THE ENVIRONMENTAL PROSECUTOR: THE EXPERIENCE OF A "CENTRAL COMMAND" THEORY OF ENVIRONMENTAL ENFORCEMENT

 

STEVEN J. MADONNA1

 

1 Assistant Attorney General/New Jersey State Environmental Prosecutor, 25 Market Street, CN 118, Trenton, New Jersey 08625 (The United States)

 

 

            PERSPECTIVE

 

            The State of New Jersey, like most states in the United States, has a significant commitment of manpower and resources within the three primary components of its environmental enforcement effort.  These include the administrative enforcement elements within the Departments of Environmental Protection and Energy (DEPE), Health and Labor, which are designed to secure broad-based compliance with reasonable and realistic regulatory programs through the use of easily administered fines and penalties; the civil enforcement area of the Environmental Protection Section of the Division of Law (DOL), which brings to bear the general civil remedies available in the state court system in the form of prohibitory and mandatory injunctive orders, as well as civil trial and penalty proceedings; and the criminal investigative section within the Environmental Prosecutions Bureau of the Division of Criminal Justice (DCJ), whose presence and efforts are most effective in deterring the repeat offender, the syndicated criminal, or others who engage in crime for profit or otherwise consider civil penalties as a cost of doing business.  Additionally, the New Jersey State Police Marine Services Bureau and the Solid and Hazardous Waste Unit each have responsibilities, which overlap the three primary enforcement components.

 

            Each of these enforcement components utilizes resources of varying degrees of intensity depending on the nature, extent and timing of the appropriate initiative or response.  While each enforcement mode has the potential to be effective when used properly, each can be grossly ineffective and even counter-productive if used in an untimely or uncoordinated manner.  In an effort to maximize the State's utilization of these resources, on January 24, 1990, Governor Jim Florio of the State of New Jersey, USA issued Executive Order #2 establishing the Office of the State Environmental Prosecutor (OSEP).  The State Environmental Prosecutor (SEP) was charged with the responsibility for coordinating the use of these enforcement resources in order to maximize their efficiency and effectiveness and to create and integrate them into a comprehensive Statewide environmental enforcement program.  Additionally, the SEP was required to personally prosecute those enforcement cases which involve either chronic environmental offenders, or situations which pose a serious threat to public health or the environment, as well as ensuring that these "priority cases" receive enhanced and expedited handling.

 

            Steven J. Madonna was designated an Assistant Attorney General by New Jersey Attorney General Robert J. Del Tufo and appointed by Governor Jim Florio as the SEP.  State Environmental Prosecutor Madonna and Attorney General Del Tufo organized the Office around a management core concept.  Rather than attempt to create an additional bureaucracy in the enforcement effort, it was deemed more efficient to establish a management core to supervise and manage the existing resources of State Government in a more effective, coordinated fashion.

 

            Housed in the State's Hughes Justice Complex, the office, totaling sixteen individuals, is staffed with the SEP, seven Assistant State Environmental Prosecutors, three Investigators, an Executive Assistant; and four support personnel.  Thirteen of the sixteen staff positions were filled through reallocation of staff from other State agencies.

 

            The remarks of Attorney General Del Tufo in the Foreword to the State Environmental Prosecutor's Second Annual Report summarize the unique role of the Environmental Prosecutor concept:

            "...The Office of the State Environmental Prosecutor is as unique and innovative a concept as it is new.  Just completing its second year of operation, the office's experience demonstrates quite clearly that State Government can be more efficient and effective by simply being more resourceful.

            ...with the mandate of the Executive Order that all departments and agencies cooperate fully with the State Environmental Prosecutor, the Office has been set up to function as a management core.  It operates through, and in coordination with, the numerous States, county and local agencies, divisions and departments involved in the criminal, civil and regulatory environmental enforcement effort.  Acting in this fashion, the Prosecutor not only oversees the prosecution of "priority cases," but also works to insure the coordination of initiatives, information exchange, and day to day enforcement activities.  The Prosecutor has also overseen the creation of environmental units in County Prosecutors' Offices and works closely with them in enforcement matters.  The Prosecutor is not restrained by the arbitrary limitations of the resources or jurisdiction of any given agency, division or department, nor has he any vested interest in highlighting or using the tools or resources of any particular agency, division or department.  Herein lies the true uniqueness of the concept of the New Jersey Environmental Prosecutor.  Faced with a significant 'environmental incident,' the Prosecutor has the unfettered discretion to coordinate the nature and timing of the most appropriate, efficient and effective enforcement response.  Whether it is criminal, civil or administrative or any combination thereof, whether it be State, county or local, the Prosecutor is free to exercise his judgment as to the nature and timing of the preferred response or responses.  The ability to proceed in this "holistic" fashion avoids duplications of effort, contradictory theories of enforcement, and insures the full and proper utilization of our State Government resources, irrespective of the division or department in which they formally reside.

