STATE OF NEW JERSEY
PRE-FILED FOR INTRODUCTION IN THE 2008 SESSION
Assemblyman JOHN DIMAIO
District 23 (Warren and Hunterdon)
Assemblywoman MARCIA A. KARROW
District 23 (Warren and Hunterdon)
Provides for awarding of certain costs to defendants who prevail in DEP enforcement actions.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning the awarding of attorney fees and costs in certain actions, supplementing chapter 1D of Title 13 of the Revised Statutes, and amending N.J.S.2A:15-60 and P.L.1991, c.427.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. (New section) a. Notwithstanding the provisions of N.J.S.2A:15-60 or of any other statute or rule or regulation to the contrary, a person who prevails in an enforcement action for violation of an environmental statute brought against that person by the Department of Environmental Protection after January 1, 1986 shall be awarded reasonable trial and appellate attorney fees and litigation costs, which shall include but not be limited to witness and filing fees, expert fees, transcript expenses, and costs of document production, depositions and other discovery.
b. The attorney fees or litigation costs awarded pursuant to subsection a. of this section shall be paid by the department from the fee subaccount for the appropriate program in the "Environmental Program Fee Fund" established pursuant to section 3 of P.L.1991, c.427 (C.13:1D-9.3); except that attorney fees or litigation costs awarded to a prevailing defendant in an action brought to enforce the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.) shall be paid from the New Jersey Spill Compensation Fund established pursuant to section 10 of P.L.1976, c.141 (C.58:10-23.11i).
c. As used in this act:
"Environmental statute" means any of the following State laws: R.S.12:5-1 et seq.; P.L.1975, c.232 (C.13:1D-29 et al.); the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.); section 17 of P.L.1975, c.326 (C.13:1E-26); the "Comprehensive Regulated Medical Waste Management Act," P.L.1989, c.34 (C.13:1E-48.1 et al.); P.L.1989, c.151 (C.13:1E-99.21a et al.); the "New Jersey Statewide Mandatory Source Separation and Recycling Act," P.L.1987, c.102 (C.13:1E-99.11 et al.); the "Pesticide Control Act of 1971," P.L.1971, c.176 (C.13:1F-1 et seq.); the "Industrial Site Recovery Act," P.L.1983, c.330 (C.13:1K-6 et al.); the "Toxic Catastrophe Prevention Act," P.L.1985, c.403 (C.13:1K-19 et seq.); "The Wetlands Act of 1970," P.L.1970, c.272 (C.13:9A-1 et seq.); the "Freshwater Wetlands Protection Act," P.L.1987, c.156 (C.13:9B-1 et al.); the "Coastal Area Facility Review Act," P.L.1973, c.185 (C.13:19-1 et seq.); the "Air Pollution Control Act (1954)," P.L.1954, c.212 (C.26:2C-1 et seq.); the "Water Supply Management Act," P.L.1981, c.262 (C.58:1A-1 et al.); P.L.1947, c.377 (C.58:4A-5 et seq.); the "Spill Compensation and Control Act," P.L.1976, c.141 (C.58:10-23.11 et seq.); the "Water Pollution Control Act," P.L.1977, c.74 (C.58:10A-1 et seq.); P.L.1986, c.102 (C.58:10A-21 et seq.); the "Safe Drinking Water Act," P.L.1977, c.224 (C.58:12A-1 et al.); and the "Flood Hazard Area Control Act," P.L.1962, c.19 (C.58:16A-50 et seq.); and
"Person" means an individual, corporation, company, association, society, firm, partnership, or joint stock company.
2. N.J.S.2A:15-60 is amended to read as follows:
2A:15-60. In an action brought by the [state] State, or the governor, or any person for the use of the [state] State, the plaintiff shall recover costs as any other plaintiff; but the defendant in such an action, except as provided pursuant to section 1 of P.L. , c. (C. ) (pending in the Legislature as this bill), shall not recover any costs against [such] that plaintiff, whether the action is dismissed, judgment [shall pass] is in favor of the defendant or any other proceeding is taken.
This section shall not apply to any popular action, nor to any action on a penal statute, prosecuted by any person on behalf of himself and the [state] State.
