May 3, 2011
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, BUREAU OF SOLID WASTE COMPLIANCE AND ENFORCEMENT, PETITIONER-RESPONDENT,
MAGIC DISPOSAL, INC. AND STEVEN WASZEN, SR., RESPONDENTS-APPELLANTS.
On appeal from the Department of Environmental Protection, Bureau of Solid Waste Compliance and Enforcement, Agency Docket No. PEA050004-135866.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 15, 2010
Before Judges Axelrad, Lihotz and J. N. Harris.
Appellants Steven Waszen, Sr. and his solely-owned waste management corporation, Magic Disposal, Inc. (Magic), appeal from a final agency decision, issued by the Department of Environmental Protection (the DEP), which (1) revoked Magic's Certificate of Public Convenience and Necessity (CPCN) issued under the Solid Waste Utility Control Act (SWUCA), N.J.S.A. 48:13A-1 to -13; (2) denied renewal of Magic's A-901 approval to perform waste management services as provided by the Solid Waste Management Act (the Act), N.J.S.A. 13:1E-1 to -223; and (3) barred Waszen from continued employment in the solid waste management and hauling industry. This action followed the DEP's closure of Magic's waste management transfer station accompanied by an assessment of $700,000 in penalties for the corporation's repeated violations of the Act and related environmental regulations. Magic did not contest the violations; rather, it challenged the amount of the imposed penalties, which was affirmed by the agency and by this court on appeal.
The current action, to revoke Magic's CPCN and debar Waszen, was reviewed by an administrative law judge (ALJ), who recommended the entry of the requested relief. Appellants filed exceptions to the ALJ'S decision and the Director of Operations of the DEP accepted the ALJ's findings and made the determination final. On appeal, appellants argue their due process rights were violated by the ALJ's summary decision, made without benefit of an evidentiary hearing; they were subjected to double punishment for the same offenses; and Waszen was wrongfully debarred despite a history free of hauling violations. We affirm.
The facts and procedural history of the underlying matters are detailed in the forty-two page Initial Decision of ALJ Jeff S. Masin and the twelve-page final decision of the agency, which we incorporate into our opinion by reference. We set forth only those particularized elements of the history of the administrative and Superior Court environmental enforcement actions necessary to provide the context for appellants' arguments on appeal.
Waszen is Magic's President, sole officer and shareholder. Magic was first licensed as a registered solid waste transporter in 1989. It received its CPCN in 1990 and on June 7, 1996, was issued a DEP permit to accept specified types of solid waste at its Egg Harbor Township solid waste transfer station for processing and transfer.
Appellants' violations of the Act and related environmental statutes, regulations, and ordinances commenced in late 1996. By July 2000, the DEP issued an administrative order and notice of civil administrative penalty assessment after appellants ignored administrative regulations governing the Egg Harbor facility. Appellants did not file a timely appeal and the assessment, along with additional penalties, was incorporated into the DEP's administrative order. After this was ignored by appellants, the DEP filed a Superior Court complaint for injunctive relief. The DEP's action sought compliance with its administrative order, payment of the assessment and curtailment of appellants' continued prohibited practices at the Egg Harbor transfer station. Some of the most egregious included the storage of waste, the failure to implement an effective rodent control program, combining recycling and solid waste activities, and the acceptance of more than the facility's daily permitted tonnage of solid waste and at impermissible hours. The DEP included in its complaint a total of 196 recorded violations which occurred between 1996 and 2001, none of which were denied by appellants. The court entered orders requiring compliance pending final disposition.
In August and October 2003, Waszen acquired two parcels of realty in Mullica Township (Block 10802 Lots 1 and 2), which he sought to use as a trans-load facility where solid waste would be delivered by truck pending its loading onto railcars for shipment to a landfill. Atlantic County filed a municipal court complaint citing Waszen for illegally dumping construction debris on the site, see N.J.A.C. 7:26 (prohibiting the operation of an open dump), and ignoring requests for satisfaction of a $324,500 lien encumbering the property. Penalties and assessments were issued for the illegal activities and Waszen was ordered to remediate the site. These orders also were ignored, generating further penalties. The myriad of assessments and penalties against Waszen remained unchallenged and unpaid.
