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Department of Envtl. Protection v. Lewis

Citation: 17 ELR 20693
No. No. A-2939-85T7, 522 A.2d 485/215 N.J. Super. 564, (N.J. Super. Ct. App. Div., 03/12/1987)

The court rules that intentional conduct is not a prerequisite to the imposition of civil penalties under the New Jersey Solid Waste Management Act (SWMA) and Water Pollution Control Act (WPCA). The court initially holds that the trial court abused its discretion in refusing to impose penalties on defendant corporations, who dumped sewage onto properties owned or controlled by their principal in violation of the SWMA and WPCA. The trial court erroneously equated civil penalties with punitive damages and found that civil penalties should only be assessed where there has been wanton and willful disregard for the rights of another. Neither statute requires a showing of mens rea before penalties may be imposed on violators. While the absence of mens rea may serve as a basis for mitigation of the amount of the penalty, it is insufficient to render a violator free of liability. Furthermore, the penalty provisions in both statutes are mandatory rather than discretionary in nature since they both use the word "shall." The court holds that the penalty must be imposed in an amount that will deprive the defendants of any profits enjoyed as a result of the illegal activity, as well as deter others from violating the statutes and hence polluting the environment. It also must be substantial enough so as not to amount to a permit fee or a mere operational cost. Lastly, the court holds that the trial court abused its discretion in refusing to order defendants to finance a comprehensive groundwater study. A violator is required to finance a study designed to determine the environmental effects of his or her conduct once it has been established that such a study is needed. The state established the need for a ground-water study by showing that defendants' illegal dumping resulted in pollution of the environment.

[A related case appears at 17 ELR 20707.]

Counsel for Plaintiffs-Appellants
W. Cary Edwards, Attorney General
Dept. of Law & Public Safety
8th Fl., Justice Complex, CN080, Trenton NJ 08625
(609) 292-8740

Counsel for Defendants-Respondents
Gregory H. Wheeler
202 Meadow Dr., Mt. Laurel NJ 08054
(609) 428-7473

Before Judges PETRELLA, BILDER and SCALERA.