HUDSON COUNTY IMPROVEMENT AUTHORITY v. MIELE SANITATION COMPANY INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4590-07T34590-07T3

HUDSON COUNTY IMPROVEMENT

AUTHORITY,

Plaintiff-Respondent,

v.

MIELE SANITATION COMPANY,

INC.,

Defendant-Appellant.

_________________________________

Submitted May 11, 2010 - Decided June 18, 2010

Before Judges Parrillo, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. DC-024537.

Mariano & Coiro, P.C., attorneys for appellant

(Joseph W. Coiro, of counsel and on the briefs).

Walrod & D'Amico, attorneys for respondent (Kathleen A. Walrod, of counsel and on the brief).

PER CURIAM

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.

By way of background,

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. N.J.A.C. 7:26-1.6.

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) 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), 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. 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 "caf 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 minuscule when you start bringing it to the level of recycling at a mill." Further, DeFeo explained that "[c]ontamination can affect value. It almost never . . . destroys all value and usually doesn't stop something from being recycled." As to how liquid contaminates recyclable material, DeFeo stated:

I have can and bottle recycling containers in the building, I can't assume that those cans are going to be empty because people may not finish what they're drinking. That doesn't negate the value of the container. Does it make it messy to recycle? Yes, certainly. That's why recycling centers all smell like stale beer and soft drinks because there's liquid in all the containers.

When asked what level of contamination is necessary before a load transitions from recyclable to solid waste, DeFeo stated that "if . . . I found gasoline cans mixed into the load[,] I wouldn't let anybody touch that because of the risk and health factors." Also, he stated that:

[I]f I run a supermarket or a restaurant setting and I was taking large amounts of food waste, post consumer, pre consumer what we call prep foods[,] and I mean fairly large quantities of that[,] and throwing it in raw in let's say my cardboard box container. Clearly if I get into that and I dump that load and it all comes out wet and I don't mean water wet, I mean wet with food dripping and all that good stuff, that load I probably would start to reject . . . .

When asked if a load's partial contamination affects the recyclable nature of the non-contaminated portion of the load, DeFeo claimed it did not, as "you would segregate out the bad if it got a little bit of contamination and you would go to the good. . . . It doesn't ruin the whole load." Further, DeFeo stated that the reasons for a sanitation company to recycle are "pure economics," as paper and cardboard have high value on the market.

When shown photographs of the compactor in question, DeFeo stated that, from the pictures, he could not tell whether the compactor held a contaminated or recyclable load. As for discerning what percentage of any given load is solid waste, DeFeo opined that "[n]o one can tell you until you dump the compactor. There's no way to know what's in the load, you have to dump it, rip it open, start ripping bags."

Discussing the sealed bags in the compactor, assuming that they were filled with cafeteria waste, DeFeo opined that the bags would not necessarily contaminate the load, as "the bags usually can survive a compaction." In DeFeo's opinion, compaction does not cause bags to burst open, because,

[a]s a rule they don't break. It's not to say a bag will not break, don't get me wrong. Bags do break from time to time. And sometimes they tear, sometimes they get caught in a blade. There are eight different ways a bag can rupture but as a rule they don't because they're buffered. They have layers of paper between them and it acts as a cushion.

In support of his contention that the loads coming from the Miele compactor contained only de minimis solid waste, DeFeo cited to the experience of Miele's successor, Nacirema Industries, to whom Miele lost the BMW contract. Although Officer DeFilippo had observed in October, November, and December 2007, the same type of refuse in Nacirema's compactor as formerly in Miele's (such as "[c]afeteria waste, oily rags, plastic wrap, styrofoam, cardboard, and nylon straps"), DeFeo claimed that the size of the solid waste loads Nacirema deposited at a Plan-designated facility demonstrated that BMW was "not producing any garbage. . . . Comparatively there's virtually no garbage for a facility of that size. That's very small." DeFeo maintained that since there was "virtually no waste coming out of that facility" and if "nothing has changed" since Nacirema took over the BMW contract, then "the only other alternative" was that the vast majority of the compactor's loads' contents were recycled.

