SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2308-21 

IN THE MATTER OF NICOLEKIRSTIE LLC, 

 Plaintiff-Appellant, 

v.

NEW JERSEY DEPARTMENT 

OF ENVIRONMENTAL 

PROTECTION, 

 Defendant-Respondent. 

____________________________

Argued February 27, 2024 – Decided July 18, 2024 

Before Judges Gooden Brown and Natali. 

On appeal from the New Jersey Department of 

Environmental Protection. 

Marty M. Judge argued the cause for appellant 

(Flaster/Greenberg, PC, attorneys; Franklin J. 

Riesenburger, Marty M. Judge and Daniel C. Epstein,

on the briefs). 

Willis A. Doerr, Deputy Attorney General, argued the 

cause for respondent (Matthew J. Platkin, Attorney 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-2308-21

General, attorney; Sookie Bae-Park, Assistant Attorney 

General, of counsel; Willis A. Doerr, on the brief). 

PER CURIAM 

In this appeal, plaintiff Nicole-Kirstie, LLC (Nicole-Kirstie) requests we 

reverse a purported final agency decision of the New Jersey Department of 

Environmental Protection (NJDEP), related to the scope of its environmental 

investigatory and remedial responsibilities at the former Dorchester Shipyard, 

an industrial site located along the Maurice River. The matter returns after we 

dismissed Nicole-Kirstie's previous appeal without prejudice, concluding the 

challenged email from NJDEP was not a final agency action pursuant to Rule 

2:2-3(a)(2) and directing NJDEP to issue a further decision adopting or rejecting 

the position set forth therein. See In re Nicole-Kirstie, LLC v. N.J. Dep't. of 

Env'tl. Prot., No. A-2695-20 (App. Div. Sept. 29, 2021). Because we conclude 

NJDEP's subsequent decision lacks the necessary factual findings to permit 

thorough appellate review, we remand for further proceedings in accordance 

with this opinion. 

I.

Dorchester Industries, Inc. (Dorchester) owned and operated a ship 

building facility (Site) at which it ceased operations in June 1998, triggering 

"notification and remediation requirements" under the Industrial Site Recovery 
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Act, N.J.S.A. 13:1K-6 to -14 (ISRA). In March 1999, Paul R. Porreca was 

appointed assignee for the benefit of Dorchester's creditors in the probate matter 

involving the disposition of the estate of Dorchester's principal. Throughout 

2000, Porreca and NJDEP corresponded regarding the investigation and 

remediation plans for the Site. 

NJDEP filed a verified complaint in the probate matter seeking to compel 

remediation in 2001, alleging Dorchester had failed to comply with ISRA and 

the Site was a "suspected source[] of soil, groundwater, and surface water 

pollution." One year later, the court entered a consent order requiring Porreca 

to investigate and begin remediation of specific areas of the property. In the 

following years, Porreca worked to remediate the Site with NJDEP's oversight. 

In 2004, NJDEP issued a remedial investigation workplan approval letter 

which identified specific areas of concern, including the potential need for 

sampling of the sediment of the Maurice River. The letter confirmed NJDEP's 

acceptance of Porreca's position that "no further ecological investigations are 

needed" as "there [was] no indication that contaminants of concern have 

migrated off-site." NJDEP noted, however, "[i]f future ground water [remedial 

investigation] activities indicate that groundwater contaminants are migrating 
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toward the river at concentrations above their respective NJ Surface Water 

Quality Standard, then surface water sampling may be required." 

In 2005, Nicole-Kirstie entered negotiations to purchase the Site. To 

facilitate the sale, Porreca and NJDEP entered a remediation agreement which 

noted the sale to Nicole-Kirstie but named Porreca as the "[r]esponsible 

[p]erson[] executing this [r]emediation [a]greement and responsible for 

conducting the remediation" of the Site and referred to the 2004 workplan 

approval to detail Porreca's responsibilities. 

