deprivation of a significant private interest is minimal, except as may pertain to
the amount of the lien. Expanding the scope of the lien contest to i nclude
resolution of that issue would impose a significant burden on the agency.
Branch will have an opportunity to address its excessiveness claim in a cost
recovery action.
IV.
We comment briefly on Branch's argument that the Department was
barred from filing the lien because of Branch's alleged indemnification
agreement with Shoplock and its insurer. The Spill Act authorizes the
Department to seek recovery of cleanup costs directly from an insurer. N.J.S.A.
58:10-23.11s. However, that authority does not compel the Department to
A-2665-15T1
22
refrain from enforcement against Branch, let alone bar the filing of a pre-
judgment lien against the property of a responsible party. Liability is joint and
several. N.J.S.A. 58:10-23.11g(c)(1). Therefore, it may pursue its remedies
against responsible parties at its discretion. See Nester v. O'Donnell, 301 N.J.
Super. 198, 212 (App Div. 1997).
In sum, the final agency decision of the Spill Fund is affirmed.
A-2665-15T1
23