Also in 2003, another action was filed by the county seeking appellants' observance of the prior DEP orders, including the removal of solid waste debris stockpiled on the Egg Harbor property and otherwise conforming the facility's operations to the conditions of its solid waste permit. An order requiring compliance and assessing penalties was entered.
Appellants' regulatory and statutory infringements continued unabated. At the request of the DEP and Atlantic County, additional enforcement orders were entered by the court in 2004 and 2005. As noted below, the DEP declined to renew Magic's operation permits, yet Magic continued to accept solid waste at the Egg Harbor facility, which was transported and delivered by Magic's trucks. Then, on June 7, 2005, the court ordered Magic to cease and desist all operations at the Egg Harbor facility and legally remove all solid waste then at the facility. Magic did not appeal this determination.
While the litigation was pending, but not concluded, the DEP initiated another agency action on January 27, 2005. Relying on N.J.S.A. 13:1E-134(a) and N.J.S.A. 52:14B-1, it issued an administrative order and notice of civil administrative penalty assessment of $700,000 for almost 250 violations at Magic's Egg Harbor transfer station between 2002 and 2004. Additionally, the DEP declined to renew Magic's solid waste permit.
Appellants appealed the amount of the assessments, but not the underlying violations. The matter was transferred to the Office of Administrative Law for a hearing.
Following a seven-day administrative hearing before a different ALJ, W. Todd Miller, the penalty assessment was affirmed. The ALJ found Waszen ignored simple and basic safety regulations in favor of business volume, which was his primary focus and noted the sums were reasonable in light of the numerous violations and the need to deter the conduct. Noting the DEP could have imposed daily penalties that would have exceeded the $700,000 assessed, ALJ Miller concluded the penalties and their amounts were moderate and more than justified. N.J.A.C. 7:26-5.5. The Commissioner affirmed the ALJ's initial decision; appellants appealed and we affirmed. N.J. Dept. of Envir. Prot. v. Magic Disposal, Inc., No. A-1590-07 (App. Div. Aug. 10, 2009).
During this period, appellants also failed to file tax returns and pay Federal and State corporate and personal income or business taxes for the period 1999 to 2006. By November 9, 2006, appellants owed over $4.5 million in federal and state income taxes, environmental penalties assessed by the DEP and Atlantic County and civil obligations. On that date, pursuant to N.J.S.A. 48:13A-9, the DEP revoked Magic's CPCN and its solid waste transport registration. It additionally sought Waszen's debarment from the solid waste and recycling industry. Appellants' requested an administrative hearing.
In the agency action, the DEP moved for summary decision, relying on the opinion of ALJ Miller in the waste transfer facility proceeding. Appellants argued they had never been cited for a waste hauling violation, charged with organized crime activity, and otherwise had fully complied with the A-901 permit for transporting solid waste.
The matter was reviewed by ALJ Masin, who denied appellant's request for an evidentiary hearing and relied on the findings made by ALJ Miller in the related proceeding. ALJ Masin issued comprehensive findings and concluded the evidence overwhelmingly established Magic's poor performance in the "collection, transportation, treatment, storage, transfer or disposal of solid waste" and Waszen failed to exhibit "sufficient integrity, reliability, expertise and competency" in the field. The ALJ found the DEP had demonstrated by overwhelming evidence that Magic and Waszen "must be stripped of the CPCN and A-901 approval," concluding their presence in the "solid waste industry would be inimical to the public interest and they must be debarred."
Appellants filed exceptions to the ALJ's Initial Decision. This appeal followed. The DEP adopted the ALJ's findings and issued a final order granting partial summary decision, revoking Magic's CPCN and debarring Waszen from the solid waste industry. The matter was remanded to the OAL for further determination regarding whether Waszen should be debarred from the recycling industry. The DEP ordered that issue to be bifurcated, making its determination a final order. This appeal followed.