The agreement also stated "[e]xcept as otherwise set forth herein, . . . the 

NJDEP does not release any person from any liabilities or obligations such 

person may have pursuant to ISRA and the ISRA regulations, or any other 

applicable authority, nor does the NJDEP waive any of its rights or remedies 

pursuant thereto." The agreement further provided it was "binding, jointly and 

severally, on each signatory, its successors, assignees and any trustee in 

bankruptcy or receiver appointed pursuant to a proceeding in law or equity." 

Following finalization of the sale in March 2006, NJDEP "demanded that 

[Porreca] conduct sampling in the Maurice River." It reasoned "[g]iven the 

nature of the discharge, there is no reason to believe that the areas between and 

potentially beyond the contaminated samples are [not] also contaminated." 
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Porreca expressed he was reluctant to conduct the sampling based on "the 

enormity of the costs if contaminants were found . . . the historic dredging of 

the river by the United States Army Corps of Engineers (which it is undisputed 

in the past placed spoils on the shipyard site), [and] known contamination by 

numerous other industries located along the river." 

In June 2006, Porreca filed a Verified Complaint for Settlement of Sixth 

Interim Account and Further Relief in the probate matter, in which he alleged 

NJDEP "introduced new demands namely sampling in the Maurice River itself 

. . . which not only are unreasonable and unnecessary, but are impossible to 

perform at this juncture because [Porreca] simply does not have the funds and 

has no way of generating the same." Porreca sought to compel NJDEP to waive 

its demand for sediment sampling. NJDEP responded the relief requested 

"would run counter to [ISRA]," the 2002 consent order, and the 2005 

remediation agreement. It noted sampling of the river sediments was first raised 

in October 2004, and the remediation agreement expressly reserved NJDEP's 

right to order further remediation. 

Significantly, NJDEP also filed a counterclaim in which it asserted 

Porreca failed to fully remediate the Site in violation of ISRA and the New 

Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24 
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(Spill Act), and requested the court compel Porreca to conduct the requested 

sampling and pay certain penalties and costs. NJDEP did not join Nicole-Kirstie 

despite its knowledge Nicole-Kirstie had purchased the Site. 

In October 2006, following a two-day bench trial, the court issued an order 

discharging Porreca as assignee and dismissing NJDEP's counterclaim "as to its 

exceptions to plaintiff's final account and also as to its request for the imposition 

of costs and penalties." The order does not reflect the court's rationale, nor did 

it address Porreca's and NJDEP's requests for injunctive relief. The parties have 

advised the transcript from the hearing is no longer available, but they did not 

submit a statement of proceedings in lieu of a transcript, or otherwise attempt to 

reconstruct the record pursuant to Rule 2:5-3(f). NJDEP failed to appeal the 

October 17, 2006 order. 

According to the parties, there was no further communication between 

NJDEP and Nicole-Kirstie or any other party associated with the Site until June 

2010.1 Following passage of the 2009 Site Remediation Reform Act, N.J.S.A. 

58:10C-1 to -29 (SRRA), Nicole-Kirstie engaged a Licensed Site Remediation 

Professional (LSRP), Timothy Mangold, as required because the Site's 

remediation was "technically still ongoing." Mangold subsequently "conducted 

1

 The 2010 communication is not included in the record before us. 
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continued investigations into groundwater and other areas of concern." In May 

2016, he submitted a remedial investigation report indicating the investigation 

was complete. NJDEP and Mangold corresponded throughout 2016 and 2017 

regarding the alleged need for further sediment sampling. As Mangold 

explained in a 2021 certification, he sampled the Maurice River's water and 

sediment and submitted the results to NJDEP in May 2016, but NJDEP 

continued to demand additional sampling and evaluation. NJDEP initiated 

direct oversight of the remediation after determining the investigation was 

incomplete due to the lack of sampling. 

In February 2019, and despite the order entered after the probate trial, 

NJDEP and Nicole-Kirstie entered an Administrative Consent Order. The 

consent order required Nicole-Kirstie to "remediate . . . all hazardous 

substances, hazardous wastes, and pollutants discharged at the Site," complete 

the remedial investigation by June 2020, and pay a $12,500 civil penalty. The 

order does not specifically mention or discuss sediment sampling, or any effect 

of the 2006 probate litigation on Nicole-Kirstie's responsibilities. 