Finally, defendant's principal, Joseph Miele, testified. In either 2005 or 2006, in response to an earlier enforcement action by HCIA, Mr. Miele had a two-yard cafeteria waste container placed at the BMW site. That container was unloaded every time one of the company's trucks visited the BMW site, "at least two or three times a week." According to the owner, there was usually only a few bags of cafeteria waste in the container at any time, so the driver would "take the bags out [and] put [them] in the seat" in the truck's cab and bring them back to the Miele facility. Mr. Miele also claimed that he "recycled more than ninety percent of the stuff that's in" the Miele compactor, as he "would be a fool not to." Mr. Miele further explained that the compactor was only dumped in his presence at the Clarkstown facility, and that its composition did not change much over time. However, he offered no documentation to support his claim that ninety percent or more of the mixed loads were recyclable. Although he promised to provide those documents to the court "by tomorrow," he apparently never did.

At the close of evidence, the Law Division judge found that under the applicable burden-shifting scheme, the HCIA proved that:

more than a de minim[is] amount of solid waste [was present] in the compactor in the form of cafeteria waste generated daily by over one hundred employees using the cafeteria. The discarded food, soda cans, and used coffee cups contain putrescibles. In addition, they're commingled with oil cans, caulking cans, used paint cans, dirty gloves, etc. The volume generated[,] in my opinion[,] is more than de minim[is]. The quantum of putrescible materials may differ from complaint to complaint, but in all twenty-eight cases [the solid waste content in the compactor] is clearly more than de minim[is] and in all twenty-eight complaints the specific garbage is described along with the re-cyclable materials with which it is commingled. I make these findings based on the testimony of the inspectors, the exhibits in evidence, particularly the photos, and the testimony of Mr. Dixon as to the garbage generated on site in the office, the cafeteria and in the process of prepping the cars for shipment.

Since defendant had failed to demonstrate and appropriately document that the subject material was not solid waste, the judge found that the HCIA had "proven all twenty-eight of its [Plan] violations complaints."

The court then turned

to the twenty-two complaints relating to missing or expired DEP decals, failure to remove expired decals, failure to list a registration number and failure to display the capacity, all pertaining to the compactor in question used to transport garbage and re-cyclables. Defendant contends that it is not guilty of these violations because it was hauling recyclable materials and was not subject to the Waste Management Plan. Additionally, it claims that as to these violations, it would be provided a grace period within which to comply with the technical violations.

As to each of the violations, there were exhibits presented in evidence without objection which contained pictures corroborating the violations in every complaint. Pictures showed the lack of a decal, the presence of an out-of-date decal, the lack of a registration number, the failure to display capacity, etc.

Defendant argues that a grace period is required because these violations are considered to be "minor violations" under [N.J.A.C. 7:26-5.10].

Under subsection (c)(1) of the same section, the grace period exception does not apply where the violation is the result of the "purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation." I find that Defendant's conduct was at all times purposeful and knowing. It has always been Defendant's strong belief that the Waste Management Plan does not apply to him because he re-cycles almost all the materials in the compactor in question.

Accordingly, I find that the [HCIA] has carried its burden of proof as to all DEP violations.

The court then entered judgment on all fifty complaints, levying $340,500 in fines and penalties. The complaints were consolidated for purposes of appeal, wherein defendant argues:

I. THE VIOLATIONS CITED BY THE HCIA DO NOT APPLY TO MIXED LOADS COMPRISED MAINLY OF RECYCLABLE MATERIALS.

II. THE COURT ERRRED IN RULING THAT THE AMOUNT OF SOLID WASTE CONTAINED IN THE MIELE COMPACTORS EXCEEDED THE ESTABLISHED HUDSON COUNTY DE MINIM[IS] STANDARD.

A. THE HCIA'S OWN EVIDENCE AND TESTIMONY PROVES THAT CONTENTS OF THE MIELE COMPACTORS COULD NOT HAVE EXCEEDED THE HUDSON COUNTY DE MINIM[IS] STANDARD.

B. THE 2 YARD CONTAINER PROVIDED BY MIELE FOR CAFETERIA WASTE WAS ERRONEOUSLY DISREGARDED BY THE COURT IN ITS DE MINIM[IS] DETERMINATION.

III. THE TRIAL COURT ERRED IN RULING THAT

APPELLANT HAD BURDEN TO PROVE CONTENTS

OF MIELE COMPACTORS WERE NOT SOLID WASTE.

IV. TRIAL COURT'S RULINGS ARE IN ERROR, BASED ON INSUFFICIENT EVIDENCE, AND MISAPPLICATION OF APPLICABLE LAW AND STANDARDS.

I.

