In a major reversal of long-standing precedent, the Environmental Hearing Board issued an opinion in Redbank Municipal Authority v. Department of Environmental Protection that held a letter from DEP advising the Authority that it owed stipulated penalties under the terms of a preexisting Consent Order and Agreement was an appealable action.

“This decision varied from and distinguished many years of prior decisions that held that documents such as notices of violations and letters asserting that violations had occurred or that certain interpretations applied were merely statements of the Department’s opinion and were not appealable unless and until the Department took formal enforcement action,” said Terry Bossert of Post & Schell and the former Chief Counsel of DEP. “Now the EHB has determined that at least some letters from DEP may be appealable without formal enforcement action.”

This decision may seem favorable to regulated entities, however, if a letter can be appealed then, arguably, the thirty day appeal deadline applies and the letter must be appealed within that deadline. Failure to appeal the letter within thirty days would make DEP’s action final and preclude any substantive challenge to a subsequent enforcement action.

“The full ramifications of this decision are not yet known, but at a minimum it requires regulated entities to look much more closely at correspondence received from DEP,” said Bossert. “In appropriate circumstances, it may be necessary to file protective appeals to preserve the right to challenge findings and conclusions contained in the letter.

“Letters from DEP can no longer be assumed to be benign expressions of DEP’s opinion. DEP correspondence must now be read closely to see if it is the type of correspondence that the EHB has held to be appealable in Red Bank.”

Bossert encourages individuals with questions to seek the advice of counsel.

12/22/2006