Following entry of the consent order, the parties continued to dispute 

whether the 2006 court order determined the investigation of impacts to the 

Maurice River was complete and whether that order applied to Nicole-Kirstie. 
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According to Mangold's 2021 certification, the claim for further investigation of 

the Maurice River was the sole issue outstanding preventing him from issuing a 

site-wide Response Action Outcome to close the case. Mangold certified he 

investigated his and NJDEP's file regarding the Site, consistent with his 

responsibilities under the SRRA, and located an internal memorandum written 

by NJDEP Assistant Commissioner for Site Remediation Mark Pedersen which 

stated, in discussing the 2006 litigation, "[t]he Superior Court absolved the 

responsible party of the requirement to test the sediments in the Maurice River." 2 

That, in turn, sparked further unsuccessful attempts at discussion between 

Nicole-Kirstie and NJDEP regarding the effect of the 2006 order. 

NJDEP sent Nicole-Kirstie a letter in November 2020 formally advising 

the remedial investigation was still not complete, as required by the 2019 

consent order. It asserted: 

Nicole-Kirstie, LLC’s position with respect to the 2006 

Court Order is without merit. Nicole-Kirstie, LLC is 

not a party to the 2006 Court Order entered into solely 

between the [NJDEP] and Dorchester and the 2006 

Court Order is not binding or have any other impact

[sic] on future property owners. Nicole-Kirstie, LLC 

remains fully responsible under the [2019 consent 

order] and applicable environmental statutes. 

2

 This memo too, although listed in the Statement of Items Comprising the 

Record on Appeal, was not included in the record before us. 
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In response, Mangold sent an email to NJDEP outlining his and NicoleKirstie's position that the 2006 order controlled and did not require any 

additional investigation of the Maurice River. Specifically, he argued the order 

finally resolved the ISRA case for the Site, including "[t]he issue of any 

requirement to sample the Maurice River and its sediments, and the remediation 

of same," and stressed NJDEP's failure to appeal that order. Mangold also noted 

Nicole-Kirstie actively participated in the proceedings culminating in the 2006 

order despite being specifically excluded as a responsible party by NJDEP. 

NJDEP replied April 14, 2021 with a one-paragraph email providing its 

"final thoughts on the matter." It explained "[t]he applicability of the 2006 

[c]ourt [o]rder to [Nicole-Kirstie] is an issue that has been carefully considered 

by" NJDEP and reasoned "the 2006 [o]rder does not operate as a final 

remediation document (i.e. a No Further Action Letter or Response Action 

Outcome), and does not provide language stating that it should be considered as 

such." NJDEP concluded the order resolved "a remediation agreement and 

litigation between [NJDEP] and [Dorchester], neither of which was NicoleKirstie a party to," and nothing in that order provided it would be binding on 

parties other than NJDEP and Dorchester. It noted Nicole-Kirstie was not joined 

in the litigation because "it was not a necessary party under R[ule] 4:28." 
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On May 28, 2021, Nicole-Kirstie filed a Notice of Appeal challenging the 

NJDEP's April 2021 email. On our own motion, we dismissed the appeal and 

concluded "the email does not constitute an appealable final agency decision of 

the NJDEP under Rule 2:2-3(a)(2)." Nicole-Kirstie, No. A-2695-20. We also 

remanded the matter "for the Commissioner to issue a decision either adopting 

or rejecting the position espoused in the [Deputy Attorney General (DAG)]'s 

April 14, 2021 email, without prejudice to the NJDEP arguing on any future 

appeal from the Commissioner's disposition that the appeal is time barred and 

should have been filed before the DAG's email." 

In response to our order, NJDEP issued a February 16, 2022 letter in which 

it explained its "final decision relevant to this matter is encapsulated by the 

February 19, 2019 Administrative Consent Order . . . which outlines NicoleKirstie's remedial obligations" under various statutes, including ISRA, SRRA, 

and the Spill Act. It stated the 2021 email "merely reiterates that the [consent 

order] is a final order and does not convey [NJDEP]'s 'final thoughts on this 

matter' or affect the underlying [consent order]." Because Nicole-Kirstie never 

appealed that order, NJDEP concluded it "remained in full force and effect." 