Defendant's principal arguments are that the court erred in imposing a burden on Miele to prove its mixed loads contained only a de minimis amount of solid waste and that HCIA had not satisfied its burden of proving otherwise. We disagree.

We previously discussed burden shifting in a predecessor case between these very same parties involving identical issues and sets of violations:

HCIA argues that in an enforcement action defendant has the burden to produce documents that the materials in question were recyclables or otherwise exempt from the solid waste regulations. It relies upon N.J.A.C. 7:26-1.13 . . . .

. . . .

Notwithstanding these provisions, "as proponent of the charges," HCIA bears the burden of proof, although that burden, if initially carried, shifts the burden "of going forward" to defendant. See New Jersey Racing Comm'n v. Elliot, 290 N.J. Super. 140, 145 (App. Div. 1996). Thus if HCIA had established a sufficient basis for finding that a violation did in fact occur, Miele might have had the burden to produce documents, in addition to his own testimony, to show that the materials in question were recyclables.

[Hudson County Improvement Auth. v. Miele Sanitation Co., No. A-26-01T2 (App. Div. Feb. 9, 2004) (slip op. at 7-8) (emphasis added).]

See also Hudson County Improvement Auth. v. Miele Sanitation Co., Nos. A-2753-02T2, A-6432-02T2 (App. Div. Nov. 28, 2005) (slip op. at 9-11), where we quoted approvingly from the trial judge's decision:

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 [HCIA] has proven that the materials in the container were subject to the solid waste regulations.

. . . As such, the contents of the container are not de minim[is] amounts of solid waste.

. . . 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), require[] 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 [that] 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.

[(Emphasis added).]

We had earlier set forth the governing standard in N.J. Racing Comm'n v. Elliot, 290 N.J. Super. 140 (App. Div. 1996). There, four trainers appealed an administrative decision imposing fines and suspending their licenses based upon findings that horses under their care had tested positive for a certain banned substance. Id. at 142. Addressing the burden of proof issue, we found:

We do not discern that any shifting of the burden of proof occurred here. The burden of establishing the trainers' culpability remained, throughout, with the Commission staff as proponent of the charges. Once it established that a "drug and/or substance foreign to the natural horse," had been detected, the burden of going forward properly shifted to the trainers to show that the matter detected was not among the drugs or substances prohibited by the rule.

[Id. at 145 (citations omitted and emphasis added).]

Here, the trial judge utilized the proper burden shifting scheme, which he correctly described as follows:

[T]he determinative factor is how mixed the mixed load is. It falls to the [HCIA] to prove the presence of solid waste in the compactor, and the extent thereof.

I find that the [HCIA] has proven more than a de minim[is] amount of solid waste in the compactor in the form of cafeteria waste generated daily by over one hundred employees using the cafeteria.

. . . .

. . . I find that once the HCIA has carried its burden of proof, it then falls to Defendant, who is claiming that the materials being transported are recyclable and thus exempt from the Waste Management Plan, to demonstrate that the materials are not solid waste. N.J.A.C. 7:26-1.13(b) provides that "persons claiming that a certain material is not waste shall demonstrate and appropriately document that the material is not solid waste." (emphasis added). Defendant has failed to do so.

. . . .

Accordingly I find that the [HCIA] has carried its burden of proof as to all of the DEP violations.

Thus, HCIA, as proponent of the charges, bore the initial burden of making a prima facie showing of a Plan or regulatory violation, and therefore had to present sufficient credible evidence at trial that the container in question held more than a de minimis amount of solid waste. Upon such a showing, the burden of going forward shifted to defendant to demonstrate that the mixed loads were not "solid waste," but rather recyclable, by demonstrating that only a de minimis amount of solid waste was present in the compactor at any relevant time.

This scheme is perfectly consistent with N.J.A.C. 7:26-1.13(b), which provides that "[i]n an enforcement action, or on specific request of the Department, persons claiming that a certain material is not a solid waste shall demonstrate and appropriately document that the material is not a solid waste." (Emphasis added). Accordingly, once HCIA established a prima facie case of a Plan or regulatory violation, it was incumbent upon defendant to come forward and produce documentation that the compactor's mixed loads a "certain material" under N.J.A.C. 7:26-1.13(b) were either not a solid waste or held only a de minimis amount of solid waste, and were therefore exempt as recyclable. To be sure, the burden of establishing defendant's culpability for the cited Plan and regulatory violations remained ultimately with HCIA, and we are satisfied the trial judge properly held HCIA to its burden of proof.

