On appeal from Superior Court, Chancery Division, Ocean County.
Petrella, Bilder and Scalera. The opinion of the court was delivered by Petrella, P.J.A.D.
[215 NJSuper Page 566] In this civil enforcement action brought by the State, defendant John Lewis,*fn1 and two corporations in which he is the principal, defendants Ocean Sewer and Septic Service, Inc. and Garden State Soil Enrichment Station, Inc., were found to have illegally dumped large quantities of sewage and septage onto properties owned or controlled by Lewis in Manchester Township, Ocean County. The Chancery judge granted the State a temporary injunction and other relief, including assessment of a $2,500 counsel fee against Lewis, but refused to assess certain
statutory penalties for violations of the Solid Waste Management Act, N.J.S.A. 13:1E-1, et seq., and the Water Pollution Control Act, N.J.S.A. 58:10A-1, et seq., or to require defendants to finance a comprehensive ground water study to determine the extent of any environmental damage caused by his activities. The State's appeal is limited to challenging the judge's refusal to impose such fines and remedies.
Lewis owns certain properties located in Manchester Township assessed to him on the tax rolls and denominated thereon as Block 77, Lots 2, 4, 5, 6, 7 and 8, and controls and pays taxes on Lot 9 whose record owner is the Estate of Mamie Robertson. Garden State Soil Enrichment Station, Inc. (GSSES), a corporation in which Lewis is president,*fn2 conducted commercial operations on those properties. At the time of trial the property, consisting of approximately 91 contiguous acres, had an assessed value of approximately $100,000. The property is located in the Pinelands Protection Area and is thus within the jurisdiction of the New Jersey Pinelands Commission (Commission). Lewis is also president of defendant Ocean Sewer and Septic Service, Inc. (OSSS) which is in the business of collecting and transporting commercial and residential sewage.*fn3
The trial judge found that Lewis had been dumping domestic sewage and sludge onto the property since early 1977 in connection with the operation of his businesses. This sewage dumping activity was discovered during the winter of 1980-1981 by site inspectors for the Commission. Complaints from neighboring property owners were also received. At that time Lewis was initially advised that such dumping without the appropriate permits and approvals was illegal.
Lewis had apparently begun the permit and approval application process some time before this, for on January 6, 1981 the Commission granted him approval for the construction of a municipal sewage sludge composting facility on the property, limited to the receipt of 10 dry tons of sludge per day. In May 1981 the Commission issued a public acknowledgement that it had received a completed application from Lewis for a second approval to apply liquid septage and sewage onto various parts of the property. In July 1981 the Department of Environmental Protection (DEP) issued Lewis a one-year permit for that activity. DEP issued him a second permit in August 1981 for construction of a "dewatered municipal sewage sludge composting facility" on another portion of the property. This permit was to have a two-year term.
All of these various approvals and permits contained conditions and restrictions relating to how the different operations could be conducted. These conditions had to be accepted by Lewis before he could legally do business. Lewis gave his written acceptance to all of the conditions in the DEP permits, and orally agreed to other conditions imposed by the Commission. At some point after these permits and approvals were issued, Lewis brought suit in the Superior Court challenging the conditions contained therein. The case was subsequently transferred to the Office of Administrative Law (OAL) where, after hearings before an Administrative Law Judge (ALJ), an initial decision was issued on October 15, 1982 upholding the validity of all the conditions as they applied to Lewis. However, during the pendency of those proceedings, Lewis' permit for land application of sewage and septage expired. His application to extend the term of that permit until resolution of his challenges to those administrative determinations was rejected by the DEP. In its final administrative determination on November 23, 1982 the DEP accepted the ALJ's findings and conclusions.
Prior to and during the pendency of the proceedings before the ALJ, the Lewis property was the subject of various State
inspections. In September and December 1981 DEP inspectors attempted to gain access to the property, but were denied entry by Lewis. This was in direct violation of conditions contained in the permits regarding DEP's right of entry to the property. In January 1982 a Commission inspector, standing on a road outside the Lewis property, observed a tanker truck discharging liquid onto the ground.
Based on these observations, inspectors for the DEP and the Commission obtained an administrative search warrant which was executed in March 1982. Evidence of large scale sewage and septage dumping on the properties was discovered. In addition, Commission inspectors determined that dumping was also occurring within 300 feet of previously identified wetlands located on the property in violation of conditions contained in the Commission's prior approvals. Photographs of the area and samples of the waste found on the surface of the ground were taken for analysis.
In January 1983, after expiration of the land application permit, the property was again placed under surveillance because DEP had no record that the waste that OSSS was collecting in the course of Lewis' operations was being disposed of at any licensed treatment plant or facility in the State. DEP inspectors again observed OSSS tanker trucks discharging large quantities of liquid onto the property. A second and third set of administrative search warrants, executed in February 1983 and December 1984, disclosed further dumping of waste on the property. On one occasion, DEP inspectors monitored an OSSS truck as it collected sewage from several residential customers in Manchester Township. The truck was followed to the property where its driver was found ...