This appeal followed. 
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NJDEP subsequently moved to dismiss the appeal as time-barred. In 

support, it argued Nicole-Kirstie's appeal actually sought to challenge the 2019 

consent order, the "only final agency decision regarding the property," and as 

such was untimely. Additionally, NJDEP contended Nicole-Kirstie was aware 

of the 2006 litigation and resulting order at the time it occurred but never raised 

it during negotiations leading to the 2019 consent order, or in the two years 

following its issuance. 

Nicole-Kirstie responded its appeal was "manifestly timely" as it was filed 

within forty-five days of the February 2022 letter "issued in response to an Order 

of this Court expres[s]ly remanding the matter to the NJDEP for the purpose of 

making what amounts to its final agency action determination." We denied 

NJDEP's motion on June 14, 2022, with directions for the merits panel to 

"consider, among any other issues presented, the appealability of the alleged 

agency action(s) and the timeliness of the appeal." 

 II. 

Before us, Nicole-Kirstie reprises its argument that the 2006 probate 

matter and resulting orders bar NJDEP from requiring it to take samples of the 

Maurice River sediment under res judicata and the entire controversy doctrine. 

In response, NJDEP maintains neither preclusive doctrine applies as Nicole-
12 A-2308-21

Kirstie was not a party to the 2006 litigation nor the underlying 2005 

remediation agreement between Porreca and NJDEP. Additionally, it asserts 

this case involves Nicole-Kirstie's obligations under the 2019 consent order, 

while the 2006 probate matter involved Porreca's request to be relieved from the 

2005 remediation agreement. NJDEP also renews its contention that the appeal 

is time-barred. For the reasons that follow, we are convinced the record before 

us is insufficient to permit a proper analysis and resolution of these issues. 

A final agency action is "characterized by findings of fact, conclusions of 

law, a definitive ruling, and a clear statement that the interested party may seek 

review of the decision and the manner in which that may be accomplished." 

Silviera-Francisco v. Bd. of Educ., 224 N.J. 126, 139 (2016) (citing De Nike v. 

Bd. of Trs., Emps. Ret. Sys. of N.J., 34 N.J. 430, 435-36 (1961)). "A state 

agency rendering a final agency decision must explain the specific reasons for 

its determination." In re Orban/Square Props., LLC, 461 N.J. Super. 57, 77 

(App. Div. 2019). A decision lacking "a reasoned explanation based on specific 

findings of basic fact . . . does not enable us to properly perform our review 

function." Blackwell v. Dep't. of Corrs., 348 N.J. Super. 117, 122-23 (App. Div. 

2002) (quoting Lister v. J.B. Eurell Co., 234 N.J. Super. 64, 73 (App. Div. 

1989)). 
13 A-2308-21

The basis for the agency's action "must be discernible from the record," 

and where "the absence of particular findings hinders or detracts from effective 

appellate review, the court may remand the matter to the agency for a clearer 

statement of findings and later reconsideration." In re Renewal Application of 

TEAM Acad. Charter Sch., 247 N.J. 46, 75 (2021) (quoting In re Red Bank 

Charter Sch., 367 N.J. Super. 462, 476 (App. Div. 2004) and In re Vey, 124 N.J. 

534, 544 (1991)). In this regard, Rule 2:5-5(b) provides: 

At any time during the pendency of an appeal from a

state administrative agency, if it appears that evidence 

unadduced in the proceedings below may be material to 

the issues on appeal, the appellate court, on its own 

motion . . . may order, on such terms as it deems 

appropriate, that the record on appeal be supplemented 

by the taking of additional evidence and the making of 

findings of fact thereon by the agency below or, in

exceptional instances, by a judge of the Superior Court 

especially designated for that purpose. 

As our Supreme Court recently explained, "the Appellate Division retains 

the discretion, in an appropriate case, to retain jurisdiction in an appeal from the 

action of a state agency, but to refer the matter to the Law Division or to the 

agency for such additional fact-finding as it deems necessary to a just outcome." 

