                             NOT FOR PUBLICATION WITHOUT THE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