                        As described, the New Jersey Environmental Prosecutor is a position unique in the ranks of environmental enforcement."

 

1            COMPREHENSIVE STATEWIDE ENVIRONMENTAL ENFORCEMENT PROGRAM

 

1.1       State Agency Coordination

 

            The first step in creating a comprehensive Statewide environmental enforcement program, one of the primary responsibilities of the SEP, was establishing a system of coordination of the initiatives, personnel, and resources of the various environmental enforcement Divisions and Departments of State Government.  The SEP initiated the appointment of representatives within each of the Divisions and Departments to act as liaisons with the OSEP.  Assistant State Environmental Prosecutors were likewise assigned to coordinate and manage the relevant enforcement activities of these various Divisions and Departments.  They have also been instrumental in establishing working protocols of operation with their respective liaisons and agencies.  The coordination of the use of the resources and personnel within these State agencies by the SEP is designed to maximize the efficiency and effectiveness of the State environmental enforcement program as a whole.  This effort is being supported by a project to provide for computer linking and data access between the various Divisions and Departments of State Government. 

 

            In furtherance of this comprehensive program, coordination and supervision by the OSEP occurs daily in the context of the selection of the appropriate action and agency in a given case and in other non-case oriented initiatives.  These include:

 

1.1.1 Voluntary Audit/Compliance Program

 

            In an effort to instigate more responsible environmental practices within the State's business and industry community, the SEP has proposed a Voluntary Audit/Compliance Program.  Drawing upon widely accepted environmental principles, the SEP, working with the Division of Criminal Justice, the Division of Law, the Department of Environmental Protection and Energy, and the County Prosecutors, and with comments from various responsible practitioners and members of New Jersey business and industry groups, has drafted a checklist of desirable business practices which experience has shown will have a positive impact on the pollution prevention effort.  The program provides that the implementation and responsible operation of these business practices could benefit and assist a business in the event of an unforeseen environmental "incident" which may normally carry criminal ramifications.  These business practices are to be incorporated as factors to be promulgated by the State Environmental Prosecutor, the Attorney General, and the Director of the Division of Criminal Justice, as a guidance document to be considered by the State's prosecutors when making decisions on whether or not to charge an environmental crime, the nature of the charges, and the identity of the defendants. 

 

            It is the belief of the State Environmental Prosecutor that broad-based implementation and operation of such programs are essential components of a successful pollution prevention effort and the protection of our natural resources.

 

1.1.2    Clean Harbors and Rivers Task Force

 

            The upgrading of offenses relating to crimes impacting on the waters of the State of New Jersey along with the inclusion of the new statutory concept "significant adverse environmental effect," are key components of the recently enacted New Jersey Clean Water Enforcement Act.  With these new tools, the SEP has established a multi‑agency task force dedicated solely to coordinated criminal enforcement of New Jersey's clean water statutes.  This task force has, as its primary responsibility, the coordinated investigation and prosecution of alleged incidents of criminal water pollution in a manner which will insure the diligent, but reasoned and uniform, use and interpretation of the new statutory provisions.

 

1.1.3    Solid Waste Enforcement Initiatives

 

            The OSEP organized a joint effort by the State Police and DEPE for a one-week period in April to pursue forfeiture actions against solid waste transporters hauling solid waste from a solid waste transfer station in Newark in violation of State licensing laws.  During the around‑the-clock operation, would-be transporters were informed that they were subject to possible vehicle seizure and forfeiture actions if they hauled the waste in violation of A-901 screening procedures and truck licensing requirements.  As a direct result, the gypsy haulers ceased their illegal operations.     

 

            The OSEP continued to coordinate efforts on behalf of the New Jersey State Police Hazardous Materials Unit and the Solid Waste Division of the DEPE to insure the safe, environmentally sound and legal movement of solid waste over the State's highways.  Through a continuing series of vehicle checkpoints in different areas of the State, approximately 2,300 violations have been detected.  Appropriate citations were issued and approximately 35 solid waste vehicles were placed out of service since the implementation of this initiative in 1990.

 

1.1.4    Scrap Tire Initiative

 

            The OSEP continues to pursue an initiative designed to address the blight of used tires that are piled up at various sites throughout New Jersey.  The impetus for the initiative resulted from a tire fire that raged at a site in Jersey City, New Jersey, in 1991, sending acrid smoke into the air for hours and interrupting the flow of traffic on a major north/south interstate highway. 