We start with well-settled principles. We are obliged to afford substantial deference to decisions of state administrative agencies. Cooper Univ. Hosp. v. Jacobs, 191 N.J. 125, 140 (2007); Saint Peter's Univ. Hosp. v. Lacy, 185 N.J. 1, 13-15 (2005). Generally, the actions of administrative agencies are entitled to a presumption of reasonableness. East Orange Bd. of Educ. v. N.J. Sch. Constr. Corp., 405 N.J. Super. 132, 143 (App. Div.) (citing City of Newark v. Natural Res. Council, 82 N.J. 530, 539 (1980)), certif. denied, 199 N.J. 540 (2009);
In re Holy Name Hosp., 301 N.J. Super. 282, 295 (App. Div. 1997). We afford substantial deference to an agency's interpretation of the statute it is charged with enforcing. R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999). Further, we are not authorized to substitute our judgment for that of the agency. Division of Alcoholic Beverage Control v. Maynards, Inc., 192 N.J. 158, 183 (2007).
When an error in the factfinding of an administrative agency is alleged, our review is limited to assessing whether sufficient credible evidence exists in the record from which the findings made could reasonably have been drawn. Tlumac v. High Bridge Stone, 187 N.J. 567, 573-74 (2006). This review must encompass "the proofs as a whole" and must take into account "the agency's expertise where such expertise is a pertinent factor." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). We will not upset the ultimate determination of an administrative agency unless it is shown to be arbitrary, capricious or unreasonable, or to have violated legislative policies expressed or implied in the enabling legislation. Hemsey v. Bd. of Trs., Police & Fireman's Ret. Sys., 198 N.J. 215, 223-24 (2009). Consequently, our role in reviewing a final decision of an administrative agency is limited to four inquiries: (1) whether the agency's decision comports with Federal and State constitutional requirements; (2) whether the agency's action is supported by express or implied legislative policies; (3) whether the factual findings that provide a foundation for the agency's decision are based on substantial evidence; and (4) whether the legislative policies, when applied to the facts, show that the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. In re Taylor, 158 N.J. 644, 656 (1999).
Appellants challenge the procedural fairness of the administrative proceedings. Appellants maintain the process employed impinged on their constitutional due process rights because the ALJ considered the DEP's request for revocation and debarment without an evidentiary hearing, essentially stripping them of a protected property interest in the affected license without an opportunity to be heard. We pause to examine the procedural guidelines for a summary decision.
According to N.J.S.A. 52:14B-11, of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, no "agency shall revoke or refuse to renew any license unless it has first afforded the licensee an opportunity for a hearing in conformity with the provisions of this act applicable to contested cases." In re Fanelli, 174 N.J. 165, 172 (2002). More specifically, the Act provides for the opportunity "to respond, appear and present evidence and argument on all issues involved." N.J.S.A. 52:14B-9(c).
Appellants believe there are contested facts "with respect to subjective elements such as the character, intent and motivation of Magic and Waszen and how these elements should influence their ability to continue in the solid waste industry." Thus, appellants believe their right to a hearing means the right to present testimony. Fanelli, supra, 174 N.J. at 172. We are not persuaded.
The summary decision process authorized by N.J.A.C. 1:1-12.5 allows a determination of the record without further testimony when there are no issues of material fact in dispute. N.J.A.C. 1:1-12.5 is simply a procedural mechanism for determining whether a proposed administrative action turns on disputed and material adjudicatory facts. Contini v. Bd. of Educ. of Newark, 286 N.J. Super. 106, 120 (App. Div. 1995), certif. denied, 145 N.J. 372 (1996). Because we discern no genuine issues of material fact were in dispute at the time the motion for summary decision was decided, we will not interfere with the procedure employed by the ALJ.
