# Petition for Writ of Certiorari — Jersey Carting, Inc. v. Board of Regulatory Commissioners > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1843%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1996 - **Citation:** 517 U.S. 1135 ## Text TILED A BH1283 Fee 1 21996 No. OFFICE OF THE CLERK In The Supreme Court of the Wnited States an October Term, 1995 JERSEY CARTING, INC., ANGELA MORIANO and MARIO MORIANO, Petitioners, vs. BOARD OF REGULATORY COMMISSIONERS, Respondent. Petition for a Writ of Certiorari to the Superior Court of New Jersey, Appellete Division PETITION FOR A WRIT OF CERTIORARI ROBERT E. LEVY Counsel of Record MAURA B. JOHNSON SCARINCI & HOLLENBECK Attorneys for Petitioners 500 Plaza Drive P.O. Box 3189 Secaucus, New Jersey 07096-3189 (201) 392-8900 8253 (800) 3 APPEAL « (800) 5 APPEAL « (800) BRIEF 21 ervices, inc. i QUESTIONS PRESENTED FOR REVIEW The State of New Jersey Board of Public Utilities commenced this action and revoked the Certificate of Public Convenience and Necessity of Petitioner, Jersey Carting, Inc. and permanently barred its principals, Petitioners Angela and Mario Moriano from the New Jersey Solid Waste Industry. Due to the fact that a related criminal action with identical issues was pending, Petitioners requested a stay of the civil matter, which was denied. At the hearings, Petitioners exercised their Fifth Amendment privileges and did not testify. State action compelled Petitioners to elect between twoconstitutionally protected rights, the privileges of the Fifth Amendment and the right to redress in the Courts under the Fourteenth Amendment. Petitioners challenge tothe New Jersey waste flow control scheme in light of this Court’s recent decision in C &A Carbone Inc. v. Clarkstown, 114 S. Ct. 1677 (1994) which held analogous waste flow regulations to be a violation of the Commerce Clause, was rejected. The questions presented by this case are as follows: 1. Did the denial of the stay pending resolution of the related criminal proceeding constitute State action denying Petitioners substantive and procedural due process by forcing Petitioners to elect between their Fifth Amendment privileges and their right to effective redress in the Courts as protected by the Fourteenth Amendment to the Constitution of the United States? 2 Did the State of New Jersey deprive Petitioners of their property and livelihood by enforcing statutes and regulations which per se violate the dormant Commerce Clause of the Constitution of the United States? ii LIST OF PARTIES Petitioner, Jersey Carting, Inc. does not own or otherwise possess an interest in any parent company or any wholly owned subsidiary. iii TABLE OF CONTENTS Page Questions Presented forReview ................... i ETD ae rn i ee Gc ii ee cs ook vac eedils iii EE ee ea 60 sy il bbe bub iedelee lik. iv is SE ae ] Statement of Jurisdiction ....................0005. ] Constitutional and Statutory Provisions Involved ..... l ea a aes eee noe ay aan 3 ES ps eee 3 B. The Decision of the Office of Administrative Law : C. The Decision of the Commissioner of the New Jersey Department of Environmental Protection , D. The Decision of the Appellate Division ....... 5 E. The Decision of the Supreme Court of New Jersey ’ iv Contents Page CORGIRIIEE 6 cc dccvdreccsactuveceeelekebe see veteus 17 TABLE OF CITATIONS Cases Cited: Am. Civil Liberties Union v. Mabus, 719 F. Supp. 1345 +3) RC Pepe re rrr vorere rr yr ores yrs 9 Atlantic Coast Demolition and Recycling, Inc. v. Bd. of Chosen Freeholders of Atlantic County, et al., 48 F.3d 701 (3d Cir. 1995), remanded, 893 F. Supp. 301 D.C. IB. RR nk v0 ne weed advan naa Cheeeed> 13,14 Bounds v. Smith, 430 U.S.817(1977) ...........406- 10 C &ACarbone, Inc. v. Clarkstown, 1148. Ct. 1677 (1994) a done Coded bined dhe eh Ree eee i, 6,7, 13,14, 15 Chambers v. Baltimore & Ohio Railrcad, 207 U.S. 142 CPUNEL cc nk0kcebandcckiensuyeeeeksnsan ence 9 Compiaint of Bankers Trust Co., 752 F.2d 874 (3rd Cir. SONGS sv ccndcovscessisdecewnieesassceecnaerees 10 Ryland v. Shapiro, 708 F.2d 967 (Sth Cir. 1983) ....... 9,10 Sec. and Exch. Comm’n v. Dresser Indus., 628 F.2d 1368 (D.C. Cir. 1980) (en banc), cert. denied, 101 S.Ct.529 by SPOOR eT eee rts Sherrer eR Aare 11,12 EE a ci aa Vv Contents Page State v. Korbin Sec., Inc., 111N.J.307(1988) ........ 11,12 Wolff v. McDonnell, 418 U.S.539(1974) ............ 10 Statutes Cited: N.J. Admin. Code tit. 7 § 26-6.1 .......ccccccceccees 2 eS i a ea 2 N.J. Admin. Cude tit. 7 § 26-6.5 ................ Oe 2 N.J. Admin. Code tit. 7 § 26-6.6 ...........ccccceece 3 N.J. Admin. Code tit. 7 § 26-6.7 ..........ccceeccecs 3 N.J. Stat. Ann. §48:13A-l,etseg. .........00.ceeeee 3,7 eR ee 2s 2 ANDES ne eo eee ee ee l United States Constitution Cited: PINE B55 Sy bv ik'd ovo dare bn kon 405 0 Keke 9 POUUMNUIIL, has ceccvsccccesecevcs i, 1,4, 7,10, 16,17 FourteenthAmendment .................... i, 2,8,9, 16,17 U.S. Const. art.1,86,61.3. .....2060% 2,6, 7,13, 14, 15, 16, 17 Other Authority Cited: Cong. Globe, 39th Congress, Ist Sess. 133-134 (1866) . 8 vi Contents APPENDIX Appendix A— Order of the Supreme Court of New Jersey Fu POCUNNEN BA, CUED 6 cb es iccnuvesusndoeaaas Appendix B — Initial Decision of the State of New Jersey, Office of Administrative Law Dated January 7, 1992 eevee eeveeveeeeeeeeveeeeeeeeaeeveeeeeeveeeeeveeeeaeeeweeneneee Appendix C — Final Decision of the Commissioner of the New Jersey Department of Environmental Protection Dated December 11,1992 ....cccccccserccsssves Appendix D — Opinion of the Superior Court of New Jersey Appellate Division Dated August 31,1994... Appendix E— Relevant Statutes ................... Page la 2a 54a 66a ] Petitioners Jersey Carting, Inc., Angela Moriano and Mario Moriano (“Petitioners”) respectfully pray that a writ of certiorari issue to review the Final Judgment of the Superior Court of New Jersey, Appellate Division. On November 14, 1995, the Supreme Court of New Jersey denied Petitioners’ Petition for Certification. OPINIONS BELOW The denial of Petitioners’ Petition for Certification by the Supreme Court of New Jersey (App. 1a), is not reported. The opinion of the Superior Court of New Jersey, Appellate Division,(App. 66a-87a), is not reported. The final decision of the Commissioner of the Department of Environmental Protection and Energy (“DEPE”) (App. 54a-65a), is reported at 93 N.J. A.R. 2d (EPE) 56 (1992). The initial decision of the Office of Administrative Law (App. 2a-53a), is not reported. STATEMENT OF JURISDICTION The Petition to Review the Final Judgment of the Superior Court of New Jersey, Appellate Division, was denied by the Supreme Court of New Jersey on November 14, 1995. The jurisdiction of this Court is invoked under 28 U.S.C. § 1257. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fifth Amendment to the Constitution of the United States of America provides in pertinent part: No person shall ... be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law... 2 The Fourteenth Amendment to the Constitution of the United States of America provides in pertinent part: [NJor shall any State deprive any person of life, liberty or property, without due process of law. Article I, § 8,cl. 3 of the Constitution of the United States of America provides in pertinent part: Congress shall have the power ... [t]o regulate Commerce .. . among the several states. N.J. Admin. Code tit. 7 § 26-6.1 sets forth the statutory authority for the subchapter (App. 88a); N.J. Admin. Code tit. 7 § 26-6.2 sets forth the purpose of regulatory scheme (App. 88a); N.J. Admin. Code tit. 7 § 26-6.5 sets forth the district waste flow planning requirements and disposal facility designations for: (b) [Bergen County District] (g) [Essex County District] (i) [Hackensack Meadowlands District] (j) [Hudson County District] (m) [Middlesex County District] (o) [Morris County District] (q) [Passaic County District] (App. 89a-97a). 3 N.J. Admin. Code tit. 7 § 26-6.6 sets forth the procedure for modification of waste flows pursuant to an amendment to a District Solid Waste Management Plan (App. 98a); N.J. Admin. Code tit. 7 § 26-6.7 sets forth the procedure for emergency direction or redirection of solid waste flow (App. 98a-99a). STATEMENT OF THE CASE A. The Facts Between March and June 1988, the State of New Jersey Boardof Public Utilities (“Board”)! issued two Orders to Show Cause against Petitioners Jersey Carting, Inc. (“Jersey Carting”) and its principals, Angela Moriano and Mario Moriano (“Morianos”) alleging violations of the Solid Waste Utility Control Act, N.J. Stat. Ann. § 48:13A-1, ef seq., various waste flow directives issued by the Board and the New Jersey Department of Environmental Protection (“NJDEP”) and tariff violations. These matters were then designated contested matters and transferred for hearings to the Office of Administrative Law (“OAL”), where they were consolidated. The penalties of an adverse ruling by the OAL included the revocation of Petitioners’ Certificate of Public Convenience and Necessity, and therefore, the taking of Petitioners’ livelihood. Subsequent to the issuance of the Orders to Show Cause, but prior to the OAL hearings which were held between September 24, 1990 to October 4, 1990, a State Grand Jury returned 1. Pursuant to Reorganization Plan No. 002 (1991), which became effective on August 19, 1991, all responsibility and authority formerly vested in the Board for the economic regulation of solid waste utilities was transferred to the newly reorganized Department of Environmental Protection and Energy. Subsequently, both agencies were reorganized and all enforcement responsibility was vested with the New Jersey Department of Environmental Protection. 4 Indictments against Petitioner Jersey Carting charging theft by deception, a crime of the third degree. The charges carry maximum penalties of five years imprisonment and $7,500 fine. After the return of the Indictment, Petitioners Angela Moriano and Mario Moriano wished to exercise their Fifth Amendment privileges not to testify against themselves. They also knew that only from their own testimony at the OAL could they effectively defend the allegations brought by the State in its Orders to Show Cause. As the pending criminal and civil charges involved identical issues of fact, Petitioners requested a stay of the civil hearings pending the completion of the criminal proceedings. This request for a stay was summarily denied by the Administrative Law Judge (“ALJ”). Due tothe pendency of the criminal matter, Petitioners, Angela Moriano and Mario Moriano, asserted their Fifth Amendment privileges and did not testify atthe OAL hearings. Subsequent to the conclusion of the OAL hearings, the criminal charges were tried and a guilty verdict returned by a jury. After appellate review, this verdict was reversed and the underlying charges dismissed. Petitioners sought to reopen the OAL hearing to present testimony. This request was not granted. B. The Decision of the Office of Administrative Law The initial decision rendered by the ALJ concluded that Petitioners violated the emergency waste flow directives and certain tariff and interim rate relief orders. (App. 41a-45a). Monetary fines were imposed in the amount of $109,000. (App. 48a-49a). Additionally, the ALJ recommended the revocation of Jersey Carting’s Certificate of Public Convenience and Necessity and the permanent debarment of Angela Moriano and Mario Moriano from the solid waste industry. (App. 49a). 5 C. The Decision of the Commissioner of the New Jersey Department of Environmental Protection Following this initial decision, the Commissioner of the New Jersey Department of Environmental Protection (“Commissioner”) issued a Summary Order which substantially adopted the ALJ decision. Included in the Commissioner’s Order was a revocation of Jersey Carting’s Certificate of Public Convenience and Public Necessity and permanent debarment of the principals of Petitioner Jersey Carting from the solid waste industry. In addition to the monetary penalty of $109,000, a $77,000 penalty was also imposed on Jersey Carting for its alleged violations of the provisions of its tariff setting forth waste generation site-specific disposal rates. On December 14, 1992, a Notice of Appeal was filed by Petitioners with the Superior Court of New Jersey, Appellate Division, challenging the Commissioner’s Order. Notwithstanding the fact that the Commissioner had objected to an issuance of a stay of the OAL proceedings pending the resolution of the criminal charges, the Commissioner voluntarily agreed to issue a stay of his final decision pending Petitioners’ appeal. This stay remains in place as of the date of this filing, more than three years later. On January 25, 1993, after the dismissal of the criminal indictment, Petitioners filed a request with the Commissioner to remand the proceeding to the OAL for consideration of Petitioners’ testimony regarding (i) defenses to the underlying allegations and (ii) mitigation of the penalties and sanctions imposed. Petitioners’ request for remand was not granted. D. The Decision of the Appellate Division Despite the fact State action compelled Petitioners to elect 6 between two constitutionally protected rights, when the single issuance of a stay would have protected both rights, the New Jersey Superior Court, Appellate Division, held “it was not fundamentally unfair to require appeilants to participate in the administrative proceedings.” (App. 75a). Moreover, despite the fact that the United States Supreme Court decision in C & A Carbone Inc. v. Clarkstown, 1148. Ct. 1677 (1994), (which held analogous waste flow control ordinances to be a violation of the Commerce Clause of the United States Constitution), had not yet been rendered at the time of the OAL hearings, the New Jersey Superior Court, Appellate Division dismissed Petitioners’ arguments challenging deprivation of their livelihood by reason of violation of the Commerce Clause, stating they had not been raised below. (App. 83a). The Appellate Division further determined that even if New Jersey’s waste flow control regulations are found to be in violation of the Commerce