 

            DEPE, at the urging of the SEP, has undertaken a survey of the locations, quantities, and site characteristics of the worst tire dumps in the State.  To date, eleven sites have been identified and inventoried, accounting for more than 7.5 million tires.  The majority of these abandoned tires are located on lands situated over the pristine Cohansey Aquifer of the Pine Barrens.  The results of the survey will serve as the basis for the development by the State of an enforcement/remediation strategy with respect to these sites.  The OSEP is working with the DOL and the DCJ to review the facts and circumstances which gave rise to the tire site accumulations and to consider enforcement actions against those responsible for creating this menace.  Further, the OSEP has notified State and local law enforcement authorities of the potential fire problem inherent in tire site accumulations and of the need for increased vigilance.

 

1.1.5             Pinelands Initiative

 

            The OSEP has recently joined forces with the Pinelands Commission in an enforcement initiative designed to protect and preserve the natural beauty and resources of the Pinelands.  An Assistant State Environmental Prosecutor has been assigned with the primary responsibility to assist the Pinelands Commission in the development and prosecution of civil and criminal environmental cases occurring within their jurisdiction.  This Assistant State Environmental Prosecutor will meet on a regular basis with staff of the Pinelands Commission to prioritize enforcement matters and insure that they are given appropriate attention.  In furtherance of these efforts, the OSEP is working closely with the county prosecutors and State and local law enforcement authorities in the seven counties in which the Pinelands Reserve is located to prosecute environmental crimes. 

 

 

 

1.1.6             Racetrack Initiative

 

            As a result of continuing problems with water quality in waterways adjacent to horse racetracks in New Jersey, the OSEP initiated discussions and efforts aimed at instituting interim procedures and permanent solutions regarding racetrack manure handling practices.  The aim of this process has been to have appropriate temporary and permanent pollution control strategies implemented by the racetracks.  This will minimize, if not eliminate, the contamination of the adjacent waters by manure‑contaminated runoff.

 

1.1.7    Direct Sewage Discharge Initiative

 

            The OSEP continues coordination of the efforts of the Marine Services Bureau of the New Jersey State Police, various County Health Departments and the DEPE to end direct discharges of business and household sewage and waste into various waterways, bays, and shellfish breeding areas of the State of New Jersey.  Since the implementation of this initiative in 1990, 399 summonses have been issued by the Marine Police to cease such discharges.  Efforts are likewise underway to address remediation alternatives with local sewage authorities and county and local health officials. 

 

1.1.8    State Agency Compliance

 

            The OSEP initiated a project that will inventory and make recommendations regarding compliance problems at State facilities.  This project will include the distribution of a request for information to all agency heads to inventory known environmental problems along with proposed solutions.  The resultant information will provide the basis for a complete analysis of the scope of this problem.  With this information available, it is expected that the Administration will be in a position to define the measures necessary to result in the State becoming a model of environmental compliance. 

 

1.2       County Coordination

 

            One important component of the SEP's statewide environmental enforcement program is an increased emphasis on county agency enforcement.  (The State of New Jersey is divided into twenty-one regional units of government called counties.)  The county prosecutors' offices and county health departments have been designated as the core of the county component of this network.  They are looked to as the catalyst in each county for the formation of county environmental enforcement task forces, consisting variously of county Hazmat Teams, county sheriff's departments, departments of public works, emergency services departments and the like.  As the focal point of county level enforcement activity, they will be the immediate points of contact and coordination with the OSEP.  As currently operating, information and case referrals move routinely between the OSEP and the county components. 

 

            In 1991, the OSEP completed the training of at least one assistant prosecutor and one investigator from each county, and has since begun training newly assigned personnel with classroom and field instruction.  Likewise, in 1991 the OSEP arranged for a four day County Health Inspectors Training Course to sensitize these individuals to the relevant procedures and operations of the criminal justice system, and the signs and symptoms of criminal conduct.  Although all twenty‑one counties have basic environmental enforcement capability, eighteen counties are effectively operating environmental crimes units, twelve coming into existence in the last year. Two Assistant State Environmental Prosecutors have been assigned to work exclusively on the operation and further development of these county environmental enforcement components.  They are responsible for providing the county prosecutors with assistance, including the necessary technical and legal support to properly investigate and prosecute environmental crimes cases; designating and assisting with the investigation and prosecution of county level priority cases; and providing complementary civil and regulatory support when necessary.

 

1.3       Local Component

 

            Local agency involvement in the overall environmental enforcement effort is critical to its success.  It is the everyday responsibilities of the local police officer, fire inspector, code and health enforcement officers that provide the opportunity to observe the signs and symptoms of unlawful environmental practices.  In order to identify the proper agencies to make up the local enforcement component, the SEP has been and continues to meet with various agencies of local government, as well as organizations such as the Association of New Jersey Environmental Commissions, North Bergen Volunteer Health Officers, the Passaic River Coalition, the Statewide Association of County Health Officers, the Morris County Safe Neighborhood Group and the New Jersey Environmental Federations to review and evaluate the possible options.