Similar to judicial review when requested to enter summary judgment, id. at 121-22, the APA permits disposition by using a summary decision where the pleadings, discovery materials and affidavits "show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to prevail as a matter of law." N.J.A.C. 1:1-12.5(b). Once the moving party presents sufficient evidence in support of the motion, the opposing party must proffer affidavits setting "forth specific facts showing that there is a genuine issue which can only be determined in an evidentiary proceeding." Ibid.
In our review, we must analyze the agency's grant of summary decision "in accordance with the principles set forth by the Supreme Court in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)." National Transfer, Inc. v. N.J. Dep't of Envtl. Prot., 347 N.J. Super. 401, 408 (App. Div. 2002). In opposing the DEP's motion, appellants must offer more than sworn conclusions or bald assertions of disputed facts. Cf. Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004). The existence of a disputed fact is not enough; it must be a material disputed fact. Bally Mfg. Corp. v. N.J. Casino Control Comm'n, 85 N.J. 325, 334, appeal dismissed by 454 U.S. 804, 102 S. Ct. 77, 70 L. Ed. 2d 74 (1981). "[D]ue process does not require an evidentiary hearing unless there are contested material issues of fact." Contini, supra, 286 N.J. Super. at 121 (citing Codd v. Velger, 429 U.S. 624, 97 S. Ct. 882, 51 L. Ed. 2d 92 (1977)). "'[I]t is the presence of disputed adjudicative facts, not the vital interests at stake, that requires the protection of formal trial procedure.'" Ibid. (quoting High Horizons Dev. Co. v. N.J. Dep't of Transp., 120 N.J. 40, 53 (1990)).
To properly understand the foundation for the DEP's request for revocation and debarment, we also must provide a broad overview of the statutory and regulatory provision at issue.
The transfer, hauling and disposal of solid waste is a highly regulated field for which the DEP and the Solid Waste Advisory Council have the power "to regulate and supervise all solid waste collection and disposal facilities and operations and to register all persons engaged in the collection or disposal of solid waste in this State[.]" N.J.S.A. 13:1E-2(b)(6). The Legislature declared: that the collection, disposal and utilization of solid waste is a matter of grave concern to all citizens and is an activity thoroughly affected with the public interest; that the health, safety and welfare of the people of this State require efficient and reasonable solid waste collection and disposal service or efficient utilization of such waste[.] [N.J.S.A. 13:1E-2(a).]
The statutory framework of the Act is designed to be a Statewide approach to solid waste management. N.J.S.A. 13:1E-2(b)(1).
The renewal of a license to operate in the solid waste management industry will not be approved:
a. Unless the department finds that the applicant, or the permittee, . . . in any prior performance record in the collection, transportation, treatment, storage, transfer or disposal of solid waste or hazardous waste, has exhibited sufficient integrity, reliability, expertise, and competency to engage in the collection or transportation of solid waste or hazardous waste, or to operate the solid waste facility or hazardous waste facility, given the potential economic consequences for affected counties, municipalities and ratepayers or significant adverse impacts upon human health and the environment which could result from the irresponsible participation therein or operation thereof, or if no prior record exists, that the applicant or the permittee is likely to exhibit that integrity, reliability, expertise and competence.
b. If any person required to be listed in the disclosure statement, or otherwise shown to have a beneficial interest in the business of the applicant, the permittee or the licensee, has been convicted of any of the following crimes under the laws of New Jersey or the equivalent thereof under the laws of any other jurisdiction[.]
c. If the Attorney General determines that there is a reasonable suspicion to believe that a person required to be listed in the disclosure statement, or otherwise shown to have a beneficial interest in the business of the applicant, the permittee or the licensee, does not possess a reputation for good character, honesty and integrity, and that person or the applicant, the permittee or the licensee fails, by clear and convincing evidence, to establish his reputation for good character, honesty and integrity. [N.J.S.A. 13:1E-133.]
Disqualification under N.J.S.A. 13:1E-133 warrants revocation of a previously granted license. N.J.S.A. 13:1E-134.
