Opt, 1~. 2~~~ '9 4: 1bPM F, 1i 1 1 No. 3257 judge HANSBURY PREPARED BY T~ C(]iT.~tT STATE OF N~'~ ~ERS~'~, b~PAR,'~11~iE,~1`~ OF E~~ONIV~NTAL PROTECTYON, plaintiff', S~'~RYO~ COURT (]F NEW ~~SEY CHANCERX DIVISION SUSSES CUUNTY DQC~T NO. SS~~C~7-19 ~. JOSEPH 'PVA~Y,AC +and ~,AY7~A ~A~~AC~, Defe~ada~uts. CrtV'LY, ACTY~N' 4R.U~~ ~ OCT 15 20ig ~'a~lz~ Berdote Byme, P.~I,Ch. TES ~,~'~`~~ comes befoxe die court ~y way of motion filed by Kevin J. Fleming, Esq., counsel for plaintiff, St~.te of New Jersey, Department of ~nvirorim.ent~~ Protec~.on, and no opposition ~iaving been filed. ~y defendant, roseph 'OV'allace, or defendant, .aura ~(1'allace, and the court havi_n.g read anal considered the gl.eadings wed, a~.d. fox t ae xeasoz~ sef ~o~la zn the attached stiatie~cae~a~ of reasons, and for good cause shown; IT YS ON ~'~S 15th n.~~ O~ OCTOBER 2419 O~D~~n as fo~ows: 1. PZaintif~s motion in ~.id of litigant's rights pursuant to R. 1:10-3 is G-RAl~TED in part as to defendant Joseph Wallace and DEN~~ without prejudice as to defendant ,aura Wallace. 2. ~'~e court appoints a l~ec~iver to identify and marshal defendants' assets and hue and oversee appropriate personnel to address the ~eYnedia~io~ of the co~.ta~ina~ed p~opert~r. The Recea~rex s~,a1l have ~e autho~~ ~o contractuall~r bind Joseph WalYace to any xe~ediatio~ plans necessar~r for th.e property. A separate Order naming the Receiver and describing his appointment shah issue. ~. Pl~ntiff's request for fines anc~ penalties relating to Joseph 'D~l'allace's non-eompliane~ is n~l~b without prejudice until assets for remedia~ion have been identified b~ the ~ecei~rer or further Order of fhe cour Page ~ of 10 Oct. 15. 2019 4. 16PM Igo. 325? ~ udge HANSBURY P. 2/1 1 NJDEP v. Joseph'PV'suace et al. C-7-19 smAm~n~r~T o~ a~,~so~s This action involves a dispute between plaiu.~i~, ~l~ue S~a~e of New Jersey, l~epartment.of EnvLronrnental Protection ("1~1r~~P"}, an~d.~ defendants Joseph ~'U~l'al~ace {"Mr. 'S~Tallace"} and Laura `~il'allace ("~,s. ~a~lace"){colleo~ively "defendants"), o~exs off' xea~ property located at Bloc, 13U, Lot 1.05, commonly known as 3 Si1~re~ Sp~`uce Drive, Vernon Township, Susse~c County, Ne~v Hersey the "propert~r"},~ ~~a~~fiff filed a Complauit and Order to Show Cause on February 22, 2019 alXeg~(ng defend~uts were operating au unpermitted so~~d ~raste management facili~r on their properly in violation of t.~.e So1id ~Tas~e 1Vlanagement Act {"S't~MA"} and requesting the court compel defendants to: (i} immediately cease receiving fill and ~soli,d waste materia.~ on the p~opert~r; (x~} ~ar~nc~.ediatel~' provide N~3~P access ~ to the propex~y fo perform necessary axaspec~~ons aid sampling of the property; (ui} within. den d~~'s, provide NTD~P with docuxxa.entation of potential so7Yd wash on the propex~y; (i~'~ ~crithin t1~i~.-ty days, characterize all fill material on the prop~r~y to Bete .e a~ ~t meets the definition of solid waste and p~ovade N'mEp an estimate fox the costi o~ removal.; (v} withYn forty-f ve dais, places czent fiYnds i.n an escro'c~v' or. trust acoount t4 guarantee removal of the solid vcr'aste firom the property; and Zvi) vvithi_~ ninety days, remove arYd properly dispose of all solid waste. ComvYaint, Count Qne_ On March 1, 2019, ~lae court denied NJ~D~P's request for entry of an ~xcler to Show pause based vnNJDEP's failure to drove, by clear and con~ca.