 

1.4             Federal/Interstate Coordination

 

            A Statewide comprehensive environmental enforcement program will invariably have aspects of enforcement that must be coordinated with adjoining states and various federal agencies.  In this regard, the SEP was designated by Executive Order #2 to be the State's liaison to other states and federal agencies and accordingly has routine discussions with the United States Attorney, the EPA Headquarters and Regional Administrator, and representatives of the adjoining states and their representatives in the Northeast Hazardous Waste Project.

 

            The SEP serves as a member of several national level environmental committees and working groups - the EPA Steering Committee on Federal/State Enforcement Relationship, the EPA Advisory Council of the National Enforcement Training Institute and the Environmental Committee of the Council of State Governments.  The SEP, working with the United States Attorney and the EPA Regional Administrator, are forming the New Jersey Federal/State Environmental Task Force.  This unique project is proposed to include representatives from the Federal Bureau of Investigations, the United States Environmental Protection Agency, the United States Coast Guard, and the United States Attorney's Office and New Jersey representatives including the SEP, the DCJ, the DEPE and other State and county support agencies, as needed.  It is designed to provide a forum for the coordination and investigation of environmental enforcement cases that have a national or regional significance.

 

1.5       Public Education and Outreach

 

            The SEP considers public involvement a critical component of the comprehensive statewide environmental enforcement network both in terms of detection and prevention.  For this reason, the OSEP has placed a high priority on the need to respond to requests for information and invitations from citizens, community groups and business/professional organizations to participate in various events.  These events have provided the OSEP with opportunities to promote more responsible personal and business environmental practices and to familiarize individuals and groups with the consequences of irresponsible environmental practices, the need for public involvement in detection and prevention, and the role and strategy of the OSEP in the New Jersey environmental protection effort.

 

             To facilitate formal citizen involvement and to underscore its importance, the Governor and the State Environmental Prosecutor announced on September 19, 1990, the implementation of the Information Awards Program.  This program was designed to provide a cash award to citizens for information that result in fines or penalties from the illegal disposal or ocean dumping of solid, medical, hazardous, or low-level radioactive waste. Disposal or ocean dumping. 

 

2            ENVIRONMENTAL TRAINING PROGRAMS

 

            In addition to training courses sponsored for county prosecutors' attorneys and investigators, and county health inspectors, the OSEP planned and sponsored training programs throughout the year for Marine Police personnel, the then Board of Public Utilities investigators, sheriffs officers, and local fire, police and health officials.  Additionally, a program has been initiated by the OSEP with the Police Training Commission and the Division of Criminal Justice to incorporate an environmental crime component within the police training academies.

 

3            STATE PRIORITY CASES

 

            One of the primary responsibilities of the SEP is the identification, investigation and prosecution of civil, criminal and administrative priority cases.  Whether identified on the State, county or local level, and priority cases are, by definition, those, which have an unusually great potential to adversely impact on the health and safety of our State's citizens, and the quality of our environment.  For this reason, the SEP is charged with the responsibility to handle, or oversee the handling of, these priority matters and to insure that there is the necessary commitment of personnel and resources to exact an expeditious and conclusive resolution.  Working with and through the DCJ, the DOL, and the DEPE, the OSEP's efforts have resulted in indictments, convictions, sentences, administrative enforcement actions, civil actions, Court orders, penalties, fines, assessments, and debarments, the highlights of which follow:

 

3.1       Ciba Geigy - Ocean County

 

            After more than seven years of litigation, the SEP successfully coordinated a record breaking global resolution of the Ciba‑Geigy litigation, highlighted by criminal pleas to violations of the New Jersey Clean Water Enforcement Act by the corporation and the two indicted middle-level managers.  This criminal/civil/administrative resolution package of not less than $63.5 million could easily become a $75 million package over the next ten years.  Resolving the indictment, civil penalty action, and other issues involving the disposal of hazardous/chemical wastes in Cell 2 of their lined landfill, Ciba‑Geigy will pay a $5.5 million civil fine, $3.5 million criminal fine, $2.5 million contribution to purchase wetlands in the Toms River basin, reimbursement of the State's expenses in excess of $2 million, and the establishment of a $50 million cleanup fund.  In what are yet unliquidated costs to the company, Ciba-Geigy has agreed to install a state-of-the-art cap on Cell 1 to reduce leachate production to a virtual zero; increase the monitoring wells and testing at Cell 1; remove and dispose of the Cell 2 liner as a hazardous waste, and close Cell 2; continue pumping, treating, and re-injecting the Cardinal Drive pollution plume in perpetuity or until the pollution is removed; all of this to be accomplished under the paid oversight of the DEPE.  This resolution represents a landmark coordinated criminal, civil, and administrative environmental enforcement package.

