On appeal from the New Jersey Board of Public Utilities.
Michels, Brody and D'Annunzio. The opinion of the court was delivered by Michels, P.J.A.D.
[246 NJSuper Page 83] Appellants Recycling & Salvage Corporation (Recycling & Salvage), Recycling Center of New Jersey (Recycling Center), William Major (Major), Christopher Yonclas (Yonclas) and Joseph Scugoza (Scugoza) appeal from a final administrative action of respondent New Jersey Board of Public Utilities (Board), dated February 9, 1990 that, in part, (1) ordered Recycling & Salvage not to resume operation of a solid waste transfer station at 170-180 Frelinghuysen Avenue, Newark, New Jersey and not to operate a solid waste transfer station in New Jersey unless it obtained a certificate of public convenience
and necessity (certificate) for such utility as required by N.J.S.A. 48:13A-6(a); (2) ordered Recycling Center, which did not hold a certificate, to cease collecting solid waste and to collect only source separated nonputrescible materials as defined in N.J.S.A. 13:1E-99.12 and as required by N.J.S.A. 13:1E-99.34(b); (3) ordered Recycling Center to immediately comply with all applicable waste flow orders and rules, that is, ordered any residual waste generated by Recycling Center's operation to be disposed of at the designated Essex County transfer station pursuant to N.J.A.C. 7:26-6.1 et seq.; and (4) imposed penalties totaling $771,000 for the unlicensed operation of a transfer station in violation of the Solid Waste Utility Control Act.
By way of background, this matter arose as an administrative enforcement action brought by the staff of the Board against Recycling & Salvage and Recycling Center. In May 1988, the Board issued an administrative order to show cause and an order of investigation against Recycling & Salvage, Recycling Center, Haulaway, Inc., Golden Gate Carting Company, Inc., Major, Yonclas and Scugoza. In essence, the order to show cause alleged that Recycling & Salvage and Recycling Center engaged in solid waste collection and disposal without the requisite utility authorization and that they violated waste flow rules and redirection orders. The order sought cessation of those activities, as well as sanctions. The Board referred the order, together with Recycling & Salvage's application for a certificate to operate as a solid waste utility, to the Office of Administrative Law.
In July 1988, the Board's staff filed a motion with the Board alleging that appellants were continuing unlawful activities by operating as unlicensed solid waste utilities during the pendency of the case. Accordingly, the Board's staff sought a cease and desist order. The Board decided to hear the application itself, and on August 30, 1989 after several days of hearings, the Board ordered Recycling & Salvage to cease unlicensed solid waste utility operations as a transfer station and ordered
Recycling Center not to resume solid waste operations until it obtained a certificate. By an order dated October 24, 1989, the Board denied appellants' motions for reconsideration and for a stay.
In October 1989, while this matter was pending before the Board, appellants instituted an action against the Board in the United States District Court for the District of New Jersey, seeking, inter alia, a preliminary injunction staying the Board's order of August 30, 1989. The District Court dismissed the action on abstention grounds, and the United States Court of Appeals for the Third Circuit refused to entertain an application for a stay.
Having failed to obtain relief in federal court, appellants sought interlocutory relief in state court. In November 1989, we denied appellants' motions for a stay and for leave to appeal. Thereafter, the New Jersey Supreme Court also denied appellants' motion for a stay but directed the Board to accelerate the remainder of the administrative proceeding. The Supreme Court subsequently denied a motion for reconsideration.
A plenary administrative hearing on the remainder of the case, beyond the cease and desist order, was scheduled before an Administrative Law Judge. In December 1989, Recycling & Salvage withdrew its application for a certificate, and the Board's staff withdrew a charge involving Haulaway, Inc.'s use of utility equipment. Furthermore, the parties stipulated that the record developed before the Board on the cease and desist application would be the record before the Administrative Law Judge. Before the Administrative Law Judge could consider the record, appellants successfully sought to have the entire matter returned to the Board. On February 9, 1990, the Board issued its final decision. Appellants appealed. The Board denied appellants' motion for a stay pending appeal, and we too denied the motion.
The Board then moved to compel appellants to file a supersedeas bond in the full amount of the penalties imposed. We
directed the Board to determine the amount of the bond and the sufficiency of the surety. The Board considered the matter and ordered appellants to post a supersedeas bond in the full amount of the penalties. Appellants moved for a stay of the bond requirement. In July 1990, we directed the Board to review appellants' offer of a property bond with sufficient equity in lieu of a cash bond, and we further directed that if the issue was not expeditiously resolved, either party could reapply for further consideration of the bond requirement. Neither party reapplied for further consideration.