Clause, Petitioners would still be subject to the various fines and penalties imposed, including the loss of their livelihood. (App 84a-87a). E. The Decision of the Supreme Court of New Jersey On or about November 4, 1994, Petitioners filed a Petition for Certification to review the Final Judgment of the Superior Court of New Jersey, Appellate Division. On November 14, 1995, the petition was denied. (App. 1a). The Commissioner has continued to stay enforcement of the penalties pending the outcome of this appeal. REASONS FOR GRANTING THE WRIT Petitioners Jersey Carting, Angela Moriano and Mario Moriano seek to have this Court review the decision of the Superior Court of New Jersey, Appellate Division, affirming the 7 Administrative Law Judge’s decision to deny a stay of the OAL hearing pending resolution of the related criminal proceedings, and refusing toconsider Petitioners’ claim that the subject waste flow control regulations are per se invalid as violative of the Commerce Clause. Denial of the stay by the Administrative Law J udge, and the affirmation of the decision by the Superior Court of New Jersey, Appellate Division, violated Petitioners’ substantive and procedural rights of due process, as protected by the Fourteenth Amendment to the Constitution of the United States, by forcing Petitioners to elect between their Fifth Amendment privileges and their right to effective redress in the Courts. Additionally, it was fundamentally unfair for the Appellate Division not to consider Petitioners arguments regarding the New Jersey waste flow control scheme being violative of the Commerce Clause of the Constitution of the United States of America in light of the clear applicability of the United States Supreme Court decision in C & A Carbone v. Clarkstown, 114 S. Ct. 1677 (1994). The Appellate Division was also incorrect in holding that even if the New Jersey waste flow control scheme was held to be per se invalid in light of Carbone, Petitioners’ loss of property interest (including their loss of livelihood) would be not affected. In so holding the Court failed to consider that the most serious asserted violations (i.e. waste flow control violations) would be subject to dismissal. Prior to the OAL hearing respecting alleged violations by Petitioners of the Solid Waste Utility Control Act N.J. Stat. Ann. 48:13A-1, et seq., and certain various asserted tariff and waste flow control directives, Petitioner Jersey Carting was indicted by a State Grand Jury alleging Theft by Deception, acrime of the third degree. Arguing that participation by Petitioners in the administrative proceedings would be fundamentally unfair in light of the interrelated criminal proceedings, Petitioners sought 8 a stay in the OAL of the civil hearings until completion of the criminal matter. Despite the fact that the criminal and civil charges involved identical issues and events, Petitioners’ request for a stay was summarily denied by the ALJ. (App. 4a). The Superior Court of New Jersey, Appellate Division, affirmed the decision of the ALJ, holding that “[s)ince the public interest in preventing illegal dumping was substantial and the scope of the criminal case limited in comparison to the civil proceeding, ... it was not fundamentally unfair to require appellants to participate in the administrative proceedings.” (App. 4a). Petitioners disagree. The State of New Jersey, in two separate but related actions, sought potentially to deprive Petitioners of their liberty by way of a criminal action, and sought to deprive Petitioners of their property and livelihood by way of acivil action. In order to protect their liberty, Petitioners wished to exercise their privilege not to testify against themselves. In order to protect their property and livelihood, however, they wished to testify and present themselves as witnesses in the civil proceeding. The identical stay to which the State has consented throughout the appeal process would have protected both fundamental rights. Failure of the State to have granted the stay of the OAL hearings pending resolution of the criminal matter has deprived Petitioners of their most fundamental of civil rights, effective redress in the Courts. During the Congressional debates of the Reconstruction Amendments, not all legislators were in agreement as to what rights would be protected by the Fourteenth Amendment (which had been introduced by Representative Bingham of Ohio). Agreement existed, however, as to a core of protected rights including the right to own property, the right tocontract and the right to effective redress in the courts, with the ability to testify and call witnesses. Cong. Globe, 39th Congress, Ist Sess. 133- 134 (1866). These three protected rights were fundamental to 9 life, liberty and happiness. The State of New Jersey, in two separate but related proceedings, was attempting to deprive Petitioners of fundamental rights when Petitioners sought relief by issuance of a stay. The State denied Petitioners these fundamental rights when the stay was objected to and denied. The right of access to the courts is well established and clearly is “one of the fundamental rights protected by the Constitution.” Ryland v. Shapiro, 708 F.2d 967, 971 (Sth Cir. 1983). This court recognized the significance of this right to access in Chambers v. Baltimore & Ohio Railroad, 207 U.S. 142 (1907) when it declared: The right to sue and defend in the courts is the alternative of force. In an organized society if is the right conservative of all other rights, and lies at the foundation of orderly government. Itis one of the hi ghest and most essential privileges of citizenship . . . Chambers, 207 U.S. at 148 (citations omitted) (emphasis added). The right to effective redress in the courts is grounded in several Constitutional sources, including the right to petition the government for redress pursuant to the First Amendment, the privileges and immunities provided by Article Four, and the due process clause of the Fourteenth Amendment. Am. Civil Liberties Union v. Mabus, 719 F. Supp. 1345, 1358 (S.D. Miss. 1989) (quoting Ryland, 708 F.2d at 967)). What does effective redress in the Courts mean? Petitioners contend that it means more than the right to be a named party to an action. Rather, the right to access to the courts “mandates that a judicial proceeding give all parties an opportunity to be heard on the critical and decisive allegations which go to the core of the parties’ claims or defense and to present evidence on the 10 contested facts.” Complaint of Bankers Trust Co., 752 F.2d 874 (3rd Cir. 1984) (emphasis added). See also, Wolff v. McDonnell, 418 U.S. 539 (1974). Moreover, such access to the courts must be “adequate, effective and meaningful.” Ryland, 708 F.2d at 972 (quoting Bounds v. Smith, 430 U.S. 817 (1977)). It is a guaranteed fundamental Constitutional right which is protected from state interference, absent a showing of acompelling state interest. Ryland, 708 F.2d at 972. Itis also aright which ought not be denied by reason of the exercise of other fundamental rights. An equally meaningful Constitutional right is provided by the Fifth Amendment to the Constitution which guarantees: No person shall ... be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law... For ‘adividuals seeking redress in the courts regarding protection of a property interest, this amendment provides critical protections against both self incrimination and unlawful State interference of one’s due process rights. The State of New Jersey, in two separate actions, compelled Petitioners to elect between these two fundamental protections. Undoubtedly, given the significance of the interests protected by these Constitutional provisions, each must be regarded as being of equal importance. Petitioners contend that in light of the interrelated civil and criminal matters brought against them by the State, it was fundamentally unfair to require them to participate in the administrative hearing until resolution of the criminal action. Moreover, Petitioners argue that the denial of the stay pending the resolution of the related criminal proceeding constitutes State action which denied Petitioners’ substantive and procedural due process by forcing them to elect between two fundamental, yet equally important, Constitutional rights. 1] Although Petitioners recognize that the Constitution does not require a stay of all civil proceedings pending the outcome of criminal proceedings, a court may nevertheless within i's discretion grant a stay in the interest of justice. Sec. and Exch, Comm'n v. Dresser Indus., 628 F.2d | 368, 1375 (D.C. Cir. 1980) (en banc), cert. denied, 101S.Ct.529 (1980). Failure properly to exercise this discretion is at the core of Petitioners’ claim. Petitioners claim that when both a civil action and criminal action is brought by the State, special consideration should be exercised. Thus, it is recognized that: [o)ther than where there is specific evidence of agency bad faith or malicious governmental tactics, the strongest case for deferring civil proceedings until after completion of criminal proceedings is where @ party under indictment fora serious offense is required to defend acivil or administrati ve action involving the same matter. The noncriminal proceeding, if not deferred, might undermine the party’s Fifth Amendment privilege against self incrimination, expand right of criminal discovery beyond the limits of Federal Rule of Criminal Procedure 16(b), expose the basis of the defense to the prosection in advance of criminal trial, or otherwise prejudice the case. Dresser, 628 F.2d at 1376 (emphasis added). In State v. Korbin Sec., Inc., 111 NJ. 307 (1988), the Supreme Court of New Jersey recognized that “[t}here may be cases where the requirement that a criminal defendant Participate in acivil action, at peril of being denied some portion ili aaah A RF Nh Oe - 12 of his worldly goods, violate[s] concepts of elementary fairness in view of the defendant’s position in an inter-related criminal prosection.” Korbin, 111 N.J. at 314 (citations omitted). In deciding Petitioners’ claims, the Superior Court of New Jersey, Appellate Division, analyzed the following Korbin factors which it determined to be sufficient to consider when determining whether to grant a stay pending the resolution of concurrent civil and criminal proceedings: (1) whether in the civil proceeding the government seeks only monetary penalty against the defendant; (2) whether the two actions are nearly identical in scope; (3) whether relief sought in the civil proceeding is intended to prevent continued injury to the public. Korbin, 111 N.J. at 313-315. Although the Superior Court of New Jersey, Appellate Division, examined the Korbin factors set forth above, its analysis was incorrect and a stay of the civil proceeding should have been granted pending the resolution of the criminal matter. In addition, the Korbin analysis does not adequately safeguard Petitioners’ federally protected rights and is contrary to a broader, more judicious approach announced by the Second Circuit in Dresser. Korbin simply does not promote the protections guaranteed by the United States Constitution. Petitioners contended throughout this litigation that their rights to protect and defend their property interests outweighed the public interest. Conversely, the State argued that a greater public 13 interest required denial of the stay. The Superior Court of New Jersey, Appellate Division, held that the public interest in the proper disposal of solid waste was more substantial than Petitioners’ liberty and property. (App. 75a). However, despite the State’s assertion of the existence of a greater public interest, itis apparent that such an interest did not exist. Following Petitioners’ loss of their property interests through the debarment and revocation of their licenses, the State then voluntarily agreed to a stay of execution of the judgment against Petitioners until the completion of the appellate process. Thus, although the State previously argued that the greater public interest required that Petitioners no longer participate in the solid waste industry, it is apparent that once Petitioners’ flawed and constitutionally defective hearing process that resulted in the elimination of Petitioners’ property interests came to its predictable conclusion, this alleged crucial State interest dissipated, and Petitioners were allowed to continue to participate in the industry. Under any standard, this is State action which is disingenuous, wrong and the procedure deprived Petitioners of their most fundamental of rights. A simple action by the State, that is, the issuance of the stay, would have provided Petitioners the constitutional protections to which they were entitled. Failure by the State to do so deprived them of property without due process. The Superior Court of New Jersey, Appellate Division, also failed properly to consider Petitioners’ claims that in light of this Court’s decision in Carbone, 114 S. Ct. 1677, the New Jersey waste flow control scheme is per se invalid under the Commerce Clause of the Constitution of the United States of America. Following Carbone, the United States District Court for the District of New Jersey in Atlantic Coast Demolition & Recycling, Inc., etal. vs. Bd. of Chosen Freeholders of Atlantic 14 County, et al., 48 F.3d 701 (3rd Cir. 1995), remanded, 893 F. Supp. 301 (D.C. N.J. 1995) (additional injunction granted, CIV. A. 93-2669, 1995 WL 739072 (D.C. N.J. November 28, 1995)), issued injunctive relief against enforcement of elements of New Jersey’s waste flow control regulations upon a determination of the likelihood of success on the merits by the plaintiffs in that case which challenged the regulations as being violative of the Commerce Clause of the Constitution of the United States. Issuance of this injunction in the presently ongoing proceeding on remand followed the determination of the United States Court of Appeals for the Third Circuit that the New Jersey waste flow control scheme, in effect and design, discriminated against interstate commerce. Based on the