~g e~~dence, it Mould succeed on the merits of its craims. ~owev~r, the pa~ies entexed into a Consent Order consenting to enemy' of paragraphs a, b, and e of the O~dez to Show Cause, compell~g defendants to act as ~o~lo~rs: (a) Ymmediately cease xecei~riug any and all fill material and/or solid waste onto tlae p~opert~` sti Block 130, Lot 1.Q5, also known as 3 Sil~re~ Spice Drive, Verna, New Jersey (the "site"}; Fage 2 of ~.0 Oct. 15. 2019 4. 17PM fro, 3257 judge HANSBURV P. 3/11 fib} lr~n~nediately provide access to NTDEP and/or individuals on beha,~f of the Department to delineate the area of disturbance and extent of the fill material brought onto the sYte, to perform any sampling of the material on site, and/or perform any other inspections of the propel as ~e Depa~tx~en~ deems necessary to deternune corr~.plzan„ce ~criith the S~IMA, xhe mater Pollu~~an Coa~~rol Act, a~ad ~e ~~g~lands Water Protection and Planning Act; (e} Within. th~.-ty (34} days of t~s order, provide 1~7bEP with full and complete documentation seeing forkh the source and nature off'the material bxought onto the site since 2009, including but not li~a~ted ~o a~~ a~aly~~caZ results, recez~~s, bills o~ ~ad~xag, and idea~ti~'~catzv~ v~ all transporting haulers. 4n May 24, 2019, defendants subrnirted documents to I~JD~p in an attempt to comply with paragraph (c} above. On Apri18, 2oY9, N`rD~p reneged ~~s applicatiior~ fox entry+' o~ all pro~'isio~s uac~uded a~a zts a~iti~al Feb~~ua~y 22, 2019 order to Show Cause based on soil testing it performed on defendan.#s' property on March 14, 2aI9 in accorc~a~nce with the March 1, 2019 Consent Order. On ]'une 3, 2019, the court gra~~ed NJ~3EP's opposed request for entry of s preliminary injunc~zoz~ as to ~ll sip prayers fvr relief in its February 22, 2D19 C)rder to Show Cause. Additionally, the Tune 3, 2019 Order required defendants to provide 1~~D~P with full and compete documentation regarding the source and nature o~ the mate~.a~. brouglaC onto the pxopert~ since 2Q09, Oar ,~..ugus~ 22, ZDJ.9, the coux~ denied Mr. Wallace's request to vacate the June 3, 2019 Qrder and also denied his request to stay ~e preYYmin.ary restraints entered by the court and any further proc~edin.gs in t]us matter pending the putcome o~ ~xau~.ic~.pa~ court pxoceediugs, ~ I~".rD~~' ~X~ed Baas pxese~t motion o~ September 25, 2019 in aid of litigant'srights, alleging defendants have not complied with the court's Orders. On October 9, 2~19, the court wyrote a letter to parties concer~a~zag ~r,~~~p~e cox~espondence the court b.ad received ~egaxdi~g sexv'ice upon Ms. Wallace and acljow.~nment Page ~ of 1d r Oct. 15. 2019 4. 17PM No. 3257 ~ udge HANSBURY P. 4;'11 rcq~xests. The court found IVxs, ViTallace had been propexl~ sez~vedwith tk~e Complaint ~in this znat~er because Nix. . Wallace accepted personal service on her behalf at the fornner marital residence. and because Mr. ~OV'arlace's attorney had entered an appearance on her behalf verbally on the record. See October 9, 2019 setter, attached ~.ereto as E~, ,A,, De~endanYs' ~n~volvement with NJDEP dates back to 2014 and includes complaints about ongoing ~riolations on defendants' property from private citizens, 'V'ernon Township officiaYs, and other enfifaies, Con~plaim~ ¶¶ 9, ~ ~ , NJDE~' pe~o~ed so~~ ~es~ing~ o~. defe~dax~.ts' p~ope~rt~y o~. March 14, 2019 in accordance with the 1Vlarch 1, 2019 Consent Order, identifying "conta~rnYnation levers in the soil that exceeded New rersey's ~i.esidentiar Direct Contract SoYY lZemediation standards." Plai~ntif~s fetter Brief at 4, On ~px~ 8, 20~ 9, ~TJDEP submitted a xeport ("April 8 deport")~det~ili.ng the sampling and mapping analysis conducted on the properly' following the March 1, 2019 Consent Order. Update Letter from Plaintiff_ dated' April 8i2~19 at 1. The Aprir S lZeport details eight samples tal~en from eight locations on d~fcndants' property, each of ,t~vhichy when tes~Ced, s~o~v'ed contam;,,Ants e~ceeditig ~TJU~P's ~teside~~.$1 sod. standards. Id. at 2, ex. A. based on these exceedances, the. materials are considered solid waste such that defendants are "operating an u~lYcensed solid waste fac~]ity . . . ." Yd. at 2. N'rD~P asserts t,~is motion in aid of litigant's ri~.it~ is ``neces~ar~r because of defendants cont7nuing ~Eaz~uxe to take an~r action ~~ co~npl~ with the . jc]ourt's directiibns and O'rders in this matter." Plaintiff's Letter Brief at 1. Iv1r. ~I'allace received materials onto the property after March 7, 2 19, in violation of paragraph 2{a} of the Consent Order prohibiting and ae~cxr material from being bxoughf o~~o the pxope~, ~e~'i.n Fle~.ii.n~ Certification in. Suppvr~ of State's Motion in Aid of Litigant's Rim ("Fleming Cert."}'~'~ 6-7. Pursuant to tie court's dune 3, 2019 order, r defendants were to remove and properly dispose of all fill material that meets the definition of Page 4 0~ ~ 0 pct, 15. 2019 4. 1$PM judge HANSBIJRY No. 3257 P. 5/11 solid waste on the property within 120 days, therefore all solid ~ras~e on the propel should ha~re been removed b~' October 1, 24 9. Plaintii~s ~ei~er Brief a~ 4. Mr. Wallace has not cotnp~ied wifih fhe June 3, 2019 Q~der, and on August 22, 2019, the court found "Mr. '4V'allace willfully fa,~ed to comply with the court's March 1, 2019 and rune 3, 2019 tJ~ders." Id_ at 5. Moreover, the coux~ ~tnrar~t~ed "[c]o~.tit~ued non-compliance ~riYh court Orders may result in the imposition of sanctions against defendants or the ap~ain~ment of a specYal agent to oversee compliance with the court's Order." Yd. NJ~DEP sent tw~a letters to counsel for defe~.dat~ts aftex ~e court's ~~.gust 2~, 20.9 ~rde~ "rerni~di~g de~enda~ts a~ their obligations and requesting that defendants advise the State how they intend to came into compliance," anal has not received a response from defendants. ~'la ntif~ s ~,~t~er brief at 5-6. Mr. Wallace did nod oppose ~TJDEP's ~n~tant app~acation. Cot~sel for Mr. Wallace requested ~ tw'o week ~.djot~rnment of this motion, which the court denied in its actober ~, 2019 letter a~ being untimely. Ex. A. Because counsel requested the a.~jounun~nt t,~rec days before ~e return date of the motion, and five days after the expiration of ~h~e period in ~vhic~ to ~i~,e opposi~o~a, pu~suan~ ~o R. ~ :6-2{a}, ~,e coin cor~s~dexs the r~.o~.on unopposed b~ N1~. ~lallace. The court also addressed service of process far Ms. Wallace in. its October 9, 2U191etter. See Ex. A. The court stated because counsel for Mr. '9V'a.