Further, N.J.A.C. 7:26-16.8 provides:
(g) No license shall be approved by the Department if any person required to be listed in the disclosure statement, or otherwise shown to have a beneficial interest in the business of the applicant, permittee or the licensee, has pursued economic gain in an occupational manner or context which is in violation of the criminal or civil public policies of this State, where such pursuit creates a reasonable belief that the participation of that person in any activity required to be licensed under this chapter would be inimical to the policies of [the Act]. For the purposes of this subsection, "occupational manner or context" means the systematic planning, administration, management or execution of an activity for financial gain. Also for the purposes of this subsection, pursuit of economic gain in an occupational manner or context which is in violation of the criminal or civil public policies of this State will be considered "inimical" to the policies of the act where the nature and quality of the activity in question create a risk that the applicant will, after licensure, engage in civil or criminal violations of the [SWUCA], the New Jersey Antitrust Act, N.J.S.A. 56:9-1 et seq., the [Act], or other New Jersey environmental statutes and their implementing regulations while engaged in any activity required to be licensed under [the Act] or other business incidental to such activities.
Also implicated in this matter is N.J.S.A. 48:13A-9, which provides guidance for when the DEP may revoke the CPCN of an entity engaged in collection or disposal of solid waste. The statute provides:
The [DEP] shall revoke or suspend the [CPCN] issued to any person engaged in the solid waste collection business or the solid waste disposal business upon the finding that such person:
a. Has violated any provision of [the SWUCA Act] or any rule, regulation or administrative order adopted or issued pursuant thereto; or
b. Has violated any provision of any laws related to pollution of the air, water or lands of this State; or
c. Has refused or failed to comply with any lawful order of the [DEP]; or
d. Has had its registration revoked by the Department of Environmental Protection; or
e. Has been denied approval of a license under the provisions of [the Act], or has had its license revoked by the Department of Environmental Protection, as the case may be. [N.J.S.A. 48:13A-9.]
See also In re Scioscia, 216 N.J. Super. 644, 656-57 (App. Div.) (holding that a person may be barred from engaging in the solid waste industry if that person has violated waste management statutes), certif. denied, 107 N.J. 652 (1987).
We turn our review to appellants' arguments. On appeal, appellants urge reversal because the ALJ's findings regarding past violations for solid waste storage, accepted by the agency, were inapplicable to assess the DEP's request to revoke Magic's A-901 permit for solid waste hauling and to debar Waszen from the industry. Appellants also argue error resulted in accepting the ALJ's findings made without appellants' opportunity to be heard at a plenary hearing. Additionally, they suggest they were punished twice for the same offense and Waszen's debarment was inappropriate because he had never been cited for violations in his hauling activities.
Challenging the procedural disposition of the matter, appellants assert there were "extenuating circumstances" leading to the listed violations, which they were thwarted from explaining. Also, appellants maintain subjective elements such as intent, character and motivation were disputed facts, necessitating a plenary hearing. Following our review, we determine appellants' offered justification for their actions is neither an excuse nor an explanation for the knowing disregard of the requirements of the Act and related statutes.
Appellants decry the ALJ's denial of their request for a plenary hearing to explain the extenuating circumstances leading to the violations. For example, appellants suggest the collapse of a casino increased the waste Magic was requested to handle and Magic shut off its air circulation system because of low winter temperatures. We reject these contentions.
For a period exceeding ten years, appellants regularly and repeatedly disregarded their obligation to comply with the requirements of the Act in processing solid waste. The lengthy list of violations is fraught with recurring conduct, suggestive of routine activity, as opposed to an incidental occurrence. ALJ Masin expressed it this way:
Many of the asserted infractions could have easily been corrected. For example, [appellants] could have easily controlled the tonnage received and limited its daily solid waste intake to the approved 125 tons, installed movable barriers, or confined the operations to the approved site plan footprint. [Appellants] either ignored or intentionally refused to comply with the numerous notices of violation related to these and many other matters. [Appellants] simply ignored the [DEP].