 

3.2       Exxon Company, U.S.A.

 

            The SEP successfully coordinated the global resolution of the criminal and outstanding civil issues involving the January 1, 1990 Exxon inter-refinery pipeline rupture.  Culminating a 12-month criminal investigation by the SEP and the Division of Criminal Justice, Exxon, and the world's largest corporation, pled guilty to a criminal negligence violation of the Federal Clean Water Act on March 20, 1991.  Concurrently, a civil agreement was reached, also culminating the lengthy mediation process by the SEP and the Division of Law.  The direct efforts of the SEP working with the Divisions of Criminal Justice and Law resulted in the payment of an additional $15 million in criminal and civil fines and penalties, as well as reimbursement for natural resource damages to the States of New Jersey and New York and the Federal Government ($5 million in criminal fines and penalties and approximately $10 million to natural resource damage).  This was in addition to the prior recoupment of $18 million for containment and spill cleanup costs,  $25 million for a Marine Operation Study and the costs of the implementation of the preventive recommendations, and $661,000 for a preliminary natural resource damage study thus bringing the entire resolution package to $59 million.  Additionally, the agreement imposed strict controls over the reopening and reuse of the pipeline and required training and procedures incident thereto.

 

3.3       White Chemical Co. - Essex County

 

            In April of 1990, this Office learned of potentially catastrophic conditions at the facilities of White Chemical Co. in Newark, including the presence of approximately 8,000 rusting drums of hazardous chemical on site.  The execution of search warrants in May of 1990, developed evidence which resulted in the State Grand Jury returning a five count indictment in December, charging White Chemical Co. and its president and owner, James W. White, each with crimes of the second, third, and fourth degree.  The case is currently pending trial. 

 

            As a result of information gathered at the scene, the SEP was able to expedite the issuance by the DEPE of a Spill Fund Directive, which allowed the State to begin the immediate stabilization of the most dangerous threats at the site.  During the next five months, DEPE removed, repacked and/or segregated significant quantities of the most dangerous substances.  DEPE's actions taken pursuant to the initiative of this Office resulted in a substantial reduction in the risk posed by conditions at the site.  EPA has taken over final remediation of the site.

 

3.4       HUB Recycling, Inc.

 

            The OSEP, operating with the Division of Criminal Justice, returned a 19 count indictment charging HUB Recycling, Inc. of Newark and its operators and affiliated companies with a range of environmental and financial crimes arising from the operation of an illegal dump at the HUB site in Newark.  Purportedly a recycling facility, HUB allegedly accumulated over 105,000 tons of debris under Interstate 78, which was ignited into a fire that raged through the materials, and resulted in the intense heat warping the girders of the overpass.  A civil suit to recoup money damages was subsequently initiated by the OSEP in cooperation with the Division of Law.

 

3.5             Hagaman Site - Ocean County

 

            After more than five years of futile litigation by Lakewood Township municipal enforcement authorities who attempted to halt and remedial hazardous accumulations of solid waste at the Hagaman site, this case was declared a priority by the SEP in 1991.  The SEP promptly obtained an initial injunction in the Ocean County Superior Court prohibiting Hagaman from operating at the site, and allowing the DEPE exclusive possession of the site for the purpose of conducting site stabilization and cleanup. 

 

3.6            Warren County Garage

 

            Information referred by the OSEP to the DCJ and the Warren County Prosecutor's Office resulted in the initiation of an investigation into allegations that 55-gallon drums of hazardous waste were buried by county employees at the Warren County Garage.  The SEP designated the matter as a priority and coordinated the joint agency investigation which culminated with the return of an indictment against a supervisor in the Warren County Road Department on March 12, 1992, charging him with Release and Abandonment of Hazardous Waste and Toxic Pollutants.  The same Grand Jury also prepared and released a presentment, which reflected the general principle that government should set the example for private industry in the environmental protection effort.  It expounded the simple but innovative recommendation that county government should establish the position of "Environmental Compliance Officer" with the primary responsibility insuring that county government facilities, operations and personnel are functioning in rigid compliance with all applicable environmental statutes and regulations.  It also noted that the first responsibility of this new officer should be to conduct a countywide environmental audit, including an inventory of the historic and present environmental compliance status of all facilities, equipment, operations, and employee practices for purposes of remediation and budgeting.

 

3.7            National Waste Disposal - Mercer County

 

            In a case that resulted in the largest penalty awarded after an Office of Administrative Law hearing, the OSEP took the lead in prosecuting four administrative complaints by the DEPE against National Waste Disposal, Inc., a solid waste and hazardous waste collector based in Mercer County.  The claims against National Waste involved the operation of several illegal solid waste facilities, unlawful storage and transfer of asbestos, violation of State waste flow directives, and failure to transport hazardous waste to the appropriate disposal facilities.