~ace represented to the court he also represented mss. Virallace during the March ~, .20 9 ~eaxiug for fie Oxdex ~o Sk~o~v' Cause, mss. Wallace ~.a.d. been served and waived insufficiency of service of process puxsuant to R. 4:6-2, R. 4:6-3, and R. 4:b-7. Yd. AceordY.ngly, the courx also considers this motion unopposed by Ms. ~OV'allace. Y]1 lt5 p~ese~t notion, 1VJDEP seeks to b~a.~'e a xeceivex apppit~.ted puxsuatat to N.J.S..A., ~3:1E-9(d) to address the ongoing SOMA violations on the property. Additionally, NJDEP also requests the court hold Mr. Wallace liable pursuant to R. 1:I0-3 for fa.~ure to co~np7y with the Consent Order Page 5 of 1D Oct, 1~. 2019 4. 18PM N~, 3257 judge HANSBURY -P. 6%1 1 of March 1, X019, acid the covert Orders' of rune 3, 20 ~ 9 axed t~.ug~t 22, '2019. NJDEP ~]leges Mr. '4Sl'allace failed to : (~~ pxo~r~de ~ix11 and complete documentation setting forth tie source and ~.ature of the material brought onto the property, {2) characterize all fill material at the proper to determ~ae if Yt meets the defuvtion of solid ovaste ar~d pzo~r~de NJDEP with an estimate for the cost o~ xexxao~'al o~ ~khe so~.d ,c]v'aste, ~3) place sufficient funds into escrow, ~4) su~mYt and i~t~nplement a toil erosion and sediment controY plan, and {5) remove and prope~~.y dispose o~ a1~. fill material which meets the definition o~ solid ~cras~e. ~'k~us, NJDEP b~i.ngs the present motion to enfoxce t ae Consent ~rdez, N~arch 1, 2019 Order, ]une 3, 2019 Order, and August 22, 2019 Order, and its rights as a litigant ~ursu.ant to 1~. 1:10-3 . A claim ~.at a party is acting in ~riolation of coin ~xdex should be brought before the court that issued that ~xder b~` ~.oYzo~x for relief in aid of litigants' rights under TTY. 1:10-3. Asbu Park Bd. of Ed~c. v. New Jersey Dept of Edu.c., 369 N.J. Super. 481, 4S6 (App. Div. 2004). Before relief can be afforded, the covert must be satisfied the party b,ad t]~,e capaci~~' to coxnpl~' with the Order and willfully refused. press~ez ~ Ve~uexo, ~txe~~ N.J. Court Ru1es~, cmt. 4.3 on R, 1;10-3 (20 9), Sax~ct~vzas puarstrant to R. I:10-3 are not intended to be punitive but are a coeroi~e ~rieasure to facilitate the enforcement of a court Orc~..er. Pressler 8~ '~erniero, cmt, 4,4,1 on ~. 1:10-3; ~dYey v. ]~ennison, 298 N'.J'. Super. 373, 38~. (App. Dzv, ~99~. Thus, the scope of relief is "limited to renaedia~~n o~ ~e ~'iola~ion o~ a court Order." Id. See also Abbott v. Burke, 206 N.J. 332, 371 (2011). l~ew rersey courts have r~peateclly held "a recei~rer ~cril~ be appo~n~ed ~o~l~ vu'hen it appears necessary to prv~ect ~.e ~ix~te~tests of the patties." Fis~iman. v. Raphael & ~`ish~an, 141 N.J ~Ea. 5~6, 578 ~Ch. Ct. 1948}. In relevant part, N.J.S.A. 42:4-7 provi~.es~ "at any subsequent dime before or after a judgment of dissolution or other judgbaen~, the court zx~ay appoint a Wage 6 of XO pct, 15. 2 19 4. 19PM No. 32 7 judge HANSBURY F. 7/11 te~aporar~' re~ei~rer o~ mad charge the persons in. actual control of the partnership assets as trustees under a~po~ntment by and. accountable to the court (.]" Case lair makes c1ea~ the po~v'er of the court to appoint a receiver should be raxel~' exercised. See Ravin, Sarasohn, Cook, ~auxn~arten, Fisch &Rosen, P.C. v. Lowenstein Sandler, P.C., 365 N`.J. Super. 