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State of New Jersey
PHILIP D. MURPHY
Governor

OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF LAW AND PUBLIC SAFETY
DIVISION OF LAW

GURBIR S. GREWAL
Attorney General.

SHEILA Y. OLIVER
Lt. Governor

25 MARKET STREET
PO Box 093
TRENTON, NJ 08625-0093

MICHELLE MILLER
Director

September 25, 2019
Honorable Maritza Berdote-Byrne, P. J. Ch.
Morris County Superior Court
P.O. Box 910
Morristown, NJ 07963--0910
Re:

NJDEP v. Joseph Wallace and Laura Wallace
Docket No. SSX-C-7-19

Dear Judge Berdote-Byrne:
Please accept this letter brief in support of the Department
of Environmental Protection's Notice of Motion in Aid of Litigant's
Rights pursuant to R. 1:10-3 in the above captioned matter.

This

motion is necessary because of Defendants continuing failure to
take any action to comply with the Court's directions and Orders
in this matter. Defendants were ordered to take a series of actions
to, among other things, remove illegally placed solid waste from
its residential property in Vernon Township, part of the critical
environmentally sensitive preservation area of the Highlands. As
a result of Defendants' non-responsiveness to this Court's Orders,
and

Defendants

decision

to

ignore

the

Department's

continued

outreach efforts, the Department requests that the Court enforce

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 September 25, 2019
Page 2
its prior Orders, impose sanctions, and appoint a receiver to make
sure that the Court-ordered remedies are properly implemented.
Since this motion is to enforce orders previously consented
to before, and issued by Your Honor in this same matter, the State
sets forth only an abbreviated statement of the facts supplementing
the Order to Show Cause previously filed in this matter.
On February 22, 2019, the State filed an Order to Show Cause
with Your Honor seeking an Order holding Defendants Joseph Wallace
and Laura Wallace jointly and severally liable for violations of
the Solid Waste Management Act (~~SWMA"), N.J.S.A. 13:1E-1 et seq.,
and the regulations promulgated pursuant thereto, for operating a
solid waste facility without a permit, and requested the following
injunctive relief from the Defendants:
Immediately cease receiving any and all fill material
a.
and/or solid waste onto the property at Block 130, Lot 1.05,
also known as 3 Silver Spruce Drive, Vernon, New Jersey (the
~~site");
b. Immediately provide access by NJDEP and/or individuals on
behalf of the Department to delineate the extent of the fill
material and/or solid waste brought onto the site, to perform
any sampling of the material on site, and/or perform any
other inspections of the property as the Department deems
necessary to determine compliance with the SWMA, the Water
Pollution Control Act (~~WPCA"), and the Highlands Water
Protection and Planning Act;
c. Within thirty days of this order, characterize all fill
material to determine if it meets the definition of solid
waste as defined at N. J.A. C. 7: 26-1.6 and provide NJDEP an
estimate for the cost of removal of the solid waste;
d.

Within

ninety days of this order, remove and

properly

 September 25, 2019
Page 3

dispose (in accordance with applicable New Jersey laws) of
all fill material which meets the definition of solid waste
on the site;
e. Within 10 days of this order, provide NJDEP with full and
complete documentation setting forth the source and nature
of the material brought onto the site since 2009, including
but not limited to all analytical results, receipts, bills
of lading, and identification of all transporting haulers;
f. Within 45 days of this order, place sufficient funds into
escrow or an attorney trust account, to be identified by this
Court, to guarantee adequate funds for removal of the solid
waste on-site.
On March 1, 2019, oral argument was held before Your Honor to
consider

if

temporary

retraints

were

warranted.

The

parties

consented to three of the above enumerated requests for relief,
i.e., (a) to cease receiving all fill material, (b) to immediately
provide access to NJDEP to perform its investigation, including
but not limited to sampling, and (e) that within thirty days of
that order [by April 1, 2019] Defendants would provide NJDEP with
full and complete documentation setting forth the source and nature
of the material brought onto the site since 2009. Additionally,
Your Honor set a case scheduling order for briefing with a return
date for a hearing on final injunctive relief for May 30, 2019.
March 1, 2019 Consent Order, attached to Certification of Counsel
as Exhibit A.
On

March

14,

2019,

Department

representatives

conducted

additional sampling of fill material on Defendants' property, as
authorized by the March 1, 2019 Consent Order. The sampling results