We conclude, in light of the undisputed facts delineating the extent and nature of the pervasive violations, appellants' claim of "extenuating circumstances" begs the question. We find that when faced with the choice of complying with the Act and staying within the parameters of its license, appellants habitually chose the course leading toward additional violations. Further, even when penalties were imposed they went unpaid and violations continued, causing DEP to seek enforcement relief in the courts. In fact, appellants generally disregarded compliance orders until the court shuttered the Egg Harbor facility.
Specifically addressing Waszen's role in the unpermitted Mullica Township dumping, he seeks to present evidence to shift the blame, suggesting misinformed legal advice led him to believe permits were unnecessary. Frankly, it makes no difference that Waszen may have hired incompetent counsel, as he had been working in the business almost fifteen years when he bought the Mullica Township property, and should have been very familiar with the scope of the DEP's oversight. Additionally, Waszen's professed ignorance, if true, is overshadowed by the continued illicit dumping until forced to cease by a court ordered restraint.
We also reject appellants' related argument that use of the summary decision procedure precluded the opportunity to present evidence regarding intent and motivation. Appellants correctly state a summary hearing is generally inappropriate when subjective elements such as intent or motivation are involved. See Spragg v. Shore Care, 293 N.J. Super. 33, 59 (App. Div. 1996) (holding that "[w]here subjective elements such as intent and motivation are involved, summary judgment is particularly inappropriate"). Nevertheless, in this matter the appellants' asserted subjective beliefs do not alter the result.
Despite the DEP's many notices of violations, steep penalty assessments, and unequivocal court enforcement orders, Magic, solely operated by Waszen, remained undeterred in flagrantly continuing the hundreds of offenses, including accepting excess waste, refusing to physically separate waste from recycling, dumping waste outside the transfer building, failing to clean the tipping floor, disregarding the obligation to use air pollution equipment, and storing solid waste on the tipping floor overnight. In January 27, 2005, when cited for "deliberate, purposeful, knowing and willful violations," appellants ultimately did not contest the violations, narrowing their efforts to lowering the $700,000 penalty.
Following our review of this record, we agree with the agency that the length and breadth of the violations by Magic and Waszen are not excusable incidents but expose appellants' defiant way of conducting business.
Moreover, we reject the notion that the myriad of violations were excusable. As noted, these were not isolated infrequent incidents; rather they were recurring events. Even the simplest of obligations was ignored. Illustrative of this point was Waszen's actions in respect of the Mullica Township property. Not only did he allow Magic to illegally dump solid waste on the realty, he even failed to obtain a building permit and approvals from Mullica Township prior to the commencement of construction.
To recite Judge Fuentes' comments in Material Damage Adjustment Corp. v. Open MRI of Fairview, 352 N.J. Super. 216 (Law Div. 2002), when reviewing a licensure dispute in the health field:
A belief, even a good faith belief, that one is performing  services in a reasonable or otherwise sound manner is not a defense. As a matter of law, entities wishing to engage in a highly regulated business which directly impacts upon the safety and welfare of the public, . . . are constructively on notice of the existence of legal requirements governing  practice and operations. Those who, nonetheless, venture forth without first obtaining the required governmental approvals, whether out of ignorance or arrogance, do so at their own risk and must face the legal consequences for their actions. Sound public policy can accept no lesser standard. [Id. at 227.]
The uncontroverted evidence clearly supports the finding that Waszen failed to "exhibit  integrity, reliability, expertise and competence" in his "prior performance record in the collection . . . or disposal of solid or hazardous waste, . . . or to operate the solid waste facility[.] N.J.A.C. 7:26-16.8(a). His past performance was "irresponsible" and "adverse" to "human health and the environment." Ibid.
Appellants next argue that after being assessed $700,000 in fines, the additional permit revocation and debarment subjects them to "double jeopardy" and is retaliatory. We determine there are no double jeopardy consequences presented.
