NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION - v. ENA MEAT PACKING, INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION,

Petitioner-Respondent,

v.

ENA MEAT PACKING, INC.,

Respondent-Appellant. __________________________________

Submitted May 24, 2016 Decided June 2, 2016

Before Judges Rothstadt and Currier.

On appeal from the New Jersey Department of Environmental Protection, Docket No. PEA140002-135074.

Lieberman & Blecher, P.C., attorneys for appellant (Stuart J. Lieberman, of counsel; Samuel K. Dykstra, on the briefs).

Robert Lougy, Acting Attorney General, attorney for respondent (Melissa H. Raksa, Assistant Attorney General, of counsel; Jacqueline M. Quick, Deputy Attorney General, on the brief).

PER CURIAM

ENA Meat Packing, Inc. (ENA), appeals from a final decision of the Department of Environmental Protection (DEP) denying ENA's request for an adjudicatory hearing regarding penalties the DEP imposed on ENA. According to the DEP, ENA's request was untimely. On appeal, ENA argues that the DEP's decision was "arbitrary and capricious" because it did not give ENA "notice of the standards upon which it would rely in determining 'good cause'" for granting an untimely request for a hearing. ENA also contends that it substantially complied with the DEP's "hearing request procedures" and that its due process rights were violated when the DEP's Administrative Order and Notice of Civil Administrative Penalty Assessment (AONOCAPA) became final without affording ENA a hearing.

We have considered these arguments in light of our review of the record and applicable legal principles. We affirm.

According to a certification filed with the DEP by ENA's plant manager, Edibey Kucukkarca, the company "operates a slaughterhouse in Paterson" and is a closely-held family business, owned and operated by individuals who are of "Turkish origin[] and [for whom] English is [their] third language." Edibey1 further explained that although ENA's principals, Ali and Zatibey Kucukkarca, "have not traditionally had a problem operating their business without fluency in English because their primary work is the internal operation of a slaughterhouse," their inability to understand English caused ENA's delay in requesting a hearing.

ENA's problems with the DEP related to the department's determination that ENA violated the terms of a previously issued permit regarding ENA's discharge of pollutants. As part of its obligations under the permit, ENA was required to submit a Stormwater Pollution Prevention Plan (SPPP) to demonstrate how materials from its operations would not contaminate stormwater. ENA failed to make the required submission, and inspections by the DEP revealed a danger of contaminants being released into stormwater and the neighboring Passaic River.

In 2007, 2008, and 2010, the DEP issued notices of violations to ENA. Each required that ENA take specified action and make submissions to the DEP within a particular time period. ENA never responded to any of the notices. As a result, in October 2010, the DEP issued to ENA an AONOCAPA assessing a $40,000 penalty and specifying ENA's right to request a hearing if made within twenty days. ENA's then counsel promptly submitted to the DEP an "Adjudicatory Hearing Request" appealing the AONOCAPA, which the DEP granted. However, ENA failed to appear at the scheduled hearing, causing the AONOCAPA to become a final determination and the penalty to be entered as a judgment against ENA.

The DEP continued to attempt to secure ENA's compliance. In 2011, the DEP cited ENA for failure to make necessary submissions and to have required documents available for review upon inspection. In 2012, it issued another notice of violation after a "Compliance Evaluation and Assistance Inspection" revealed that ENA still did not have a SPPP and necessary documents available for inspection. In January 2013, another inspection resulted in the issuance of a notice for the same violations and ENA's failure to obtain necessary permits for an "additional chicken slaughterhouse and one additional storage yard."

Between May 2013 and August 22, 2013, the DEP exchanged emails with ENA's representatives in English again attempting to secure ENA's compliance. These emails were addressed to or received from "ekarca@gmail.com" (Mr. Kucukkarca) and "edibeyk@hotmail.com." Despite those emails, according to the DEP, ENA continued to be in violation of its permit.

Following evaluations and inspections in December 2013 and January 2014, the DEP issued another notice of violation for ENA's same failure to have a SPPP in place and for its failure to have required documents available. These and the earlier violations resulted in the issuance of another AONOCAPA on August 26, 2014, which assessed an $80,000 penalty against ENA and again advised ENA of its right to request a hearing within twenty days.

On October 17, 2014, ENA's counsel wrote to the DEP requesting an adjudicatory hearing appealing the AONOCAPA that counsel stated ENA received on August 30, 2014. The DEP responded on November 13, 2014, advising counsel that the request was untimely as it was not made "within 20 days after [ENA's] receipt of the AONOCAPA. N.J.S.A. 58:10A-10[(d)](2)[2] and N.J.A.C. 7:14-8.4(b).[3]" It further advised that according to the DEP's records, ENA received the AONOCAPA on September 5, 2014, therefore the request had to have been made by September 25, and, absent "good cause," the DEP was "not authorized to grant untimely hearing requests." The letter stated that the DEP would consider whatever documentation ENA submitted within twenty days to establish good cause for its untimely filing. It concluded by advising that "failure to do so within 20 days will result in the denial of your hearing request" and that if any timely submission failed to establish "good cause" the "request will be denied."

