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State of New Jersey Department of Environmental Protection v. Alsol Corp.

Superior Court of New Jersey, Appellate Division

November 13, 2019

STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent,
v.
ALSOL CORPORATION, Defendant-Appellant.

          Argued February 13, 2019

          On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 29-2017.

          Lawrence S. Berger argued the cause for appellant (Berger & Bornstein, LLC, attorneys; Lawrence S. Berger, on the briefs).

          Robert Gregory Lamilla, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Robert Gregory Lamilla, on the brief).

          Before Judges Fuentes, Accurso, and Vernoia.

          OPINION

          FUENTES, P.J.A.D.

         In this appeal, we are required to determine whether the Law Division correctly decided that municipal courts have jurisdiction to impose civil penalties in an enforcement action filed by the New Jersey Department of Environmental Protection (DEP) pursuant to the Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 to -23.24 (the Spill Act). After reviewing the record developed by the parties, we affirm. We conclude municipal courts have jurisdiction pursuant to N.J.S.A. 58:10-23.11u(d) to impose civil penalties under the Spill Act in a summary proceeding conducted pursuant to the Penalty Enforcement Law of 1999, N.J.S.A 2A:58-10 to -12.

         I

         This issue arose when an employee of the DEP filed a complaint against Alsol Corporation (Alsol) in the Milltown Municipal Court, using the "Special Form of Complaint and Summons" prescribed by the Administrative Director of the Courts. The summons contains a section that identified the complaining witness as a representative of the DEP, who certified that

to the best of his/her knowledge or information and belief, the named defendant on or about [October 4, 2016] in Milltown . . . [, ] County of Middlesex County, N.J., did commit the following offense:
Failure to remediate the property located at BL. 58 Lot 1.01 Ford Ave. & Main St. in violation of . . . N.J.A.C. 7:26C-2.3(a).

         This DEP regulation provides:

(a) Upon the occurrence of any of the events listed in N.J.A.C. 7:26C-2.2(a), the person who is responsible for conducting the remediation at a site pursuant to N.J.A.C. 7:26C-1.4(a) shall:
1. Hire and maintain a licensed site remediation professional, unless:
i. The remediation is being conducted partially or solely to satisfy the obligations under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., is a priority site under the Government Performance and Results Act, 40 U.S.C. §§ 11101 et seq., and the U.S. Environmental Protection Agency is the lead agency for the remediation;
ii. The remediation is being conducted on a site that is listed on the National Priorities List pursuant to the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., and the U.S. Environmental Protection Agency is the lead agency for the remediation; or
iii. The remediation is being conducted at a Federal facility;
2. Notify the Department, on a form found on the Department's website at www.nj.gov/dep/srp/srra/forms, of the name and license information of the licensed site remediation professional hired to conduct or oversee the remediation and the scope of the remediation, including the number of contaminated areas of concern and impacted media known at the time the form is submitted and determined pursuant to N.J.A.C. 7:26C-4.2, within 45 days after:
i. May 7, 2012, when the earliest of the events listed at N.J.A.C. 7:26C-2.2(a) occurred prior to November 4, 2009; or
ii. The date of the occurrence of the earliest of the events listed at N.J.A.C. 7:26C-2.2(a), when the event occurred on or after November 4, 2009;
3. Conduct the remediation:
i. Without prior Department approval, except:
(1) If the Department directs otherwise;
(2) If the person is remediating the site, area of concern or site condition pursuant to N.J.A.C. 7:26C-14;
(3) If the remediation is being conducted pursuant to (a)1ii or iii above, or the site is being remediated partially or solely to satisfy the obligations under the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., and is a priority site under the Government Performance and Results Act, 40 U.S.C. §§ 11101 et seq., regardless of whether the U.S. Environmental Protection Agency or the Department is the lead agency for the remediation; or;
(4) If the site is suspected or known to be contaminated with anthropogenic radionuclide contamination of any media;
ii. In accordance with N.J.A.C. 7:26C-1.2(a); and
iii. By addressing all deficiencies identified by the Department in any submittals made by the person or by a licensed site remediation professional on behalf of the person;
4. Pay all applicable fees and oversight costs as required pursuant to N.J.A.C. 7:26C-4;
5. Establish a remediation funding source, if required, pursuant to N.J.A.C. 7:26C-5;
6. Provide the Department access to the contaminated site pursuant to N.J.A.C. 7:26C-8;
7. Provide the Department copies of all applicable documents concerning the remediation as required by this chapter and the Technical Requirements for Site Remediation rules, N.J.A.C. 7:26E, or upon request of the Department;
8. Meet the timeframes in this chapter and in the Technical Requirements for Site Remediation ...

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