foregoing, and in light of the severe penalties imposed upon Petitioners, (including, most significantly, deprivation of their right to pursue their livelihood) due to their alleged violations of these constitutionally infirm regulations, the Appellate Division erred in failing to consider Petitioners’ claims in a post-Carbone environment. In Carbone, this Court held that a similar waste flow control ordinance was discriminatory against interstate commerce, as it excluded both out-of-state and in-state competitors from local markets, and “hoard[ed] solid waste, and the demand to get rid of it, for the benefit of the preferred processing facility.” Carbone, 114S.Ct. at 1683. Due to this discrimination against interstate commerce, this Court determined the flow control measure in Carbone to be per se invalid unless it is established by “the clearest showing” that there were “no other means to advance a legitimate local interest.” Jd. Under this strict level of scrutiny, the Carbone waste flow control ordinance could not stand. Furthermore, this Court declared that environmental and public health interests regarding the proper handling of solid waste were inadequate to sustain the regulations, as there were clearly 15 “any number of nondiscriminatory alternatives for addressin g [such] health and environmental problems [,]. . . .” The use of the restriction of solid waste flow as a “finance measure” was also rejected as a constitutionally permissible justification to maintain a solid waste facility. In light of Carbone, the Appellate Division erred in failing to consider Petitioners challenges to the New Jersey waste flow control scheme as being violative of the Commerce Clause. As the New Jersey waste flow control scheme requires that all waste originating within the State be processed at in-state designated facilities prior to leaving the State, it is clear such regulations “deprives out-of-state businesses of access to a local market.” Carbone, 114S.Ct. at 1681. Moreover, as the violation of these waste flow control regulations are the primary basis for the penalties assessed against Petitioners, including the loss of their livelihood, it was fundamentally unfair for the Appellate Division not to consider Petitioners claims. The Appellate Division also erred in declaring that even if the New Jersey waste flow scheme is found to be per se invalid, the penalties imposed on Petitioners, including their loss of livelihood, remain enforceable despite the fact these harsh and extreme sanctions emanate from these unconstitutional regulations. It is clear that should the New Jersey waste flow control regulations be held unconstitutional, the penalties imposed upon Petitioners should not be enforced. At the very least the Court should have recognized that any remaining violations would incur less severe penalties, if any. Thus, the Superior Court of New Jersey, Appellate Division, erred by failing to consider Petitioners constitutional challenges to the New Jersey waste flow control scheme, and thus deprived Petitioners of their property and livelihood through the enforcement of statutes and regulations which per se violate the dormant Commerce Clause of the Constitution of the United States. 16 The Petition for the Writ of Certiorari should be granted for the following reasons: 1. The denial of the stay of a civil action by the Administrative Law Judge pending the completion of related criminal proceedings and the affirmation of the decision by the Superior Court of New Jersey, Appellate Division, violated Petitioners’ substantive and procedural rights of due process, as prohibited by the Fourteenth Amendment to the Constitution of the United States, by forcing Petitioners to elect between their Fifth Amendment privileges and their right to effective redress in the Courts. 2. The Superior Court of New Jersey, Appellate Division, erred by failing to consider Petitioners’ constitutional challenges to the New Jersey waste flow control scheme, and thus deprived Petitioners of their property and livelihood through the enforcement of statutes and regulations which per se violate the dormant Commerce Clause of the Constitution of the United States. 17 CONCLUSION This case squarely presents the question of whether State action in denying the stay of the civil action pending the resolution of an interrelated criminal matter, was a denial of Petitioners’ substantive and procedural due process by forcing Petitioners to elect between two equally important constitutional rights: their Fifth Amendment privileges and their right to effective redress in the Courts, as protected by the Fourteenth Amendment to the Constitution of the United States. Furthermore, this case clearly presents the question of whether the State of New Jersey deprived Petitioners of their property and livelihood by enforcing statutes and regulations which per se violate the dormant Commerce Clause of the Constitution of the United States. Accordingly, this petition for a writ of certiorari should be granted. Respectfully submitted, ROBERTE. LEVY Counsel of Record MAURAB. JOHNSON SCARINCI & HOLLENBECK Attorneys for Petitioners 500 Plaza Drive P.O. Box 3189 Secaucus, New Jersey 07096-3189 (201) 392-8900 la APPENDIX A — ORDER OF THE SUPREME COURT OF NEW JERSEY FILED NOVEMBER 15, 1995 SUPREME COURT OF NEW JERSEY C-357 September Term 1995 39,251 BOARD OF REGULATORY COMM.., Petitioner-Respondent, v. JERSEY CARTING, INC., etal., Respondents-Petitioners. ON PETITION FOR CERTIFICATION To the Appellate Division, Superior Court: A petition for certification of the judgment in A-1803-92 having been submitted to this Court, and the Court having considered the same; Itis ORDERED that the petition for certification is denied, with costs and it is further ORDERED that the appeal filed in the within matter is dismissed pursuant to Rule 2:12-9. WITNESS, the Honorable Alan B. Handler, Presiding Justice, at Trenton, this 14th day of November, 1995. s/ Stephen W. Townsend CLERK OF THE SUPREME COURT 2a APPENDIX B — INITIAL DECISION OF THE STATE OF NEW JERSEY, OFFICE OF ADMINISTRATIVE LAW DATED JANUARY 7, 1992 STATE OF NEW JERSEY OFFICE OF ADMINISTRATIVE LAW INITIAL DECISION OAL DKT. NOS. ESW 4898-88 and ESW 3363-88 (CONSOLIDATED) AGENCY DKT. NOS. SS88030449 and SS88050695 BOARD OF REGULATORY COMMISSIONERS, Petitioner, Vv. JERSEY CARTING, INC., ANGELA MORIANO, AND MARIO MORIANO, Respondents. Kevin Auerbacher, Deputy Attorney General, and D’ Andre Workman, Deputy Attorney General, for the Staff of the Board of Regulatory Commissioners (Robert J. Del Tufo, Attorney General of New Jersey, attorney) Eric A. Somerville, Esq., for respondent (Somerville, Radding & Campbell, attorneys) Record Closed: June 27, 1991 Decided: January 7, 1992 3a Appendix B BEFORE DIANA C. SUKOVICH, ALJ: PROCEDURAL HISTORY On March 24, 1988, the Board of Public Utilities! issued an Order to Show Cause directed to Jersey Carting, Inc. (Jersey Carting or respondent), Angela Moriano (A. Moriano or respondent), and Mario Moriano (M. Moriano or respondent). Petitioner transmitted the matter to the Office of Administrative Law (OAL) on June 29, 1988 for determination as a contested case pursuant to N.J.S.A. 52:14F-1 et seg. The Board subsequently issued an Order of Investigation and Order to Show Cause directed to respondents on June 15, 1988. Petitioner transmitted the latter order to the OAL on May 6, 1988, with a request that the two cases be consolidated. This request was granted. 2 Numerous conferences were held throughout the proceedings. A prehearing conference was held on July 13, 1988, and a prehearing order issued on July 28, 1988. Hearings were not scheduled at that time because a substantial amount of discovery remained uncompleted. Hearings were subsequently scheduled to commence on December 13, 1988. Motions to compel discovery were filed by respondent and 1. By Executive Order No. 38 dated August 14, 1981, the Board of Public Utilities, redesignated as the Board of Regulatory Commissioners, and the Department of Environmental Protection were, in effect, transferred to the newly created Department of Environmental Protection and Energy (DEPE). All references to the “Board” hereinafter are made, without distinction, to the Board of Public Utilities or the Board of Regulatory Commissioners as appropriate. Similarly, no distinctions are made hereinafter between the DEP and the DEPE. 4a Appendix B the Board’s Staff (Staff) on October 1, 1988 and October 31, 1988, respectively. Orders Denying and Granting the Motions in Part were issued on December 5, 1988. The hearings previously scheduled for December 1988 were adjourned because discovery had not been completed. Aconference was conducted on December 13, 1988, on which date additional discovery deadlines were established. A conference was subsequently conducted on January 20, 1989, at which time hearings were scheduled for March 1989. These hearing dates were adjourned because of illness of respondents’ counsel. Hearings were rescheduled for July 1989, which hearings were adjourned on the basis of representations by the parties that a settlement had been reached. Communications were conducted among the parties and the judge, but an executed stipulation was not filed. Counsel for respondents was substituted in October 1989. Communications between counsel for the Staff and new counsel for respondents were conducted, and respondents determined not to execute a stipulation ostensibly reflecting the previously agreed upon settlement. Ultimately, in March 1990, the Staff advised counsel for respondents that it was revoking its consent to a stipulation which had been forwarded to prior counsel for respondents on July 24,1989. Hearings were thereafter scheduled to commence on September 24, 1990. On September 18, 1990, respondents filed a motion to dismiss the current matter or, alternatively, to stay it until pending criminal charges were resolved. ! denied this motion in its entirety on September 24, 1990. Hearings were held on September 24, 25, 26 and 27 and October 1, 2 and 4,1990. At the close of hearings, a schedule for the filing of initial Sa Appendix B and reply briefs was established, incorporating requirements for the filing of detailed proposed findings of fact. Counsel for respondents was substituted a second time on November 16, 1990. The briefing schedule was extended because of the substitution of counsel, a delay in receipt of hearing transcripts, and a delay in service of respondents’ initial brief on counsel for the Staff. Both the Staff and respondents filed initial briefs. In areply brief, the Staff moved to strike certain portions of respondents’ initial brief. Respondents subsequently filed a reply brief incorporating a response to this motion. An order granting the Staff’s motion was issued on April 10,1991. This judge subsequently requested that the Staff clarify and amplify certain areas addressed in its briefs. The Staff did so by a supplemental brief filed on June 24,1991. One area addressed an initial Staff position that recommended monetary penalties be stayed pending the disposition of State of New Jersey v. Jersey Carting, Inc. (Law Div., Bergen County, Docket No. 40-05- 00089-S). In this respect, it is noted that the referenced criminal proceeding involved an indictment, charging Jersey Carting of theft by deception and, more specifically, alleging that Jersey Carting obtained monies exceeding $500 from United Parcel Services (UPS) and Haywood Pools Company (Haywood Pools), creating and reinforcing the false impression that, solid waste removed from premises operated by those entities by Jersey Carting was transported to and dumped at county transfer stations authorized by the Department of Environmental Protection (DEP) to accept such waste when Jersey Carting knew that such waste was transported to and dumped at HUB Recycling, Inc. (HUB) in the City of Newark. The Staff filed a letter on June 27, 1991 advising that the Superior Court action 6a Appendix B resulted in a finding of guilt of the offense of theft by deception as charged and forwarding a copy of the opinion of the presiding judge. On October 31, 1991, the Staff filed a motion to reopen the record to take judicial notice of the judgment of conviction for theft by deception against Jersey Carting. This motion was denied. The deadline for the issuance of an initial decision was ultimately extended until January 10, 1992. NATURE OF THE CASE As noted hereinabove, this matter concerns two orders issued by the Board. These Orders are directed to Jersey Carting in its status as a solid waste collector holding a Certificate of Public Convenience and Necessity (Certificate) and to A. Moriano and M. Moriano, individually and as officers, directors, and shareholders of Jersey Carting. The March 24, 1988 Order to Show Cause alleges generally that on certain specified dates, Jersey Carting violated waste- flow orders issued jointly by the DEP and the Board and that Jersey Carting was not using the Morris County Transfer Station (MCTS) to which it had been directed. Specifically, petitioner alleges that: 1. OnDecember30, 1987, Jersey Carting picked up a 40-yard container of solid waste at Haywood Pools in Elizabeth, New Jersey (Union County) and disposed of such waste at the Solid Waste Transfer and Recycling Company (SWTR) facility in Newark, New Jersey (Essex County), not the Edgeboro Landfill (Edgeboro), to which the waste was directed. 7a Appendix B 2. OnFebruary 24, 1988, Jersey Carting picked upa roll-off container of solid waste at Haywood Pools and disposed of such waste at Hub in Newark, not at the Automated Modular Systems, Inc. (AMS) Transfer Station in Linden, New Jersey (Union County). 3. InJanuary 1988, Jersey Carting picked up a total of 28 containers of solid waste from Haywood Pools and did not dispose of such waste at the AMS Transfer Station, to which it was directed. 