In the Matter of Allegations of Violations of Law and Administrative Code by A. Fiore & Sons, Inc.

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

In the Matter of Allegations of Violations of Law and Administrative Code by A. Fiore & Sons, Inc.
(A-226-1997)

 
Argued February 1, 1999 -- Decided April 21, 1999

PER CURIAM

This appeal concerns the application of judgments of the federal courts holding that New Jersey's waste flow control laws and regulations are unconstitutional because they discriminate against out-of-state waste facilities. The question is whether those rulings should be applied retroactively to vacate administrative penalties imposed on respondents, A. Fiore & Sons, Inc., and others (Fiore) for violations of those waste flow laws and regulations.

Fiore was charged with various violations of waste flow control laws and regulations starting in 1988. The ALJ granted partial summary judgment against Fiore on the issue of liability on October 18, 1993.

On May 16, 1994, the United States Supreme Court issued its decision in C&A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 114 S. Ct. 1677, 128 L. Ed. 2d 399 (1994). Carbone held that a Clarkstown, New York, municipal waste flow ordinance that required all solid waste to be processed at a designated transfer station within the municipality discriminated against interstate commerce in violation of the Commerce Clause of the Federal Constitution.

The ordinance voided in Carbone was similar to the waste flow control regulations in New Jersey. Nonetheless, the DEP pressed for a final decision in this matter, distinguishing Carbone and relying on a District Court opinion upholding New Jersey's regulatory scheme. On November 16, 1994, the ALJ recommended a significant monetary penalty, the revocation of Fiore's license, and the permanent debarment of individuals connected with Fiore from participation in the waste disposal industry in the State. The Commissioner of the DEP adopted the decision as final, with negligible modifications.

Fiore filed an appeal with the Appellate Division. In 1997, while that appeal was pending, the Federal Court of Appeals, Third Circuit, applied Carbone to New Jersey's waste flow control laws and regulations, finding them "unconstitutional insofar as they discriminate against out-of-state waste processing facilities." Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 112 F.3d 652 (3d Cir. 1997) (Atlantic Coast II), cert. denied sub nom., Essex county Utilities Authority v. Atlantic coast Demolition & Recycling, Inc., 118 S. Ct. 412, and cert. denied sub nom., Shinn v. Atlantic Coast Demolition & Recycling, Inc. 118 S. Ct. 413 (1997), opinion amended by 135 F.3d 891 (3d Cir. 1998).

On November 5, 1997, the Appellate Division filed a published opinion reversing and remanding for reconsideration based on Atlantic Coast II. Matter of A. Fiore & Sons, Inc., 305 N.J. Super. 192 (App. Div. 1997). The Appellate Division expressed concern with the fact that Fiore's out-of-state shipments were in exercise of its constitutional right, and noted that a contrary assumption guided the Commissioner. It also voiced concern that Fiore had been faced with conflicting administrative rules and directives. The Appellate Division therefore found that on the facts presented, the penalties imposed were arbitrary and unreasonable.

The Supreme Court granted the DEP's petition for certification. The DEP and Fiore subsequently entered into a comprehensive settlement covering all of Fiore's activities except the matter in dispute here concerning retroactivity.

HELD: Carbone and Atlantic Coast II should apply retroactively to cases in the pipeline challenging those aspects of the State's waste flow regulations that discriminate against interstate commerce.

1. The Court is satisfied to affirm on the basis of the opinion of the Appellate Division. Because the agreed-upon amount of the civil penalties attributable to matters in dispute here is relatively small, the Court sees no reason to parse further the violations to determine what, if any penalties should be saved from invalidation by the retroactive application of Carbone and Atlantic Coast II. (p. 4)

Judgment of the Appellate Division is AFFIRMED.

JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN and COLEMAN join in this opinion. CHIEF JUSTICE PORITZ did not participate.

 

SUPREME COURT OF NEW JERSEY
A- 226 September Term 1997

IN THE MATTER OF ALLEGATIONS OF VIOLATIONS OF LAW AND ADMINISTRATIVE CODE BY A. FIORE & SONS, INC., ANDREW FIORE, JR., THEODORE FIORE, AND ANDREW FIORE, SR., (DECEASED) INDIVIDUALLY AND AS OFFICERS, DIRECTORS AND SHAREHOLDERS.

Argued February 1, 1999 -- Decided April 21, 1999

On certification to the Superior Court, Appellate Division, whose opinion is reported at 305 N.J. Super. 192 (1997).

Gail M. Cookson, Deputy Attorney General, argued the cause for appellant, New Jersey Department of Environmental Protection (Peter Verniero, Attorney General of New Jersey, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel).