II.

Having determined that the court properly applied the correct standard, we also find that HCIA satisfied its initial burden of a prima facie showing that violations occurred by adducing sufficient credible evidence that defendant's compactor held loads containing more than a de minimis amount of solid waste, and that defendant failed to come forward and demonstrate, through appropriate documentation, that the compactor's mixed loads were exempt from solid waste regulation.

Generally, there are two ways to determine whether a material is solid waste. One way is to examine the nature of the material at the time that a solid waste regulation would be triggered. For example, in determining whether a transporter of a load of material must adhere to solid waste transporter regulations, the Department would assess whether the load of material was solid waste at the time and place of collection for transportation. . . . [I]f the load contained more than a de minimis amount of solid waste, the collector would need [to register with the Department as a solid waste transporter].

The second way to assess whether material is solid waste is to examine the way in which the material is treated. For example, a load of only aluminum cans generally would be considered source separated recyclable material exempt from regulation by the Department; however, if the load of cans is dumped in a landfill, the cans are deemed solid waste.

[In re Solid Waste Servs., Inc., supra, 94 N.J.A.R. 2d at 62 (emphasis added).]

In other words, in determining whether a proponent satisfied its initial burden of demonstrating that the mixed loads in question contained more than a de minimis amount of solid waste, the court should first assess the loads' content at the time and place of collection for transportation; here, at the BMW plant. Second, the court may consider how the material was ultimately treated; for example, whether the loads were dropped at a recycling facility or at a landfill.

As the trial judge here aptly noted, the heart of the controversy between the parties is "how mixed the mixed load is." On this score, we reiterate that the rules governing solid waste do not apply to:

The purchase, sale, collection, storage, transport or controlled processing of source separated or commingled source separated recyclable, recycled or secondary nonhazardous materials, which would otherwise be handled as solid waste pursuant to this chapter for introduction or reintroduction into the economic mainstream as raw materials for further processing or as products for use, provided that such materials are free from putrescible matter and are not mixed with solid or liquid waste as defined herein.

[N.J.A.C. 7:26-1.1(a)(1) (emphasis added).]

Although the regulation states that materials must be "free from putrescible matter" and "not mixed with solid or liquid waste" in order to be considered recyclable, regulators have taken a seemingly more tolerant approach when dealing with mixed loads, allowing such loads to contain a de minimis amount of solid waste without triggering the solid waste regulatory scheme. See In re Solid Waste Servs., Inc., supra, 94 N.J.A.R. 2d at 62. Indeed, N.J.A.C. 7:26-1.1 has been interpreted to mean that a recyclable load with a de minimis amount of solid waste would not have to comply with the solid waste procedures. However, nowhere in the statute or regulation is the "de minimis" standard defined.

In the absence of any such measure, Miele maintains that "the determination is generally made on a county by county basis[,]" and in Hudson County, de minimis is considered ten percent or less. In fact, this figure seems to have been consistently used in prior litigation between these parties. See Hudson County Improvement Auth. v. Miele Sanitation Co., No. DC-11550-03 and others (Law Div. July 12, 2004) (oral op. at 15) (finding that Hudson County defined "de minimis as ten percent or less" and that "this [c]ourt is satisfied that ten percent comes within the meaning of de minim[is]") (emphasis added); Hudson County Improvement Auth. v. Miele Sanitation Co., Nos. A-2753-02T2, A-6432-02T2 (App. Div. Nov. 28, 2005) (slip op. at 9) (noting that the "HCIA indicates that no more than 10% of a load could be solid waste; anything more would no longer be de minim[is].") (emphasis added). But see Hudson County Improvement Auth. v. Miele Sanitation Co., No. A-26-01T2 (App. Div. Feb. 9, 2004) (slip op. at 6) (although the HCIA enforcement officer testified that "a waste container can contain 80% recyclables and 20% nonrecyclables and still be considered a recyclable load[,]" the trial and appellate courts did not reach the issue) (emphasis added). Even Officer Ladson, who testified that "the [S]tate [standard] is one percent, the de minimis of waste that's contaminated[,]" acknowledged that "if it's ten percent we won't issue a violation[,]" and Officer DeFilippo agreed.

