In the Matter of Crompton Colors, Inc., No. A 0778 09T1 (App. Div. 10/27/11), the NJ Appellate Division ruled that a property owner is entitled to have an administrative hearing regarding the rescission of a no further action letter (“NFA Letter”) by the DEP. In this case, a subsidiary of Hartz Mountain Industries, a former landlord of an industrial tenant named Crompton Colors, Inc., appealed DEP’s rescission of an NFA Letter issued in 2002 and the denial of its request for a hearing to contest the decision.

Hartz purchased the property located in Bloomfield, NJ in 1965 and leased to Peerless Bindery. The property consisted of a warehouse and an office building. In 1990, the buildings were demolished and a 10,000 gallon heating oil underground storage tank was removed. According to the Report submitted by Hartz to DEP, petroleum product was encountered in the soil and floating on the groundwater. The impacted soil was subsequently excavated and the floating oil was removed. Although groundwater monitoring wells initially did not detect any contamination, a second round of sampling revealed slight exceedences for petroleum constituents. At that point, additional soil was removed from this area and residual petroleum in fill material was left in place and covered with the newly constructed warehouse concrete slab.