 September 25, 2019
Page 4

identified

contamination

levels

in

soil

the

that

exceeded

New

Jersey's Residential Direct Contact Soil Remediation standards.
The State notified the Court and Defendants of the sampling results
b y supplemental filing on April 8, 2019. No opposition papers were
ever filed by Defendants prior to the May 30, 2019 return date
and, as a result, Your Honor considered the matter exclusively on
the filings submitted by the State on February 22, 2019, and April
8, 2019. On June 3, 2019, the Court granted all six of the requests
for relief listed above and- ordered that Defendants shall remove
and properly dispose of all fill material that meets the definition
waste on the property within 120 days [by October 1,

of solid

2019]. See

3, 2019 Court Order and Statement of Reasons,

June

attached to Certification of Counsel as Exhibit C.
Thereafter, Defendants filed a Motion for Reconsideration of
the June 3, 2019 Order and a Motion for Stay of Enforcement of the
June 3, 2019 Order. The State opposed Defendants' application and
filed

Cross

a

Motion

in

Aid

of

Litigant's

Rights

to

enforce

Defendants' past due obligation to provide documentation on the
source and nature of material brought onto Defendants' property,
and followed
detailing
ordered

up

Defendants'

relief

material,

with

place

a letter to the
further

(Defendants'
sufficient

Court. on

non-compliance
failure

funds

to

into

August 5, 2019

with

this

characterize
escrow,

and

Court's

the

submit

fill
and

 September 25, 2019
Page 5
implement a soil erosion and sediment control plan). August 5,
2019 letter, attached to Certification of Counsel as Exhibit D.
In an August 22, 2019 Order, Your Honor denied Defendants' Motion
and granted the State's demand for compliance with the prior June
3,

2019

Order.

attached

Reasons,

22,

August

2019

Certification

to

Order

Court
of

and

Counsel

Statement

of

Exhibit

F.

as

Specifically, Your Honor found that "defendant willfully failed to
comply with the [C]ourt's March 1, 2019 and June 3, 2019 Orders"
and that ~~defendant is under a renewed obligation to provide NJDEP
with full and complete documentation setting forth the source and
nature of the material brought onto the site since 2009 without
regard

for

possession."

documents
Id.

at

potentially
(internal

15-16

already
quotations

in

plaintiff's

omitted).

This

Court expressly warned Defendants in the August 22, 2019 Order
that, "[c]ontinued non-compliance with court Orders may result in
the imposition of sanctions against defendants or the appointment
of a special agent to oversee compliance with the court's Order."
Id. At 2 of 16 and 16 of 16.
Following the Court's August 22, 2019 Order, the State sent
two

letters to counsel for

Defendants,

on

August 23,

2019 and

September 3, 2019, reminding Defendants of their obligations and
requesting that Defendants advise the State
come

into

compliance.

See

August

23,

how

they intend to

2019 letter,

attached

to

 September 25, 2019
Page 6

of

Certification

as

Counsel

G,

Exhibit

and

2019

3,

September

letter, attached to Certificaiton of Counsel as Exhibit H.
To date, the State has not received a response from Defendants
August

the

regarding

22,

2019

or

Order

either

of

the

State's

letters. Cert. of Counsel ~I 20.
Analysis
IN

THIS COURT SHOULD GRANT THE DEPARTMENT'S MOTION
LITIGANT'S RIGHTS TO ENFORCE THE COURT'S ORDERS.

I.

AID

OF

New Jersey Rule of Court 1:10-3 authorizes a litigant to seek
the

is

application

to

assistance

Court's

the

State's

litigant's

vindicate
second

Motion

in

Aid

This

rights.
of

Litigant's

Rights seeking compliance with the March 1, 2019 Consent Order and
the

2019

3,

June

Order.