 

            Following thirty-one days of evidentiary hearings in the Office of Administrative Law, Administrative Law Judge Joseph Fidler found that National Waste violated the Solid Waste Management Act on over three hundred occasions.  Judge Fidler recommended an assessment of $6,000,000 in penalties against National Waste, a revocation of National Waste's licenses to collect solid and hazardous wastes, and a debarment of the owner from future operations in the solid and hazardous waste industries.

 

3.8            Northeastern Recycling - Bergen County

 

            In response to numerous complaints from the Borough of Hillsdale in Bergen County regarding an unlicensed solid waste facility operating under the guise of a recycle, the OSEP in cooperation with the DOL, drafted and coordinated the issuance of an Administrative Order by the DEPE against Northeastern Recycling Co., assessing $3,750,000 in penalties and ordering cessation of operations.  When Northeastern ignored the Administrative Order, the OSEP filed a complaint in the Superior Court, which resulted in the entry of a judicial consent order, which permanently barred the defendant's operation of the unlicensed facility.  The Order further provided that the DEPE could continue to prosecute in the Office of Administrative Law the claim for penalties for the unlicensed solid waste facility operation.

 

3.9       United Wood Recycling - Hudson County

 

            United Wood Recycling of Jersey City was a sham wood recycling operation, which accumulated a mountain of wood and other ignitable wastes stretching approximately 900 feet long, 100-125 feet wide and 20-25 feet high.  The local fire officials had declared it an imminent fire hazard and had tried unsuccessfully on numerous occasions to shut down the operation and stabilize the fire hazard.  The OSEP, noting the futility of the State and local administrative enforcement efforts, declared the matter a priority case and, working in cooperation with the DOL, initiated a civil injunction action in the Hudson County Superior Court. The Honorable Robert Tarleton ordered the facility closed, and the operators and property owner to take immediate steps to stabilize the site and remove the accumulated waste material.  The waste materials at the site have since been removed and sent to authorized facilities and the operation has been permanently shut down.  In a separate administrative proceeding, the DEPE in conjunction with the OSEP issued an Administrative Order and Notice of Civil Penalty Assessment wherein United Wood was assessed a civil administrative penalty of $140,000.  This matter will be prosecuted in the Office of Administrative Law.

 

3.10     Diamond Hills Estates Sewage Treatment - Warren County

           

            The OSEP received information that the Diamond Hills Estates sewage treatment plant located in the Township of Mansfield consistently discharged pollutants into the Hance's Brook in violation of the terms and conditions of its permit.  The OSEP working with the DEPE, not only initiated enforcement actions seeking a total of $1,657,062 in penalties from the corporate operator, but has also initiated a search for a viable alternative to the continued operation of the plant by this corporation.

 

3.11            Debarments

 

3.11.1 Solid Waste and Recycling Industry

 

            Six principals and three employees of five New Jersey solid waste carting firms were debarred, in most cases permanently, from engaging in the solid waste collection/disposal and recycling industries in New Jersey as a result of settlement agreements finalized in conjunction with the OSEP.  Concluding some seven years of litigation in this restraint of trade prosecution originally initiated by the Board of Public Utilities, this resolution of the case underscores the commitment of the SEP to remove undesirable elements from the State's waste/recycling industry.

 

3.11.2 Jersey Carting - Bergen County

 

            The OSEP declared as a priority and successfully litigated in the OAL an administrative prosecution initiated by the former Board of Public Utilities against Jersey Carting and its principals.  Administrative Law Judge Diana Sukovich issued an Initial Decision in this matter recommending that the owners of Jersey Carting be debarred from the solid waste industry and pay a civil penalty of more than $100,000, and that their license to haul solid waste be revoked.  Judge Sukovich's decision was based on Jersey Carting's repeated violations of State solid waste flow directives requiring certain billing disclosures to customers.  The Initial Decision has been forwarded to the DEPE Commissioner for Final Decision.

 

3.12             Interstate Recycling, Inc. - Union County

 

            In October 1990, the OSEP, working with the DOL, successfully secured from State Superior Court Judge Frederick C. Kentz, Jr., a permanent injunction closing down a solid waste facility in Hillside, operating as a sham recycling center.  During the latter part of 1991, the OSEP litigated the penalty portion of the proceeding for nine days in the Superior Court of New Jersey, Chancery Division and successfully secured the award of a $175,000 penalty to the DEPE for the illegal operation.