Protection from double jeopardy, found in the Fifth Amendment of the United States Constitution and in Article 1, paragraph 11 of the New Jersey Constitution, must include an issue of "criminal punishment." Auge v. N.J. Dept. of Corr., 327 N.J. Super. 256, 263 (App. Div.), certif. denied, 164 N.J. 559 (2000). "[A] statute that can fairly be characterized as remedial, both in its purpose and implementing provisions, does not constitute punishment even though its remedial provisions have some inevitable deterrent impact, and even though it may indirectly and adversely affect, potentially severely, some of those subject to its provisions." Doe v. Poritz, 142 N.J. 1, 43 (1995).
The statutes pursuant to which appellants were sanctioned undoubtedly were regulatory. See State v. Lewis, 215 N.J. Super. 564, 575 (App. Div. 1987) (stating "the goals of the environmental laws are both remedial and preventative"); see also United States v. Salerno, 481 U.S. 739, 747, 107 S. Ct. 2095, 2101, 95 L. Ed. 2d 697, 709 (1987) ("There is no doubt that preventing danger to the community is a legitimate regulatory goal."). Although the Act and the SWUCA authorize the initiation of criminal charges in certain instances,*fn1 the statutes predominately impose sanctions "designed to help deter individuals from polluting the environment." Lewis, supra, 215 N.J. Super. at 575. The punishments imposed, including their element of intended deterrence, do not exceed what the legislature intended. Consequently, enforcement of the civil regulatory provisions does not trigger double jeopardy. See Doe, supra, 142 N.J. at 49 (holding that "where the alleged punitive effect is not intended as such, but rather is an inevitable consequence of a law that is clearly regulatory, there is no punishment").
Appellants' reliance on United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), is misplaced. In Halper, a monetary sanction pursuant to the False Claim Act was imposed following the defendant's criminal conviction for the same conduct. Id. at 446, 109 S. Ct. at 1901, 104 L. Ed. 2d at 500-01. The United States Supreme Court determined that "when the Government already has imposed a criminal penalty and seeks to impose additional punishment in a second proceeding," the protections of the Double Jeopardy Clause are triggered. Id. at 451 n.10, 109 S. Ct. at 1903 n.10, 104 L. Ed. 2d at 503 n.10. The Court held "that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution." Id. at 448-49, 109 S. Ct. at 1902, 104 L. Ed. 2d at 502.
Our Supreme Court discussed the applicability of Halper, noting the justification for precluding the civil penalty following conviction despite the fact that the statute authorized these dual reliefs:
It was a civil penalty that bore "no rational relation to the goal of compensating the Government for its loss, but rather appear[ed] to qualify as 'punishment' in the plain meaning of the word." [Id. at 449, 109 S. Ct. at 1902, 104 L. Ed. 2d at 502]. In other words, to the extent that the penalty exceeded the government's loss, it served no purpose other than to punish. . . .
The excess over the amount necessary to compensate the government could "only be explained as also serving either retributive or deterrent purposes." Given the legitimate goal of the statute, there simply was no other explanation for it, and based on that fact, it constituted punishment.
[Doe, supra, 142 N.J. at 52.]
The same cannot be said for what occurred in this matter. Here, the monetized sanctions imposed by the DEP resulted from the agency's discovery, monitoring and attempted abatement of a long, well-documented and undisputed history of hundreds of violations of the Act. See N.J.S.A. 48:13A-4 (authorizing the DEP to regulate, similar to a public utility, all aspects of solid waste disposal and transportation). The required permit, the CPCN, N.J.S.A. 48:13A-6, can be revoked for violating the Act. N.J.S.A. 48:13A-9. Similarly, chronic environmental offenders may be the cause of the non-renewal of an A-901 permit and an individual's debarment from the industry. It is the past practice of violations that triggered the decision to deny renewal of the permits and to seek debarment. N.J.S.A. 13:1E-134; N.J.S.A. 48:13A-9.
