On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-257-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges J. N. Harris and Koblitz.
The New Jersey Department of Environmental Protection (DEP) appeals from the May 27, 2011 order denying its second motion in aid of litigant's rights seeking to compel compliance with the parties' October 29, 2009 judicial consent order (JCO). After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for a plenary hearing to determine whether defendants are able to comply with the JCO.
Theodore Fiore owns, operates, and is the sole principal of both defendants T. Fiore Demolition (Fiore Demolition) and T. Fiore Recycling Corporation (Fiore Recycling). On November 21, 2001, the DEP approved Fiore Recycling to operate a Class B Recycling Center on Site A*fn1 in Newark, permitting it to accept no more than 1,865 tons per day (tpd) of recyclable materials, and to store up to 30,314 cubic yards (cy) of unprocessed Class B recyclables and approximately 38,381 cy of processed Class B recyclables. Unprocessed recyclables include materials such as concrete, asphalt, cinder block, brick, wood, street sweepings, creosote wood and roofing shingles. Fiore Recycling processes these materials and sells them for use as fill for roads and other construction projects.
Adjacent to Site A is twenty-six acres of land (Site B) owned by the Newark Housing Authority (NHA). Although Fiore Recycling obtained approval from the DEP to operate the recycling center on Site A only, Fiore individually entered into a lease agreement with the NHA to use Site B to store concrete debris.*fn2 This act led the DEP to issue a notice of violation to Fiore Recycling on November 9, 2006. Fiore Recycling responded, on Fiore Demolition letterhead, with a proposed schedule to remove the "off-site pile" by the end of 2008.*fn3
On December 20, 2007, the DEP entered an administrative order requiring Fiore Demolition, Fiore Recycling, and Fiore individually and in his official capacity as president of the businesses to "[i]mmediately cease all acceptance of materials" until the materials on Site B are "removed and [the recycling facility] is operating in conformance with the approved site plan." In February 2008, Fiore reported that the recycling center had stopped accepting materials and had addressed the side slope of concrete debris stored illegally on Site B.
The DEP advised Fiore that he could resume operation at his recycling center subject to certain conditions, including the removal of three truckloads of processed material for every truckload of incoming unprocessed material. On August 15, 2008, Fiore Demolition and Fiore Recycling submitted a revised removal schedule that proposed complete compliance by the end of 2010.
The New Jersey Turnpike Authority (NJTA) visited Site B on October 15, 2008. By that time, the stockpile had doubled in height to approximately 100 feet. The NJTA expressed "significant concerns relative to this stockpile" and "requested that [Fiore] be required to take all appropriate actions to alleviate these concerns immediately."
On October 25, 2009, the DEP filed a verified complaint against defendants for violations of the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to -48, that created a public nuisance. On October 29, 2009, the judge entered a judicial consent order (JCO), agreed to by the parties, to complete the removal of almost 500,000 cy of unauthorized concrete material by October 29, 2014. Fiore executed the JCO as president and sole shareholder of Fiore Recycling and Fiore Demolition.
The JCO required defendants to completely remediate Site B within the five-year period by removing approximately one-half million cy of waste illegally stored approximately fifty feet from the New Jersey Turnpike in Newark. It also obligated defendants to operate in compliance with the recycling center approval by periodically submitting progress reports, engineering reports, and surveys.
The negotiated JCO provided compliance flexibility. It allowed Fiore and his companies to decrease their removal rate during the winter months to account for seasonal effects and to average their removal rate to account for fluctuations in business. Despite this flexibility, defendants were in violation of the agreed-upon limits within eight months. The amount of unprocessed concrete and other debris at the recycling center became so excessive that defendants continued to store processed material on Site B.
In May 2010, defendants conducted an inspection of Site B to complete a required engineering report. The consulting engineer noted "some erosion . . . along the slope at the south side and the southeast corner along the New Jersey Turnpike." Fiore's consultant planned to install the required vertical markers by June 30, 2010, so that the DEP could objectively measure removal progress, but the markers were never installed. Defendants also failed to sample and analyze the material illegally stored on Site B, to complete their engineer inspection/survey obligations, to obtain a ...