HUDSON COUNTY IMPROVEMENT AUTHORITY v. MIELE SANITATION COMPANY

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-2753-02T2

A-6432-02T26432-02T2

HUDSON COUNTY IMPROVEMENT

AUTHORITY,

Plaintiff-Respondent,

v.

MIELE SANITATION COMPANY,

Defendant-Appellant.

________________________________________

 

Submitted November 10, 2005 - Decided

Before Judges Conley, Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, DC-2853-02 and DC-3192-03.

Mariano & Coiro, attorneys for appellant (Joseph W. Coiro, of counsel and on the brief).

Waldrod & D'Amico, attorneys for respondent (Charles M. D'Amico, on the letter brief).

PER CURIAM

These consolidated appeals arise from the efforts of the Hudson County Improvement Authority (HCIA) to compel Miele Sanitation Company (MSC) to comply with HCIA's Solid Waste Management Plan, adopted pursuant to the Solid Waste Management Act, N.J.S.A. 13:1E-1 to -225. In a prior effort, HCIA was unsuccessful, as we concluded its proofs were inadequate. Hudson County Improvement Auth. v. Miele Sanitation Co., No. A-26-01T2 (App. Div. Feb. 9, 2004). In both of the subsequent enforcement efforts presently before us, the trial judges found the proofs sufficient and we agree.

In A-2753-02T2, the trial judge wrote:

Three individuals testified at trial. Colon, an enforcement officer with the HCIA, Miele, and Bret Dixon (Dixon) the facilities manager for BMW at 20 Colony Road. BMW contracted with the defendant for various waste disposal services at all relevant times and the containers which are the subjects of these summonses were those situated on the BMW site.

Colon was responsible for enforcement activities at the BMW site. There were three containers located at the site on all relevant dates. One was marked "cardboard" one was marked "metals" and one, which had a compactor device attached to it, bore the Spanish word for garbage and, as shown throughout the photographs in evidence, at least one occasion had the word "garbage" stenciled on it. These were owned by the defendant and bore its name. Colon identified his logbook from the relevant dates. The pages introduced in evidence bear notations made by Colon contemporaneously with his observations. Attached to P-1 was Colon's log sheet from May 3rd, and it notes that type 10 solid waste was contained in one of the containers which lacked a proper decal, it being expired on the date in question. Colon testified that he made observations on that date and that the container did have garbage, office trash and other material in it. Attached to P-2 was another copy of the log sheet for May 3rd, and also photographs taken by Colon on the 3rd and also on May 13th. These show the actual expired decal attached to the container, which prominently displays the defendant's name and phone number. Colon testified in support of the charges contained in P-2 that on May 16th, he returned to the site and the same container was empty. There was no photographic evidence introduced regarding the contents of the container both on the 3rd, the 13th, and, of course, on the 16th. P-3 contained an attachment, which Colon identified as his log sheet for the date of April 26th. It notes that Colon found type 10 "common trash" in the container on that date. He returned on the 30th of April and found the container to be empty. P-4 contained an attachment, which was Colon's logbook for August 2, 2001, and it noted the container contained type 10 "common trash" and the logbook for the 11th noted the container was empty and displayed no decal. P-4 also included photos taken by Colon on August 2nd. These show the container and the compacting device with the word "garbage" stenciled upon it and attached to the container. Through the compactor hole, Colon took a photo of the contents of the container. This picture is show through a relatively small aperture in the container, only several square feet. Nonetheless, the photo clearly demonstrates various types of garbage and some cans and plastic bottles. Colon testified that the container's contents were predominantly common trash and not recyclable materials. P-5 contained Colon's log entries from August 23rd, noting the container had "common trash" in it, and photos taken that day once again show the compacting device with the word "garbage" stenciled upon it. Colon testified that the stickers displayed in the photos were not valid DEP stickers. Lastly, P-6 contains no attachments, however Colon testified that the container had an invalid DEP sticker on it on that occasion and contained common trash.