Officer Ladson then testified that, based on his observations, the Miele compactor's mixed loads contained more than ten percent solid waste. This opinion was buttressed by the observations of two other enforcement officers who also visited the site and observed, albeit through a relatively small opening, large amounts of cafeteria waste and other contaminants within the compactor. Photographic evidence was also produced to corroborate the results of the three enforcement officers' inspections. Moreover, BMW's plant manager described the size of the facility's workforce, the nature of plant operations, and the kinds of waste materials produced not only by staff, but also by visitors to the site. HCIA's testifying officers further established that the compression of these materials most likely led to widespread contamination within the compactor, transforming these mixed loads into solid waste loads. Based thereon, the trial judge found:

I find that the [HCIA] has proven more than a de minim[is] amount of solid waste in the compactor in the form of cafeteria waste generated daily by over one hundred employees using the cafeteria. . . . The volume generated[,] in my opinion[,] is more than de minim[is]. The quantum of putrescible materials may differ from complaint to complaint, but in all twenty-eight cases it is clearly more than de minim[is] . . . .

We conclude that sufficient credible evidence supports the trial court's finding that HCIA carried its initial burden of making a prima facie showing that the mixed loads at issue held more than a de minimis amount of solid waste at the collection site, thus shifting the burden of going forward to Miele.

III.

We also conclude that defendant failed to produce appropriate documentation to substantiate its claims that the mixed loads at issue held only a de minimis amount of solid waste.

In this regard, defendant contends that it failed to provide documentation at trial regarding the mixed loads' contents because the company "does not maintain records specific to BMW Waste," as the Miele-owned New York facility where the loads were processed was "not required by New York law to maintain such specific records[,] i.e., by customer and exact amount and type of waste which it accepts." Nonetheless, defendant asserts that its burden of going forward was satisfied by citing to the mixed loads of its successor at the BMW site, Nacirema Industries, which allegedly contained only nine percent solid waste. According to defendant, Nacirema delivered solid waste from the BMW site to a designated Plan facility in amounts ranging from .81 tons to 1.90 tons, with an average load of 1.17 tons of solid waste per trip. Since little had changed in BMW's disposal methods since Nacirema replaced Miele, defendant uses these numbers to derive an estimated solid waste percentage for the BMW site, which, it argues, can be applied to Miele's case. According to defendant's expert, one ton of solid waste is equivalent to approximately 3.3 cubic yards of volume, and since Miele's compactor at the BMW site had a capacity of forty cubic yards, defendant argues that "we can mathematically conclude that the Miele Compactors must have contained, on average, approximately 9% of solid waste."

We reject this argument for several reasons. First, the record indicates that the Nacirema solid waste load weights were .91, 1.43, 1.47, .99, 1.90, .93, .81, and .98 tons. Although Miele claims that the average tonnage was 1.17, it was actually 1.1775, rounded up to 1.18. Moreover, three of Nacirema's loads contained more than 1.17 tons of solid waste (1.43, 1.47, and 1.90 tons). Using defendant's own calculations, each of those loads would contain more than a de minimis amount, i.e., greater then ten percent, of solid waste when measured against Miele's forty cubic yard compactor, and therefore each would be subject to Plan and regulatory requirements. But even more significant, since Nacirema's compactor was only thirty-five cubic yards smaller than Miele's forty cubic yard compactor and since the solid waste loads used in defendant's calculation derived from Nacirema's compactor, a more accurate way to estimate the solid waste percentage would be to use Nacirema's smaller compactor as the measuring post. Under that scenario, with an average solid waste load of 1.17 tons, the estimated solid waste percentage is 11.03% (1.17 x 3.3 = 3.861, 3.861 / 35 = .1103), which clearly exceeds the ten percent de minimis standard.

Defendant also contends that the trial judge failed to give enough weight to evidence of Miele's addition on the BMW site of a two-yard cafeteria waste container, whose purpose was to keep contamination within the compactor's mixed loads to a minimum so as to render those loads recyclable. There was, however, sufficient credible evidence to the contrary on which the judge was entitled to rely. Specifically, Officer DeFilippo never saw the two-yard container at the BMW site prior to March 1, 2007. And on four of the five occasions when an enforcement officer did observe the container, it was empty. Further, as the court found, "the compactor in question continued to be used for the collection of garbage and the non[-]source separated recyclables."

