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Local Board of Health of Township of Bordentown v. Interstate Waste Removal Co.

July 22, 1983

LOCAL BOARD OF HEALTH OF THE TOWNSHIP OF BORDENTOWN, TOWNSHIP COMMITTEE OF THE TOWNSHIP OF BORDENTOWN, LOCAL BOARD OF HEALTH OF THE CITY OF BORDENTOWN, BOARD OF CITY COMMISSIONERS OF THE CITY OF BORDENTOWN, AND BOARD OF EDUCATION OF BORDENTOWN REGIONAL SCHOOL DISTRICT, PLAINTIFFS,
v.
INTERSTATE WASTE REMOVAL CO., INC., SCA SERVICES, INC., DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEW JERSEY, AND ROBERT E. HUGHEY, COMMISSIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANTS



Haines, A.j.s.c.

Haines

The local boards of health, the governing bodies of two municipalities and a regional board of education have sued Interstate Waste Removal Co., Inc. and its parent company, SCA Services, Inc. (collectively, "Interstate"), the Department of Environmental Protection and its Commissioner. Interstate operates a large landfill, known as "Parklands," for the disposition of solid wastes. It is subject to the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq. ("Act").

Plaintiffs charge Interstate with 51 violations of the act for which they seek to have penalties imposed at the maximum of $25,000 per day. Violations are said to consist of failure to cover the landfill area, permitting offensive odors to escape from the site, exceeding working face limits, operating without the submission of permeability tests and various related offenses. Information concerning these claims was obtained by plaintiffs from inspection reports and other data compiled by the Department of Environmental Protection ("DEP") or ("Department"). The DEP has served Interstate with notices of prosecution and administrative orders, charging a number of the violations listed in plaintiffs' complaint for which penalties are set forth. However, until now, no action has been commenced to enforce the collection of such penalties.

The Department and its Commissioner are named as defendants in two counts of the complaint, one seeking an order compelling them to pursue Interstate with respect to the 51 violations and the other requiring their future enforcement of the provisions of the Act, as well as regulations adopted thereunder, against the landfill operators. In response, the Department has filed a cross-claim against Interstate, duplicating the plaintiffs' suit for penalties as to most but not all of the 51 violations asserted and adding additional claims.

Interstate, DEP and the Commissioner move to dismiss the complaint against them. The numerous issues raised, many of first impression, may be resolved on the pleadings.

I. JURISDICTION

The Solid Waste Management Act provides the Department with power "to supervise solid waste collection and disposal facilities or operations," N.J.S.A. 13:1E-4 a, and to adopt codes, rules and regulations concerning such facilities and operations, N.J.S.A. 13:1E-6 a(2). The enforcement provisions of the act, contained in N.J.S.A. 13:1E-9 a, provide that the codes, rules and regulations "shall have the force and effect of law" and "shall be enforced by the Department and by every local board of health or county health department. . . ." Section 9 c provides:

Any person who violates the provisions of this Act or any code, rule or regulation promulgated pursuant to this Act, shall be liable to a penalty of not more than $25,000 per day to be collected in a civil action commenced by a local board of health, a county health department, or the commissioner by a summary proceeding under the Penalty Enforcement Law (N.J.S. 2A:58-1 et seq.) in the Superior Court, county district court or a municipal court, all of which have jurisdiction to enforce said Penalty Enforcement Law in connection with this Act. If the violation is of a continuing nature, each day during which it continues after the date given by which the violation must be eliminated in accordance with the order of the department shall constitute an additional, separate and distinct offense.

The Penalty Enforcement Law, N.J.S.A. 2A:58-1, provides that such penalties may be "collected or enforced by summary proceedings . . . pursuant to this chapter and the rules of the Supreme Court." Jurisdiction is conferred upon any court designated by the statute authorizing the penalty, and, therefore, in the present case, upon the Superior Court. Penalties assessed are to be paid into court and remitted to the State Treasurer. N.J.S.A. 2A:58-8.

Notwithstanding these statutory provisions, Interstate contends that concepts of primary jurisdiction require the claims of plaintiffs to be determined, at least initially, by DEP.

Primary jurisdiction is the main doctrine that is used for withholding judicial power in order to make a place for the agency; a court refrains from initial performance of tasks that the legislative body has assigned to the agency. [emphasis added] 4 Davis, Administrative Law Treatise, ยง 22:1 at 82 (2d Ed.1983).

"Primary jurisdiction" . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. . . . Woodside Homes v. Morristown, 26 N.J. 529, 541 (1958), quoting from Justice Harlan's opinion in U.S. v. Western Pac. R. Co., 352 U.S. 59, 63-64, 77 S. Ct. 161, 165, 1 L. Ed. 2d 126 (1956) [emphasis added].

The reasons for courts' deference to agencies under this doctrine are set forth in U.S. v. Western Pac. R. Co., quoting from Far East Conference v. United States, 342 U.S. 570, 72 S. Ct. 492, 96 L. Ed. 576:

Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure. [352 U.S. at 64-65, 71 S. Ct. at 165]

These principles, applied here, deny Interstate's jurisdictional claims. The present proceedings are designed to enforce the collection of penalties; they have not been entrusted to the DEP by the Legislature. The DEP has no power to enforce such collections except by suit in the Superior Court. N.J.S.A. 13:1E-9 c. In addition, concerns about the DEP's "special competence" and the development of regulatory consistency, are not present. The questions before this court are: (1) Did Interstate violate the Act or any regulation promulgated thereunder? (2) If so, should penalties be assessed and in what amount? These are not questions requiring agency expertise. They do not raise problems of consistency. Finally, any jurisdiction argument is demolished by the fact that the Department itself, through its cross-claim, has chosen the jurisdiction of this court for penalty enforcement purposes. It makes no claim of primary jurisdiction.

Interstate's related claim, that it is entitled to a preliminary DEP administrative hearing is not well founded. The argument is based upon N.J.A.C. 7:26-5.4 which authorizes certain administrative hearings. Such hearings, however, are confined to those mandated by the Solid Waste Management Act, to denials of penalty rebates and to three issues concerning registration applications. The Act does not provide for administrative hearings concerning the collection of penalties. Under principles of due process, Interstate, of course, is entitled to a hearing on the collection issues. It will receive that hearing in this court where the burden is upon plaintiffs and the Department to establish the claimed violations by a preponderance of the evidence. Dept. of Cons. and Eco. Dev. v. Scipio, 88 N.J. Super. 315 (App.Div.1965), certif. den., 45 N.J. 598 (1965).

The 51 violations charged to Interstate have been the object of varied DEP proceedings. Interstate argues that these proceedings must run their course before this court may entertain the instant suit. Some violations have been the subject of a corrective odor plan submitted to and approved by the DEP. Some have been the object of notices of prosecution and administrative orders. Others have been disclosed by DEP inspections but have not been pursued in administrative proceedings. In all of these cases, the actions taken by DEP do not affect the demand that penalties be assessed. The fact, for example, that Interstate has developed a plan to correct odor violations does not eliminate its liability for the payment of a penalty for violations which occurred before the plan's submission was required by a DEP order. The Act does not provide that corrective action concerning future violations requires forgiveness of ones past.

The Act, reasonably interpreted, authorizes the Department to assess penalties (although it is not specific in this respect) against violators without resorting to a formal court proceeding. Section 9 c makes violators "liable to a penalty of not more ...


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