On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-024537.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Lihotz and Ashrafi.
In this solid waste enforcement action, defendant Miele Sanitation Company, Inc. (Miele or defendant) appeals from a series of final judgments issued by the Law Division on April 7, 2008, adjudicating defendant guilty of fifty separate violations of the Hudson County Solid Waste Management Plan (Plan) and related regulations, and levying fines, collectively, of $340,500. We affirm.
In 1970, the Legislature enacted the Solid Waste Management Act . . . N.J.S.A. 13:1E-1 to -207, and the Solid Waste Utility Control Act . . . N.J.S.A. 48:13A-1 to -13, in an effort to establish a comprehensive regulatory framework for the disposal of solid waste in New Jersey. In accordance with those statutes, the State was divided into twenty-two solid waste management districts, including all twenty-one counties and a "Hackensack Meadowlands" district.
N.J.S.A. 13:1E-20. Each district was assigned the responsibility for developing and implementing a long-term solid waste management plan, subject to approval by the State Department of Environmental Protection (DEP). N.J.S.A. 13:1D-19; 13:1E-20, -24. [Borough of Princeton v. Bd. of Chosen Freeholders of Mercer, 169 N.J. 135, 141 (2001) (citation omitted).]
Regulations, N.J.A.C. 7:26-1 to -17.26., have been "promulgated by the DEP in order to carry out the [legislative] policies regarding solid waste management[.]" Middlesex County Health Dep't v. Roehsler, 235 N.J. Super. 262, 268 (Law Div. 1989). Pursuant to these regulations, the Hudson County Improvement Authority (HCIA), which is vested with the authority to regulate solid waste flow in Hudson County, submitted its District Solid Waste Management Plan (Plan) to the DEP, which in turn approved the Plan. The Plan requires that all solid waste emanating from Hudson County be delivered to one of three designated facilities. The State, however, exempts recyclable materials from solid waste management, N.J.A.C. 7:26-1.1(a)(1), and the definition of solid waste specifically excludes recyclables.
Pursuant to its contract with the owner, Miele transported mixed loads of recyclable and non-recyclable waste materials that were stored in a large compactor at a BMW plant in Jersey City, where about one hundred workers assemble and prepare new BMW vehicles for distribution to auto dealers throughout the Northeast. The waste generated by this operation produces, among other things, metal, plastic, paper, cardboard, and a limited amount of waste from oil changes, including oil-covered latex gloves and empty oil bottles. There is also an employee cafeteria, which produces food waste from the employees' lunches.
The Miele compactor was a sealed container with a small opening at the rear of the unit, approximately three or four feet wide, where materials were loaded into the compactor by a mounted mechanism. It was a large unit with a forty cubic yard capacity, and stood approximately eight or nine feet high. While BMW had other receptacles on site for certain recyclable materials, including separate containers for metal, cardboard, tires, alloy rims, and wood pallets, the Miele compactor held mixed loads, containing both recyclables and solid waste.
By its own admission, Miele "did not transport any materials emanating from the BMW site in Jersey City, to any of the Plan sites." Rather, Miele brought "[a]ll materials emanating from the BMW facility in question . . . to [the] Clarkstown Recycling Center, a licensed New York [material recovery facility] (MRF) owned by Miele[,]" where it claims to have processed the mixed loads as recyclable material. In defense of this action, Miele contended that these loads contained mostly recyclable material, holding only a de minimis amount of solid waste, and therefore the company was exempted from State and County solid waste regulations requiring transporters to have certain decals and other identifying markers on their containers, and mandating that solid waste be brought to one of the County's designated treatment facilities.
Based on its on-site observations, HCIA disagreed with Miele's assessment, finding that more than a de minimis amount of solid waste was in the mixed loads, contaminating whatever recyclable materials were present, and turning these mixed loads into solid waste loads that were subject to the solid waste regulations. As a result, HCIA, through notice of violation letters, issued fifty separate complaints against Miele for violations of the Plan and related DEP regulations. Specifically, HCIA alleged twenty-eight violations of N.J.A.C. 7:26-3.4(m)*fn2 for Miele's failure to drop the contents of its compactor at one of the Plan's designated facilities, and twenty-two violations of N.J.A.C. 7:26-3.4(h),*fn3 which requires that solid waste transporters display certain DEP decals, remove expired decals, list a registration number, and display the capacity of any container used to transport solid waste. Under N.J.A.C. 7:26-5.4(g)(6), the so-called "decal violations" are considered "minor," with a $3,000 base penalty and a thirty day grace period, while Plan violations are "non-minor," with a $4,500 base penalty and no grace period. N.J.A.C. 7:26-5.4(f) allows enhanced fines and penalties for repeat offenders, for which Miele qualifies as a result of HCIA's previous successful enforcement efforts against the company.
In support of these complaints, at the ensuing trial in the Law Division, HCIA presented three of its enforcement officers assigned to the zone where the BMW facility was located, James Ladson, Jonathan DeFilippo and Damel Ling, as well as Bret Dixon, BMW's Jersey City site manager from 1999 through March 2007. On July 29, 2005, Ladson observed that the Miele compactor contained "type ten waste and some [type] thirteen commercial trash, plastic, tarps, forms, cushion, car bumpers, office trash, plastic wraps, food waste, coffee cups, soda bottles," and other refuse.*fn4 Some of the food waste observed included "juices, coffee cups, soda bottles, cans, bread rolls, [and] lunch room waste . . . ." Ladson's observations were corroborated by photographs he took at the scene. Even though the compactor was a sealed container, allowing Ladson to take photos only of its small rear opening, he nevertheless could see inside, "especially when the compactor is not completely full yet so there's a lot of [garbage] just hanging in the back . . . ."
