On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County.
Michels, Deighan and Stern. The opinion of the Court was delivered by Michels, P.J.A.D.
Defendant Henry Harris appeals from an order of the Chancery Division assessing a $22,900 penalty upon him, pursuant to N.J.S.A. 13:1E-9. This penalty, payable to plaintiff State of New Jersey, Department of Environmental Protection (DEP), was imposed as a result of defendant's failure to comply with a prior administrative order which directed that he properly close the sanitary landfill which he owned and operated.
The facts giving rise to this appeal are not in dispute and may be briefly summarized as follows. Commencing in 1947, defendant began operating a small sanitary landfill in Harrison Township, Gloucester County. Over the years, this landfill was known as both the "Henry Harris Landfill" and the "Harrison Township Sanitary Landfill." In 1970, our Legislature enacted the "Solid Waste Management Act," N.J.S.A. 13:1E-1 et seq., and created the DEP which it vested with jurisdiction over the regulation of sanitary landfills. Accordingly, on June 1, 1970 defendant, as owner and operator of the "Henry Harris Landfill" (landfill), filed an application to obtain a license to enable him to continue to conduct a refuse disposal operation on his property. Such a license was issued by the DEP on June 23, 1970. This license was issued, in the absence of the "engineering design" plan required by N.J.S.A. 13:1E-5, upon defendant's assurance that an operational plan would be supplied in the future.
In 1973, defendant submitted a "plat of topography" to the DEP, dated February 1, 1973. This plat designated property lines and contours of the landfill, as they existed at the time the plan was prepared. The plat further depicted the landfill's
proposed final contours and its existing and final slopes. A contour line thereon indicated a "landfill limit" of 140 feet. This "plat of topography" was ultimately approved by the DEP.
Defendant continued to operate his landfill and by petition dated August 11, 1978, he requested that the Board of Public Utilities (BPU) accord him a rate increase, pursuant to N.J.S.A. 48:2-21 et seq. In this petition, defendant asked that his rate: (1) for compounded refuse be increased from $0.50 to $1.30 per cubic yard; (2) for bulky and non-compressible materials from $0.60 to $2.00 per cubic yard; and (3) for acceptable liquid waste from $0.02 to $0.04 per gallon. On June 13, 1979, a stipulation was entered into by all parties which enabled defendant to increase his rate to $1.10 per cubic yard for compounded refuse, while maintaining his petition's requests for bulky and non-compressible materials and acceptable liquid waste. The stipulation was memorialized in a BPU decision and order dated June 27, 1979. This order specifically noted that this rate increase would allow defendant to cut his annual operating losses from $528,037 to $58,643 which, when coupled with the prospect of new business, would allow defendant to "break-even."
However, as of 1979, when the stipulated BPU decision and order were being finalized, defendant's facility had been filled to elevations exceeding those shown on the topographical plat approved in 1973. Accordingly, on April 23, 1979, the DEP issued an administrative closure order which directed defendant to: (1) cease acceptance of solid waste at his landfill within six months; and (2) implement designated closure procedures. Defendant appealed this order, seeking an administrative hearing, and a stay of the closure order. In August 1980 an administrative law judge determined that the 1973 "plat of topography," which had been approved by the DEP, constituted the landfill's required engineering design, pursuant to N.J.S.A. 13:1E-5. The administrative law judge further found that defendant had already filled his landfill beyond the elevational limits set forth on the plan. Accordingly, the judge recommended that defendant
be directed to comply with the DEP's closure order of April 23, 1979.
These recommendations of the Office of Administrative Law were adopted by the Commissioner of the DEP, who ordered defendant to close his landfill effective January 1, 1981. Defendant appealed this final administrative action to the Appellate Division. At the conclusion of oral arguments, we orally affirmed the order of the Commissioner of the DEP and mandated that defendant's landfill be closed immediately. Our affirmance was set forth in an unpublished per curiam opinion where, in part, we pertinently noted:
Appellant finally argues that immediate closure will impose a financial burden on neighboring municipalities and result in the bankruptcy of appellant. That may be so but the clear mandate of the statute cannot be ignored. The fact that the landfill was operating at heights in excess of the maximum depicted on the approved plan was known for several years. All municipal users and the appellant have been aware since April of 1979 that closure was imminent. ...