 

3.13             Standard Tank Barge Cleaners - Hudson County

 

            Over the past several years, Standard Tank of Bayonne had gained notoriety as a persistent and recalcitrant polluter of the State's waterways.  In actions initiated by the OSEP with the DOL in the New Jersey Superior Court last year, Standard Tank was enjoined from further violations of its NJPDES permit and from illegally storing millions of gallons of contaminated wastewater in four barges at Standard Tank's Bayonne facilities.  In June 1991, under the direction of the OSEP, the DEPE issued to Standard Tank a final termination notice of its water discharge permit and a denial of air permits for boilers used to incinerate hazardous waste.  These additional steps further solidify the position of the OSEP and the DEPE that this formerly blatant polluter will not be allowed to continue to operate in New Jersey in disregard of the environmental laws.  As a result of these enforcement initiatives, Standard Tank is currently operating under severe restrictions, which prevent it from discharging anything into the waterways.

 

3.14             Engineered Precision Casting Company - Monmouth County

 

            The OSEP became involved in a matter in which Engineered Precision Casting Company and its two principals were assessed $4,450,000 in an Administrative Order by the DEPE for numerous violations of the company's water discharge (NJPDES) permit.  This matter is of significance in that it is the first action brought by the DEPE seeking to hold responsible corporate officials liable for the violations of the company.  Working with the DOL, the OSEP was successful in arguments to the Administrative Law Judge, later confirmed by the DEPE Commissioner, that the Water Pollution Control Act allows for responsible company individuals to be held liable for the environmental misdeeds of the company.

 

3.15     CPS and Madison Industries - Middlesex County

 

            Longstanding industrial activities by CPS Chemical Company and Madison Industries in Old Bridge Township resulted in pollution of the aquifer underlying the Runyon Watershed, ultimately threatening the Perth Amboy water supply wells.  As we reported last year, the SEP, within six months of his involvement, was able to end ten years of maneuvering and technical delays and secure the implementation of the first phase of the cleanup - the initiation of pumping.  Throughout 1991, the OSEP, the DEPE, and the City of Perth Amboy have continued their concerted efforts; this time aimed at preserving valuable water supplies by the implementation of a groundwater recharge program.  At the same time, their efforts have been directed at the companies to undertake soil studies designed to identify any lingering sources of contamination and the ultimate remediation of the condition.

 

3.16     Noble Oil - Burlington County

 

            Noble Oil Corporation, located within the Pine Barrens of Tabernacle Township, is a waste oil processor with significant illegal discharges, on-site contamination and ongoing operational problems.  Enforcement efforts against this company have been undertaken by the State in various forums without significant success for over a decade.  Designated a priority case of the OSEP, a joint State/local enforcement action brought in the New Jersey Superior Court against this waste oil dealer resulted in a judicial liability determination and an interim injunction against the use of certain facilities, and a Court Order requiring the company to pay for a cleanup study.  A temporary shutdown of the facility was ordered by the Court pending Noble's posting of a bond to pay for an investigation of pollution at the site.  The study and litigation continue.

 

 

3.17     Texas Eastern Transmission Pipeline Company - Various Counties

 

            The OSEP working with the DEPE, brought to a successful resolution a cleanup/penalty action initiated against Texas Eastern Transmission Pipeline Company with respect to PCB contamination at its three compressor stations in New Jersey (located in Hanover, Linden and Lambertville).  The penalty action was resolved in September 1991 for $1 million dollars ($850,000 in penalties and $150,000 in administrative costs) payable in three installments over two years.  Likewise, the clean up of the contamination was undertaken by Texas Eastern at its expense pursuant to an ECRA Administrative Consent Order.

 

3.18     Cardile Property - Cape May County

 

            In the Spring of 1991, the OSEP learned that numerous enforcement actions taken over the past three years by no less than three separate Divisions within DEPE had failed to deter a chronic offender from continuing illegal solid waste dumping and coastal wetland filling activities in an area directly adjacent to the Grassy Sound in Cape May County.  The OSEP quickly brought the various enforcement staffs together, consolidated all the violations and obtained a permanent injunction in the Superior Court, not only restraining this offender from further violations, but also requiring the defendant to develop a plan of remediation and to implement the terms of the plan at his expense.  Penalty aspects are pending.

 

 

3.19     Saudi Diriyah - Cumberland

 

            The OSEP was notified by the State Police Marine Bureau that they had retrieved a plastic bag of solid waste from the Delaware Bay, which was directly traceable to a Saudi Arabian registered vessel which had recently passed through that area.  After researching the best legal sanction for this type of violation, the OSEP contacted the Coast Guard and proposed a cooperative prosecution under the MARPOL Protocol, which implements the "International Convention for the Prevention of Pollution from Ships."  On the basis of the evidence secured by the State Police Marine Bureau, the Coast Guard was able to assess a civil penalty of $20,000 against the owner of the vessel - the first such MARPOL prosecution undertaken by the Coast Guard operating out of the Philadelphia Port.  As a further part of the resolution package, the owners equipped the vessel with an incinerator, gave written warnings to the subject vessel and master that reoccurrence of the violations will not be tolerated, and sent letters regarding compliance with MARPOL regulations to all of their other vessels.