4. Jersey Carting was not utilizing the MCTS facilities, to which Morris County-generated waste was directed, and was instead mixing Morris County waste collected by Jersey Carting with solid waste collected by it in Essex County and disposing of such waste at the “Site F” Transfer Station? and/or HUB, both located in Newark In the Matter of Allegations of Law and Administrative Code by Jersey Carting, Inc. and Angela Moriano and Mario Moriano, individually and as officers, directors and shareholder of Jersey Carting, Inc. respondent (Docket No. $S88030449), Order to Show Cause, dated March 24, 1988, p. 2. In the June 15, 1988 Order of Investigation and Order to Show Cause, the Board alleges that Jersey Carting violated joint DEP/Board waste-flow orders on certain dates, that Jersey 2. As the parties recognize, the SWTR facility is also referred to as the Avenue F Transfer Station. Appendix B Carting was granted various rate relief based upon inaccurate data as a consequence of such violations, and that Jersey Carting had not submitted bills to certain customers in the required format. More specifically, the Board alleges that: 1. OnDecember 23, 1987, Jersey Carting disposed of waste originating in Springfield, New Jersey (Union County), at the Bergen County Utilities Authority (BCUA) Kingsland Landfill (Kingsland). 2. OnMarch 2, 1988, Jersey Carting collected waste at Steak & Ale, located in Clark, New Jersey, the Holiday Inn, located in Springfield, New Jersey, Federal Pacific Electric Company (Federal Pacific), located in Hillside, New Jersey, and Testrite Opticians (Testrite) and Palmer Video (Palmer), located in Hillside, all in Union County, and disposed of such waste at the SWTR facility and that the DEP waste origin/waste disposal (O&D) forms submitted to SWTR regarding such waste stated that 100 percent of it originated in Fairfield, New Jersey (Essex County).° 3. Jersey Carting did not dispose of any waste at the Union County Transfer Stations prior to March 24, 1988. 4. OnJanuary 19, 1988, the Board issued an Order 3. Solid waste permittees are required to maintain a daily record of waste received, including waste type and place of origin. N.J.A.C. 7:26-2.1(a). The specified information is required to be maintained and recorded by the facility operator and is supplied by the transporter to the facility on an O&D form, Id $(c). 9a Appendix B Approving Interim Rates reflecting a solid waste collection rate increase for Jersey Carting to recover increased disposal costs because of the redirection of Morris and Union County waste from Edgeboro to the MCTSs and the Union County Transfer Stations, respectively, and that the underlying petition incorporated false and misleading data because Jersey Carting failed to utilize the disposal sites upon which the requested rate adjustment was based. The Order to Show Cause and Order of Investigation also alleges in this respect that Jersey Carting’s failure to utilize the disposal sites upon which its rate adjustments were based represent noncompliance with, and disregard of, Board orders in the following proceedings: a. Inre Labor Contract Increases (Docket No. SR87070550), Interim Order dated July 14, 1987; b. In re Union County Transfer Stations (Docket Nos. SE87070709 and SE87070588), Order dated Aug. 6,1987; c. In re Union County Utilities Authority (Docket Nos. SE87111308, et al), Preliminary Order dated December 31, 1987; d. In re Morris County Transfer Stations (Docket Nos SE8711170 and SE87121391), Preliminary Order dated December 31, 1987; and 10a Appendix B e. In re Expedited Petitions (Docket No. $R87121430 etal), Order Adopting Interim Rates dated January 19, 1988. 5. Jersey Carting failed to include on customer billings to UPS, Haywood Industrial Products (Haywood Industrial) and Haywood Pools the type and frequency of service, tariff rate applied, and number and size of containers, where applicable, in violation of N.J.A.C. 14:3-7 et seq. and certain specified Board orders. Both orders directed respondents to show cause why certain penalties should not be imposed, including revocation of Jersey Carting’s Certificate and prohibition of A. Moriano and M. Moriano from owning, operating, managing or controlling or having any interest in any solid waste business or organization within the State and from serving in certain capacities with such entities and owning any outstanding capital stock of, or maintaining, directly or indirectly, any financial interest of any nature in any solid waste business, corporation or association doing business in the State. In addition, the Orders directed respondents to show cause why the Board should not dismiss then pending petitions for expedited rate relief for Jersey Carting and why Jersey Carting’s referenced authorized interim rate relief should not be declared null and void and refunded with interest. The Staff argues that A. Moriano and M. Moriano should be barred from managing or owning any solid waste business organization within the State and from serving in certain positions and capacities regarding any solid waste business, lla Appendix B including, but not limited to, businesses engaged in the collection and disposal of solid waste. The Staff also argues that Jersey Carting’s Certificate should be revoked and that monetary penalties should be imposed upon respondents. Respondents do not really dispute that violations occurred, but argue that there are extenuating and mitigating circumstances regarding each violation. Respondents do not respond to the Staff’s argued position on penalties, including calculation of specific monetary penalties. Respondents’ argument on the imposition of penalties can be summarized as follows: “In view of the fact that the Boards (sic) Staff has requested a death sentence, i.c., license revocation, it would seem that you should be able to consider any matter tending to argue for a lesser penalty.” (Respondents’ reply letter brief, p. 2). FINDINGS OF FACT Eight witnesses testified on behalf of the Staff. Board investigators Edward Kozak (Kozak), Scott Shrader (Shrader), and Edward Castellano (Castellano) testified regarding their investigations pertaining to Jersey Carting. In support of the allegations contained in the Board’s orders, the Staff also presented the testimony of Frank Capone, a principal of AMS, Tina McCabe, Staff Accountant at the MCTSs, Jeffrey Callahan, Deputy Director of the Union County Utilities Authority (UCUA), and, by subpoena, A. Moriano and M. Moriano. A. Moriano and M. Moriano, exercising their Fifth Amendment rights, essentially did not testify. The Staff also moved into evidence numerous documents. Respondents did not present any witnesses, but did proffer some documentary evidence. 12a Appendix B In general, I am persuaded by the evidence proffered on behalf of the Staff in all respects except regarding specific tariff violations. The Staff’s evidence in this respect focussed upon alleged tariff violations concerning specific billings to Haywood Pools and UPS, as well as several quarterly billings to Morris and Union County customers generally. The evidence in this respect was ambiguous and did not meet, in my judgment, the burden of proof placed upon petitioner. I am persuaded, based on a review of the entire record, that the material facts are not in dispute. In addition, as requested by the Staff, I have made negative inferences against respondents based on the Morianos’ failures to testify. Based upon a review of the record, including the briefs and proposed findings of fact filed by the parties, I FIND the following to be FACTS: 1. A Certificate, Certificate SW330, was issued to Jersey Carting in 1986, granting Jersey Carting the authority to engage in the solid waste collection business. More specifically, by Order dated August 12, 1986, the Board approved the merger of Mario’s Portable Service, Inc. (Mario’s) into Jersey Carting and the transfer of Mario’s Certificate to Jersey Carting. During the period 1987 through at least March 1988, Jersey Carting did not have authority from the Board or the DEP to operate a solid waste transfer or materials recovery facility.‘ 4. A “Materials recovery facility” is “. . . solid waste facility such as a transfer station which is designed, operated and permitted to process a non- hazardous, solid waste stream by utilizing manual and/or mechanical methods to separate from the incoming waste stream, categories of useful materials which are then returned to the economic main stream in the form of raw (Cont'd) 13a Appendix B 2. From 1987 until at least November 29, 1988, A. Moriano and M. Moriano were the President and Vice-President, respectively, of Jersey Carting, and A. Moriano was Jersey Carting’s sole director. The outstanding stock of Jersey Carting was owned in equal shares by A. Moriano and M. Moriano. The Morianos were both actively involved in Jersey Carting’s operations during the relevant periods of the Orders to Show Cause in question in this proceeding. A. Moriano’s responsibilities included dictation of all correspondence for all corporate officers, checking of all invoices to insure correctness, efforts expended to establish new business, and involvement in negotiations with new customers and settling problems with old ones. M. Moriano became involved in all customer complaints not satisfactorily addressed by the managers of Jersey Carting, reviewed all bills with corporate personnel, and reviewed all monthly dump bills. A. Moriano and M. Moriano also met, together with the accounting staff of Jersey Carting, to review Jersey Carting’s books and had daily meetings with dispatchers. 3. Pursuant to waste identification categories adopted by the DEP, solid waste Type 10 is (Cont'd) materials or products for reuse.” N.J.A.C. 7:26-1.4. A “Transfer Station” is defined in applicable regulations as “... a facility at which solid waste is transferred from one solid waste vehicle to another solid waste vehicle for transportation to a solid waste facility.” [bid. l4a Appendix B deemed to be municipal waste consisting of household waste from private residences, commercial waste originating in wholesale, retail or service establishments, and institutional waste material originating in schools, hospitals, research institutions and public buildings. Solid waste Type 13 is bulky waste, which is defined as large items of waste material, for example, appliances, furniture, trees, branches, and tree trunks and stumps. Included in Type 13 waste are waste building materials and discarded automobiles, trucks and trailer and large vehicle parts and tires. Type 25 solid waste is animal and food processing wastes, which is processing waste materials generated in canneries, slaughterhouses, packing plants or similar industries, as well as dead animals. Type 27 waste is dry industrial waste, which is defined as waste materials resulting from manufacturing, industrial research, development processes, operations which are not hazardous, as well as non-hazardous oil spill clean-up waste, dry non- hazardous pesticides, dry non-hazardous chemical waste, and asbestos and asbestos- containing waste managed in accordance with federal regulations. N.J.A.C. 7:26-2.13(g). On June 12, 1987, the Board and the DEP issued an order, effective immediately, which directed waste generated in Union County to Edgeboro. The order stated in pertinent part: 15a Appendix B Edgeboro shall accept Waste Types 10 (except newspapers, aluminum cans, cardboard, corrugated, high-grade office paper and glass), 13, 25 and 27 generated in the affected municipalities in Middlesex, Morris, Somerset and Union Counties, and further detailed in Exhibit A, until transfer stations become available to those counties, or until DEP identifies other alternative waste disposal arrangements or until January 1, 1988, whichever first occurs. ((Ex. P-12(i), p. 2)). The affected Union County municipalities included Elizabeth. Jd. Ex.A, p. 1. The content of this order is as stated in Exhibit P-12(i). A “pull ticket” is a term commonly used in the solid waste industry as referencing a document or receipt that the driver of a collection vehicle leaves with a customer after picking up a container. (Tr. 9/24/90, p. 56). A pull ticket dated December 30, 1987 states that a Jersey Carting collection driver picked up a 40- yard closed roll-off container containing commercial refuse at the premises of Haywood Pools on that date. The identification number stated on the applicable pull ticket is 83561. An SWTR dump receipt dated December 30, 1987 states that at 9:30 a.m. on that date, Jersey Carting deposited a 40-cubic yard container of Type 13 10. 11. 16a Appendix B waste at SWTR’s transfer station in Newark, New Jersey (Essex County). Jersey Carting billed Haywood Pools a total of $1,705.05 for waste removal services on December 30, 1987 pertaining to pull number ticket No. 83561. Haywood Pools is located in Elizabeth, New Jersey, in Union County. On December 30, 1987, a Jersey Carting collection vehicle picked up a 40-yard closed roll- off container containing Type 13 waste at the premises of Haywood Pools in Elizabeth, New Jersey, and disposed of such waste at approximately 9:30 a.m. on December 30, 1987 at the SWTR Transfer Station in Newark, New Jersey. By order dated December 27, 1987, the Board granted an exclusive solid waste franchise to the UCUA, the implementing agency for the Union County Solid Waste Management Plan. The DEP and the Board issued a joint Emergency Redirection of Solid Waste Flow Order on December 29, 1987. The content of this order is as stated in Exhibit P-12(iv). Pursuant to this order, all solid waste Type 10 generated within Hillside was directed to the 17a Appendix B Ellesor Transfer Station in Elizabeth (Union County). All solid waste Types 10, 13, 23,25 and 27 generated within Clark and Springfield in Union County was directed to the AMS Transfer Station, DEP Facility No. 20091, in Linden, Union County, for final disposal at a permitted, out-of-State solid waste disposal facility. All solid waste Types 13 and 23 generated within Hillside, not directed to the Ellesor Transfer Station, as also directed to the AMS facility in Linden. All solid waste Types 25 and 27 generated within Hillside was so directed. Finally, the Order provided that all solid waste Types 10, 13, 23, 25 and 27 generated in every municipality in Union County was directed as detailed in the Order until the proposed Union County resource recovery facility became operational, at which time all such solid waste would be directed to that facility. The emergency waste-flow order was effective January 2, 1988 and was to remain in effect until approval by the Commissioner of the DEP of amendments to the Union County District Solid Waste Management Plan, which would adopt those or other waste-flows, and subsequent amendment of relative portions of the New Jersey Administrative Code. This Order contained the notice to solid waste collectors/haulers and facility operators detailed hereinafter as contained in other waste-flow directives. (See Findings of Fact No 15 hereinafter.) 