On appeal from New Jersey Department of Environmental Protection.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Lisa and Grall.
The issue presented by this appeal is whether the recipient of a notice of violation of the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to -225, which orders the immediate cessation of operation of a solid waste facility, is entitled to a hearing to challenge that order. We conclude that such a notice is an order of abatement within the intent of N.J.S.A. 13:1E-9(c), which the recipient may challenge in an administrative hearing.
Appellant Gloucester County Improvement Authority is the owner and operator of the South Harrison Township Landfill. Respondent Department of Environmental Protection (DEP) authorized the Authority to operate this landfill pursuant to a solid waste facility permit.
On October 22, 2001, the DEP also issued a solid waste certificate of authority to the Authority and Innovative Recovery Products, L.L.C. (IRP) to operate a demonstration materials recovery facility on the Authority's property. On March 19, 2003, the DEP notified the Authority and IRP it would not review the materials submitted in support of their application to continue operation of the materials recovery facility. The DEP explained that no permit could issue because the Authority and IRP proposed to conduct their activities outdoors and a materials recovery facility must operate within an enclosed building.
On February 15, 2005, the DEP issued a "Notice of Violation" to the Authority, which stated that a violation of the regulations adopted under the SWMA had been observed during a compliance evaluation conducted on February 7, 2005. The notice cited the Authority for a violation of N.J.A.C. 7:26-2.8(j), which provides: No person shall engage or continue to engage in disposal of solid waste in this State in a manner which does not meet all the conditions, restrictions, requirements or any other provisions set forth in its SWF permit.
The notice stated that the alleged violation consisted "specifically [of] the continued operation of a Materials Recovery Facility from March 19, 2003 to February 07, 2005." The notice ordered the Authority to "immediately cease operation of the [Materials Recovery Facility] until [the] appropriate permit has been obtained from DEP." The notice also stated that "[w]ithin fifteen (15) calendar days of receipt of this Notice of Violation, you shall submit in writing, to the individual issuing this Notice, [an] explanation of the corrective measures you have taken to achieve compliance."
Upon receiving this notice, the Authority filed a notice of appeal and request for an adjudicatory hearing with the DEP.
The notice of appeal alleged that "[t]he Authority [has] never operated a materials recovery facility on the Landfill" and that "[a]ny metal recycling activity occurring at the Landfill was performed by [IRP] pursuant to a Certificate of Authority to Operate a Research, Development and Demonstration Project." The notice of appeal also asserted that "[t]he [DEP] cannot, on the one hand, grant to [IRP] a legally valid Certificate of Authority to Operate the metal recycling operation and, on the other hand, after that Certificate terminates, hold the Authority to be in violation of the Landfill permit for some failure or omission related to the metal recycling operation." The Authority claimed that its notice of appeal should be considered a "contested case" and referred to the Office of Administrative Law (OAL).
On March 21, 2005, the DEP sent the Authority a letter, which stated that the notice of violation "cannot be appealed through an adjudicatory hearing" and denied the Authority's request for a hearing. The Authority filed a notice of appeal from the denial of its request for referral of the matter to the OAL for a hearing. The DEP moved to dismiss the appeal on the ...