Petrunis, Inc. v. New Jersey Department of Environmental Protection

Petrunis, Inc. (plaintiff), an energy company, stored and transported hazardous materials and was subject to federal hazardous materials transport regulations. Petrunis’s worksite was in a heavy industrial zone on the shore of the Cohansey River in New Jersey. Petrunis’s worksite was completely enclosed by barbed-wire fencing to prevent access to the site by unauthorized persons, as required by Petrunis’s federally approved safety and security plan. After Petrunis’s above-ground oil and gas storage tanks leaked, Petrunis applied for a coastal general permit to remediate both the spill and the resultant soil contamination under the Coastal Area Facility Review Act (CAFRA). The New Jersey Department of Environmental Protection (DEP) (defendant) issued the permit. The permit included Protection Specific Condition Number 5 (PSC-5), which required Petrunis to sign a DEP-approved conservation restriction ensuring the public’s right-of-access to the waterfront portion of Petrunis’s worksite. The restriction would run with the land and would bind all successors to Petrunis’s title. After DEP refused Petrunis’s request to remove PSC-5 from the permit, Petrunis challenged the inclusion of PSC-5 before the New Jersey Office of Administrative Law, arguing that (1) the worksite was hazardous to the public; (2) because the worksite was hazardous, it fell within the exceptions to the public-trust doctrine’s right-of-access to waterways; and (3) allowing the public to access the waterfront would violate federal safety regulations. The DEP countered, arguing that PSC-5 was appropriate because (a) it did not prevent Petrunis, or a successor energy company, from prohibiting the public’s access to the waterfront as long as the site continued in its current use; and (b) the restriction was intended to preserve the public’s right-of-access if the worksite’s usage changed in the future.