 

3.20            Secaucus Municipal Utilities Authority

 

            A series of illegal connections to the Secaucus Municipal Utilities Authority ("SMUA") made by a variety of high-usage commercial developers who were improperly sanctioned by the SMUA were brought to the attention of this office.  The OSEP expended significant hands-on efforts to resolve the matter in an expedited fashion.  This resulted, on August 31, 1990, in the entry of a consent judgement by Judge D'Italia, Hudson County, settling the matter.  Fines in the amount of $1.52 million (the largest penalty ever collected in a single action under the New Jersey Water Pollution Control Act) were assessed against the SMUA for allowing illegal connections and against the illegal connections.  The fines are scheduled to be paid over the next three years.  In addition, sewage system improvements in the $400,000 range will be performed by Hartz Mountain, Inc. as a result of the settlement.  This case highlights the effectiveness of the SEP concept.  By being able to marshal all of the appropriate information and devote a significant amount of time to a case over a short period of time, a very large penalty was obtained.  Furthermore, the resources of the NJDEP and the Division of Law, while used extensively during the negotiations of the settlement, will not be required in lengthy litigation.

 

3.21            Criminal Sentences

 

            Working with and through the Division of Criminal Justice, the OSEP has meted out almost 27 years of incarceration against 17 defendants during the first two years of its existence, yielding an average of over 1 and 1/2 years of jail time per defendant.  Examples of particular sentences include the following: the pres­ident and vice pres­ident of a New York in­ter­na­tion­al trad­ing com­pany were sentenced to three years each in State Pri­son for the illegal stor­age and aban­don­ment of haza­rdous wast­e; a labo­rat­ory empl­oyee was sentenced to thir­ty days in the coun­ty jail and three years prob­ation for the abandon­ment of bags and boxes of medi­cal was­te; a company executive was sentenced to two hundred days in the county jail and three years probation for the unlawful discharge of oil based products containing PCBs, which could have flowed into the State's waters; an owner of a surplus supply company was sentenced to 180 days in jail and five years probation for his role in the release, abandonment and storage of hazardous wastes (toluene, ethyl, benzene, mercury, lead, chromium, etc.), along with creating the risk of widespread injury; the owners of an auto salvage company were sentenced to 300 days and 150 days in the county jail, respectively, for their roles in the dismantling of an oil tanker containing petroleum residue and other pollutants which were discharged into the ground; the owner and employee of an auto body shop were sentenced to nine months and six months in the county jail, respectively, for their roles in the illegal transportation and disposal of hazardous waste; an unlicensed hauler was sentenced to five years in State Prison after being convicted of the unlawful transportation and disposal of hazardous waste; the President and an employee of a graphics company were sentenced to a year less a day and 6 months in the county jail, respectively, for their roles in abandoning drums of hazardous waste in adjacent counties; and a property owner was sentenced to five years in State Prison for releasing a toxic pollutant, illegal landfilling, and illegally operating a solid waste collection business.

 

4            CONCLUSION

 

            The appointment of a State Environmental Prosecutor in New Jersey has had a significant positive impact on the environmental enforcement effort in the State.  The utilization of this "central command" theory of enforcement has replaced the uncoordinated and often times ineffectual efforts of the past with calculated and coordinated enforcement initiatives.  No longer are the components of the New Jersey enforcement effort uninformed or ill equipped to respond to day to day challenges. 

 

            The coordination of the various enforcement arms of the State agencies into one command has permitted the State to maximize the use of its personnel and resources in the form of joint agency initiatives and diligent and effective prosecutions.

This has led to previously unparalleled successes in the enforcement of New Jersey's environmental laws.  Chronic polluters and offenders have been systematically neutralized to the end that compliance is the rule and not the exception. 

 

            The State Environmental Prosecutor has methodically molded the numerous State, County, and local enforcement elements into a comprehensive environmental enforcement "machine", with institutionalized lines of communication and protocols of operation.  Relevant information is introduced into the system and allocated to appropriate levels and components of the program.  Civil, criminal and/or regulatory responses are informed, measured, and coordinated to insure the most effective and efficient response. 

 

            Priority cases are prosecuted from a position of strength, with the necessary complement of information and resources.  Potentially volatile environmental issues are moved through the courts with the dispatch necessary to avoid a repetition of the, at times, "catastrophic" consequences of the past.  Reasoned, diligent, and effective prosecutions are the hallmark of New Jersey's new "centralized command" approach to environmental enforcement.  Responsible environmental practices within the regulated community are the result.