Thus, as to the burden of going forward, defendant offered no evidence to show its compactor's mixed loads were ninety percent recyclable other than the self-serving testimony of its principal, Joseph Miele. Even though promised, defendant produced no documentation to substantiate its principal's blanket claim. In this regard, the trial judge found:

As to what Defendant did with the load in the compactor in question, Joseph Miele testified that it was taken to his re-cycling plant where over 90% of the content was re-cycled. No documentation was offered to corroborate this, arguably because New York State requires none. I find that once the HCIA has carried its burden of proof, it then falls to Defendant, who is claiming that the materials being transported are recyclable and thus exempt from the Waste Management Plan, to demonstrate that the materials are not solid waste. N.J.A.C. 7:26-1.13(b) provides that "persons claiming that a certain material is not waste shall demonstrate and appropriately document that the material is not solid waste." Defendant has failed to do so.

We conclude that the trial judge applied the appropriate burden of proof, which HCIA satisfied by producing sufficient credible evidence of the charged violations, unrefuted by any competent proof under N.J.A.C. 7:26-1.13(b) that the Miele compactor held less than ten percent solid waste.

IV.

Lastly, defendant contends the assessed fines were excessive. We discern no abuse of discretion in their imposition.

In this regard, the trial judge concluded:

After review of the cases, I have decided to impose the base penalty for the first violation of each of the charges and to impose the enhanced penalty for a violation of the same rule less than 12 months later. The result is a base fine of $3,000 for the first of each of the DEP decal, registration, capacity, display violations, enhanced to $4,500 for all repeat violations. Plan violations have a base violation of $4,500 enhanced to $9,000 for the repeat violations.

I believe the above results in a total penalty of $340,500. . . . Plaintiff is also awarded costs for each complaint.

Defendant argues that "[f]ines of this magnitude are typically only reserved for serial toxic waste polluters and are truly inappropriate for a recycling/solid waste matter." Plaintiff counters that:

[T]his trial represents the ninth trial against this defendant, concerning well over one hundred violations . . . . Over the course of these trials, Miele Sanitation has received gradually increasing penalties when they have been found guilty of the charges contained in the Complaints. . . . The trial court properly considered the continuing nature of the violations in the assessment of these penalties.

. . . .

. . . Despite eight prior trials and steadily increasing penalties, Miele continued to fail to comply with the provisions of the Solid Waste Management Act and the accompanying Administrative Regulations. Given the magnitude of the offenses, the Court did not exceed its authority in imposing the penalties in this matter.

Under N.J.S.A. 13:1E-9e, when the DEP Commissioner is assessing a civil administrative penalty for violation of the solid waste management regulatory scheme, he or she is "to consider the operational history of the solid waste facility at which the violation occurred, the severity of the violation, the measures taken to mitigate or prevent further violations, and whether the penalty will maintain an appropriate deterrent." (Emphasis added). N.J.A.C. 7:26-5.4(g)(6) lists the base penalties for the violations at issue here, while subsection (f)(3) provides the severity factor multipliers to be used to enhance a penalty award.

Here, the trial judge appeared to apply severity factor (f)(3)(i), which states that when the "[v]iolator had violated the same rule less than 12 months prior to the violation," a multiplier of "1.00" is to be utilized. According to (f)(4), "[t]o obtain the civil administrative penalty, add all of the severity penalty components pursuant to (f)(3) above, to the base penalty." Thus, for the repeat decal-related offenses that the trial judge decided to enhance, the base fine was $3,000 under N.J.A.C. 7:26-5.4(g)(6). Since (f)(3)(i) applies, the enhanced penalty component was another $3,000 (1.00 x 3000). Adding the two, it appears that Miele could have been fined $6,000 for each of its repeat decal-related offenses, rather than the $4,500 as determined by the trial judge. This downgrade, alone, belies any notion that Miele's decal-related fines, as assessed, were excessive. As for the Plan violations, the same calculation applies, and the judge properly doubled the base penalty in accordance with the above-stated mathematical formula, from $4,500 to $9,000 for repeat violations.

It is well-settled that we can "alter a sanction imposed by an administrative agency only 'when necessary to bring the agency's action into conformity with its delegated authority. The Court has no power to act independently as an administrative tribunal or to substitute its judgment for that of the agency.'" In Re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re Polk, 90 N.J. 550, 578 (1982)). Furthermore, the sanction must be "shocking" in order to obtain judicial relief. Id. at 28-29.

Given our limited scope of review, we find no fault with the sanction imposed. In view of the repetitive nature of Miele's violations, the need for both personal and general deterrence was substantial. N.J.S.A. 13:1E-9e. Moreover, the trial judge carefully parsed through the complaints, only adding a severity component to repeat violations, while levying a base penalty for first-time offenses. Regardless of the fact that, cumulatively, these penalties amount to a substantial sum, no single penalty was excessive, as each falls within the regulatory guidelines.