On August 16, 2005, Ladson again observed the compactor "with no decal [and] with type ten commercial trash." Ladson saw "[c]ommercial trash, plastic tops, car bumpers, coffee cups, barrels, office trash, food waste, [and car] oil bottles." Ladson also noted that the compactor had the word "Basura," on it, which, in Spanish, means "garbage." Photographs again corroborated these observations.
Comparable materials were seen in the compactor from September through December 2005. Earlier in time, on April 19 and 20, 2004, Ladson had gone to the BMW plant and videotaped the BMW workers using a shovel to push garbage, similar to that described above, into the compactor's opening.
According to Ladson, paper and plastic are not recyclable when contaminated, and cans with soda or oil residue on them are not recyclable unless cleaned. When recyclable material is "commingled and it's mixed with other waste, it's contaminated and it's no longer recyclable." Noting that there were liquid waste contaminants in the compactor, Ladson opined that any recyclable material "in this container with all the garbage and [what] not, I can't see how it would be recyclable. I mean you know once that's in there and it gets crushed, it's contaminated with all of the other [solid waste]."
On a few different occasions, Ladson also saw "clear plastic bags" with garbage inside them within the compactor. Ladson believed that these bags would be torn open during the compacting process, thus contaminating the recyclable material inside the compactor:
It's not just the sealed bags in there. It's other material that's in there besides sealed bags that are being thrown in there also and there's no way those bags [are] going to stay intact with the pressure of the mechanism pushing it back with the pressure that they have in there. They [are] going to break open regardless, especially [because] the bags are so small and light and it is not just based on that. It's the other material also that's being thrown in there.
I don't know exactly what type of bag they use but the ones that I observed they were very thin bags . . . .
. . . [I]t was plastic clear bags I mean and they were very lightweight bags. I don't know what the millimeter was but they were easy to be punctured regardless if they were contractor bags, the pressure of the compactor will still break those bags.
I believe no matter what bag they use in that, especially plastic, those bags are going to break.
Officer DeFilippo agreed:
[I]f it's a compactor I use a little bit of common sense. The compactor crushes all the garbage to compact it. Those nicely sealed . . . bags are going to be [destroyed] . . . the garbage that's inside of them is going to be everywhere which will contaminate that whole load.
DeFilippo also confirmed Ladson's view of "contamination" in the recycling field, as he explained that, for example, when "a piece of cardboard [is] soaking wet[,] [it] is not recyclable. It's been contaminated, it's not at its original form anymore." Further, he stated that "a drop of coffee isn't going to contaminate it but if it's soaking wet it's going to be contaminated whether it's rain, juice. If it's wet and soaking to the point where it's just mush[.]"
DeFilippo also made similar on-site observations as Ladson. On January 18, 2006, DeFilippo saw "[c]ar bumpers, cafeteria waste, styrofoam, cardboard, nylon straps and plastic wrap" in the Miele compactor. These findings were corroborated with photographs. On February 1, 2006, DeFilippo photographed similar waste in the compactor, including eggs, cat food, and lettuce. An inspection on February 22, 2006, revealed cafeteria waste and other refuse, such as painted wood, and a March 29, 2006 inspection uncovered more of the same waste, including "chicken." Violations of the Plan and/or decal requirements were noted on multiple dates from April 2006 through June 2007.
Ling, another HCIA enforcement officer, also cited Miele for a Plan violation and expired decal, as he observed the same variety of trash in the compactor as described above, including "café waste, styrofoam, plastic wrap, soda cans, cardboard and wood [and] bumpers." These observations were also corroborated with photographs.
BMW's Jersey City site manager, Bret Dixon, described the plant operation and the various types of waste produced, including plastic wrap removed from cars, broken parts, bumpers, and a limited amount of waste from oil changes, including oil covered latex gloves and empty oil bottles. The BMW site employs about one hundred people, with staff having its own lunch room with vending machines offering "snack type foods," while the managers have a separate, smaller lunch area. Additionally, about eighty trucks visit the site on a daily basis, and those truckers have their own reception area. No food is prepared on-site.
BMW has a cleaning service, which disposed of all collected garbage in the Miele compactor. According to Dixon, the waste generated in the lunch rooms was placed in garbage pails with bags, and the cleaning service would remove the bag, seal it, and place it in the compactor. Office-related trash, such as copy paper and paper cups, was also bagged and deposited in the compactor. Dixon recalled that Miele serviced the compactor on a weekly basis, though this varied with the amount of refuse produced by the plant.
In its defense, Miele produced Wayne DeFeo, an expert in solid waste and recycling, who had never visited the BMW facility, nor Miele's New York Recycling Center where the compactor's contents were processed. He was also never shown any records to corroborate Miele's claim that the subject loads consisted of ninety percent recyclable material. According to DeFeo, commingling recyclable materials, a practice known as "single stream" recycling, "is becoming the norm in the industry" because it is cost effective. He further opined that
"[t]here isn't a recycling program in the world that does not have what we call cross contamination[,] and by that I mean recyclables in the garbage and garbage in the recyclables."
When asked what level of contamination causes a recyclable material to become non-recyclable, DeFeo explained that "[i]t's a matter of degree" because "[i]f paper is wet for example, you don't want it to be wet in a perfect world but it happens . . . . The degree of that wet paper becomes ...