In re Protest of Cont. for Retail Pharm. Design, Constr., Start-Up & Operation, 

257 N.J. 425, ___ (2024) (slip op. at 14-15) (quoting Infinity Broad. Corp. v. 

N.J. Meadowlands Comm'n, 187 N.J. 212, 227 (2006)). And we, as well as the 
14 A-2308-21

Supreme Court, have in fact remanded to various agencies for fact finding and 

further development of the record in accordance with the Rule. See, e.g., Am. 

Civil Liberties Union of N.J. v. Hendricks, 233 N.J. 181, 201 (2018) (remanding 

to State Secretary of Higher Education to develop a record "through the crucible 

of an adversarial process" regarding nature of religious schools' curriculum and 

how grant fund projects would be applied in those schools); Atl. City Showboat, 

Inc. v. Dep't of Cmty. Affairs, 331 N.J. Super. 40, 42 (App. Div. 2000) 

(remanding challenge to casino design regulations to Casino Control 

Commission and Department of Community Affairs for joint hearing). 

After a thorough review of the record before us, we are convinced several 

outstanding factual questions exist which preclude our determination of whether 

res judicata and/or the entire controversy doctrine apply to bar NJDEP from 

requiring Nicole-Kirstie to sample and remediate the Maurice River sediments, 

and of whether the 2022 letter or the 2019 consent order represents NJDEP's 

final agency action on that point. As noted, neither the letter nor the consent 

order contain factual findings regarding the 2006 litigation or its effect on 

Nicole-Kirstie's responsibilities. Although its April 2021 email indicated 

NJDEP had "carefully considered" the issue, the record does not explain which 
15 A-2308-21

facts supported that consideration, or whether NJDEP considered them before 

or after the 2019 consent order was entered. 

Simply put, the record is devoid of certain crucial facts related to the 2006 

litigation. Specifically, it does not appear the NJDEP made any factual findings 

at any time as to the following: (1) the outcome of Porreca's request for an order 

"[c]ompelling the NJDEP to waive and relinquish its new demands" for sediment 

sampling; (2) the outcome of NJDEP's counterclaim requesting an order 

"[c]ompelling [Porreca] to conduct sampling"; (3) the basis for the court's 

October 17, 2006 order "dismiss[ing] the [c]ounterclaim filed by the [NJDEP] 

as to its exceptions to [Porreca]'s final account and . . . its request for the 

imposition of costs and penalties"; and (4) why, given NJDEP's knowledge of 

the dispute regarding sediment sampling and its participation in the 2006 

litigation, it did not specifically require Nicole-Kirstie to sample and remediate 

the Maurice River sediments in the 2019 consent order. 

We conclude these "unadduced" facts are "material to the issues on 

appeal," R. 2:5-5(b), and "necessary to a just outcome," In re Protest, 257 N.J. 

at ___ (slip op. at 14-15) (quoting Infinity Broad. Corp., 187 N.J. at 227). The

court's rationale, the outcomes of Porreca's and NJDEP's requests for injunctive 

relief in 2006, and the parties' actions in response to that litigation may directly 
16 A-2308-21

bear upon whether NJDEP's demand for sediment sampling in the Maurice River 

was "finally determined on the merits" by the probate court and thus "cannot be 

relitigated . . . in a new proceeding," Velasquez v. Franz, 123 N.J. 498, 505 

(1991) (discussing res judicata), and whether preclusion based on NJDEP's 

failure to bring its claim against Nicole-Kirstie in 2006 would be "unfair in the 

totality of the circumstances," Bank Leumi USA v. Kloss, 243 N.J. 218, 227

(2020) (discussing the entire controversy doctrine). We cannot determine 

whether the 2006 litigation should be given preclusive effect without a full 

understanding of its outcome. Similarly, we cannot determine whether NicoleKirstie's appeal is timely without a full understanding of precisely what NJDEP 

considered in its determination of the issue, and when it did so. 

We therefore remand this matter to NJDEP pursuant to Rule 2:5-5(b) for 

it to make the factual findings detailed above. The proceedings on remand shall 

be completed within ninety days and NJDEP shall file its decision with the 

Clerk's Office as soon as practicable thereafter. 

Remanded to the NJDEP for further proceedings. We retain jurisdiction.