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ENVIRONMENTALENVIRONMENTALENVIRONMENTALENVIRONMENTALENVIRONMENTAL

PROSECUTIONSPROSECUTIONSPROSECUTIONSPROSECUTIONSPROSECUTIONS

The law applicable to environmental prosecutions
consists primarily of statutes which have not been the
subject of much judicial interpretation. Among the
particular statutes involved are the Code of Criminal
Justice, the Solid Waste Management Act (N.J.S.A.
13:1E-1, et seq.), the Water Pollution Control Act
(N.J.S.A. 58:10A-1, et seq.), the Air Pollution Control
Act (N.J.S.A. 26:2C-1, et seq.) and the Comprehensive
Regulated Medical Waste Act (N.J.S.A. 13:1E-48.1, et
seq.).

I. THE CODE OF CRIMINAL JUSTICE

Under N.J.S.A. 2C:17-2a(1), it is a crime of the
second degree to purposely or knowingly unlawfully
cause an explosion, flood, avalanche, collapse of a
building, release or abandonment of poison gas,
radioactive material or any other harmful or destructive
substance. See State v. Iron Oxide Corp., 178 N.J. Super.
303 (Law Div. 1980) (determining that knowing or
purposeful release or abandonment of substances
included in N.J.S.A. 2C:17-2a(1) sufficient to establish
second degree offense and not necessary to show
widespread damage actually occurred).

Under N.J.S.A. 2C:17-2a(2), it is a crime of the
second degree to purposely or knowingly cause the release
or abandonment of hazardous waste, as defined in
N.J.S.A. 58:10A-3r, and a third degree crime to do so
recklessly. N.J.A.C. 7:14A-4, Appendix A, contains a list
of toxic pollutants.

Also, under N.J.S.A. 2C:17-2a(2), it is a crime of the
second degree to purposely or knowingly cause a
hazardous discharge required to be reported under the
Spill Compensation and Control Act, N.J.S.A. 58:10.23-
11, et seq., and a crime of the third degree to do so
recklessly.

Under N.J.S.A. 58:10.23-11B, a discharge is the
spilling or leaking of hazardous substance onto lands or
into waters of the State when damage may result to lands,
waters or natural resources of the State. See In re Frank,
276 N.J. Super. 269 (App. Div. 1994)(conviction by plea
of N.J.S.A. 2C:17-2a(2)).

Under N.J.S.A. 2C:17-2c, it is a crime of the fourth
degree to recklessly create the risk of “widespread injury
or damage.” It is a crime of the third degree to recklessly

cause widespread injury or damage. N.J.S.A. 2C:17-2b.

It is a crime of the second degree to do so purposely or

knowingly. N.J.S.A. 2C:17-2a(1).

Under N.J.S.A. 2C:17-2d, it is a crime of the fourth

degree to knowingly or recklessly fail to take reasonable

measures to prevent or mitigate widespread injury or

damage.

The State must prove beyond a reasonable doubt

territorial jurisdiction as an essential element of each

count of a criminal environmental prosecution for the

unlawful abandonment or disposal of hazardous waste on

property owned by the United States Army Corps of

Engineers. State v. Ingram, 226 N.J. Super. 680 (Law

Div. 1988). In Ingram, the Law Division held that the

State had failed to proffer evidence establishing that the

alleged abandonment or disposal took place on land

acquired by the Federal government. The United States

had not filed an acceptance of exclusive jurisdiction.

II. THE SOLID WASTE MANAGEMENT ACT

The Solid Waste Management Act, N.J.S.A.

13:1E01, et seq., establishes a statutory framework for a

coordinate system of solid waste collection and disposal

by creating solid waste management districts which

formulate plans for solid waste disposal and collection

within that district. See N.J.S.A. 13:1E-20. N.J.A.C.

7:26-6.1, et seq., provide for designated interdistrict

waste flow.

N.J.S.A. 13:1E-5 requires that anyone engaging in

the collection, transportation or disposal of solid waste,

must first obtain Department of Environmental

Protection (“DEP”) approval to do so.

The Solid Waste Management Act contains no

criminal provisions relating to the unlawful collection,

transportation or disposal of solid waste. Criminal

provisions for such conduct are contained in the Solid

Waste Utility Control Act, N.J.S.A. 48:13A-1, et seq.

In State v. Sunzar, 331 N.J. Super. 248 (Law Div.

1999), an environmental prosecution under N.J.S.A.

13:1e-9, the court decided that solicitation of criminal

conduct, unaccompanied by any overt act in furtherance,

rose to the level of an attempt under N.J.S.A. 2C:5-1.

III. THE WATER POLLUTION CONTROL ACT

Under the Water Pollution Control Act, N.J.S.A.

58:10A-1, et seq., enacted in 1977, New Jersey regulates