12. During the morning of February 24, 1988, a 18a Appendix B Jersey Carting roll-off vehicle driven by Robert J. Pasquali (Pasquali) picked up a roll-off container containing non-source separated solid waste and/ or Type 13 solid waste from Haywood Pools’ premises in Elizabeth and deposited such waste in the afternoon on February 24, 1988 at HUB in Newark. When Pasquali was exiting HUB, he was informed by Kozak that he (Pasquali) was violating waste-flow directives and that the load should have gone to AMS. Pasquali generally responded that “... we are bringing our stuff here.” (Tr. 9/24/90, p. 101). 13. The AMS Transfer Station became operational January 2, 1988. Jersey Carting did not open an account with the AMS Transfer Station until February 22, 1988 and did not tip any solid waste at the facility between January 2,1988 and March 25,1988. 14. During January 1988, Jersey Carting picked up 28 loads (containers of commercial solid waste) which was not source separated from Haywood Pools in Elizabeth. These 28 loads were not taken by Jersey Carting to the AMS Transfer Station. 15. The Board and the DEP issued an Emergency Redirection of Solid Waste Flow Order on December 29, 1987, redirecting solid waste Types 10, 13,23, 25 and 27 generated in Morris County, with the exception of Mt. Arlington Borough, from Edgeboro to one of two transfer stations located in the Township of Mt. Olive and the —_ ——_ — ——_ eee 16. 17. 19a Appendix B Township of Parsippany-Troy Hills, effective January 2, 1988. Waste Types 10, 13 and 23 generated within Mt. Arlington Borough were continued to be directed to the Mt. Arlington Landfill. The content of this Order is as stated in Exhibit P-12(ii). The Order noticed all solid waste collectors/ haulers and facility operators licensed by the Board and/or registered by the DEP and operating within Morris County of required operations and compliance with the Order and all other approved provisions of the Statewide and District Management Plan. The Order also stated that any collector/hauler failing to comply with the provisions of the Order would be deemed in violation of N.J.S.A. 13:1E-1 et seg. and N.J.A.C. 7:26-1 et seq. and subject to the provisions and penalties of all applicable laws and regulations. By Order dated December 31, 1987, the Board approved an exclusive solid waste franchise, as well as a Certificate, for the Morris County Transfer Station, Inc. for the transfer stations located in Mt. Olive and Parsippany-Troy Hills for Morris County-generated solid waste. The content of this order is as stated in Exhibit P- 10(iv). The MCTSs, located in Parsippany-Troy Hills and Mount Olive, commenced operations on January 2,1988. 18. 19. 20. 21. 22. 20a Appendix B Jersey Carting billed 57 customers with service locations in Morris County for collection services provided between January and March 1988. Thirty-five of the pertinent invoices issued by Jersey Carting for solid waste collection services provided to customers located in Morris County for the period January through March 1988 contain notations indicating billing for service, closure, recovery, host community, and importation taxes. The content of these bills is as stated in Exhibit P-14(b). Itis reasonable to infer that the billings reflected in Exhibit P-14(b) were for solid waste collection services. Jersey Carting opened an account with the MCTSs on March 18, 1988 and dumped its first load of solid waste at the facilities on March 22, 1988. Jersey Carting provided solid waste collection services to the customers reflected on the bills in Exhibit P-14(b) for services rendered from January through March 1988 and did not deposit the waste collected at the MCTSs. A rear-loading solid waste container is one that is picked up by a “leech type garbage truck” and dumped in the packer or back of the truck. (Tr. 9/26/90, p. 17). As of January 19, 1988, Jersey Carting was providing solid waste collection service to two rear-loading containers located at the premises of 21a Appendix B Paramedical Supply Company (Paramedical) in Pinebrook, a part of Montville, New Jersey, in Morris County. Service was provided in January 1988 and continued as of February 8, 1988. The waste contained in the rear-end containers on February 8, 1988 was a mixture of different waste types, including styrofoam, plastic tubing, glass and plastic bottles, pharmaceutical bottles, wood waste and scraps, and plastic bags containing lunch and food scraps. The lunch and food scraps constituted what is referred to as “putrescible waste.” Id. p. 18.5 They were not “source separated.” Jd. p. 19. The containers located at Paramedical’s premises on February 8, 1990 were not taken to the MCTSs. 23. From January 1988 until at least February 9,1988, Jersey Carting serviced a 30-yard roll-off container for “garbage only” at UPS’ site in Parsippany, New Jersey. Id. p.47 & Ex. P-2(a), p. 5. UPS separated all recyclables and s old them to recyclers without Jersey Carting’s assistance. UPS had its own cardboard bailer, gave away used pallets, and sold scrap metals. In effect, UPS separated their own recyclables, bailed their 5. “Putrescible waste” is defined in the applicable regulations as“. . . any | waste liable to enter into a state of putrefaction, the typically anaerobic splitting | of proteins by bacteria and fungi with the formation of foul-smelling and , completely oxidized products.” 6. Source separation is“. . . the process of separating recyclable materials from the solid waste stream at the point of waste generation.” /bid. 22a Appendix B cardboard, and separated their own metals and some glasses. The waste collected by Jersey Carting generally consisted of mixed, office-type and lunch-type waste, the latter consisting of food scraps, food bags, paper cups, etc, some of which would be putrescible waste. The waste collected by Jersey Carting was not source separated and was not taken to the MCTSs. 24. On January 19, 1988, Shrader visited Jersey Carting’s offices in East Rutherford, New Jersey, and spoke with an individual who identified himself as “Bill.” Bill indicated that he was a dispatcher and informed Shrader that Jersey Carting was dumping Morris County waste at HUB. ((Ex. P-2(a), p. 1, & Tr., 9/26/90, p. 25)). Later that day, Shrader spoke by telephone with M. h.oriano, who informed Shrader that Jersey Carting had not dumped at the MCTSs as of that date because it did not pick up enough waste fora full truckload in Morris County and it would be too costly to send a man out with a truck for only those stops. M. Moriano aiso indicated that rear- loading containers of customers in Morris, approximately 20, were being mixed with Essex waste and dumped at the SWTR facility. He further informed Shrader that Jersey Carting had only two roll-off customers in Morris County, UPS and AT&T in Parsippany, that those loads were being dumped at HUB, and that they contained no ‘wet’ garbage. Shraderinformed M. Moriano that Morris County waste had to goto the MCTSs because they had a franchise for all Morris County garbage, and Moriano indicated 25. 23a Appendix B that he was aware of the franchise. M. Moriano also indicated that he would begin taking some of the Morris County waste to the transfer station. ((Ex. P-2(a), p. 3, & Tr. 9/26/90, pp. 26-28)). On or about July 24, 1987, the Board and the DEP issued an Emergency Redirection of Solid Waste Flow Order pertaining to Union County — generated solid waste. The content of this order is as stated in Exhibit P-12(iii). Pursuant to this redirection order, solid waste Types 10, 13,23 and 27 generated in Springfield, Union County, were redirected from HMDC landfills to an AMS transfer station, which facility is also known as the Madaluna Disposal Transfer Station (Madaluna), in Linden, New Jersey, (Union County), reflecting the fact that a facility known as the Madaluna Transfer Station was located at the site during 1987 at which time a portion of Union County-generated waste was deposited at the facility. Springfield-generated waste was directed to the Madaluna Transfer Station effective August 1, 1987, until the commencement of operations at the AMS Transfer Station. Some Union County waste was also directed at that time to the Ellesor Transfer Station, Madaluna was located in Linden. As of January 2, 1987, the Madaluna operation essentially merged with the AMS Transfer Station. The July 24, 1987 redirection order noted that an ae ep eee 26. 24a Appendix B emergency existed because of the cessation of solid waste disposal privileges for Union County municipalities at HMDC landfills subsequent to July 31, 1987 and that the redirection reflected therein was intended as an interim measure for the period from August 1, 1987 until December 31, 1987, in light of the anticipated operation of the Union County Transfer Station program effective January 1, 1988. At approximately 10:00 a.m. on December 23, 1987, a Jersey Carting collection truck exited the parking lot of the former Boston Sea Party Restaurant (Boston Sea Party), located on the easterly side of Route 22 in Springfield, New Jersey, and proceeded to the SWTR Transfer Station in Newark. At approximately 1:00 p.m. the same day, a Jersey Carting tractor picked upa 30-yard roll-off container at the same site, which container was loaded with demolition waste, Type 13 waste, and dumped said waste at the Kingsland Landfill in Lyndhurst, New Jersey, Bergen County. This Type 13 waste emanated in Springfield, New Jersey. The O&D form submitted for this waste by the driver of the Jersey Carting vehicle, Rinaldo Garcia (Garcia), to the BCUA, the operator of Kingsland, stated that 100 percent of the load emanated in Carlstadt, New Jersey (Bergen County). After being dumped, the waste in question was mixed, almost immediately, with putrescable waste dumped by other vehicles, ground up and buried, along with all the other waste that was being disposed of at the time, by a bulldozer operating at the landfill. The load was dumped in the general area of the 27. 28. 29. 25a Appendix B landfill where trucks were dumping garbage. Garcia told Kozac on the day in question that the load could go to Kingland because it was used for road service in the dump. In general, landfills attempt to fill roads leading to landfills with certain types of material to cover dirt in order to prevent mud from accumulating when it rains. Vehicles which bring fill which is being used to cover waste on any given day generally proceed to separate areas, away from the dumping site. O&D forms are generally not used when waste is taken to a landfill for such purposes. A rear-packer truck is a “typical garbage type truck.” Waste is thrown into the “hopper” of the vehicle, where it is compressed by a blade located in the rear of the vehicle. (Tr. 9/25/90, p. 166). Costellano conducted a waste-flow investigation on March 2, 1988. On that date, at approximately 9:43 a.m., he observed a Jersey Carting rear- packer truck fill a rear-loading container behind the Steak & Ale, which is located at 1139 Raritan Road in Clark, New Jersey, and empty the contents of the container into the truck. The waste collected at Steak & Ale was restaurant waste. The truck then proceeded to Route 22 in Springfield to a Holiday Inn, where the driver, Clement Rivers (Rivers), picked up two additional containers. 26a Appendix B After emptying these two containers, the truck proceeded to a building ostensibly occupied by Federal Pacific, located at 475 Mundet Place in Hillside, at which site the driver emptied cardboard drums and some loose debris, including pieces of wood, into the rear of the vehicle. Federal Pacific occupied the building in question prior to March 2, 1988, but had vacated it as of that time. As of the date in question, Federal Pacific’s name remained on the building so that it would not appear to be empty. Anentity by the name of Viho Trucking (Viho) occupied part of the building. Jersey Carting provided solid collection service to Viho on March 2, 1989, which waste was taken to Solid Waste, Transfer’s facility. Viho was a solid waste collection customer of Jersey Carting. Subsequent to leaving the Federal Pacific site, the Jersey Carting truck proceeded to the rear of a small shopping mall located in Hillside in proximity to Testrite and Palmer, at which site the driver emptied a container into the truck. An entity known as Liberty Service was under contract by the property owner of the mall, Everest Realty, to clean the parking lot. The container in question was used by Liberty Service; Jersey Carting billed Liberty Service for collection services. It is reasonable to infer that Palmer’s container contained floor sweepings. The truck then traveled east on Route 22 to Route 30. 31. 