ASSEMBLY, No. 542

 

STATE OF NEW JERSEY

 

Introduced Pending Technical Review by Legislative Counsel

 

PRE-FILED FOR INTRODUCTION IN THE 1996 SESSION

 

 

By Assemblywoman CRECCO and Assemblyman KAVANAUGH

 

 

An Act concerning environmental enforcement actions, supplementing Title 13 of the Revised Statutes, and amending N.J.S.2A:15-60.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    1. (New section) a. The Department of Environmental Protection or a certified local health agency shall not bring an enforcement action for a violation of an environmental statute unless the department or the certified local health agency has good cause for bringing the action that is supportable by the facts and circumstances underlying the action.

    b. Notwithstanding any provision of N.J.S.2A:15-60 or of any other statute or rule or regulation to the contrary, a person who successfully obtains dismissal of an enforcement action for a violation of an environmental statute brought against that person after the effective date of P.L. , c. (C. ) (pending in the Legislature as this bill), by the Department of Environmental Protection or by a certified local health agency may move before the trial judge for reasonable 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. Reasonable attorney fees and litigation costs shall be awarded if the person shows by a preponderance of the evidence that the issuing officer in the enforcement action knew or should have known, by virtue of the officer's position as a law enforcement officer, that the action was frivolous. An action shall be found to be frivolous if it was brought without good cause that is supportable by the facts and circumstances underlying the action and it does not further the purpose of protecting the environment and the public health and safety.

    c. As used in this section:

    "Certified local health agency" means a certified local health agency as that term is defined in section 3 of P.L.1977, c.443 (C.26:3A2-23);

    "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] that person and the [state] State .

(cf: N.J.S.2A:15-60)

 

    3. This act shall take effect immediately.


STATEMENT

 

    This bill would prohibit the Department of Environmental Protection and county health agencies from bringing enforcement actions for violations of environmental statutes unless the department or the county agency has good cause for bringing the action that is supportable by the facts and circumstances underlying the action.

    The bill would also permit a defendant who successfully obtains dismissal of an environmental enforcement action to move before the trial judge for reasonable attorney fees and litigation costs, which shall be awarded if the person shows by a preponderance of the evidence that the issuing officer in the enforcement action knew or should have known that the action was frivolous. A frivolous action is defined as one that was brought without good cause supportable by the facts and circumstances underlying the action and that does not further the purpose of protecting the environment and public health and safety.

     The purpose of this bill is to deter the issuance of needless penalty actions that serve no legitimate environmental or public health purpose, and that are issued without good cause. This bill seeks to protect the regulated community against frivolous lawsuits that are instituted by the DEP and county health agencies, and to encourage these agencies to utilize their programs primarily for inspection and educational purposes to promote compliance. It will not eliminate penalty actions that are both reasonable and necessary for a safe environment.

 

 

 

Provides for awarding of certain costs to defendants who prevail in DEP or county environmental enforcement actions.