241, 249 (App. Dig. 2003)(noting the appointment of a receiver is a rarity, and the payer to appo~t a xeceive~ should be exercised onl~r as a "~as~ xesort"). Pursua~~ to N.J.S.A. 13:1E-9(d}, however, a p~roceed~ng "in the Superior Couxt for injunctive and other relief, including the appointment of a receiver for any violation of the S'~MA]" is appropriate, See also Leonard v. Leox~~rd, X28 T.J. Super, 272, 276 (App. Div, 2Q~2)("at was within the trial court's discretion to go as far as to appoint a rece~~ver ~in order to enforce a court order. The goal of Rule 1:10-3 is enforcement. . ."}. N~~P seeks to "enforce Orders previously consented to before, and issued ~b~ [the court] in this same matter" with respect to bob de~eaa~daa~s. PZa~~.f~~ s LeY~ex Brief at 2. In the court's ~ug+~sfi 22, 20 ~ 9 Ordex, tie cotzxt z~otied: L. Wallace did got join i.n or file opposition to ~. 'V(~'al~a,~e's motions. Additionally, at oral argument, the parties discussed an intent to remove Y,. '4U"alrace from these proceec~.rugs as the parties are currently contemplating divorcing. As such, the court will not consider enforcement of its June 3, 2019 v~~ respect to ~. V+Taa.lace at t,~.is tune. Becar~se txie covert did not consider enforcement as to IVIs. Wallace on August 22, 2019, it cannot consider NTDEP's motion in aid of lr~igant's rights with respect to ~V1s. '4V'a~lace at this ~me.~ ' One day prior to the return date of this motion, a near attorney attempted to enter an appearance on behalf of Ms. Wallace and file opposition to this motion "on short notice" although na coon rr.~e a~lo~vs for r at form of pleading, The.court is currently without sufficient information as to the soope of Ms. 'OfJ'alYace's ynvol~vement ~ri~ this property or l~owledge of the cont~rnination. It is also without Ianowledge as to when she obtained actual notice of r~.ese proceedings. As such, the covert did not consider the opposition. Any attorney Ys free to file and motion or plaading he or she deems appropriate to address Ms. 'Wall~ce's status as a party and/or der responsibility to the contamination on the property. Although the court will not find aga~st Ms. V(rallace in aid of litigant's rights, her assets wYll be marshalled until a deternunation is made as to her involvement, if any, with the contamination on the property or u~t~l ~uxthex Order o£the cotut. page ~ of 1Q pct. 1~. 2019 4: 19PM Igo, 3257 judge HANSBURY P. $/11 With respect ~to Mr. 'UV'allace, I~~EP provides clear and documentar~r evidence he has not complied ~vvith t,~.e Consent Order and s~bseque~t Q~cdexs of the court. See e. ., Flerz~~n Ce~t~, ¶¶ 7-S, 1U, 13, 2~. Mr. V~allace his engaged in a pattern of unlawful behavior without regard to remedying such actions. Of increasing concern to the court, several of the shipping receipts provided to NJI~EP were for materiaX ``broug~a~ o~~o the site after the Mach 1, 2419 Consent Order in blatant violation of paragraph 2{a) of the Consent Order." Plaantif~s Letter Brief at 10. Mr. ~QVallace has a7.so faYlec~ to comply with. prior Orders, in.cl~.di.ng "the Jtxn.e 3, 2019 and August 22, 20 ~ 9 ~xders as they relate to pxp~uc~zo~. off' doc~nentation on the source aid nature o~ dill xnateriar." Id. Given the continuous and willful pattern of nan-compliance ~~rvith court drd~rs, the court appoints a receiver to marshal defendants' assets and hire and o~re~see appropriate pexso~e~ to address the rem.edza~.o~ o~ tae conta~a,inated property'. Mr. Wallace has consistently avoided obligations