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State v. Moscato

Decided: January 21, 1992.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FRANK MOSCATO, CITY CONSTRUCTION DEVELOPMENT CORPORATION, JOHN CHIAMBRONE, SPRINGBROOK ACRES, INC., AND SLASH CONSTRUCTION COMPANY, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Passaic County.

Pressler, Skillman and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

D'ANNUNZIO, J.A.D.

The State appeals from an order dismissing State Grand Jury Indictment No. 267-90-2. It charged that between December 26, 1989 and February 10, 1990, defendants "did commence or continue operation of a sanitary landfill facility . . . without having a tariff therefor filed with and approved by the Board of Public Utilities . . . contrary to the provisions of N.J.S.A. 48:13A-6.1 . . . ."

For the purposes of this appeal, we shall accept the State's version of the facts. During the period in question, defendant City Construction Development Corporation (City) was performing a contract to demolish a two-story wood frame building in Jersey City. Defendant Frank Moscato is City's president and defendant John Chiambrone was employed by City as a foreman. Moscato's daughter was president of Slash Construction Company which was listed as the demolition contractor on Jersey City's demolition permit. Defendants trucked the demolition debris to a large tract of land in Bloomingdale, New

Jersey, owned by defendant Moscato and known as Springbrook Acres, where defendants buried the debris.

As previously indicated, the indictment alleged that defendants violated N.J.S.A. 48:13A-6.1 (hereafter referred to as § 6.1). That statute provides:

Notwithstanding the provision of any other law, rule or regulation to the contrary, no sanitary landfill facility shall commence or continue operation unless a tariff therefor has been filed and approved by the Board of Public Utilities pursuant to the "Solid Waste Utility Control Act of 1970" (P.L.1970, c. 40, C.48:13A-1 et seq.). No sanitary landfill facility shall operate under any conditions contrary to those specifically set forth in its approved tariff.

This act shall not apply to sanitary landfill facilities operated by an authority created under P.L.1946, c. 138 (C. 40:14A-1 et seq.) or P.L.1957, c. 183 (C. 40:40-14B-1 et seq.).

N.J.S.A. 48:13A-12 renders violation of § 6.1 a misdemeanor with punishment by up to three years imprisonment or a fine of not more than $50,000 or both. A corporate defendant is subject to a fine of up to $100,000.

Defendants moved to dismiss the indictment on the ground that it was void for vagueness, "duplicitous and improperly pled" and was the result of prosecutorial misconduct. Judge Conn rejected those contentions in a letter opinion dated May 15, 1991. However, he raised the issue, sua sponte, of § 6.1's applicability to defendants' conduct and ordered the parties to brief it. Thereafter, in a written letter opinion dated June 10, 1991, he ruled that § 6.1 does not apply to the disposal of solid waste on the disposer's property, an act the court characterized as "illegal dumping."

Section 6.1 was added to the Solid Waste Utility Control Act (hereafter the Utility Act), N.J.S.A. 48:13A-1 et seq., in 1981 by L. 1981, c. 221, § 1. The Utility Act was adopted in 1970, L. 1970, c. 40, and should be read in conjunction with the Solid Waste Management Act (hereafter the Management Act) adopted the same year. L. 1970, c. 39; N.J.S.A. 13:1E-1 et seq. Although the Acts are complementary, they fulfill different public needs.

The Management Act establishes "a statutory framework within which all solid waste collection, disposal and utilization activity in this State may be coordinated." N.J.S.A. 13:1E-2(b)(1). Coordination is to be accomplished through the development and implementation of "a comprehensive solid waste management plan which meets the needs of every municipality within each . . . county and within the Hackensack Meadowlands District." N.J.S.A. 13:1E-2(b)(2). To that end, each county is designated as a "Solid Waste Management District," as is the Hackensack Meadowlands District. Id.; N.J.S.A. 13:1E-19. Each district is required to formulate a ...


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