Your

Honor

has

already

reiterated

to

Defendants their continued and renewed obligation to comply with
the Court's June 3, 2019 Order as well as observed Defendants'
willfull non-compliance with the March 1, 2019 Consent Order and
June 3, 2019 Order. Exhibit F at 15-16.
As

the

obligation

State

to

has

produce

shown,

Defendants

documentation

were

identifying

aware
the

of

their

source

and

nature of the fill material brought onto their property: Defendants
verbally agreed on the record to do so by April 1, 2019, and the
June

3,

2019

and

August

22,

2019

Orders

required

the

same

production. Exhibits C and F. As the Court has previously observed,
Defendants have failed to produce any documentation, except for

 September 25, 2019
Page 7
analytics regarding two sites not connected to their property, and
receipts

for

small

a

fraction

of

the

truckloads

of

materials

brought on-site. May 24, 2019 letter from Counsel and attached
documents, attached to Cert. of Counsel as Exhibit B.
Therefore, the State respectfully requests that Your Honor
compel Defendants to comply with the March 1, 2019 Consent Order,
and

the

June

3,

2019

and

August

22,

2019

Orders

to

produce

documentation showing the source and nature of material illegally
brought on-site.
Further,

on

August

2,

2019,

Defendants

were

to

have

characterized the illegally placed fill material to determine if
it meets the definition of solid waste, submitted and implemented
a soil erosion and sediment control plan for the completion of a
5G3 stormwater permit, and placed sufficient funds into escrow to
guarantee funds to remove the solid waste, as ordered by the June
3, 2019 Order and reiterated in the August 22, 2019 Order. Exs. C
and F. The State sent two letters to Defendants reminding them of
their court-ordered obligations with no response. Exs. G and H.
Defendants have failed to comply with any of their court-ordered
obligations, and the State respectfully requests that the Court
enforce the March 1, 2019 Consent Order, and the June 3, 2019 and
August 22, 2019 Orders.

 September 25, 2019
Page 8
II.

THE VIOLATIONS OF THE SOLID WASTE MANAGEMENT ACT SHOULD BE
REMEDIED THROUGH APPOINTMENT OF A SPECIAL AGENT OR RECEIVER.

Because
orders,

the

Defendants
State

have

respectfully

repeatedly
requests

ignored
the

the

Court's

appointment

of

a

special agent or receiver, and any other appropriate relief that
Your Honor deems proper and just to compel Defendants to comply
with the March 1, 2019 Consent Order, and the June 3, 2019 and
August 22, 2019 Orders.
The SWMA provides that relief may include ~~the appointment of
a receiver for any violation of this act," thus there is a basis
for the appointment of a statutory receiver. N.J.S.A. 13:1E-9(d).
In addition to the statutory authority under SWMA, the courts of
equity

have

the

authority

to

appoint

custodial

receivers

and

special fiscal agents. Roach v. Margulies, 42 N.J. Super. 243 (App.
Div.

1956).

The

appointment of a

receiver is

a

drastic remedy

which should be avoided whenever necessary relief can be achieved
through less burdensome means.

Kassover

v. Kassover, 312 N.J.

Super. 96, 100 (App. Div. 1998). A receivership or the appointment
of a special agent is not an end in itself, but is only meant to
reach some legitimate end sought through the exercise of the power
of an equity court. In re Valley Road Sewerage Company, 295 N.J.
Super. 278, 292 (App. Div. 1996). Courts have made distinctions
between receivership (both custodial and statutory) and special

 September 25, 2019
Page 9

agents in the context of seeking compliance against corporations,
holding that a special agent is a less drastic solution than a
receiver, New Jersey Realty Concepts, LLC v. Mavroudis, 435 N.J.
Super. 118, 125 (App. Div. 2014), but it is clear that the name of
the entity charged with managing a party's assets is less important
than the powers so delegated by the Court. See Ravin, Sarasohn,
Cook, Baumqarten, Fisch & Rosen, P.C. v. Lowenstein Sandler, P.C.,
365 N.J. Super. 241 (App. Div. 2003).1
No court in New Jersey has articulated a definitive list of
factors to consider when determining whether to appoint a receiver,
and

articulate

rarely

courts

the

factors

they

consider

beyond

citations to the broad powers of courts of equity qualified by the
rarity of receivership. Roach v. Margulies, 42 N.J. Super. at 246
(quoting Sears, Roebuck & Co. v. Camp, 124 N.J. Eq. 403, 411 (E.
& A. 1938)); Ravin, Sarasohn, Cook, Baumqarten, Fisch
P.C.

v.

Lowenstein

(discussing

the

Sandler,

distinction

P.C.,

365

between

N.J.

Super.

statutory

and

&

Rosen,

at

248-50

custodial

receivership).
As a

result, courts have often cited to secondary sources

when looking for receivership guidance. See, e.g., Silverman v.

