NJDEP’s Use of Municipal Summonses as an Enforcement Tool
Monday, May 11, 2020 01:04 PM
Traditional enforcement strategies utilized by the NJDEP include Administrative Orders and Notices of Civil Penalty Assessment. These strategies are often long, drawn-out processes that can take years to reach resolution.
In 2014, the NJDEP’s Site Remediation and Waste Management Program began an initiative to force a recalcitrant person responsible for conducting remediation (PRCR) to remediate a site through the issuance of a summons in municipal court. The NJDEP modelled this initiative on the established enforcement strategy utilized for violations of the state’s fish and wildlife regulations.

Since the initiative began, the strategy has changed somewhat but the emphasis is the same. Currently, the NJDEP issues the summons directly to the PRCR with a copy to the municipal court. The PRCR then receives a verification from the municipal court confirming the court date.

The summons typically establishes a penalty for a PRCR for their failure to remediate as required. As a violation of the Administrative Requirements for the Remediation of Contaminated Sites (ARRCS) rule, fines can be $15,000 per violation per day (N.J.A.C. 7:26C-9.5(b)).

The summons may also include other violations of the ARRCS rule or Technical Requirements for Site Remediation (TRSR) rule such as failure to retain an LSRP, failure to complete an individual remedial task (PA, SI, RI, RA, etc.), or failure to submit the appropriate documents by the established regulatory or mandatory timeframe.

After the summons is issued, the state will offer to settle the penalty liability, and for sites where a remediation timeframe has been missed, establish new timeframes for completing the remediation by executing an Administrative Consent Order (ACO). If settlement is not reached, the matter proceeds to a hearing in municipal court.

The NJDEP reports that the issuance of summonses, the settlement of the penalty liability, and execution of an ACO can occur in as little as three to six months, making this strategy significantly more time- and cost-effective for the NJDEP than traditional enforcement approaches. In 2019, the NJDEP reports that it issued 58 summonses with a 72% compliance rate to settle the violations. The success of the program makes expanding the use of summonses an attractive model for the NJDEP.

In August 2019, the legislature further affirmed the authority of the NJDEP to issue summonses in municipal court through the amendments to the Site Remediation Reform Act. The action of the legislature along with a November 2019 Appellate decision (Docket No. A-3546-17T1), confirms the NJDEP has clear jurisdiction to bring civil penalty actions in municipal court for violations of the Spill Act.