Riker Danzig Scherer Hyland & Perretti LLP
Matthew A. Karmel
December 4, 2019
Reprinted with permission. © 2019 Riker Danzig Scherer Hyland & Perretti LLP
While most people think of municipal courts as resolving motor vehicle tickets and minor property disputes, the New Jersey Department of Environmental Protection (“NJDEP” or the “Department”) has been using the municipal court system for several years to enforce violations of laws and regulations relating to the investigation and remediation of contaminated sites in New Jersey pursuant to its “Municipal Ticketing Initiative.” (See our March 9, 2017 blog post titled “NJDEP to Expand Site Remediation Municipal Ticketing Initiative.”) However, some, including Alsol Corporation, have questioned whether a municipal court has jurisdiction to decide if an entity has violated environmental laws and, if so, to impose a penalty on the entity for such violation. In its recent decision, the Appellate Division gives its blessing to the Municipal Ticketing Initiative and determines that municipal courts have the power to adjudicate liability and enforce penalties pursuant to the New Jersey Spill Compensation and Control Act and the Site Remediation Reform Act. See New Jersey Department of Environmental Protection v. Alsol Corporation, __ N.J. Super __ (App. Div. 2019).
Traditionally, NJDEP has enforced laws relating to the investigation and remediation of contaminated sites through actions in the Superior Court of New Jersey or the Office of Administrative Law. The Department still uses these more formal venues to prosecute certain enforcement matters, (See our November 19, 2019 blog post titled “NJDEP Continues Environmental Justice Enforcement Efforts with Six New Lawsuits”), but proceedings in these venues can take several years to complete. It also is more expensive for the Department to initiate and prosecute an action in Superior Court or the Office of Administrative Law. In contrast, the Municipal Ticketing Initiative can lead to a resolution in a matter of months, and is relatively inexpensive for NJDEP.
The process in municipal court begins with the filing of a complaint by the Department and the issuance of a summons or “ticket” by the municipal court. Upon issuance of a ticket, the applicable municipal court will set a hearing date, and a State attorney will send a letter to the offender proposing to settle the violation upon compliance with the applicable requirements. Through the Municipal Ticketing Initiative, NJDEP can seek to impose penalties of up to $50,000 per day for continuing violations, and may request a bench warrant if an offender fails to appear for a scheduled hearing. However, the Department has stated on multiple occasions that it uses the Municipal Ticketing Initiative as a tool to persuade potentially responsible parties to clean up contaminated sites, and not to collect penalties from offenders. As a result, the State often agrees to dismiss its complaint in exchange for an agreement to remediate the site at issue and a small monetary penalty. If the offender and the State attorney cannot reach a settlement, the matter will proceed in municipal court. From start to finish, this process generally takes between three to six months.
In Alsol Corporation, the Department filed a complaint in municipal court against Alsol for failure to remediate contaminated property located in Middlesex County. NJDEP alleged that Alsol was the owner of the property at the time of its contamination and, therefore, is responsible for the remediation of such contamination in accordance with the New Jersey Spill Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. (the “Spill Act”) and its implementing regulations, including N.J.A.C. 7:26C-2.3(a). Upon receipt of the municipal ticket, Alsol moved to dismiss the matter for lack of subject matter jurisdiction. Specifically, it argued that municipal courts do not have the authority to adjudicate the merits of an enforcement action brought by the NJDEP involving alleged violations of the Spill Act. The Appellate Division soundly rejected this argument. The Appellate Division reached this result based on its interpretation of the relevant rules and statutes, as well as prior precedent authorizing the Department to use the municipal courts to enforce violations of the New Jersey Solid Waste Management Act. The Appellate Division also appears to have relied in part on statutory amendments enacted earlier this year to clarify that the Department can use the municipal courts for its Municipal Ticketing Initiative.
Alsol Corporation resolves doubts about the validity of the Municipal Ticketing Initiative, but will it also open the municipal courthouse door to higher stake, more complicated environmental matters? It isn’t yet clear whether or how the municipal courts would handle more complicated environmental matters, which those courts may not be well suited to handle as the matters can involve evolving legal theories and significant expert testimony. As a result, it is essential for defendants to respond to these cases in consultation with knowledgeable environmental counsel.
This article is being provided for informational purposes only and not for the purposes of providing legal advice or creating an attorney-client relationship. You should contact an attorney to obtain advice with respect to any particular issue or problem you may have. In addition, the opinions expressed herein are the opinions of Mr. Karmel and may not reflect the opinions of Synergy Environmental, Inc., Riker Danzig Scherer Hyland & Perretti LLP or either of those firms’ clients.