State, Dept. of Environmental Protection v. Larchmont Farms, Inc.

• Decision Date: 07 July 1993
• Citation: 628 A.2d 761,266 N.J.Super. 16
• Parties: STATE of New Jersey, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent, v. LARCHMONT FARMS, INC. and Charles Haines, III, Defendants-Appellants, and Armando Gonzales and Andre Ureno, Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 16

266 N.J.Super. 16

628 A.2d 761

STATE of New Jersey, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Plaintiff-Respondent, v. LARCHMONT FARMS, INC. and Charles Haines, III, Defendants-Appellants, and Armando Gonzales and Andre Ureno, Defendants.

Superior Court of New Jersey,

Appellate Division.

Argued June 15, 1993.

Decided July 7, 1993.

Donald C. Simpson, Moorestown, for defendants-appellants (Simpson & Simpson, attorney; Mr. Simpson, of counsel and on the brief).

David Restaino, Trenton, for plaintiff-respondent (Robert J. Del Tufo, Atty. Gen., attorney; Mary C. Jacobson, Sr. Deputy Atty. Gen., of counsel; Mr. Restaino, Deputy Atty. Gen., on the brief).

Before Judges MICHELS, BILDER and BAIME.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Defendants Larchmont Farms Inc. (Larchmont) and Charles Haines, III (Haines) appeal from an order of the Chancery Division that dismissed the complaint of plaintiff New Jersey Department of Environmental Protection and Energy (DEPE) alleging violations of the Pesticide Control Act of 1971 (Pesticide Act), N.J.S.A. 13:1F-1 to -18. The trial court dismissed the complaint without prejudice on the ground that the issues raised were not ripe because the Office of Administrative Law had not held a hearing to determine whether there was underlying liability. In reaching this conclusion, the trial court explained:

It appears to the court that the action is premature because the Office of Administrative Law has not yet scheduled the hearing for determining the alleged violation of the Pesticide Control Act. A penalty enforcement action is not yet ripe. Since the enabling act quoted above gives the DEPE authority to hold hearings in connection with complaints it initiates, the DEPE was in error in refusing any administrative action as requested by defendants. However, it appears that its Division of Environmental Quality has initiated an administrative contest. If the enforcement is successful, then the Division or the DEPE can file an action here to collect the appropriate penalty.

The record on this appeal shows that Larchmont, a New Jersey based corporation engaged in the business of growing agricultural products, operated a peach orchard on Route 540 in Upper Deerfield, New Jersey. On June 28, 1989, DEPE inspectors Daniel Russell and Thomas Kosinski were conducting a routine inspection at the peach orchard when they observed the pesticide Parathion, which is classified as highly toxic, see 40 C.F.R. 156.10(h); N.J.A.C. 7:30-9.13(c) and (d), being applied to the crops in an unlawful manner. When the inspectors arrived at the farm, they noticed a fire truck that had been converted for use in pesticide application parked on the side of the road. Defendant Andre Ureno, a pesticide operator employed by Larchmont, was near this vehicle mixing Parathion in plastic milk and coke containers, without a respirator or safety goggles, in violation of N.J.A.C. 7:30-9.5(c) and N.J.A.C. 7:30-10.3(a). Ureno worked under the supervision of Haines, who was employed by Larchmont as a manager and a certified and registered private pesticide applicator.

The inspectors then observed a tractor engaged in pesticide application in the nearby orchard. The inspectors witnessed defendant Armando Gonzales, another Larchmont employee who was operating the tractor, exit from a row of peach trees approximately fifty yards west of where the inspectors were standing, and make a right turn to enter down the next row without turning off the spraying mechanism. Pesticide spray drifted from the tractor onto both inspectors' and their car. Laboratory testing on samples from the car and the inspectors bare arms confirmed that they were sprayed with Parathion.

The inspectors signaled Gonzales to turn off the spray vehicle and approach them. Gonzales was observed climbing down from the tractor dressed in rubber bib overalls, long-sleeve shirt, boots and baseball cap, but he was not wearing a respirator, gloves or safety goggles as required by the Parathion label. ¹ Gonzales, who spoke only Spanish, was not a certified, registered pesticide applicator.

A few months later in August 1989, the DEPE received complaints that Larchmont farm workers had been sprayed with pesticides while working. DEPE inspector Nancy Santiago went to Larchmont's farm to investigate. Santiago requested access to Larchmont's records to assess the validity of the claims, but was met with resistance by Haines. When allowed to view the records, Santiago discovered that crucial portions of the records, which were needed to substantiate the farm workers' claims, were missing. On November 13, 1989, Santiago requested the additional information, and subsequently repeated this request on November 20, 1989. Finally, on December 4, 1989, Santiago received the information from Haines.

