Decided. As Amended March 9 1994.: June 3, 1993.
On appeal from New Jersey Department of Environmental Protection and Energy.
King, Brody and Thomas. The opinion of the court was delivered by Brody, J.A.D.
We now consolidate these separate appeals from a final decision of the Commissioner of the Department of Environmental Protection and Energy (DEPE) imposing civil administrative penalties upon appellants Rollins Environmental Services (NJ), Inc. and Waste Conversion, Inc. The penalties were imposed for violating regulations, adopted pursuant to the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 et seq., governing the transportation and disposal of hazardous wastes. The wastes were hazardous incinerator ash and scrubber lime sludge generated at Rollins' Bridgeport, New Jersey incinerator and disposed of as non-hazardous waste at a disposal site in Belleville, Michigan, owned by Wayne Disposal, Inc. The Commissioner assessed Rollins $539,200 because it had mishandled the disposal of 582 twenty-ton truckloads of the waste and assessed Waste Conversion $262,500 because it had arranged for the disposal of the waste and actually transported 87 of the truckloads. We affirm the penalties because the evidence justifies the penalties and appellants' legal arguments are without merit.
Rollins indiscriminately mixed characteristic hazardous wastes, listed hazardous wastes and non-hazardous wastes in its incinerator operation. Characteristic hazardous wastes exhibit readily detectable hazardous characteristics such as ignitability, corrosivity, or high concentrations of toxic heavy metals. Listed hazardous wastes are not readily detectable as hazardous but are deemed hazardous if specifically listed in DEPE regulations as wastes that may be carcinogenic, mutagenic, or otherwise cause harm to people or animals.
After being incinerated or mixed with other material, hazardous wastes may in fact no longer be hazardous. They remain hazardous by definition, however, if they were derived, in whole or in part, from listed hazardous wastes. Upon submission of proof that a batch of listed hazardous waste has in fact become non-hazardous, that waste may be delisted. N.J.A.C. 7:26-8.17. Rollins' ash and lime sludge were listed hazardous wastes because
they were derived in part from the incineration of listed hazardous wastes. N.J.A.C. 7:26-8.1.
In order to track their proper transportation and disposal, hazardous wastes may not be transported lawfully without accompanying written manifests that describe them and provide information respecting their disposal. Under DEPE regulations the generator and transporter of hazardous wastes are absolutely responsible for the accuracy of the information contained in the manifests. The manifests that accompanied the truckloads of waste in question falsely described the waste as "Non-hazardous Waste, Chemical Process Solid N.O.S., Non-Regulated Material" even though they contained listed hazardous wastes. Appellants do not deny their liability under the regulations; their main arguments are that the Commissioner did not adequately mitigate the penalties because of extenuating facts.
Rollins claims that the sole or at least major blame for the false manifests lies with Dennis Zimmer, a Waste Conversion salesman. Waste Conversion received a commission for brokering waste disposal business to Wayne Disposal in Michigan. Zimmer obtained a disposal fee quotation from Wayne Disposal that was substantially lower than the fee Rollins was paying at an Ohio site where it was disposing its hazardous waste. He obtained this low quotation by misrepresenting to Wayne Disposal that Rollins' waste was non-hazardous. At the same time he misrepresented to Rollins that Wayne Disposal would dispose of the waste as hazardous. After Rollins switched to Wayne Disposal, Zimmer persuaded Rollins to sign manifests that described the wastes as non-hazardous by representing that Michigan permits the disposal of listed hazardous wastes as though they were non-hazardous.
Zimmer was unwittingly aided in this fraud by the neglect of DEPE. In addition to providing space for a verbal description of waste as either hazardous or non-hazardous, the manifest form provided a space for inserting one of several DEPE codes used to describe the waste. The Commissioner acknowledged that, at the time, DEPE tolerated the use of an "X" code that had not been
formally adopted. Moreover, it was generally known that the "X" code meant "hazardous waste" to some and "non-hazardous waste" to others. At Zimmer's suggestion, Rollins used the "X" code on the manifests instead of the one it had used in disposing of its wastes in Ohio. A DEPE inspector failed to issue violations after he had examined the mislabeled manifests.
The matter was first heard by an Administrative Law Judge (ALJ) who imposed penalties lower than the penalties imposed by the Commissioner in his final decision. As to Rollins, for failing "to properly complete any part of the manifest form" (N.J.A.C. 7:26-7.4(e)1), failing to state on the manifest the "name, type and quantity of hazardous waste being shipped" (N.J.A.C. 7:26-7.4(a)4vii) and failing to state on the manifest required "handling instructions" (N.J.A.C. 7:26-7.4(a)4viii) the ALJ recommended a penalty of $89,500 -- $500 for each of the 179 days that Wayne Disposal disposed of Rollins' hazardous waste as non-hazardous waste. For ...