## Facts

- Petrunis, Inc., an energy company, stored and transported hazardous materials at a worksite in a heavy industrial zone along the Cohansey River in New Jersey.
- Because the site handled hazardous materials, Petrunis operated under federal hazardous-materials transport and related safety requirements and maintained a federally approved safety and security plan.
- The worksite was fully enclosed by barbed-wire fencing and other access controls intended to keep unauthorized persons out.
- Petrunis’s above-ground oil and gas storage tanks leaked, causing a spill and soil contamination at the site.
- To remediate the spill and contaminated soil, Petrunis applied to the New Jersey Department of Environmental Protection (DEP) for a coastal general permit under the Coastal Area Facility Review Act (CAFRA).
- DEP issued the coastal general permit, but included “Protection Specific Condition Number 5” (PSC-5).
- PSC-5 required Petrunis to execute and record a DEP-approved conservation restriction securing the public’s right of access to the waterfront portion of the property; the restriction would run with the land and bind successors in title.
- Petrunis requested that DEP remove PSC-5 from the permit; DEP refused.
- Petrunis filed an administrative challenge to PSC-5 before the New Jersey Office of Administrative Law (OAL).
- Petrunis argued that (1) the worksite was too hazardous for public access, (2) the hazardous condition placed the site within exceptions to the public-trust doctrine’s access obligations, and (3) public access would conflict with federal safety and security requirements applicable to the facility.
- DEP responded that PSC-5 did not require Petrunis (or any successor energy company operating the site in the same manner) to admit the public while the property remained in its current hazardous industrial use, and that the restriction was meant to preserve access rights if the use later changed.

## Issues

1. Whether DEP could condition a CAFRA coastal general permit for remediation on Petrunis recording a conservation restriction securing public access rights to the waterfront portion of the property.
2. Whether the site’s hazardous, security-sensitive industrial use barred DEP from imposing a recorded public-access restriction based on public-trust doctrine access principles.
3. Whether PSC-5 was invalid because it conflicted with federal hazardous-materials safety and security requirements applicable to Petrunis’s facility.

## Decision

- The OAL upheld DEP’s inclusion of PSC-5 in Petrunis’s CAFRA coastal general permit.
- The OAL accepted DEP’s view that PSC-5 did not require immediate public entry onto a hazardous industrial site and did not prevent Petrunis (or a similarly situated successor) from restricting access while the site remained in its existing use.
- The OAL concluded that DEP could require a recorded restriction to preserve the public’s waterfront access rights in the event the property’s use later changed to one where access could be allowed.

## Legal Principles

- Under CAFRA, DEP may issue coastal permits with conditions addressing public interests tied to coastal and waterfront resources, including public access considerations.
- New Jersey’s public-trust doctrine recognizes public rights associated with tidal waterways and shorelines; those rights can inform DEP’s permit conditions for waterfront property.
- Safety and security conditions at a hazardous industrial facility may justify limiting physical public entry during ongoing operations, but such limits do not necessarily eliminate the State’s ability to require a recorded instrument that preserves access rights for later, different site uses.
- A conservation restriction running with the land can be used as a permit condition to bind successors and prevent the loss of public access rights through later transfers or redevelopment.
- Where a permit condition is structured to preserve future access rights without requiring public entry inconsistent with current federal safety and security obligations, the condition is not invalid solely because the site is presently hazardous.

## Conclusion

In *Petrunis*, the OAL upheld DEP’s CAFRA permit condition requiring Petrunis to record a conservation restriction securing public access rights to the waterfront portion of an industrial, fenced, hazardous-materials site, reasoning that the condition preserved access for future changes in use while allowing continued exclusion of the public during the site’s current hazardous operations.


Petrunis, Inc. v. New Jersey Department of Environmental Protection, 2007 N.J. Agen. LEXIS 389 (2007)