27a Appendix B 21 north, where it entered the SWTR facility in Newark at approximately 11:07 a.m. and deposited the waste collected on that date. Castellano spoke to Rivers after the Jersey Carting truck exited the transfer station. In response to questions, Rivers informed Castellano that the entire load had been picked up in Fairfield, New Jersey. The certified O&D forms submitted by Rivers to the SWTR Transfer Station stated that 100 percent of the waste in question emanated in Fairfield, New Jersey, which is located in Essex County, and that the waste deposited was solid waste Type 13, bulky waste. Although Jersey Carting was registered with the UCUA authority as of March 2, 1988, it had not dumped any waste there as of that date. During the period January through March 1988, Jersey Carting provided solid waste collection services to at least eight customers located in Elizabeth, Union, Springfield, Hillside, and Clark, New Jersey, all of which are located in Union County. These customers are as stated in Exhibit P-14(a). Ten of the invoices issued by Jersey Carting to the customers located in Union County between January and March 1988 contain notations of billings pertaining to service, closure, recovery, host community, and importation taxes. All of the pertinent invoices are as stated in Exhibit P-14(a). 32. 33. 34. 28a Appendix B Every hauler using the AMS Transfer Station must maintain a minimum balance. Those collectors utilizing only packer trucks must maintain a balance of $1,500; a minimum balance of $750 is required for haulers which generally deposit roll-off trucks. The minimum balance applicable to Jersey Carting is $1,500. Jersey Carting made a deposit payment to the AMS facility prior to March 24,1988 in the amount of $5,000. Jersey Carting did not dispose of any waste at the AMS Transfer Station until March 25, 1988, at which time it deposited Type 10 waste. The load delivered on that date totaled 68 tons and was generated from two municipalities. A solid waste services tax is levied upon the owner or operator of every sanitary landfill facility located in New Jersey, with an exception pertaining to the acceptance for disposal of waste products resulting from the operation of a resource recovery facility. N.J.S.A. 13:1E- 138(a)(B). Aresource recovery investment tax is also levied upon the owner or operator of every sanitary landfill facility pertaining to all solid waste accepted for disposal at such facility, with an exception pertaining to the acceptance for disposal of waste products resulting from the operation of aresource recovery facility. Jd. § (b). A solid waste importation tax is levied upon every sanitary landfill facility which accepts solid waste emanating from outside of the Solid Waste 29a Appendix B Management District in which the landfill is located, with an exception pertaining to resource recovery facilities. Jd. §(7). A recycling tax is levied upon every solid waste facility pertaining to solid waste accepted for disposal or transfer at the facility. This tax is not imposed upon resource recovery facilities pertaining to the acceptance of solid waste disposal at the facility or upon solid waste transfer facilities designed and operated solely for receiving and transferring solid waste from collection vehicles to haulage vehicles for the purposes of facilitating the transportation of solid waste, upon the acceptance of solid waste for transfer to an in-state solid waste facility for permanent disposal. Jd. §95(a). Host community benefits are available to any municipality within which a solid waste facility, including a transfer station, landfill or resource recovery facility, is located. N.J.S.A. 13:1E-28, 13:1E-28.1 & 48:13A-5.1. For purposes of these provisions, ‘solid waste’ is generally defined as garbage, refuge, and other discarded materials resulting from industrial, commercial and agriculture operations and from domestic and community activities, as well as all other waste materials, including liquids; ‘solid waste collection,’ the activity related to pick-up and transportation of solid waste from its source or location toa transfer station or other authorized solid waste facility; ‘solid waste facility,’ the plant, structures and other real and personal property pertaining generally to facilities 35. 30a Appendix B operated pursuant to N.J.S.A. 13:1E-1 and 48:13A-1 et seq. or any other statute, including transfer stations, resource recovery facilities, sanitary landfill facilities, and other plants for the disposal of solid waste; ‘resource recovery,’ the collection, separation, recycling and recovery of metals, glass, paper and other materials for reuse, or the incineration of solid waste for energy production and the recovery of metals and other materials for reuse; ‘sanitary landfill facility,’ a solid waste facility at which solid waste is deposited on or in the land as fill for permanent disposal or storage for a period exceeding six months, not including hazardous waste; and ‘transfer station,’ a solid waste facility at which solid waste is transferred from a solid waste collection vehicle to a licensed solid waste haulage vehicle for transportation to an off-site sanitary landfill facility, resource recovery facility or other designation for disposal, excluding transfer stations at which solid waste is received for on-site transfer. N.J.S.A. 13:1E-3. (Supp. 1991-1992). See, also, N.J.S.A. 48:13A-3. It is reasonable to infer that A. Moriano and M. Moriano instructed Jersey Carting waste collection vehicles to by-pass the Morris County and Union County designated transfer stations and that the Morianos determined to by-pass these transfer stations during the periods in question. 36. By orders dated December 31, 1987, the Board 37. 3la Appendix B authorized, expedited rate proceedings for collectors affected by waste-flow redirections in Morris and Union Counties. The proceedings allowed solid waste collectors to promptly recover increased disposal costs resulting from the redirection of Morris and Union County waste-flows from Edgeboro to solid waste transfer stations in each respective county. The expedited rate procedures provided that if interim expedited rate relief were granted and acollector were found not to have utilized the disposal site upon which the rate adjustment was based, any authorized interim rate relief would become immediately null and void and would be refunded with interest and other consequences. On approximately January 11, 1988, Jersey Carting filed a petition with the Board requesting an expedited rate increase for solid waste collection services based upon Board approval of closure of Edgeboro to Union County waste on December 31, 1987 and the redirection of such waste, commencing January 1, 1988, tothe Union County Transfer Stations. The content of this petition is as stated in Exhibit P-34(a). The petition asserted that the referenced redirection of waste would impact significantly upon Jersey Carting’s operating costs and that such redirection might place Jersey Carting in the position of not being able to comply with various waste-flow orders of the DEP. Jersey Carting requested an interim increase to reflect increased costs of dumping effective January 1, 1988. 7 . a q —— ? 38. ae. 32a Appendix B On approximately January 11, 1988, Jersey Carting filed a petition with the Board seeking a rate increase for solid waste collection services based upon approval by the Board of closure of Edgeboro to Morris County waste on December 31, 1987 and redirection of such waste to the MCTSs commencing January 1, 1988. The content of this petition is as stated in Exhibit P- 34(b). This petition alleged that the referenced redirection would impact significantly upon the operating costs of Jersey Carting and might place Jersey Carting in the position of not being able to comply with various waste-flow orders of the DEP. Jersey Carting requested that its rates be increased in an amount equal to its total increase in costs as a result of such redirection and that the Board approve an interim increase to reflect the increased costs of dumping effective January 1,1988. As part of Jersey Carting’s expedited rate filings, M. Moriano submitted signed certifications pertaining to each perspective petition in which he acknowledged that the expedited procedures constituted an experiment designed to respond to collector complaints concerning higher disposal charges and agreed, more specifically that: Therefore, in consideration of my authorization by. the BPU to expeditiously impose upon my customers an increase which reflects an appropriate amount of increased 40. 41. 33a Appendix B disposal expenses as computed through these procedures, rather than proceeding through the regular rate case process, I agree on behalf of my company to all the conditions set forth in these new procedures (incorporated herein by reference) adopted for use in my case, including, but not limited to, the provisions calling for the automatic refund with interest, of rates found to be too high ... and all provisions regarding the consequences of my company’s charging rates incorrectly, or my company’s noncompliance with any time requirement or disposal site requirements provided for in the procedures, regardless of costs. ((Ex. P-35(m), p. 1 & Ex. P-35(v), p. 1)). At an agenda meeting held on November 14, 1988, the Board approved Jersey Carting’s request for expedited rate relief pertaining to the redirection of Union and Morris County waste. The Board subsequently issued an Order Adopting Interim Rates on January 19, 1988. The content of this Order is as stated in Exhibit P- 10(v). On July 14, 1987, the Board issued an Interim Order, in Docket No. SR87070550, in which it granted interim rates and established an expedited rate case procedure to allow solid waste collectors located in northern and central New Jersey to increase rates to reflect a labor contract 34a Appendix B agreement between Teamsters Local 945 and solid waste utility collectors. The content of this order is as stated in Exhibit P-10(i). 42. The Board issued an Order on August 6, 1987, in Docket Nos. SE870709 and SE87070588, in which it authorized expedited rate procedures, similar to those used for the labor contract for collectors, for collectors affected by the establishment of rates for the Union County transfer stations located in Linden and Elizabeth, New Jersey, the content of this order is as stated in Exhibit P-10 (ii). 43. On January 19, 1988, the Board issued an Order Adopting Interim Rates in Docket Nos. SR87121430 et al, approving interim expedited rate relief pursuant to the above-referenced procedures to allow solid waste collectors to recover costs effectuated by increased disposal costs at the Passaic County Transfer Station, the Cumberland County Landfill, the Morris County Transfer Stations, the Somerset County Transfer Stations, and the Union County Transfer Stations (Dkt. Nos. SE87111308, SE87121457 and $087121407). The Board approved in this order rate increases for Jersey Carting pertaining to the Union County Transfer Stations (Dkt. No. SR88010179) and the Morris County Transfer Stations (Dkt. No. SR88010171). The content of this order is as stated in Exhibit P-10(v). 44. Jersey Carting’s tariff, which was initially issued 45. 35a Appendix B June 15, 1981, and was effective November 29, 1982, applicable during the time periods relevant to this proceeding is as stated in Exhibit P-30. The tariff generally authorizes respondent to provide solid waste collection services at specified rate levels. On September 14, 1984, the Board issued a Decision and Order in BPU Dkt. No. 8311-1032 approving a stipulation executed in that proceeding, which proceeding involved alleged tariff violations committed by Jersey Carting. The content of this Decision and Order is as stated in Exhibit P-1. The Board directed Jersey Carting to charge and provide service to its customers according to the terms of its filed tariff and ordered respondent to bill all customers as required by N.J.A.C. 14:3-7 et seq., including the provision of the following information on all bills: (1) type of service (residential, commercial, industrial), (2) frequency of service, (3) rate applied, (4) number and size of containers, where applicable, (5) total quantity of waste collected during the billing period, (6) a separate line item showing the surcharge applied pursuant to the Recycling Act, N.J.S.A. 13:1E-92 et seq., and the Sanitary Landfill Facility Closure and Contingency Fund Act, N.J.S.A. 13:1E-100 er seq., and (7) a sepatate line item showing any applicable surcharge pursuant to Chapter 438, Laws of 1981 to fund county health department enforcement activities. 46. 47. 36a Appendix B On August 29, 1986, the Board issued an Order Adopting an Initial Decision, in which it approved a stipulation, in a proceeding concerning an application by the HMDC for an adjustment of District solid waste disposal rates, in BPU Dkt. No. SR8504-372 and SE8601-93. The content of this order is as stated in Exhibit P- 11(i). The Board ordered the HMDC and all specified collectors to bill customers as required by N.J.A.C. 14:3-7 et seq. and to include the following information on billings: (1) type and frequency of service, (2) tariff rate applied, (3) number and size of containers, where applicable, (4) total quantity of waste collected, (5) a separate line item showing the surcharge applied as required by the Recycling Act, N.J.S.A. 13:1E-92 et seq. and the Sanitation Landfill Facility Closure and Contingency Fund Act, N.J.S.A. 13:1E-100 et seg., (6) a separate line item showing any applicable surcharge pursuant to N.J.S.A. 13:1E-9 and 9.1 to fund county health department enforcement activities and (7) separate line items showing the solid waste service, resource recovery investment, and if applicable, solid waste importation taxes, N.J.S.A. 13:1E-136 et seq. Jersey Carting was one of the collectors specified (case number 845- 361). On December 24, 1986, the Board issued an Order Adopting Interim Rates in Dkt. No. SR86111288, approving on an interim basis an increase in rates for Jersey Carting to recover increased disposal 48. 49. 