On cross-examination, Colon testified that on all occasions, there were three containers at the BMW facility, and that two of them had compacting devices attached. The container marked "cardboard" also had a compacting device, but the one marked "metals" did not. He confirmed that pursuant to DEP regulations, no decal was necessary if the container was transporting recyclable materials, i.e., only solid waste materials needed to be transported in an appropriately marked DEP licensed container.

The court found Colon's testimony to be quite credible. He answered all questions forthrightly on both direct and cross-examination. He did not attempt to expand upon the testimony and in many respects limited his answers to the direct questions posed. He frequently reiterated what was contained in his contemporaneously authored log sheets, and the photographs he took on the day in question.

The defense offered Miele as its sole witness. He is the president of the defendant, a company he has owned since 1968. The defendant owns a transfer station in West Nyack, New York, known as the Clarkstown Recycling Center, Inc. D-1 in evidence [is] the appropriate New York State license for that facility. Miele testified that all materials taken from the BMW site were taken to this facility. Although never present at the BMW site, he saw the materials removed from the site at all relevant times when they were "spilled" onto the Clarkstown facility's sorting floor. He estimated that very little of the material was trash, asserting that most of it was recyclable material that he then sorted and resold. D-4 in evidence was a letter Miele wrote to the HCIA after being cited for most of these violations. In that letter, he noted that the loads from the BMW plant contained less than 10% trash, with the remainder being recyclable material. He continued that the HCIA's own inspectors consider a load of up to 20% trash still to be a recyclable load. Colon's testimony was more in the nature of 10%. He then noted in D 4 that he believed he was the subject of harassment by the HCIA and threatened legal action against the agency. Miele also introduced D-2 into evidence, a pricing list from a paper recycling facility[,] which notes the prices it will pay for various types of material, including computer paper, plastic shrink wrap, and office paper. And, D-3 was also introduced into evidence. It is the open-ended purchase order between BMW and the defendant, which indicates that it will supply to BMW containers for metals, wood, and two compactor containers. The containers supplied to BMW were pursuant to this document.

Miele denied that the photos introduced in evidence showed a load of solid waste, contending that many of the items were recyclable materials. Many of these materials may have had some food debris on them, but this did not restrict him from recycling them and selling the recycle matter to purchaser. He noted that there was no separate container at the BMW site for only solid waste because the facility generated so little solid waste that it was not warranted. He noted on cross-examination that if a New Jersey facility, even a recycling facility, were utilized, additional New Jersey DEP forms were necessary. These were not required at the New York facility, which is where he conducts 90-95% of his work. He kept no documentation of the loads he brought to the facility from the BMW site, which, for example, would indicate the percentage of the load that was recyclable, or otherwise.

As noted above, D-4, the letter to the HCIA, indicates Miele's growing resentment of HCIA's enforcement efforts. This was palpable during his testimony. During its course, he frequently answered questions with explanations of his understanding of the various statutes and regulations. In addition, counsel advised that both parties have litigated various summonses in the past. During his testimony, Miele frequently alluded to these past court cases indicating his displeasure with this history. Parenthetically, the court considers only the facts contained in the record of these proceedings, and places no weight on any prior proceeding between the parties. However, Miele's demeanor during testimony is a legitimate consideration for the court in weighing credibility. And, the court does conclude that Miele's recitation of the facts is tainted by his obvious animosity over the litigation history.

