Failure to Timely Appeal NJDEP Administrative Orders Provides for Harsh Consequences

May 8, 2009
by ANGELA PAPPAS
Client Alert Newsletter May 2009

In Department of Environmental Protection v. Mazza and Sons, Inc., the New Jersey Superior Court held that if a party to whom a final administrative order has been issued fails to file a timely appeal from that order, that party may not subsequently collaterally attack the order in an enforcement action brought by the New Jersey Department of Environmental Protection ("NJDEP").

In April 2006, NJDEP issued an Administrative Order and Notice of Civil Administrative Penalty Assessment ("Order") against defendant Mazza and Sons, Inc. ("Mazza") on the basis that Mazza violated various regulations governing solid waste facilities. The Order required Mazza to undertake various remedial measures and imposed a penalty of $27,000. After Mazza was denied a hearing to challenge the Order because the request was untimely and then subsequently failed to appeal the denial of a hearing, NJDEP initiated an enforcement action.

The Court concluded that pursuant to New Jersey rule, Mazza may not collaterally attack the Order in NJDEP's enforcement action because they failed to timely appeal from the Order. However, the Court emphasized that its holding does not entitle the agency to automatic judicial enforcement of the Order. Rather, NJDEP is still required to show that Mazza failed to comply with the Order and that the Court's assistance is needed to secure compliance. Accordingly, the Court upheld the penalty portion of the Order, however, it remanded the remedial portions for an evidentiary hearing on the issue of Mazza's compliance.