As for the trial court's refusal to apply the grace period allowed for "minor" decal-related offenses, under N.J.A.C. 7:26-5.10(c)(1) any grace period is conditioned upon the subject violation not being "the result of the purposeful, knowing, reckless or criminally negligent conduct of the person responsible for the violation[.]" The trial court properly found, based on the litigation history between these two parties and the evidence adduced at trial, that the defendant's conduct was at all times purposeful and knowing, as Miele always contended that the solid waste regulations did not apply to it because it allegedly recycled more than ninety percent of the compactor's contents. The continuing nature of these decal-related violations, which were easily remediable, speak to the purposefulness of Miele's conduct, and support the court's decision not to grant defendant a grace period.

 
Affirmed.

N.J.A.C. 7:26-1.1, in excepting recyclable materials, includes the proviso "that such materials are free from putrescible matter and are not mixed with solid or liquid waste as defined herein." As administratively interpreted, a recyclable load with a de minimis amount of solid waste would not require compliance with the solid waste procedures. In Re Solid Waste Servs., Inc., 94 N.J.A.R 2d (Vol. 5A) 62 (Dep't of Environmental Protection and Energy).

All solid waste transporters shall haul solid waste in accordance with the Solid Waste Management Plan developed by the county or district of waste origin pursuant to N.J.A.C. 7:26-6. In a district which has designated in its District Solid Waste Management Plan a weighing facility or facilities for waste leaving the district, transporters shall deliver solid waste to a designated in-district weighing facility before the solid waste is removed from the district for out-of-district transfer, materials recovery, or disposal.

[N.J.A.C. 7:26-3.4(m).]

Each registered solid waste vehicle

. . . used in the collection or transportation of solid waste shall properly, permanently, and conspicuously display a current State of New Jersey solid waste decal and the [DEP] registration number and the name of the registered company in letters and numbers at least three inches in height, and, except for solid waste containers, shall carry the current [DEP] registration certificate in the solid waste cab. Current solid waste decals must be permanently affixed to the driver's side of each solid waste vehicle, prior to transport of solid waste to, from or within New Jersey or prior to the unit being placed into service or before receiving waste.

1. A copy of any lease filed in connection with the solid waste registration of a solid waste vehicle shall be carried in the solid waste cab and made available to Department representatives upon inspection or request.

2. Only current period decals shall be displayed. Expired decals must be removed from the solid waste vehicle prior to affixing current registration period decals.

3. In addition, there shall be affixed to the driver's side of each registered solid waste vehicle, in letters and numbers at least three inches in height, the capacity of the solid waste transport unit in cubic yards, in tons or in gallons, so as to be visible to the operator of the solid waste facility.

[N.J.A.C. 7:26-3.4(h).]

Type ten waste is "residential or standard municipal solid waste." It is typically defined as what is generated "from your household, what office buildings and commercial establishments would generate and what institutional establishments would generate[,]" such as "paper and food and cans and bottles

. . . ." Type thirteen waste is "bulky waste," which includes such materials as furniture and wood pallets.

Even using defendant's 1.17 average tonnage figure, and assuming one ton of solid waste is equivalent to approximately 3.3 cubic yards of volume, then the average mixed load in Nacirema's compactor contained 3.861 cubic yards of solid waste (1.17 x 3.3). When a percentage is calculated by dividing this number by Miele's compactor's capacity, (3.861 / 40), an estimated percentage of 9.65% is derived. Defendant rounded this number down, rather than stating the number as calculated or rounding it up to ten percent.

Defendant did produce an expert, but he had never visited the BMW site or Miele's New York processing facility. Moreover, he had no personal knowledge as to the contents of the mixed loads, having never seen any documentation related to their treatment and having failed to personally inspect the loads at the BMW plant.

N.J.A.C. 7:26-5.5 gives the DEP discretion to increase a penalty when "the Department determines that the penalty amount under N.J.A.C. 7:26-5.4 would be too low to provide a sufficient deterrent effect as required by the Act." See also N.J. Dep't of Environmental Protection v. SUMMCO, Inc., 94 N.J.A.R 2d (Vol. 5A) 256 (Dep't of Environmental Protection and Energy).

(continued)

(continued)

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A-4590-07T3