The critical testimony, however, was offered by Dixon, who was testifying for the first time in a courtroom. As plant manager for the BMW facility, he is aware of all that goes on at the facility. He is also responsible for the daily activities of all aspects of the facility. This particular site is the distribution center for all of the eastern and central United States. It handles all BMW vehicles that are "prepped" and delivered to those locations. Only the defendant supplies disposal services to the facility and these are comprised of two compactors for cardboard and trash, and one open container for metal. Dixon described the kind of debris generated by the facility which generates food and office waste consistent with an ongoing business enterprise. Furthermore, the employees are instructed on the use of the compactors/containers, and the facility employs a full-time janitor who routinely cleans the offices and the facility. Dixon was entirely familiar with the janitor's chores and described them as including sweeping of the floors of the offices and the plant, picking up waste baskets throughout the plant and disposing of that waste, etc. Dixon stated that the site generates very little plastic [because] of the new cars do not contain plastic wrapping. He identified several exhibits, collectively P-8, as tickets supplied by defendant whenever a pick up for any of the containers is made. Although none of the exhibits are from dates proximate to the dates of these summonses, the testimony of Dixon was such to imply that similar tickets and procedures are utilized all the time at the BMW facility. Several of the tickets denote "trash" as opposed to cardboard or metal.

The court now considers the record in light of the applicable statutes and regulations. The critical issue has been framed by both counsel, and requires basically a simple determination from the court. Were the materials transported by the defendant from the BMW facility in the container in question recyclable materials or not? If so, then the statute, regulations and the required adherence to the HCIA's solid-waste disposal plan were not necessary. If not, then defendant must comply with the above. [Because] it is admitted that defendant neither had the appropriate, required decal on the container, and did not comply with the approved plan regarding disposal of the contents of the containers at 20 Colony Road, if the materials were not recyclables, then defendant would be guilty of all six violations contained in the summonses.

Pursuant to N.J.A.C. 7:26-1.1(a)(1), the regulations governing solid waste disposal[,] which require a current DEP decal and disposition of the materials in compliance with the approved solid waste disposal plan, do not apply to "the transport . . . of source separated or commingled source separated recyclable . . . materials . . . provided that such materials are free from putrescible mater and are not mixed with solid or liquid waste . . . ." "Putrescible [waste]" is defined at N.J.A.C. 7:26-1.4 Pursuant to that definition, food waste, for example, would be putrescible matter. Therefore, recyclable materials, whether separated at the source of generation, or commingled, lose such character if they are not free from such matter. In attempting to give common sense application to these standards, the DEP has interpreted what distinguishes recyclable loads from those determined to be solid waste, i.e., what triggers the application of the strict regulation of solid waste.

Both counsel have cited the court to In re Solid Waste Servs., Inc., 94 N.J.A.R 2d (Vol. 5A) 61 (Envtl. Protection Energy). There the commissioner concluded that two methods existed for determining whether the solid waste strictures applied to a load of waste material. First, if the load contained source separated recyclable material, and no more than a de minimus amount of solid waste, the rules would not apply. Second, the manner in which the material is treated may be considered in determining whether it is solid waste or not.

While BMW engaged in source separation by providing three containers at its facility, it did not source separate the contents of the container in question. In other words, metals and cardboard were source separated, but all other potentially recyclable material was not. The Commissioner's ruling, as set forth in Solid Waste Servs., Inc., supra, therefore makes eminent good sense. When materials are separated at their source, small, de minimus amounts of putrescible material should not serve to undermine the salutary purposes of the State's recycling program. Commingled, source separated recyclables implicate the definition contained in N.J.S.A. 13:1E-99.12. Commingled means ["]a combining of nonputrescible source separated recyclable materials for the purpose of recycling. . . ."] Once again, the Commissioner's interpretation is reasonable in that recyclable material of any nature, once commingled with other recyclable material, should not lose that character if it contains minor amounts of putrescible material. What is a de minimus amount of solid waste is not defined, and the parties herein have disputed the appropriate standard. The HCIA indicates that no more than 10% of a load could be solid waste; anything more would no longer be de minimus. Defendant does not seem to dispute this standard, but argues that the loads from the BMW plant did not contain that amount of solid waste. The court first considers whether the HCIA has demonstrated that the container in question contained materials that were subject to the solid waste strictures. In this regard, argument to the contrary, the HCIA bears the sole burden of proof.