Appellants now seek a reversal of the Board's final administrative action. Appellants Recycling Center and its sole owner Scugoza contend that (1) there is no evidence to support the conclusion of integration and commingling of the waste materials; (2) Recycling Center reasonably relied on the "Residue Rule" as articulated by the Board and the Department of Environmental Protection (DEP); (3) there is no evidence to support assessment of liability against Scugoza; (4) there is no evidence to support the fine against Recycling Center for the time period alleged, and (5) there is no evidence to support an assessment of penalties against Recycling Center pursuant to N.J.S.A. 48:13A-12 and such penalties constitute a violation of the ex post facto clause. Appellant Yonclas contends that there is no evidence to support the conclusion that he managed or operated the Recycling & Salvage transfer station. Finally, appellants Recycling & Salvage and its sole owner Major contend that (1) the February 7, 1990 order requiring it to obtain a certificate before engaging in interstate commerce violates the United States Constitution; (2) the requirements for obtaining a certificate are overly broad and burdensome and inhibit the free flow of commerce in violation of the commerce and contract clauses of the United States Constitution; (3) the Board's regulation of its operations constitutes a taking without just compensation in violation of the fifth amendment to the United States Constitution and article I, paragraph 20 of the New Jersey Constitution; (4) Recycling & Salvage is not a public
utility within the meaning of the Public Utilities Law; (5) the Board lacks jurisdiction over interstate commerce; (6) the Board's consideration of extrinsic evidence and the use of that evidence to control its conclusion in the August 30, 1989 and February 9, 1990 orders violates due process, (7) there is no evidence to support an assessment of penalties against them pursuant to N.J.S.A. 48:13A-12 and (8) such penalties constitute a violation of the ex post facto clause.
We emphasize that our role in reviewing the Board's findings and conclusions is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record', considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility . . . and . . . with due regard also to the agency's expertise where such expertise is a pertinent factor." Mayflower Sec. Co., Inc. v. Bureau of Sec., 64 N.J. 85, 92-93, 312 A.2d 497 (1973) (quoting Close v. Kordulak Bros., 44 N.J. 589, 599, 210 A.2d 753 (1965)). See also In re Suspension of Heller, 73 N.J. 292, 309, 374 A.2d 1191 (1977); Jackson v. Concord Co., 54 N.J. 113, 117-18, 253 A.2d 793 (1969). We are satisfied that such evidence appears in the record.
Furthermore, it is not our function to substitute our independent judgment for that of an administrative agency, such as the Board, where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant proofs. First Sav. & Loan Ass'n of E. Patterson v. Howell, 87 N.J. Super. 318, 321-22, 209 A.2d 343 (App.Div.1965), certif. denied, 49 N.J. 368, 230 A.2d 400 (1967). As a reviewing court, we will not weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence or resolve conflicts therein. De Vitis v. New Jersey Racing Comm'n, 202 N.J. Super. 484, 489-90, 495 A.2d 457 (App.Div.), certif. denied, 102 N.J. 337, 508 A.2d 213 (1985). See In re Grossman, 127 N.J. Super. 13, 23,
316 A.2d 39 (App.Div.), certif. denied, 65 N.J. 292, 321 A.2d 253 (1974).
We are satisfied from our careful study of the voluminous record and the arguments presented that the final administrative action of the Board was not arbitrary, capricious or unreasonable, that it was supported by the evidence, and that it did not violate legislative policies expressed or fairly implied in the statutory scheme administered by the Board. See Henry v. Rahway State Prison, 81 N.J. 571, 579-80, 410 A.2d 686 (1980); Campbell v. Department of Civil Serv., 39 N.J. 556, 562, 189 A.2d 712 (1963); In re Fiorillo Bros. of N.J., Inc., 242 N.J. Super. 667, 675-76, 577 A.2d 1316 (App.Div.), certif. denied, 122 N.J. 363, 585 A.2d 371 (1990); In re Waste Disposal Agreement, 237 N.J. Super. 516, 526-29, 568 A.2d 547 (App.Div.1990). See also Department of the Pub. Advocate v. Board of Pub. Utils. & Hackensack Water Co., 189 N.J. Super. 491, 499, 460 A.2d 1057 (App.Div.1983); In re Application of Boardwalk Regency Corp. for a Casino License, 180 N.J. Super. 324, 333-35, 434 A.2d 1111 (App.Div.1981), modified, 90 N.J. 361, 447 A.2d 1335, appeal dismissed sub. nom. Perlman v. Attorney Gen. of N.J., 459 U.S. 1081, 103 S. Ct. 562, 74 L. Ed. 2d 927 (1982). Moreover, all of the issues of law raised by all appellants are clearly without merit. R. 2:11-3(e)(1)(E). However, further comment is appropriate with respect to some of appellants' contentions.