On February 9, 1990, the DEPE issued Notices of Prosecution to Larchmont, Haines, Gonzales and Ureno, stating that investigations resulted in determinations that each was in violation of the Pesticide Act, N.J.S.A. 13:1F-1 to 18, and offering settlement amounts. Larchmont and Gonzales were charged with using or applying Parathion 8E in a manner inconsistent with its Federal or State registered label by applying it in a manner exposing unprotected persons to drift, causing significant risk of injury to persons, property or the environment through drift, without taking reasonable precautions before, during and after application to minimize exposure and ensure the safety of individuals in violation of N.J.A.C. 7:30-10.3(a), (c) and (e). The DEPE offered Larchmont a settlement of $4,600 for these alleged violations. Gonzales was offered a settlement for $3,000.

Haines and Ureno were said to have used or applied Parathion 8E in a manner inconsistent with its Federal or State registered label by using it without required protective clothing and equipment in violation of N.J.A.C. 7:30-10.3(a). Haines was offered a settlement of $2,000 for this violation. Ureno was offered a settlement of $750. On September 25, 1990, Haines was issued a second Notice of Prosecution, charging him with failing to make records of pesticide applications available to DEPE personnel upon request in violation of N.J.A.C. 7:30-8.8(c). The DEPE offered Haines $500 to settle this claim.

Every Notice of Prosecution issued to defendants included the provision that:

If you fail to accept the Department's offer of settlement and/or fail to comply with the requirements of N.J.A.C. 7:30-1 et seq., the matter will be referred to the Attorney General with the recommendation to seek injunctive relief and maximum penalties for each violation as provided by law.

The settlement offers were never accepted by defendants.

On January 31, 1992, DEPE instituted this summary action in the Superior Court, Chancery Division alleging various violations of the Pesticide Act and seeking the imposition of statutory penalties pursuant to N.J.S.A. 13:1D-9(e), N.J.S.A. 13:1F-10 and N.J.S.A. 2A:58-1, and R. 4:67-6 & 4:70-1. Defendants moved to dismiss the complaint on the ground that it was barred by the two-year statute of limitations set forth in N.J.S.A. 2C:14-10 and that they were denied due process since they never had an administrative hearing to establish the underlying liability for which penalties could be assessed. The trial court granted the motion on the ground that the action was not ripe for review and, because an administrative hearing had not yet been held, dismissed the complaint pursuant to R. 4:6-2. Defendants immediately moved to amend the order of dismissal pursuant to R. 1:7-4 and R. 4:49-2 to grant summary judgment on the ground that the complaint was barred by the statute of limitations, or alternatively, to dismiss the complaint with prejudice. The trial court denied the motion, reciting that "the argument concerning the period of limitations may be brought in the Office of Administrative Law." Larchmont and Haines appeal.

Although the trial court order challenged on this appeal is phrased in terms of a dismissal, the matter was effectively transferred to the DEPE for a hearing to determine whether the penalties should be imposed. Defendants contend that the trial court erred in this regard and should have exercised its jurisdiction and dismissed the complaint with prejudice on the grounds that the action is barred by the two-year statute of limitations. Thus, the threshold issue before this court is whether the trial court had jurisdiction to impose penalties for violations of the Pesticide Act, without an administrative hearing in the Office of Administrative Law.

The legislative purpose underlying the Pesticide Act is set forth in N.J.S.A. 13:1F-2, which, in pertinent part, reads:

New Jersey, as the most urban State in the Nation, must be especially alert to any possibilities of disturbing natural ecological balance. It is essential to coordinate the activities of State agencies involved in the use of pesticides and, in addition, to formulate State policies regulating the use, transportation, storage, sale and disposal of pesticides and their containers. This requires consideration of many factors, including long term effects on the environment, as well as the safety and effectiveness of pesticides.

The Legislature authorized the DEPE to inspect buildings and places for purposes of investigating for possible violations of the Pesticide Act, see N.J.S.A. 13:1F-9(c), and to:

Receive or initiate complaints of violations of applicable laws, rules, regulations and orders relating to pesticides and institute legal proceedings for the prevention of such violations and for the recovery of penalties, in accordance with law. [ N.J.S.A. 13:1F-9(d) ].

The Legislature enacted N.J.S.A. 13:1F-10 specifically to address the procedure that the DEPE may follow to obtain either an injunction or payment of penalties in the event a violation of the Pesticide Act is uncovered. The full...