The court concludes that it has proven that the materials in the container were subject to the solid waste regulations. Colon's testimony is credible. Admittedly, he only viewed a small portion of the container's contents on the days in question. However, his testimony substantially supports the testimony of the critical witness in the case. Dixon's testimony leads to only one conclusion. The contents of the container in question routinely consisted of office debris and food waste. This facility employs approximately 100 people, most of whom bring their own lunch and eat at the facility. There is a food service wagon, which also services the facility. Most of what goes into the container is that waste, and the other waste generated by an office facility. Dixon was a particularly credible witness, with no interest in the case whatsoever. Only one conclusion can be reached from his testimony and that is that most of what finds its way into the container is neither a recyclable material, nor a recyclable material free from putrescible matter. As such, the contents of the container are not de minimus amounts of solid waste.

Defendant argues that the court must consider the second manner in which the DEP has interpreted "solid waste" and that requires an assessment of how the material is treated. This, in essence, is recognition of a defense available to one charged with a violation of the solid waste regulations, i.e., that the material is not solid waste. Here, the defendant's testimony is that most of the material, all but between 1-10% was actually recycle by it at its New York facility. Thus, given this manner of treatment, the material was not solid waste. Of course, this requires a conclusion that is supported solely by Miele's testimony without any documentation. In this regard, I am mindful of his interest in the outcome of the case. Further, I am mindful of the inherent motivation a defendant would have for reaching such a self-fulfilling determination, i.e., escaping the strictures of the solid waste plan, its additional costs, and government oversight. Most importantly, once HCIA has met its burden of establishing a prima facie case, and I have determined that it has, the regulation shifts the burden of proof to the defendant to demonstrate that the materials are not solid waste. One such element of proof could be how the defendant treated the material. However, the regulations, specifically, N.J.A.C. 7:26-1.13(b) requires that "persons claiming that a certain material is not [a solid] waste shall demonstrate and appropriately document that the material is not a solid waste." In these matters, however, defendant admittedly has not documented in any manner these materials were not solid waste. All it has demonstrated was that it reached such a conclusion and acted thereupon without feeling the need to document anything. Under these circumstances, the court believes it is entirely appropriate to recognize that the defendant has failed to demonstrate that the material contained in the BMW containers was not solid waste, self-serving testimony to the contrary.

In A-6432-02T2, the trial judge said in part:

I believe that the testimony of all inspect - of both inspectors for all five tickets indicated that when they got to the compactor, they looked in to the area where waste or trash was being put into the container, and although it was a small portion of the container, most of the items in there came from the cafeteria, which included food waste and other items.

I would [add] that from the pictures and everything else, there were used oil cans. And from the testimony of the Plant Manager they do do oil changes and other items to vehicles. They have paint cans. They have plastic that's coating the cars that has a self-adhesive on it which, again, we don't know what that self-adhesive material is. But there is a significant amount of - of waste that the plant generates that would go into this particular bin.

. . . .

I think that the evidence is clear that a - at least a 20 to 30 percent of each and every item in the container was either . . . waste or contaminated by soda, coffee, food, et cetera. And, therefore, I believe that the State - that the County has met its burden of proof, and I'm going to sustain the five violations . . . .

On appeal, Miele contends:

POINT I: THE VIOLATIONS CITED BY THE HCIA DO NOT APPLY TO THE TRANSPORTATION AND DISPOSAL OF RECYCLABLE MATERIALS.

POINT II: TRIAL COURTS' RULINGS BASED ON INSUFFICIENT EVIDENCE AND MISAPPLICATION OF APPLICABLE LAW.

We have considered these contentions in light of the trial record in both appeals, including all of the photographs, the applicable law, our prior decision and the trial judges' findings of facts and conclusions of law. This time around, HCIA provided sufficient competent evidence in both trials to support the judges' findings of violations. We have no basis for interfering or for a more elaborate opinion. R. 2:11-3(e)(1)(A),(E).

 
Affirmed for the reasons set forth by Judge Carmen Messano in his December 6, 2002, written decision, and by Judge Fred J. Theemling, Jr., in his May 22, 2003, oral decision.

(continued)

(continued)

2

A-2753-02T2

November 28, 2005

 


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