consented to by him or otherwise imposed upon him by the court. Thus, whYle it is rare for courts to appoint receivers, it is a~.so rare for three court Orders to go entirely ignored. See generally Yn re Carlton, 48 N'.r. 9, I6 (1966}("T}~.exe ~rx~usf be ~,o de~iax~ce o~ a cout~. . .One ~l~o ~s dissatis~~ed ~`a.th Y1~e act~o~ o~ a court must obtain a stay or obey the order. He may not i~ore it."). When a party fails to comply with mandates set out by tie court, a motion in aid of litigant's rights is proper. ~bbot~, 206 N.J. at 371. Yt is clear ~, Wallace deliberate~.~ effected ~o dacsxegard the cotYxx's p~~ox C)xdexs. The court's August 22, 2U19 Order previously found Mr. Wallace "willfully failed to comply with the court's March 2, 2019 ~ and rune 3, 2019 t]rders." plaintiffs setter ~ri~f at 14. A receiver is n~c~ssaz~ to develop a compliance plaza, fox Nix, Wa~.lace ~v°ith the auf~aox~.~' to co~tiracivaJ~y coxz~nit Mr. Wallace to env'i~onmentaZ cleanup actions for the property. Page S of 10 pct, 15. 2019 4:2~PM No. 32 7 ~ udge HANSBURY F. 9/11 NJDEP also seeks mvne~ary penalties agaynst defendants far their "refusal ~o engage ~cri~, t the State or to comply with underlying court Ceders" ~d, at 1.5. NJDEP notes "ja]lthough the pertinent statutes allo~r for pe~t~es up to $~a,~40 and $100,OQ~ per day, the State defers to the cout~ do order daily sanctions at a rate it deems appropriate. ~n~riranmental compliance zs paramount, . ." Yd.1~lU~~P therefore requests dail~r sanc~io~s against defendants to "run from the date off' an~r Qrdex ~esul~i~g ~7rom this motion until representative sampling results fully characteri2ing the fill pile have been presented to ~7DEP~." Yd. The court acknowledges en~vironn~ental co~apliax~ce is a high priority. However, paran~unt to a~.y odaex coz~s~deratiivn at this time is the immedYate Ydentification of the scope of co~a~ami~atiion and its swift remediat~an. T'he ~roperiy is ~n the ~igblands preser~a~io~ region and it is still unknown whether neighboring properties or groun.d'ar'a~ex are being impacted by the contamination. ~U'ntal assets aye i.den~i~ied aid maxshalled, if is of paramount un~ortance this court prese~e ~a~r a5se~s for site remedia~ion first, before assessing fines and penalties. A receiver has been appointed to ident~y a~~ marshal assets. ~'he court declines ,ara~au~ pxej~d~ce to enforce daily penaYties at .his time. N'~D~p mad rene~r ~~s application ~~r the receiver has identified assets. The relief a~t7varded today is consistent and cotem~aous with ~h~ Consent order end the court's March 1, 2019, Tune 3; 2019, and l~ugust 22, 2019 Orders, fix. ~a~~ace is to produce the outstanding documents deta~ed ~~a ~e ~o~u~rt's pxror Qrders. The court hereby a~~aoints a receiver to ~arsha~ defendants' asses and hire and oversee a~~ropriat~ gersonuel to addxess 'the remediation of the contaminated property. "Ihe relief sought b~' NJD~~' ~s consistent not only with #h~ purpose of the SW.~4, bud wi,~ pub~~c policy'.supporting dumping solid waste and co~ataxaxma~ts a~ ~J~EP approved solid waste facilities. Therefore, ~~~~''s requested relief is page 9 of 10 pct, 15. 2019 4:24PM ~ judge HANSBl1RY ~ No, 32 7 P. l0i1 1 Orders gxauted to the extent the relief is consistent rx~ith the June 3, 2019 and August 22, 2019 ~.nd as outl~ed ~ere~n. Wage X 0 of 10