On appeal from the Superior Court, Chancery Division, Bergen County.
Michels, Pressler and Bilder. The opinion of the court was delivered by Bilder, J.s.c. (temporarily assigned).
This is an appeal by the Department of Environmental Protection from the dismissal of claims for penalties for violations of the New Jersey Pesticide Control Law (N.J.S.A. 13:1F-1 et seq.).
In September 1976 plaintiff filed a complaint seeking injunctive relief and penalties under the act with respect to an alleged toxic mercury residue contamination in a building in Carlstadt owned by Leon Koziol. At a later date the complaint was amended to include a former tenant, the alleged operator-contaminator of the premises, defendant-respondent Bartlo Packaging, Inc. (Bartlo).
As the result of negotiations the issues with respect to the injunctive relief were resolved by a consent order of October 7, 1976 which in the main provided for the decontamination of the property and its protection during that process. In June 1977, the offending materials having been removed from the building and properly disposed of, the State's claims for penalties were, on motion of defendant Koziol, dismissed as to all parties. The State appeals from this dismissal insofar as it affects its claim for penalties as against Bartlo.
The trial judge based the dismissal on two grounds: (1) the existence of an implication in the consent order that the State would not press its penalty claim if defendants complied with the terms of the order -- a quid pro quo , and (2) its own view that the decontamination of the property vindicated the public's interest.*fn1 We disagree and reverse.
On examination, the record does not support a finding that the State agreed to drop its penalty claim. To the contrary, its right to assert that claim was expressly reserved in the recitals of the order of October 7, 1976.*fn2 Nor is such a waiver to be found in the State's colloquy on September 17, 1976 when the settlement was put on the record. In response to the State's request that its penalty claims should be heard at a later date, the court said:
All right. Of course, in the case of the penalty issue it is always colored by the extent of compliance and the cooperation of the parties with respect to curing the violations.
The State's acquiescence in that statement could do no more than accept a truism. The amount of the penalty is a matter of discretion. As a matter of common sense, the party's mitigating actions are bound to color the exercise of that discretion. This is a far cry from treating mitigation as expungement. It might further be noted that even if the colloquy created any ambiguity, it was certainly made clear when the agreement was memorialized by the subsequent order.
The thrust of the Pesticide Act is not purely remedial; it is preventive. It is replete with provisions to control the use of pesticides and to protect the environment. To view it principally as a vehicle for rectifying already dangerous conditions would be to ignore its beneficial ...