Appellants also assert the DEP ignored its duty to inform appellants of its intention to revoke Magic's permits and debar Waszen during the prior proceeding to revoke the authority to operate the Egg Harbor transfer station. Appellants argue the DEP selected its penalty of a fine with a deterrence component and cannot then seek additional penalties of revocation and debarment. We are not persuaded.
Based on the broad authority of the DEP to protect the public and regulate the solid waste industry, the statute includes the mandate to enforce the statutes and regulations as well as revoke a permitee's authority to continue operating within the industry for committing violations. These separate sanctions are noticed in the statutes. See Graham v. N.J. Real Estate Comm'n, 217 N.J. Super. 130, 138 (App. Div. 1987) (holding that a licensee is presumed to know the requirements for maintaining his or her license).
As required, we liberally construe the legislative grant of authority to the administrative agency to enable the agency to accomplish its statutory responsibilities. New Jersey Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562 (1978); In re Scioscia, supra, 216 N.J. Super. at 652. We conclude the pervasive powers conferred upon the DEP by the statutory scheme were appropriately applied as the Legislature did not preclude the serial pursuit of these remedies, which were designed to assure enforcement of the law's remedial purposes in the interest of the health and welfare of New Jersey citizens. N.J.S.A. 48:13A-2; N.J.S.A. 13:1E-2. The agency's decision enforcing the power "to regulate the individuals involved in the solid waste business" was properly exercised. Scioscia, supra, 216 N.J. Super. at 655.
Finally, appellants maintain the agency erred by debarring Waszen from the waste hauling business when none of the violations pertained to hauling but all occurred at a waste transfer facility, which is not closed. We disagree.
First, we reject the blithe contention that no real harm transpired as a result of the over 400 violations at the Egg Harbor and Mullica Township properties. While we agree no disease outbreak, fire or other disastrous hazard occurred throughout the years of deviations, nevertheless repeated public health hazards and the impingement on air quality were certainly posed by the rodent infestation, build-up of unremoved waste, disregard for clean-up standards and non-use of the air circulation system.
Second, "[w]e have no doubt that a person who has violated the Act or any regulation adopted there under may be found not 'qualified by experience' and hence may be denied permission under N.J.S.A. 48:13A-6 to engage in the solid waste business." Scioscia, supra, 216 N.J. Super. at 656. See also In re J.I.S. Industrial Service Co., 206 N.J. Super. 234, 237-38 (App. Div. 1985) (holding that "in the appropriate case the revocation of a license . . . [pursuant to] N.J.S.A. 13:1E-133 would justify a revocation of all licenses under N.J.S.A. 13:1E-134[(a)]"), aff'd, 110 N.J. 101 (1988).
In J.I.S., we reversed the revocation of the appellant's hauling license, in part because we concluded violations with operating its landfill should not also result in the closure of its hauling business based on an "unblemished record for hauling." Id. at 239. That matter is factually distinguishable from the one at bar. Most notably because in J.I.S. there existed a "bona fide dispute as to [the] appellant's responsibility for the pollution[,]" ibid., which is not the case here. Waszen alone was responsible for Magic's operation and was involved with each and every violation at the Mullica Township realty and the Egg Harbor facility.
Moreover, Magic's hauling business was intertwined with its waste transfer facility in Egg Harbor. For example, the excess tonnage violations occurred because Magic's trucks hauled the solid waste to Egg Harbor. This was done notwithstanding Waszen's complete understanding of the limits of the permit of the facility. So too, the waste illegally dumped at Mullica Township was transported by Magic's trucks.
We conclude substantial credible evidence is found in the record to support the finding that Waszen guided Magic as it committed the numerous violations. If left unchecked, his deficient reliability, expertise and competence evinced by his past engagement in prohibited practices and activities enhanced the dangers to the public posed by the industry. Waszen's debarment from the industry will not be overturned.
Accordingly, we do not interfere with the agency's revocation of Magic's CPCN, denial of the renewal of Magic's A-901 approval to perform waste management services, or the determination to bar Waszen from continued employment in the solid waste management and hauling industry.