It is fundamental that "'the meaning of a statute must . . . be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms.'" Sheeran v. Nationwide Mut. Ins. Co., Inc., 80 N.J. 548, 556, 404 A.2d 625 (1979) (quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S. Ct. 192, 194, 61 L. Ed. 442, 452 (1917)). See, e.g., Vreeland v. Byrne, 72 N.J. 292, 302, 370 A.2d 825 (1977); DeHart v. Bambrick, 177 N.J. Super. 541, 549,
427 A.2d 113 (App.Div.1981); 2A Sutherland Stat. Const., § 22.29 at 263 (4th ed. 1985).
With these principles in mind, we have no hesitancy in concluding that the Board properly determined that Recycling Center, contrary to its and Scugoza's claim, is not a recycling facility within the meaning of N.J.S.A. 13:1E-99.12 but instead, is engaged in solid waste collection and therefore, is subject to the Board's jurisdiction. N.J.S.A. 13:1E-99.12 defines "Recycling Center" as
any facility designed and operated solely for receiving, storing, processing and transferring source separated, nonputrescible or source separated commingled nonputrescible metal, glass, paper, plastic containers, and corrugated and other cardboard, or other recyclable materials approved by the department. [Emphasis added].
To qualify as a recycling center exempt from the DEP's and Board's jurisdiction, a recycling facility must receive only source separated recyclable materials. The facility cannot receive any waste materials. Here, the evidence demonstrates that a substantial tonnage of waste material was brought into and taken from the facility for disposal in out-of-state landfills. Therefore, the facility is a transfer station as defined by N.J.S.A. 13:1E-3(r). That statute provides:
"Transfer station" means a solid waste facility at which solid waste is transferred from a solid waste collection vehicle to a solid waste haulage vehicle for transportation to a sanitary landfill facility, resource recovery facility, or other destination. [ N.J.S.A. 13:1E-3(r)].
As such, the facility is subject to the DEP's and Board's jurisdiction.
The Legislature's intent to limit recycling centers exempted from registration to those facilities that receive only source separated recyclable materials enumerated by statute, or facilities which obtain the DEP's approval for other materials they receive, is demonstrated clearly by N.J.S.A. 13:1E-99.34(b). That statute provides:
No recycling center shall receive, store, process or transfer any waste material other than source separated nonputrescible or source separated commingled nonputrescible metal, glass, paper, or plastic containers, and corrugated and
other cardboard without the prior approval of the department. [ N.J.S.A. 13:1E-99.34(b)].
This statute is essentially prohibitive, forbidding any recycling facility from receiving waste without the DEP's approval, except for items listed in the statute such as source separated nonputrescible metal and glass. Thus, N.J.S.A. 13:1E-99.34(b) does not require the DEP to generically approve a list of wastes for receipt by recycling facilities. Rather, the statute clearly authorizes the DEP to require each individual facility to obtain approval from the DEP to receive waste, with the exception of those items listed in the statute. N.J.S.A. 13:1E-99.34(b). This individualized approval process is consistent with the legislative understanding that other source separated materials, though capable of being recycled, may not be as innocuous as the materials listed in the statute and should be assessed by the DEP as to the environmental effect of their processing at a particular facility.
In addition, Recycling Center and Scugoza imply that the use of "commingled" in the phrase "other than source separated nonputrescible or source separated commingled nonputrescible metal, glass, paper, or plastic containers, and corrugated and other cardboard. . . ." in N.J.S.A. 13:1E-99.34(b) means that these materials may be accepted without the DEP's approval, even if not separated. While the statute applies to "source separated commingled" materials, Recycling Center and Scugoza seek to read the source separation requirement out of N.J.S.A. 13:1E-99.34(b). N.J.S.A. 13:1E-99.12 defines "source separated recyclable materials" as recyclable materials that "are kept separate and apart from residential, commercial and institutional solid waste by the generator thereof for the purposes of collection, disposition and recycling." (emphasis supplied). Thus, separation ...