Thanks to amendments to the New Jersey Spill Act in the summer of 2019, and the superior court, appellate division’s recent decision in NJDEP v. Alsol Corporation, No. A-3546-17T1, -- A.3d --, 2019 WL 5947024 (N.J. Super. App. Nov. 13, 2019), NJDEP has clear jurisdiction to bring civil penalty actions in municipal court for violations of the Spill Act. Among the summer 2019 amendments to the New Jersey Spill Act was the addition of an explanatory sentence at the end of N.J.S.A. 58:10-23.11u(d), the statutory section providing jurisdiction for NJDEP’s issuance of civil penalties in superior or municipal court, as shown by the underlining below.
Any person who violates a provision of P.L.1976, c. 141 (C.58:10-23.11 et seq.), or a court order issued pursuant thereto, or who fails to pay a civil administrative penalty in full or to agree to a schedule of payments therefor, shall be subject to a civil penalty not to exceed $50,000.00 per day for each violation, and each day's continuance of the violation shall constitute a separate violation. Any penalty incurred under this subsection may be recovered with costs in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999,” P.L.1999, c. 274 (C.2A:58-10 et seq.) in the Superior Court or a municipal court. The Superior Court and the municipal courts shall have jurisdiction to impose a civil penalty for a violation of P.L.1976, c. 141 (C.58:10-23.11 et seq.) pursuant to this subsection and in accordance with the procedures set forth in the “Penalty Enforcement Law of 1999.”
N.J.S.A. 58:10-23.11u(d). Prior to the addition of the underlined sentence, courts had interpreted this section to confer jurisdiction on municipal courts only to issue penalties where an order had previously been entered by the superior court or by an administrative tribunal. See Alsol Corp., 2019 WL 5947024 at *5 (discussing Middlesex Cnty. v. Browning Ferris, 599 A.2d 554 (App. Div. 1991). Indeed, the municipal court in Alsol held – in line with Middlesex County – that it lacked jurisdiction to issue civil penalties against Alsol. Id. at *3 (concluding that the statute “only confers municipal courts with jurisdiction to enforce civil penalties ‘where a finding of liability has already been adjudicated.’”).
Even before the statute was amended, the law division overturned the municipal court’s decision, finding – against the decision in Middlesex County – that the sentence preceding the coming amendment itself conferred jurisdiction on the municipal court: “Any penalty incurred under this subsection may be recovered with costs in a summary proceeding pursuant to the “Penalty Enforcement Law of 1999” … in the Superior Court or a municipal court.” Id. at *1.
By the time the case reached the appellate division, the statute had been amended and clarified with the underlined sentence above. The appellate division affirmed, albeit on different grounds based on the amended statute. Nevertheless, the message to the regulated community is the same, potentially responsible parties under the NJ Spill Act cannot dispute on these grounds NJDEP’s authority to bring civil penalty actions in the municipal courts.