On appeal from a Final Decision of the New Jersey Department of Environmental Protection, OAL Docket No. EHW-8940-00.
Before Judges Skillman, Coburn and Wells.
The opinion of the court was delivered by: Wells, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The present appeal invites us to consider whether, after an eight-year delay in adopting regulations implementing a statutory grace period, N.J.S.A. 13:1D-127 to -133 (the Grace Period Law or Law), the Department of Environmental Protection (DEP) may proceed to determine that the Law does not apply to alleged violations of the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to -207, and to impose monetary penalties. In the appeal before us, the DEP found two violations of State and Federal SWMA Regulations by Marisol, Incorporated (Marisol), to be"high priority" and penalized it $4,500 per violation, a total of $9,000. Marisol appeals only from the imposition of the penalties.
We vacate the monetary penalties concluding that the penalties violate the Law because Marisol remediated the violations immediately and DEP did not prove that those violations failed to qualify under the Law's criteria for minor violations.
Marisol is a fully DEP-permitted hazardous waste facility that operates a hazardous waste treatment and storage site in Middlesex. In the course of its operations, Marisol stores as many as 3,000 to 3,500 drums of hazardous waste stacked upon each other in rows separated by aisles. Marisol stacks as many as 600 to 700 drums of hazardous waste of various kinds per day. It is required by state and federal regulations implementing SWMA to label each drum with a descriptive classification code, an"S" code, developed and used internally by Marisol. N.J.A.C. 7:26G-12.1(a) and 40 C.F.R. 270.30(a). Not only are labels affixed to each drum, drums at the end of each row display the"S" code labels of the wastes contained in the drums on that row.
During the course of a routine DEP inspection of the site on December 16, 1999, an inspector noted that labels on drums, the number of which he lost count as he walked the aisles, were not visible from either side of an aisle. He did observe that the end-of-row drums bore"S" codes. The inspector asked a Marisol employee accompanying the inspection to bring to the floor five drums selected at random from the stacks whose"S" codes he could not see from an aisle. When that was done each drum bore an"S" code label. As to those drums, within a half hour or less, an office employee was able to identify the contents and generator of the waste within each drum.
On the same day the inspector also observed that Marisol was using a roll-off container to consolidate various primary hazardous wastes. He noted that the container bore no label at all to indicate what it contained or the date the waste accumulation began in violation of N.J.A.C. 7:26G-11.1(a) and C.F.R. 268.50(a)(2). Marisol's project engineer testified that the roll-off container had come in that morning and told the inspector it might be empty. However, further inspection revealed that about twelve drums of waste had been co-mingled in it. He stated that roll-offs typically remained on premises between twelve to sixteen man-hours but might remain on-site empty for several days for lack of wastes to fill it. Marisol had not been previously cited for failure to label roll-offs and it did not routinely label them, tankwagons or railcars of which there were several parked on-site on the day of the inspection. The inspector was advised by Marisol employees that when the container left the facility it was placarded. Other evidence indicated that a shipping manifest described the contents of the roll-off. The engineer stated that he routinely prepared a load sheet form describing the wastes pumped into a roll-off which in this instance promptly described contents of the roll-off noticed by the inspector. A label was affixed to the roll-off within minutes.
We note that neither of these asserted violations was issued immediately. The inspector, who had not inspected Marisol's site for a considerable period of time, decided to confer with his superiors about both of his observations. With respect to labeling the roll-off container, a question arose as to whether Marisol, which was routinely receiving wastes which it was consolidating and shipping, was required to label roll offs in which wastes arrived for the relatively short period of time they remained on the premises. Marisol took the position that its recently modified license permitted its activities with respect to receipt, processing and prompt shipment of wastes out of its facility and argued it was not required to label roll-offs.
Nevertheless, in February 2000, Marisol was cited by DEP for violations of the above regulations for both the failure of label visibility as to the stacked drums and the absence of any label on the roll-off. Marisol appealed to DEP and requested a hearing. DEP referred the case as contested to the Office of Administrative Law which duly assigned it to an Administrative Law Judge (ALJ).
During the course of the hearing before the ALJ at which the facts above described emerged, a DEP witness, John Barry, testified to the Notice of Civil Administrative Penalties Assessment (NOCAPA) served on Marisol and to the considerations that went into the evaluation of Marisol's violations. The first consideration was the existing regulations that framed the assessment. The centerpiece of those regulations is a conduct/seriousness matrix. It is found in N.J.A.C. 7:26G-2.5(f), (g), (h) and (i), which provide:
(f) The Department shall assess a civil administrative penalty for violations described in this section on the basis of the seriousness of the violation and the conduct of the violator at the mid-point of the following ranges, unless adjusted pursuant to (i) below.
Major$40,000 - $50,000$30,000 - $40,000$15,000 - $25,000
Moderate$30,000 - $40,000$10,000 - $20,000$3,000 - $6,000
Minor$15,000 - $25,000$3,000 - $6,000$1,000 - $2,500
(g) The seriousness of the violation shall be determined as major, moderate or minor as follows:
1. Major seriousness shall apply to any violation which:
(i) Has caused or has the potential to cause serious harm to human health or the environment; or
(ii) Seriously deviates from the requirements of the Act, or any rule promulgated, administrative order, permit, license or other operating authority issued, or Part A permit application filed, pursuant to the Act; serious deviation shall include, but not be limited to, those violations which are in complete contravention of the requirement, or if some of the requirement is met, which severely impair or undermine the operation or intent of the requirement;
2. Moderate seriousness shall apply to any violation which:
(i) Has caused or has the potential to cause substantial harm to human health or the environment; or
(ii) Substantially deviates from the requirements of the Act, or any rule promulgated, any administrative order, permit, license or other operating authority issued, or any Part A permit application filed, pursuant to the Act; substantial deviation shall include, but not be limited to, violations which are in substantial contravention of the requirements or which substantially impair or undermine the operation or intent of the requirement; and
3. Minor seriousness shall apply to any violation not included in (g)1 or 2 above.
(h) The conduct of the violator shall be determined as major, moderate or minor as follows:
1. Major conduct shall include any intentional, deliberate, purposeful, knowing or willful act or omission by the violator;
2. Moderate conduct shall include any unintentional but foreseeable act or omission by the violator; and
3. Minor conduct shall include any other conduct not included in (h)1 or 2 above.
(i) The Department may adjust the amount determined pursuant to (f), (g) and (h) above to assess a civil administrative penalty in an amount no greater than the maximum amount nor less than the minimum amount in the range described in (f) above, on the basis of the following factors:
1. The compliance history of the violator;
2. The nature, timing and effectiveness of any measures taken by the violator to mitigate the effects of the violation for which the penalty is being assessed;
(i) Immediate implementation of measures to effectively mitigate the effects of the violation shall result in a reduction to the bottom of the range.
3. The nature, timing and effectiveness of any measures taken by the violator to prevent future similar violations;
(i) Implementation of measures that can reasonably be expected to prevent a recurrence of the same type of violation will result in a reduction equal to the bottom of the range.
4. any unusual or extraordinary costs or impacts directly or indirectly imposed on the public or the environment as a result of the violation; and/or
5. Other specific circumstances of the violator or violation.
Based on these regulations, Barry evaluated both the seriousness of Marisol's violations and the conduct from ...