37a Appendix B costs arising from an increase in rates approved for the HMDC. The content of this Order is as stated in Exhibit P-11(ii). The Board ordered Jersey Carting to bill all customers as required by N.J.A.C 14:3-7 et seq. and to include the seven categories of specified information on billings as detailed in Finding of Fact No. 46 hereinabove. On September 9, 1987, the Board issued an Order Adopting Interim Rates in BPU Dkt. No. SR8707064 et al., approving interim rate relief to certain specified solid waste collectors, including Jersey Carting. The Board ordered all solid waste collection utilities listed in the order to bill all customers as required by N.J.A.C. 14:3-7 et seq. and, to additionally include on all billings the information as specified in Finding of Fact No. 46 hereinabove. Interim rate increases were approved for Jersey Carting in relation to labor contract increases (BPU Dkt. SR87070662), rates effectuated at the Essex County Transfer Station (BPU Dkt. No. SR87080929), and rates effectuated at Edgeboro (BPU Dkt. No SR87080930). On January 4, 1988, the Board issued an Order Adopting Interim Rates, in BPU Dkt. No. SR87111276 et al., approving interim increases in rates for certain specified solid waste collection utilities, including Jersey Carting. All solid waste collection utilities listed in the order were directed to bill all customers as required by N.J.A.C. 14:3-7 et seq. and to additionally include 50. 3 8 38a Appendix B on all billings the information as specified in Finding of Fact No. 46 hereinabove. Interim rate increases were approved for Jersey Carting pursuant to rates effectuated for the Passaic County Transfer Stations (BPU Dkt. No. SR87121385). On January 19,1988, the Board issued an Order Adopting Interim Rates, in Dkt. No. SR87121430 etal., approving interim increased rates for solid waste collection utilities, including Jersey Carting. The Board ordered all solid waste collection utilities specified in the order to bill all customers as required by N.J.A.C. 14:3-7 et seq. and to additionally include on all billings the information specified in Finding of Fact No. 46 hereinabove. The Board approved interim rate increases for Jersey Carting reflective of rates approved for the Union County Transfer Stations (Dkt. No. SR8801010179) and the Morris County Transfer Station (Dkt. No. SR88010171). The content of this order is as stated in Exhibit P- 10(v). Jersey Carting issued 12 invoices for solid waste removal services in January 1988 to eight customers located in Union County. The content of these invoices is as stated in Exhibit P-14(a). These invoices were for services rendered and to be rendered in January, February and March 1988. Each invoice contains total billing for waste removal services. None of the invoices contains a breakdown of billings for service, 52. > 54. 39a Appendix B closure, recovery, host community and importation taxes, although several, on their face, appear to contain billings for host community taxes. Jersey Carting issued 59 invoices in January 1988 for waste removal, services to 55 customers located in Morris County. The content of these invoices is as stated in Exhibit P-14(b). These invoices were quarterly billings for the period January through March 1988. None of the invoices contains breakdowns for services and closure, recovery, host community and importation taxes completely, although several on their face, contains billing notations for host community taxes. None of the bills contains notations regarding a specific service billed for, including the frequency and volume of service and rate schedule applied. Itis not possible to determine, based on the record in this proceeding, the extent, if any, to which rates charged to its customers by Jersey Carting deviated from its filed tariff because the pertinent bills do not contain disclosure notations regarding specific service, frequency and volume of service, and rate schedule applied. It is also not possible to determine whether or not the rates charged by Jersey Carting were reflective of expedited rate relief awarded by the Board. In the March 16,1988 Order to Show Cause and the June 15, 1988 Order of Investigation and 40a Appendix B Order to Show Cause issued by the Board in this proceeding, the Board directed that Jersey Carting file with the Board within 30 days, to allow the Board to determine the extent of respondents’ noncompliance with the rules, regulations and orders of the Board, the following information: (1) a list of current customers served, including each customer’s name and billing address, addresses of all service locations, if different from billing address, municipality and county, type of service, size of container, frequency of service, total monthly cubic yardage, if applicable, tariff rate and applicable rate schedules used for services to each customer, total monthly charges without applicable taxes, and applicable taxes charged; (2) copies of any and all service contracts with its customers, including any municipal contracts; (3) copies of all customer billings from December 1986 through May 1988; and (4) copies of all disposal receipts from December 1986 through May 1988. Respondents were ordered, pending a final determination regarding the matter, to include on billings to all customers, in addition to separate line items showing the surcharges pursuant to the Recycling Act, N.J.S.A. 13:1E-92 et seq., the Sanitary Landfill Facility Closure and Contingency Fund Act, N.J.S.A. 13:1E-100 et seq., the solid waste service tax, the resource recovery investment tax, and if applicable, the solid waste importation tax, N.J.S.A. 13:1E-136 et seq., and regarding said surcharges and taxes, the following information: (1) type of service (residential, commercial, industrial, etc.), (2) 4la Appendix B frequency of service, (3) tariff rate applied, (4) number and size of containers, where applicable, and (5) total quantity of waste collected. Similarly, in the Order to Show Cause issued on March 16, 1988 in this proceeding, the Board ordered that respondents file a customer list within 20 days. The content of these orders is as stated in Exhibit P-11. CONCLUSIONS The Board has general supervisory and regulatory jurisdiction over solid waste collection utilities pursuant to both its general grant of jurisdiction, N.J.S.A. 48:2-13 (Supp. 1991- 91), and the Solid Waste Utility Control Act of 1970 (Act), /d. §§13A-1 etseqg. TheAct reflects a legislative determination that the collection, disposal and utilization of solid waste is a matter of grave public concern and thoroughly affected with the public interest, Jd. §13A-2. Pursuant to the Act, no person shall engage, or be permitted to engage, in the business of solid waste collection until found by the Board to be qualified by experience, training or education and holds a Certificate issued by the Board, Jd. §6. The Board, on its own initiative, or upon complaint by the DEP, shall revoke, suspend or grant a temporary continuance for up to one year of the Certificate issued to any person engaged in the solid waste collection business upon a finding that such person has violated any provision of the Act or any rule, regulation or administrative order promulgated thereunder, has violated any provision of any laws related to pollution of the air, water or lands of the State, has refused or failed tocomply with any lawful order of the Board, or has had its registration revoked by the DEP, /d. §9. 42a Appendix B The Board was also given specific authority pursuant to the Act to promulgate rules, regulations and administrative orders pertaining to the regulation of rates and the public utility aspects of the solid waste collection and disposal industries, Jd. In addition, the Board has the authority to set just and reasonable rates for solid waste utilities pursuant to the Act, Jd. §7, as well as pursuant to its general regulatory powers over public utilities, Id. §2-21. Any person who violates any provision of the Act or any rule, regulation or administrative order adopted or issued thereunder, including an interdistrict waste-flow order issued in conjunction with the DEP, or under any applicable provision of Title 48, shall be liable for a penalty of not more than $10,000 for a first offense, not more than $25,000 for a second offense, and not more than $50,000 fora third and every subsequent offense. Each day during which the violation continues constitutes an additional and separate and distinct offense. Jd. §12(b). The Board has the implied authority pursuant to the Act to exclude individuals from the solid waste business. Matter of Intercounty Refuse Serv.,222 Super 258 (App. Div. 1988), cert gr., 111 N.J.618 (1988) (Intercounty). Matter of Scioscia, 216 N.J. Super 644 (App. Div. 1987), cert den. 107 N.J. 652 (1987) (Scioscia). This authority exists without the necessity of the promulgation of a prior written regulation to that effect, Intercounty, supra, Scioscia, supra. In determining whether to revoke an existing Certificate, the Board is not restricted to considering whether the entity in question has violated the Act or implementing regulations but may also consider whether any manager, officer, director or other principal has been guilty of such a violation, Scioscia, supra. In practical terms, there is no distinction between the denial of a Certificate and the exclusion 43a Appendix B of a principal from the business. /bid. Depending upon the violations implicated, the imposition of an absolute prohibition against an individual's involvement in the solid waste business for an indefinite period is not an excessive sanction, Intercounty, supra, Scioscia, supra. Action by the Board revoking a collector's Certificate, debarring the collector as well as its principals from engaging in the solid waste business, and the imposition of substantial monetary penalties because of the violation of emergency waste- flow orders, as well as tariff rates, has specifically been upheld by ourcourts, In addition, a calculation of penalties by the Board based upon the treatment of each truckload hauled in violation of waste-flow orders as a separate violation, rather than as one ongoing offense, pursuant to N.J.S.A. 48:13A-12(b), is proper. Matter of Fiorillo Bros. of New Jersey, 242N.J. Super 667 (App. Div. 1990) (Fiorillo). Itis clear, and I CONCLUDE, that Jersey Carting violated the June 12, 1987 waste-flow redirection order pertaining to Union County referenced in Finding of Fact No. 4 hereinabove by picking up waste at Hayward Pools’ premises in Elizabeth and disposing of such waste at the SWTR Transfer Station in Newark; that Jersey Carting violated the December 29, 1987 redirection order pertaining to Union County referenced in Finding of Fact No. 11 hereinabove on February 24, 1988 by picking up a roll-off container of solid waste at Hayward Pools’ premises located in Elizabeth and disposing of such waste at Hub in Newark; that Jersey Carting violated the December 29, 1987 waste flow redirection order pertaining to Union County referenced in Finding of Fact No. 11 hereinabove a total of 28 times in January 1988 by picking up 28 containers of solid waste at Hayward Pools’ premises in Elizabeth and not disposing of 44a Appendix B such waste at the AMS Transfer Station; that Jersey Carting violated the December 29, 1987 emergency waste-flow redirection order pertaining to Morris County referenced in Finding of Fact No. 15 hereinabove at least 57 times between January 2 and March 21,1988 by providing solid waste collection service to at least 57 customers in Morris County during that period and not disposing of such waste at the MCTSs; that Jersey Carting violated the order referenced in Finding of Fact No. 15 hereinabove by picking up rear-end containers at Paramedical’s premises in Pinebrook on February 8, 1988 and not disposing of such waste at the MCTSs; that Jersey Carting violated the order referenced in Finding of Fact No. 15 hereinabove by picking up a 30 yard roll off container at UPS’ premises in Parsippany from January 1988 until February 9, 1988 and not disposing of the waste therein at the MCTSs; that Jersey Carting violated the July 24, 1987 waste-flow order regarding Union County referenced in Finding of Fact No. 25 hereinabove on December 23,1987 by disposing of waste originating in Springfield at the BCUA Kingsland Landfill; that Jersey Carting violated the December 29, 1987 waste-flow order pertaining to Union County referenced in Finding of Fact No. 11 on four occasions by collecting solid waste at the premises of Steak & Ale in Clark, the Holiday Inn in Springfield, Federal Pacific in Hillside, and Testrite/Palmer in Hillside and disposing of such waste at the SWTR transfer station in Newark on March 2, 1988; and that Jersey Carting violated the December 29, 1987 waste-flow order pertaining to Union County referenced in Finding of Fact No. 11 during the period January 2, 1988 to March 24, 1988 by providing solid waste collection services to at least eight customers in Union County as referenced in Finding of Fact No. 31 hereinabove, and not disposing of such waste at the AMS transfer Station. 