On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 06-06-0070-S.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 28, 2008
Before Judges Winkelstein, Fuentes and Chambers.
Defendant George Flegal was the general manager of United Water Toms River (UWTR), which is a public community water supply system that supplies approximately 50,000 customers.
Defendant Richard Ottens, Jr., was the facility's operations manager. On June 15, 2006, a grand jury indicted defendants based on actions they allegedly took during the course of their employment, charging them with two counts of third-degree tampering with public records or information, N.J.S.A. 2C:28- 7a(3) and N.J.S.A. 2C:2-6; and two counts of fourth-degree falsifying records, N.J.S.A. 2C:21-4a and N.J.S.A. 2C:2-6.
Following the county prosecutor's rejection of their pretrial intervention (PTI) applications, defendants appealed to the Law Division. In a written decision, memorialized in an April 16, 2008 order, the Law Division reversed the prosecutor's decision and ordered that defendants be admitted into the PTI program. The State appeals. For the reasons that follow, we reverse.
Pursuant to the New Jersey Safe Drinking Water Act, N.J.S.A. 58:12A-1 to -37, New Jersey has enacted primary drinking water regulations incorporating by reference the National Primary drinking water regulations in 40 C.F.R. 141. N.J.A.C. 7:10-5.1. "The monitoring and analytical requirements for determining compliance with the maximum contaminant levels shall be those established under the National Regulations." N.J.A.C. 7:10-5.3(a). Those regulations require that samples taken for analysis be representative, 40 C.F.R. 141.24(f)(1), and a supplier of public water is required to submit a compliance sampling report to the New Jersey Department of Environmental Protection (NJDEP) within the first ten calendar days of the month following the month in which any test, measurement or analysis is made. 40 C.F.R. 141.31(a). If the sampling exceeds the maximum contaminant level (MCL), the water supplier must notify the public as well as the NJDEP. N.J.A.C. 7:10-5.5(a).
Among the substances for which tests are to be performed are radionuclides, which are naturally-occurring elements in water. For a community water system serving in excess of 10,000 customers, like the UWTR, radionuclide contamination levels are monitored by testing for Gross Alpha particles, radium-226 and radium-228. 40 C.F.R. 121.26(a)(1). These elements may not exceed maximum contamination levels.
In the context of these regulations, the State contends that defendants manipulated and otherwise impaired the public records by obtaining an unrepresentative water sample and filing documents containing false information about the water analysis.
In rejecting defendants' PTI applications, the PTI Director summarized the State's allegations against defendants as follows:*fn1
According to NJ Attorney General Office reports, the State of New Jersey adopted the safe drink water act on 1/20/04, which required community water systems to monitor the presence of radionuclide contamination. The tests were to be performed for four consecutive quarters, beginning in 2005. The Safe Water Act requires the supplier of water to submit a compliance sampling report to the DEP within the first ten calendar days of the month, following the month in which any test, measurement or analysis is made. The United Water Company conducted the routine monitoring for the presence of drinking water contaminants during 2005. The tests disclosed that certain company wells exceeded the standard maximum contaminant level (mcl) for gross alpha and for combined radium 226/228. Because the levels exceeded the standard of 15 gross alpha pico curies per liter, the water company should have reported the violations to the DEP within forty-eight hours after becoming aware of the violations. The company failed to notify the DEP of the radionuclide monitoring results. The general manager, George Flegal, and the operations manager, Richard Ottens, reported they did not know the test results were to be filed quarterly. The DEP issued a notice of violation to the water company on 2/07/06.
After United Water Management was advised that its subsidiary, United Water Toms River, management did not file a quarterly radionuclide report for the year 2005, an internal investigation was launched by the parent company. The investigation revealed on 7/21/05, Mr. Flegal and Mr. Ottens exchanged e-mails indicating the two planned to manipulate the September 2005 third quarter radionuclide sampling process at the Berkeley plant point of entry [POE] no. 6. That point of entry received water from three wells, no. 33, no. 34 and no. 35. Records indicated well no. 35 produced 800 to 900 gallons daily for the month of September 2005, but on 9/12/05, the day the radionuclide samples were taken, the output recorded for well no. 35 was 479 gallons. The investigation concluded that well was turned off during the sampling process.
On 4/04/06, both Mr. Flegal and Mr. Otten[s] were interviewed at corporate headquarters in Harrington Park. Both Mr. Ottens and Mr. Flegal denied they instructed the plant operator to turn off the well on 9/12/05. When confronted with the e-mail exchange, Mr. Flegal admitted he and Mr. Ottens had agreed to turn off well #35 during the 9/12/05 sampling, to "get the best numbers we could on radionuclides." He stated only he or Mr. Otten[s] had the authority to direct a well be turned off. Investigators questioned plant operator, John McDonnell, who stated he was instructed by Mr. Ottens to shut down well no. 35 at 6:00 am on 9/12/05. Plant operator Paul Dunn reported he turned the well back on at 3:15 pm, in response to Mr. Otten[s]'s direction.
Put simply, the State alleges that defendants shut down well 35 when it was tested on September 12, 2005, in an effort to distort the test sample results. Ottens admitted that all wells should have been on when the sample was taken from POE 6 and that if it was not on, the analysis of the well would have been skewed. He further acknowledged that only he and Flegal had the authority to shut the well down. When questioned whether he did in fact shut it down on September 12, 2005, he indicated that he could not remember, but if he did, it would be noted in the logs. Subsequently, the State learned from McDonnell that he shut down well 35 on September 12, 2005, at Ottens's direction, which the operator's log confirmed. Flegal acknowledged that shutting the well down would "help their analysis."
Although the appendix on appeal contains neither Ottens's nor Flegal's applications for PTI, according to the trial court's opinion, when Flegal's employer interviewed him in April 2006, he indicated that in 2005 UWTR performed radionuclide sampling outside of the required quarterly sampling to enable UWTR to compare test results from the two outside laboratories that it used to test samples. Although he stated that his understanding was that UWTR needed to report exceedances only when UWTR had fourth quarter results, he admitted that he may have been mistaken, as he was confused as to UWTR's reporting obligations due to regulation changes.
According to the trial court, in Flegal's statement to the PTI program, he said he believed the problem was with the testing protocol rather than with well 35, and he had intended to take well 35 off-line prior to the September 2005 sampling date and keep it off-line, so that by that date the "high demand for water would decrease such that wells 33 and 34 could meet the demand." Flegal admitted, however, that because well 35 was turned off prior to the third quarter sampling and turned back on shortly thereafter, the testing would not have disclosed a representative sample.
Neither Flegal nor Ottens has prior criminal convictions. Flegal is a fifty-seven-year-old civil engineer with a master's degree in business administration. He has since retired from his position as general manager of UWTR. Flegal has attached letters to his brief on appeal from a number of friends and associates who have indicated that they have known him for years; he is an excellent engineer; he is kind, considerate and has demonstrated honesty, ...