Eighty-three days later, on February 4, 2015, ENA's counsel submitted a letter attempting to establish good cause for the original untimely hearing request. The letter included the certification from Edibey and explained that "due to the lack of complete comprehension of the AON[O]CAPA, ENA's response to the Department was delayed." Edibey's certification described the owners' issues with understanding English and lack of experience "in handling or responding to time-sensitive English language legal documents." He also explained that ENA had some internal difficulties in the handling of its mail that prevented its mail from "immediately arriv[ing] at [its] office" as it came from a related company's offices. However, the mail was "handled in such a way that it is reviewed in ten (10) days or less." Edibey confirmed that ENA received the AONOCAPA on September 5, 2014, but due to its principals' "limited fluency with English and their lack of experience with similar notices, they did not immediately comprehend everything that the document demanded, or its consequences," including the twenty day deadline to request a hearing. He explained that once they received the notice, they gave it to another family member who is fluent in English and "explained its scope and ramifications." Afterward, "ENA immediately took steps to respond to [the] DEP." Those steps were to seek out an environmental expert and to retain counsel, which resulted in counsel issuing the October 17, 2014 letter, one day after being retained.4

In its final determination, the DEP rejected ENA's arguments that it established good cause for its untimely request for an adjudicatory hearing and that ENA substantially complied with its obligation to make a timely request. According to the DEP's April 15, 2015 letter to counsel

ENA's reasons for the delay do not demonstrate that circumstances beyond its control delayed submission of the hearing request. ENA's request was submitted 22 days after the deadline twice the statutory timeframe. Mr. Edibey Kucukkarca's explanation does not indicate any timeframes within which attempts were made to timely handle the Department's AONOCAPA beyond that the AONOCAPA was given to a family member . . . to translate.

The DEP's letter cited to our opinions in D.R. Horton, Inc.-New Jersey v. New Jersey Department of Environmental Protection, 383 N.J. Super. 405, 408 (App. Div. 2006), and Schaible Oil Co. v. New Jersey Department of Environmental Protection, 246 N.J. Super. 29, 31-33 (App. Div.), certif. denied, 136 N.J. 387 (1991), and stated that because ENA did not establish good cause, the DEP was not authorized to "grant [ENA's] untimely request."

This appeal followed.

We conclude from our review that the DEP's decision was supported by sufficient credible evidence on the record as a whole, R. 2:11-3(e)(1)(D), and ENA's arguments challenging the agency's actions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Suffice it to say that its contentions are belied by the record, which demonstrated a history of complying in 2010 with the very requirements it claims its principals did not understand in 2014, and the company's ability to communicate in English with the DEP's representatives through emails. Its explanations for its delay in seeking a hearing based on difficulty with understanding English or its internal mail procedures did not establish "good cause" or "substantial compliance" as a matter of law, see State Dep't of Envtl. Prot., Bureau of Cty. Envtl. & Waste Compliance Enf't v. Mazza & Sons, Inc., 406 N.J. Super. 13, 26-27 (App. Div. 2009), because ENA failed to demonstrate it had "taken reasonable steps to initiate [a request for a hearing] within the prescribed period, but the agency ha[d] failed to receive timely notice of [its request] due to circumstances beyond [its] control." D.R. Horton, Inc., supra, 383 N.J. Super. at 409. Without such evidence, the DEP had no authority to consider ENA's hearing request submitted beyond the "mandatory and jurisdictional" period for such requests. See Cavallaro 556 Valley St. Corp. v. Div. of Alcoholic Beverage Control, 351 N.J. Super. 33, 38-39 (App. Div. 2002); see also Schaible Oil Co., supra, 246 N.J. Super. at 31-32.

1 Because Edibey shares the same surname as ENA's principals and other family members, we refer to him by his first name for clarity and to avoid confusion.

2 The statute states

No assessment shall be levied pursuant to this subsection until after the discharger has been notified by certified mail or personal service. The notice shall include a reference to the section of the statute, regulation, order or permit condition violated; a concise statement of the facts alleged to constitute a violation; a statement of the amount of the civil penalties to be imposed; and a statement of the party s right to a hearing. The ordered party shall have 20 days from receipt of the notice within which to deliver to the commissioner a written request for a hearing. After the hearing and upon finding that a violation has occurred, the commissioner may issue a final order after assessing the amount of the fine specified in the notice. If no hearing is requested, then the notice shall become a final order after the expiration of the 20-day period. Payment of the assessment is due when a final order is issued or the notice becomes a final order.

[N.J.S.A. 58:10A-10(d)(2)]

3 The regulation states: "The Department shall deny the hearing request if the Department does not receive a complete hearing request . . . within 20 days after receipt by the violator of the Notice of a Civil Administrative Penalty Assessment . . . being challenged." N.J.A.C. 7:14-8.4(b).

4 Although no explanation was provided for counsel's delay in responding to the DEP's November letter, the agency did not rely on that delay in its decision to deny ENA a hearing.