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State of New Jersey Dep't of Environmental Protection, Bureau of County Environmental and Waste Compliance Enforcement v. Mazza and Sons

March 19, 2009

STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, BUREAU OF COUNTY ENVIRONMENTAL AND WASTE COMPLIANCE ENFORCEMENT, PLAINTIFF-RESPONDENT,
v.
MAZZA AND SONS, INC., BOROUGH PROPERTY, L.L.C., DOMINICK J. MAZZA, INDIVIDUALLY, AND JAMES MAZZA, INDIVIDUALLY, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. C-266-07.

The opinion of the court was delivered by: Skillman, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued January 13, 2009

Before Judges Skillman, Graves and Grall.

This appeal involves the interpretation and application of Rule 4:67-6, which governs an action by a state agency for judicial enforcement of an administrative order.

I.

In April 2002, plaintiff Department of Environmental Protection (DEP) issued permits under the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to -48, and the New Jersey Statewide Mandatory Source Separation and Recycling Act, N.J.S.A. 13:1E-99.11 to -99.32, authorizing defendant Mazza & Sons to operate a solid waste transfer station and recycling center in Tinton Falls. Defendants Dominick and James Mazza are the principals in Mazza & Sons.

On April 27, 2006, the DEP issued an Administrative Order and Notice of Civil Administrative Penalty Assessment (AONOCAPA), which determined, based on compliance evaluations conducted on March 31, 2005, May 2, 2005, May 17, 2005, June 21, 2005 and July 7, 2005, that Mazza & Sons had violated various administrative regulations governing the operation of solid waste facilities under the SWMA and Solid Waste Utility Control Act (SWUCA), N.J.S.A. 48:13A-1 to -13. This order was also directed to Dominick and James Mazza, individually, and to defendant Borough Property, L.L.C., the owner of a fifty-acre property adjoining the transfer station and recycling center in which the Mazzas are also the principals (collectively "defendants"). Based on those violations, the AONOCAPA ordered defendants to take various remedial actions, many of which were required to be performed "immediately." The AONOCAPA also directed defendants to obtain various permits and other approvals from the DEP before undertaking this remedial work. In addition to ordering defendants to remedy the violations of the DEP regulations, the AONOCAPA imposed a civil administrative penalty of $27,000 for the violations.

The AONOCAPA specifically informed defendants that they were entitled to request a hearing to challenge its provisions and enclosed a form they could use for this purpose. The AONOCAPA also stated that "[i]f no request for a hearing is received within twenty (20) calendar days from receipt of this AONOCAPA, it shall become a Final Order upon the twenty-first (21st) calendar day following its receipt, and the penalty shall be due and payable." In addition, the AONOCAPA stated: "Submittal or granting of a hearing request does not stay the terms or effect of this AONOCAPA."

Defendants received the AONOCAPA on May 11, 2006. Thus, as provided by N.J.S.A. 13:1E-9(c) and (e) and set forth in the AONOCAPA, defendants had until June 1, 2006 to request a hearing.

However, defendants failed to submit a timely request for a hearing. Moreover, insofar as the record before us indicates, defendants did not take any steps to comply with the remedial provisions of the April 27, 2006 AONOCAPA that required immediate action.

On July 17, 2006, which was forty-six days after the time for requesting a hearing had expired and the April 27, 2006 AONOCAPA had become final, defendants filed a request with the DEP for a hearing. However, defendants did not seek a stay of the remedial provisions of the AONOCAPA or, as far as the record before us indicates, comply with any of those provisions.

On August 17, 2006, the DEP issued a penalty demand letter to Dominick Mazza and Mazza & Sons, which indicated that they had failed to submit a timely request for a hearing with respect to the April 27, 2006 AONOCAPA and directed them to pay the $27,000 penalty imposed by that AONOCAPA within seven days, after which the matter would be referred to a collection agency.

Except for this penalty demand letter, the DEP did not provide any response to defendants' untimely request for a hearing for a significant period of time. However, the DEP issued a number of other AONOCAPAs that imposed additional remedial obligations upon defendants and assessed substantial additional penalties. The first of those AONOCAPAs was issued on June 15, 2006, during the period between when the April 27, 2006 AONOCAPA became final on June 1, 2006 and Mazza filed its untimely request for a hearing on July 17, 2006. Five other AONOCAPAs were issued thereafter, one on February 5, 2007 and four more on May 31, 2007. Defendants submitted timely requests for hearings with respect to all of these subsequent AONOCAPAs.

By letter dated February 6, 2007, a DEP representative notified defendants that their July 17, 2006 request for a hearing had been denied. This letter also stated:

[T]he AONOCAPA is final and all terms and conditions are in full force and effect and respondents shall pay the amount of the penalty to the Department. Failure to do so will subject respondents to penalties and other enforcement action by the Department.

On March 16, 2007, Mazza's counsel sent a letter to the DEP, which requested reconsideration of the DEP's denial of Mazza's request for a hearing.

On June 14, 2007, the penalty assessment part of the April 27, 2006 AONOCAPA was referred to a collection agency. On August 31, 2007, the DEP docketed this part of the AONOCAPA as a judgment of the Superior Court, as authorized by N.J.S.A. 2A:58-10 and Rule 4:70-1(b).

On September 25, 2007, the DEP brought this action in the Chancery Division for enforcement of the remedial provisions of the April 27, 2006 AONOCAPA. The DEP submitted a certification by Raymond Belonzi, the Bureau Chief of Solid Waste Enforcement and Compliance, in support of its complaint, which alleged that none of the provisions of subparagraphs 5(e) to (i) of the April 27, 2006 AONOCAPA had been complied with. Based on the allegations of the DEP's complaint and the Belonzi certification, the ...


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