1 A major distinction that courts have drawn between the categories of
receivership and/or special fiscal agent is whether the agent's role is to
liquidate a company or simply manage its assets, which plays less of a role in
this case because Defendants are individuals, not corporations. See Ravin,
Sarasohn, Cook, Baumgarten, Fisch & Rosen, P.C. v. Lowenstein Sandler, P.C.,
365 N.J. Super. at 254.

 September 25, 2019
Page 10

Kolker, 149 N.J. Super. 162, 168 (Ch. Div. 1977) (citing C.J.S.
[Corpus

Juris

receiver).

Secundum]

in

provides

C.J.S.

the

of

context

that factors

the

powers

courts should

of

a

consider

include: 1) repeated failures to comply with prior court orders,
2) further efforts to secure compliance would lead to confrontation
or delay, 3) leadership is available which can turn the tide within
a reasonable time period, 4) existence of bad faith, 5) resources
are

being

wasted,

and

6)

a

receiver

can

provide

a

quick

and

efficient remedy. 75 C.J.S. Receivers ~ 35.
Defendants have engaged in continued and repeated failure to
comply with and violations of court orders. Defendants failed to
comply with the March 1, 2019 Consent Order, and the June 3, 2019
and

August

22,

2019

Orders

as

they

relate

to

production

of

documentation on the source and nature of fill material. As the
State .has shown, several of the shipping receipts provided were
for material brought onto the site after the March 1, 2019 Consent
Order in blantant violation of paragraph 2(a ) of the Consent Order.
The only purpose for bringing that material on after the Consent
Order was to frustrate and impede the State's investigations and
sampling of the unpermitted fill material/solid waste pile. Based
upon

Defendants

continued

importation

of

material

onto

their

property contrary to court orders, extreme measures are necessary
to remedy the violations.

 September 25, 2019
Page 11
Indeed,

Your

Honor

specifically

has

held

Defendants'

that

production of documentation related to the source and nature of
fill material showed that ~~defendant [Joseph Wallace] willfully
failed to comply with the [C]ourt's March 1, 2019 and June 3, 2019
Orders." Exhibit F, at 15. Since August 2, 2019, Defendants have
failed to comply with the three other requirements of the June 3,
2019 and August 22, 2019 Court Orders as detailed above. Thus, the
Court has observed that Defendants have willfully failed to comply.
Further efforts at seeking

compliance

short of

receiver

a

would lead to delay, as the State is now making its second Motion
in Aid of Litigant's Rights to enforce Defendants' obligations.
Your

Honor's

conclusion

regarding

Defendant

Joseph

Wallace's

willful failure to comply with court orders as well as Defendants'
failure to respond to any of the State's correspondence regarding
their compliance deadlines demonstrates Defendants' bad faith, to
w hich

the

efficient

leadership
remedy

by

of

a

receiver

allocating

could

provide

Defendants'

a

quick

resources

and

toward

compliance, and ultimately protecting the health of the State's
citizens and the environment.
To

combat

Defendants'

willful

non-compliance,

the

State

respectfully requests that the Court appoint a receiver with the
following powers:
a) The

power

to

identify,

investigate,

and

marshal

the

 September 25, 2019
Page 12
assets of Defendants to fund the following actions:
a. the characterization of all material to determine
if it meets the definition of solid waste;
b. to

NJDEP

provide

estimate

cost

of

disposal

proper

and

removal

a

with

all

for

the

material

identified as solid waste;
c. to place sufficient assets into escrow to guarantee
funding for the removal of all solid waste;
d. to submit and implement a soil erosion and sediment
control

plan for the

Property and

apply for and

obtain a 5G3 stormwater permit;
e. to remove and properly dispose of all material that
meets

the

of

definition

solid

waste

from

the

Property.
b) The power to access Defendants' bank accounts and any
and all assets, whether real property, chattel property,
or

bank

accounts-

or

other

funds

to

pay those

bills,

debts, and expenses that accrue by complying with all
court orders on this matter.
c) The power to require Defendants to provide an affidavit
identifying all accounts in which they have an interest
or
all

signatory
bank

authority,

checking,

including

savings,

money

without
market,

limitation,
brokerage,

 September 25, 2019
Page 13
mutual fund, stock, bond, and/or payroll accounts.
d) The power to request further powers from the Court.
Additionally, Defendants must be ordered to fully cooperate
to enable the receiver to complete the tasks assigned by the Court,
to

providing

including

any

receiver

the

and

all

documents

(electronic or otherwise), and providing the receiver with access
to

the

Property.