Harry L. Starrett argued the cause for respondents A. Fiore & Sons, Inc., Andrew Fiore, Jr., Theodore Fiore and Andrew Fiore, Sr., (Starrett & Klinghoffer, attorneys).

PER CURIAM
We granted certification principally to consider whether C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 114 S. Ct. 1677, 128 L. Ed. 2d 399 (1994), and Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 112 F.3d 652 (3d Cir. 1997) (Atlantic Coast II), cert. denied sub nom., Essex County Utilities Authority v. Atlantic Coast Demolition & Recycling, Inc., 118 S. Ct. 412, 139 L. Ed. 2d 316, and cert. denied sub nom., Shinn v. Atlantic Coast Demolition & Recycling, Inc., 118 S. Ct. 413, 139 L. Ed. 2d 316 (1977), and opinion amended by 135 F.3d 891 (3d Cir. 1998), should be applied retroactively to vacate administrative penalties imposed on respondents, A. Fiore & Sons, Inc., and others (Fiore) for pre-1994 violations of waste flow regulations that forbade the transportation of waste out of New Jersey and required disposal at designated in-state waste disposal facilities. Carbone held that a Clarkstown, New York, municipal waste flow ordinance that required all solid waste to be processed at a designated transfer station within the municipality violated the Commerce Clause of the Federal Constitution. The Court in Carbone found that because the ordinance discriminated against interstate commerce, it was invalid. Atlantic Coast II applied Carbone to New Jersey's flow control laws and regulations, finding them "unconstitutional insofar as they discriminate against out-of-state waste processing facilities." Atlantic Coast II, supra, 112 F.3d at 656. We are satisfied to affirm, on the basis of the opinion reported at 305 N.J. Super. 192 (1997), the Appellate Division's judgment that Carbone and Atlantic Coast II should apply retroactively to cases in the pipeline challenging those aspects of the State's waste flow regulations that discriminate against interstate commerce. The Appellate Division remanded the matter to the Commissioner of the Department of Environmental Protection (DEP) for the "calculation of an appropriate reduced penalty" based on Fiore's unauthorized intrastate disposal of solid waste. 305 N.J. Super. at 208.
Before us the Attorney General emphasized that even if the State's prohibition of the interstate disposal of waste was retroactively invalid, other violations of the pertinent regulations that were incidental or ancillary to the interstate aspects of the regulations were not thereby absolved. For example, a waste hauler who may justly protest a penalty for transporting waste out of state should not, the Attorney General argues, escape responsibility for filing false shipping manifests (stating, for example, that it was transporting waste to Passaic County when it took the waste out of state) or filing false tariffs (stating that its rates were based on in-state disposal when it may have paid lower rates for disposal out of state). See State v. Moscato, 253 N.J. Super. 253, 258 (App. Div.), certif. denied, 130 N.J. 6 (1992) (explaining that solid waste franchises are awarded at published rates and charges, provided that franchises conform to approved waste management plans).
Following the Appellate Division's opinion, DEP and Fiore entered a comprehensive settlement of civil penalties for all of Fiore's activities except the matter in dispute here concerning retroactivity. The settlement provides for the payment to the DEP of $400,000 in civil penalties, customer refunds in the amount of approximately $5 million and restrictions on the ability of the principals of Fiore to operate in the solid waste industry. Because the agreed-upon amount of the penalty attributable to matters in dispute here is $1000, we see no need to parse further the violations to determine what portions of the penalties would be saved from invalidation by the retroactive application of Carbone and Atlantic Coast II.
The judgment of the Appellate Division is affirmed.
 
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN join in this PER CURIAM opinion.

SUPREME COURT OF NEW JERSEY
 

NO. A-226

SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court

IN THE MATTER OF ALLEGATIONS
OF VIOLATIONS OF LAW AND
ADMINISTRATIVE CODE BY A. FIORE
& SONS, INC., ANDREW FIORE, JR.,
THEODORE FIORE, AND ANDREW
FIORE, SR., (DECEASED) INDIVIDUALLY
AND AS OFFICERS, DIRECTORS AND
SHAREHOLDERS.

DECIDED

April 21, 1999
Chief Justice Poritz PRESIDING
OPINION BY PER CURIAM
CONCURRING OPINION BY DISSENTING OPINION BY
CHECKLIST
AFFIRM CHIEF JUSTICE PORITZ X JUSTICE HANDLER X JUSTICE POLLOCK X JUSTICE O'HERN X JUSTICE GARIBALDI X JUSTICE STEIN X JUSTICE COLEMAN X TOTALS
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