You have an extensive background on cases involving civil and criminal environmental law. What is the focus of your work at Rutter & Roy?
I work on cases involving violations of New Jersey’s civil and criminal environmental statutes and administrative code provisions. Back in 1980, I investigated the hazardous waste site in Elizabeth where a warehouse owned by Chemical Control Corporation exploded. Since then, I have taken part in numerous investigations and trials.
As a prosecutor, a government attorney representing the DEP, and now as a defense attorney, I have seen how the government deals with alleged environmental violators; whether it’s a corporate manufacturer polluting a river, a commercial waste hauler violating waste flow or a liquid waste hauler intentionally leaking waste onto the highway (known as “cocktailing”).
Based on my experience there are many factors that determine how seriously the DEP will view a violation, how far they will go to seek penalties and remediation, how a particular incident will affect the government’s attitude toward the violator in the future and what to do to assure a positive outcome.
What are the most common issues you handle in waste management cases in New Jersey?
Many times, waste management clients come to Rutter & Roy after their regular attorney has dealt unsuccessfully with their DEP issues. Working with a firm that understands the statutes and administrative code provisions relating to waste and other environmental areas is extremely important. Absent a background in enforcement, they are extremely complex and very difficult to interpret.
It is common for defendants in these cases to underestimate the government’s field agents. I’ve seen many cases where a company owner mistakenly believes he or she can talk their way out of a penalty. But the agents, their supervisors and the lawyers that represent them have seen and heard it all, and they usually don’t approach their target until they have all the evidence they need to make a case. The best thing to do when approached by investigators is to say nothing and contact your attorney immediately.
Have you seen any cases involving environmental issues?
Frequently, the New Jersey DEP will respond to political events. We saw this happen in the late 1970’s and early 1980’s when the DEP forcefully and aggressively asserted its responsibilities for acquiring and maintaining clean water and clean air in the state. As a result, regulations were enacted to hold polluters responsible, and cases involving the problems presented by the improper disposal of solid waste, hazardous waste and toxic waste became a focus. The disposal of medical waste was also included in the regulations.
During the late 1980’s, government legislation on brownfields restoration was enacted to push for the clean-up of abandoned industrial sites. Today it remains a major issue for businesses. There is a need for due diligence; that is, to properly investigate real estate purchases so as to avoid liability for dumping that may have occurred generations ago.
Brownfields cases continue to wind their way through the courts in 2016; and DEP permits decisions can be influenced by county, municipal and even neighborhood demands that former industrial sites be remediated beyond the requirements of the Licensed Site Remediation Professional (LSRP) hired to oversee the process. Another recent environmental issue is the DEP innovation of LSRP’s, and the developing body of law involving the appointment, education, employment and utilization of these quasi-governmental inspectors who can make or break an investment in commercial or industrial real estate.
What have been your greatest successes defending clients?
I have several hundred jury trials under my belt, but the greatest victories are always those in which my clients are able to avoid trial. Trials should be a last resort, when no other solution is economically or personally viable. When you go to trial, you lose control over the process and the outcome is always in doubt, even after the verdict. The elation of victory often dissipates when you learn that the party you beat is appealing or declaring bankruptcy, and the judgment you spent thousands on is now worthless. It is almost always better to settle and, in criminal cases, to resolve the case without jail time or an onerous fine.
Stephen J. Resnick joined Rutter & Roy of counsel in 2004 after serving 25 years as a Deputy Attorney General for the State of New Jersey in both the Division of Criminal Justice and the Division of Law. He had also served in the Mercer County Prosecutor’s Office and the Brooklyn, New York, District Attorney’s Office. He has considerable experience in environmental law, having served as Unit Chief of the Environmental Prosecutions Section and supervised investigations and trials of cases involving the solid waste industry as well as other environmental matters.