Defendants

must

also

be

prohibited

from

transferring or concealing any and all assets.
Providing

the

receiver

with

these

powers

would

eliminate

Defendants' capacity for continued non-compliance. The receiver's
leadership would blunt Defendants' bad faith and provide for. the
and

quick

efficient

remediation

of

the

environmental

hazard

Defendants created. Procedurally, the receiver should not be able
to

be

sued

absent leave

of the

Court,

should

provide

periodic

reports to the Court, and should have a finite term set by the
Court

which

would conclude upon the removal of all solid

waste

from the Wallace property. Since the appointment of the receiver
is entirely due to Defendants' intransigence, it is appropriate
that the receiver shall be paid for by the Defendants.
In conclusion, receivership is appropriate because Defendants
have repeatedly failed to comply with the Court's orders.

 September 25, 2019
Page 14

III. DEFENDANTS' WILLFULL REFUSAL TO COMPLY WITH MULTIPLE COURT
IMPOSITION
OF SANCTIONS AND OTHER
THE
ORDERS WARRANTS
APPROPRIATE RELIEF AGAINST DEFENDANTS

Failure to comply with a court's orders qualifies as contempt
of court under R. 1:10-3. A contempt finding pursuant to the court
rules

requires

willfully

contumacious

behavior.

A

finding

of

willful contumacious behavior requires the court to be satisfied
that the defendant is able to comply and had no good reason to
resist compliance. Schochet v. Schochet, 435 N.J. Super. 542, 54950 (App. Div. 2014). In the present matter, the court already held
on August 22, 2019, that defendant "willfully failed to comply
with the court' s March 1, 2019 and June 3, 2019 Orders." Exhibit
F, at 15. Specifically, the Court cited to Defendants' statements
at the initial OTSC hearing that he had all documentation related
to the material brought to site and was willing and able to turn
it over. The continued silence by Defendants nearly a month after
being ordered to immediately comply with all aspects of the June
3,

court

2019

behavior.

order

Defendants

also
are

exemplifies

capable

of

willfully

engaging

an

contumacious
environmental

consultant to conduct sampling to characterize the fill pile or
reach out to NJDEP for guidance, but have chosen not to do so.
In

order

to

guide

the

Court

on

an

appropriate

range

for

sanctions it is appropriate to look to the penalty provisions of

 September 25, 2019
Page 15
the SWMA and the WPCA. Both the SWMA and the WPCA have provisions
w hich allow for imposing daily civil penalties for violations of
underlying court orders issued pursuant to those statutes. ~~Any
person

who

violates

an

administrative

order issued pursuant to

subsection c. of this section, or a court order issued pursuant to
section d. of this section... is subject upon order of a court to a
civil

penalty

violations."

not

to

N.J.S.A.

exceed

$100,000.00

13:1E-9(f)

per

Identical

of

such

language

for

day

enforcement of orders under the WPCA exists at N.J.S.A. 58:10A10(e)

However, the WPCA only allows for a maximum daily penalty

of $50,000.
Although the

pertinent statutes

allow

for

penalties

up to

$50,000 and $100,000 per day, the State defers to the Court to
order daily sanctions at a rate it deems appropriate. Environmental
compliance is paramount, but Defendants' refusal to engage with
the State or to comply with underlying Court orders requires this
request for coercive relief. We request that daily sanctions would
run from the date of any order resulting from this motion until
representative sampling results fully characterizing the fill pile
have been presented to the Department. At that point, Defendants
would have sixty (60) days to remove all contaminated fill (aka
solid waste) to an approved solid waste facility.

 September 25, 2019
Page 16
CONCLUSION
Department

The
Defendants
orders,

in

order

therefore

to

contempt for failure
the

appointment

that

the

comply

with

requests

of

a

receiver,

and

Court
prior

Respectfully submitted,
GURB I R S. GRE[n1AL
ATTORNEY GENERAL OF NE[n1 JERSEY

evin J. Leming
Deputy Attorney Gene

C:

Jeffrey M. Patti, Esq.

Court

appropriate

sanctions to coerce compliance.

B y.

find