3. Section 2 of P.L.1991, c.427 (C.13:1D-9.2) is amended to read as follows:
2. On or before December 31, 1991 and December 31 of each year thereafter, the department shall submit to the Governor, the Legislature, and the State Auditor a written report setting forth information concerning the imposition, collection and expenditure of fees imposed by the department. The report shall contain a section setting forth the following information:
a. A list of the fees imposed or assessed, by program, during the preceding fiscal year, and the statutory or regulatory authority for each;
b. An explanation of the methodology used to calculate the fees for each specific program;
c. The total amount of fees imposed, by specific program where appropriate, during the preceding fiscal year;
d. The total amount of fees collected, by program where appropriate, and the total amount of all fees collected for all programs during the preceding fiscal year, and all fees reappropriated for the preceding fiscal year from the next preceding fiscal year;
e. The total amount of fees expended for each program and the grand total expended during the preceding fiscal year;
f. The percentage of each program listed according to this section which is funded by fees, appropriations from the General Fund, appropriations of bond revenues, federal funds, and other sources;
g. Estimates of the total amount of fees, by program where appropriate, anticipated to be imposed, collected, expended and carried forward during the current fiscal year and the next fiscal year;
h. The number of licenses, permits or other approvals applied for and issued pursuant to each program;
i. The number of personnel, by program, whose positions are funded by fees, and the percentage of the total personnel employed in each such program which this number represents;
j. The number of personnel, by program and funding source, funded by other revenue sources;
k. The number and percentage of personnel throughout the department whose positions are funded, wholly or in part, by fees;
l. The percentage of all departmental revenues and expenditures represented by fees for the appropriate fiscal year;
m. The total amount of all fines or other penalties assessed, and the amounts collected;
n. The total amount, by program, of all fines or other penalties assessed by the department, and the amounts collected, including environmental fines or other penalties collected on behalf of the department, and their disposition; [and]
o. For each fiscal year following the date on which the Environmental Program Fee Fund is created pursuant to section 3 of [this act] P.L.1991, c.427 (C.13:1D-9.3), the total amounts of transfers to and from each subaccount; and
p. The total amount of fee revenue paid in attorney fees and litigation costs pursuant to section 1 of P.L. , c. (C. ) (pending in the Legislature as this bill) for the preceding fiscal year.
(cf: P.L.1991, c.427, s.2)
4. Section 3 of P.L.1991, c.427 (C.13:1D-9.3) is amended to read as follows:
3. Notwithstanding any law, rule or regulation to the contrary, and beginning with each State fiscal year commencing on and after July 1 next following the effective date of [this act] P.L.1991, c.427 (C.13:1D-9.1 et seq.), there shall be established in the department a non-lapsing revolving fund to be known as the "Environmental Program Fee Fund," hereinafter referred to as "the fund." The fund shall contain a separate subaccount for fees imposed for each specific program. All fees collected by the department shall be deposited in the appropriate subaccount. The fee revenues deposited in each subaccount shall be appropriated and used only for the costs of the program for which the fees were imposed, including any costs incurred pursuant to section 1 of P.L. , c. (C. ) (pending in the Legislature as this bill); provided, however, that if the report required to be prepared by the department pursuant to section 2 of [this act] P.L.1991, c.427 (C.13:1D-9.2) is not received by the Legislature by December 31 of any fiscal year, all unobligated revenues in each subaccount in the fund, for which a report has not been received by the Legislature, may not be used to support the designated program until such time as the report on the subaccount or subaccounts has been received by the Legislature. An additional appropriation shall not be required in order for the department to expend monies from a subaccount for which a report is received by the Legislature after December 31.
(cf: P.L.1991, c.427, s.3)
5. This act shall take effect immediately.
This bill would require that attorney fees and litigation costs be awarded to persons who prevail in enforcement actions brought against them by the Department of Environmental Protection. The bill also provides that these attorney fees and litigation costs be paid from the specific fee subaccount in the Environmental Program Fee Fund for the program that incurred them, except that attorney fees and litigation costs would be paid out of the Spill Fund in the case of an action brought under the "Spill Compensation and Control Act," which has no fee revenue. The bill also requires the department to report these court costs in its annual report on fees that is submitted to the Governor, the Legislature and the State Auditor.