45a Appendix B As noted hereinabove, the Board is empowered to regulate the rates of solid waste collectors through appropriate rules, regulations and orders, N.J.S.A.48:13A-4. lalsoCONCLUDE that Jersey Carting violated the expedited rate relief orders issued by the Board, as referenced in Findings of Fact Nos. 36, 40, 41, 42 and 43, by not utilizing the transfer stations upon which the rates approved therein were based and that Jersey Carting violated the orders referenced in Findings of Fact Nos. 46 through 50 hereinabove by not including the type of service, frequency of service, rate applied, number and size of containers, and total quantity of waste on the invoices referenced in Findings of Fact Nos. 51 and 52 hereinabove. I am persuaded by the Staff’s arguments for the debarment of A. Moriano and M. Moriano, the revocation of Jersey Carting’s Certificate, and the imposition of monetary penalties pursuant to the Board’s statutory authority, as generally calculated by the Staff. The violations committed by Jersey Carting were of a serious nature and continued for long periods of time. There are no mitigating circumstances. Jersey Carting, in essence, engaged in a flagrant disregard of waste-flow directives and failure to comply with Board directives to provide certain information on customer bills. Each occasion of disposing of waste at other than the facility to which Jersey Carting was directed is, as noted in Fiorillo, a separate and distinct violation. The same reasoning is applicable to each invoice which lacked the requisite information. The importance of waste-flow orders to the integrity of the Board’s and the DEP’s management of solid waste within the State of New Jersey cannot be overstated. As noted by the court in Fiorillo: ... it is evident that a significant and legitimate public purpose was served by the 46a Appendix B emergency waste flow orders. These orders are a part of a comprehensive effort to deal with New Jersey's garbage crisis. They permit the coherent planning for the State’s interim, as well as permanent, trash disposal needs and provide for dependable disposal of waste. These orders inhibit illegal dumping which establishes the economy of the solid waste facility and creates a health hazard. Additionally, these orders enable the counties to prepare for resource recovery and are acritical component of the State’s efforts to insure continued waste disposal. It is uncontroverted that the safe and efficient disposal of the State’s waste serves a “significant legitimate” public purpose and the means chosen to implement that purpose are appropriate and reasonable. Fiorillo at 682. As the Staff argues, although the failure to properly itemize customers’ bills might not on its face appear to be a significant violation, such failure undermines the Board's ability to exercise its regulatory control over solid waste collectors. The lack of the required information generally, and in this case in particular, negatively impacts upon the Board’s ability to determine whether a utility’s rates and charges are in accordance with its approved tariff. Solid waste utilities are required by regulation to file tariffs showing the territories served, the standard terms and conditions and the rate schedules for various types of service and contracts, N.J.A.C. 14:3-10.10. A utility’s approved tariff has the force of law; a utility must charge the rate set forth therein. Essex Cty Welfare Bd. v. N.J. Bell Tel. Co.,126N.J.Super 47a Appendix B 417 (App. Div. 1974). The failure of Jersey Carting to provide the required information on customer invoices, as well as to bill for services provided pursuant to its filed tariff, are significant violations. A. Moriano and M. Moriano were, as found hereinabove, principals of Jersey Carting active in all important aspects of its operations during the time period in question. Debarment of these individuals from participation in the solid waste industry, in light of the flagrant disregard of Board directives by Jersey Carting, is warranted. As the Staff argues, it has demonstrated that they lack the requisite qualifications to engage in the solid waste business in accordance with the requirements governing that industry. Similarly, the Staff has demonstrated by a preponderance of the credible evidence that Jersey Carting’s Certificate should be revoked and that monetary penalties should be imposed pursuant to the Board's statutory authority. The Staff argues, in the latter respect, that respondents should be ordered to provide the precise number of loads collected from its Morris and Union County customers during January to March 1988 that were diverted from designated disposal facilities in order to allow the calculation of a precise penalty based on loads diverted. Alternatively, the Staff advances a specific calculation of penalties based on the evidence in the record. In light of the fact that respondents failed to provide he information referenced, although ordered to do so by the Board in both Orders to Show Causes issued within the context of this proceeding, as well as early discovery orders of this judge, I am persuaded that no additional time should be extended in endeavors, although perhaps warranted, to obtain this data. The 48a Appendix B debarment of A. Moriano and M. Moriano, the revocation of Jersey Carting’s Certificate, and the imposition of monetary penalties are sufficient to protect the integrity of the Board’s regulation of the solid waste industry. The revocation of Jersey Carting’s Certificate and the debarment of M. Moriano and A. Moriano from future participation in the State’s solid waste industry are not excessive in light of the violations committed, See, Fiorillo at 687-688. The Staff proposes a total penalty of $198,000. The Staff’s methodology for calculating penalties (Initial Brief, pp. 63-64 and Supplemental Brief) is, and Iso CONCLUDE, consistent with N.J.S.A. 48:13A-12. This methodology is ADOPTED herein. The Staff essentially calculates a $1,000 penalty foreach separate violation, except for $5,000 penalties applicable to each order wherein Jersey Carting was directed to provide information on customer billings. It is noted that the treatment of each individual invoice as a separate violation would result in a substantially higher penalty calculation. I CONCLUDE that penalties totaling $109,000 should be imposed upon Jersey Carting for the violations determined hereinabove. This figure is calculated as follows: $1,000 pertaining to the disposal of Haywood Pools’ waste on December 30, 1987 at the SWTR Transfer Station; $1,000, to the disposal of Haywood Pools’ waste on February 24, 1988 at HUB; $28,000, to the disposal of Haywood Pools’ waste during January 1988; $57,000, to the collection of Morris County customers’ waste between January and March 1988; $1,000, to the collection of Paramedics’ waste on February 8, 1988; $1,000, to the collection of UPS’ waste in January and February 1988; $1,000, to the collection of the Boston Tea Party’s waste on 49a Appendix B December 23, 1987; $4,000, to the collection of waste at the premises of the Steak and Ale, Holiday Inn, Federal Pacific, and Testrite/Palmer on March 2, 1988; $8,000, to the collection of waste of eight Union County customers between January and March 1988; $2,000, to the violation of rate orders generally pertaining to Union County ($1,000) and Morris County ($1,000) customers; and $5,000, to the violation of five orders issued by the Board requiring that certain specified information be included on Jersey Carting’s billings. ORDERS Based upon the above findings and conclusions, it is hereby, ORDERED that A. Moriano and M. Moriano be debarred from owning, operating, managing or controlling or having any interest in any solid waste business organization within the State of New Jersey and from serving as an officer, director, trustee, member of any executive board or similar governing body, or as a principal, manager, partner, employee, agent or in any other capacity thereof, and from owning any outstanding capital stock of, or maintaining directly or indirectly, any financial interest of any nature in any solid waste business, corporation or association doing business in the State of New Jersey; that Jersey Carting’s Certificate, No. SW 330, be and is hereby revoked, and that monetary penalties totaling $109,000 be imposed upon Jersey Carting. Neither party addressed in their brief a payment schedule for any imposed penalty. After considering the matter, it is hereby ORDERED that Jersey Carting pay the penalty imposed herein within 30 days of the effective date of this decision. I hereby FILE my initial decision with the BOARD OF REGULATORY COMMISSIONERS for consideration. 50a Appendix B This recommended decision may be adopted, modified or rejected by the BOARD OF REGULATORY COMMISSIONERS, which by law is authorized to make a final decision in this matter. If the Board of Public Utilities does not adopt, modify or reject this decision within forty-five (45) days and unless such time limit is otherwise extended, this recommended decision shall become a final decision in accordance with N.J.S.A. 52:14B-10. Within thirteen (13) days from the date on which this recommended decision was mailed to the parties, any party may file written exceptions with the SECRETARY OF THE BOARD OF REGULATORY COMMISSIONERS, 401 East State Street, 7th Floor, West Wing, CN 402, Trenton, New Jersey 08625-0402, marked “Attention: Exceptions.” Acopy of any exceptions must be sent to the judge and to the other parties. July 7, 1992 s/ Diana C. Sukovich Date DIANAC. SUKOVICH, ALJ Receipt Acknowledged: [illegible] s/ illegible Date BOARD OF REGULATORY COMMISSIONERS Mailed to Parties: Jan 14 1992 s/ illegible Date OFFICE OF ADMINISTRATIVE LAW le/ms Sla Appendix B APPENDIX LIST OF WITNESSES For Petitioner: Edward Kozak Frank Capone Edward Castellano Jeffrey Callahan Shrader McCabe Angela Moriano Mario Moriano Scott Shrader LIST OF EXHIBITS IN EVIDENCE P-1 Board Order 8311-1032 P-2(A) Investigative Report (Shrader ) P-2(B) Investigator Report (Castellano) P-2(C) _Investigatory Reports (Kozak) P-3 Certification Tina Graham (McCabe) P-4 UCUA Tracking Report P-S(A) Jersey Carting Customer List (Union County) P-5(B) Jersey Carting Customer List (Morris County) P-7 Certification J. D’ Angelo UCUA P-8 Notice of Prosecution 8-88 P-9 Historical Tipping Report P-10-(1) Board Order #SR87070550 P-10-(2) Board Order #SE87070709 P-10-(3) Board Order #SE87111308 P-10-(4) Board Order #SE87111370 P-10-(5) Board Order #SR87121430 52a Appendix B P-11-(1) Board Order #SR8504-372 P-11-(2) Board Order #SR86111288 P-11-(3) Board Order #SR870706647 P-11-(4) Board Order #SR87111276 P-11-(5) Board Order #SR87121430 P-12-(2) Waste Flow Directive {Morris 12/29/87) P-12-(3) BPU/DEP Waste Flow Order (Union 8/1/87) P-12-(4) BPU/DEP Waste Flow Order (Union 12/29/87) P-12-(5) BPU/DEP Waste Flow Order (Union 8/5/88) P-14(A) Jersey Carting Customer Bills (Union) P-15 Responses to Staff Interrogatories P-17 Certification J. Bocchion (BCUA) P-18 Photo at Rajotti Construction P-19 Photo at Rajotti Construction P-20 Photo at Rajotti Construction P-25 Photo at Hayward Pools P-26 Photo at Hubb Recycling P-27 Photo at Hayward Pools P-28 Photo at Hayward Pools P-29 Photo at Hayward Pools P-30 Jersey Carting Tariff P-31 Investigator Report 4/24/90 P-32 Contract AMS & UCUA 12/29/87 P-33 Photo Palmer Video P-34 Photo Paramedical Home Support P-34(A) Jersey Carting Expedited Petition (Union) P-34(B) Jersey Carting Expedited Petition (Morris) P-35 Photo Paramedical Support P-35(M) Jersey Carting Certification of Mario Moriano (Morris) P-35(U) Jersey Carting Certification of Mario Moriano (Union) P-36 Photo UPS Parsippany P-37 P-38 P-39 P-40 P-41 53a Appendix B Photo UPS Parsippany MCTS Scale Ticket Expedited Rate Procedures Spread Sheet Jersey Carting Tax Report-Jersey Carting 54a APPENDIX C — FINAL DECISION OF THE COMMISSIONER OF THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION DATED DECEMBER 11, 1992 BOARD OF REGULATORY COMMISSIONERS Petitioner, v. JERSEY CARTING INC., ANGELA MORIANO, AND MARIO MORIANO, Respondents. Environmental Protection and Energy OAL Docket Nos. ESW 4898-88 and ES W 3363-88 (consolidated) Agency Docket Nos. $S88030449 and SS88050695 Initial Decision: January 7, 1992 Final Agency Decision: December 11, 1992 SUMMARY Environmental Law — Waste Disposal Solid waste collector censured and penalized for repeatedly violating site specific waste-flow orders The Department of Environmental Protection and Energy affirmed the Board of Public Utilities’ order of violations and penalties, holding there was ample evidence to support the 55a Appendix C findings that a licensed solid waste collector violated its waste- flow orders by failing numerous times to dispose of waste in accordance with its authorized specific disposal sites and by not charging certain customers the rate mandated by its approved tariff. In 1988, the Board of Public Utilities issued an order to show cause to respondent Jersey Carting, Inc., alleging that it violated its solid waste collector certificate by violating the Department of Environmental Protection’s (DEP) and petitioner Board of Regulatory Commissioners’ (Board) waste-flow orders. The Board alleged that Jersey Carting was not using its disposal station site as directed. An administrative law judge (ALJ) was persuaded by the evidence presented by the Board’s staff, except as to certain specific tariff violations. The ALJ found the staff’s evidence focused upon alleged tariff violations concerning specific billings and several quarterly billings, which the ALJ found too ambiguous to be actionable. The ALJ criticized Jersey Carting for its principals’ failure to testify. The ALJ determined that Jersey Carting violated its waste-flow redirection order many times by picking up waste at various sites and disposing the waste at inappropriate transfer stations. The ALJ also found that Jersey Carting violated the expedited rate relief orders issued by the Board by not including the type of service, frequency of service, rate applied, number and size of containers, and total quantity of waste on the invoices. The ALJ concluded that penalties totalling $109,000 should be imposed. The ALJ also concluded that Jersey Carting’s principals should be debarred from owning, operating, managing, or controlling or having any interest in any solid waste business organization within the state. The Commissioner of the Department of Environmental 56a Appendix C Protection and Energy adopted the ALJ’s recommendation with modification by adding in the tariff that the ALJ removed, holding that the undisputed record amply supported the ALJ’S findings of specific violations and sanctions recommended. The record also supported the finding of tariff violations because Jersey Carting violated the Board’s expedited rate relief orders by not charging certain customers the rate mandated by its approved tariff. The Commissioner ordered the payment of an additional $77,000 in penalties for Jersey Carting’s failure to dispose of waste in accordance with the site-specific disposal sites established by its tariff. Pages 57 through 67 of the Final Decision of the Commissioner of the New Jersey Department of Environmental Protection dated December 11, 1992, are a verbatim repetition of the Initial Decision of the Office of Administrative Law, which appears at pages 2a-53a of this appendix. As such, the Initial Decision of the Office of Administrative Law has been omitted from the Final Decision of the Commissioner of the New Jersey Department of Environmental Protection as it appears in this appendix. 57a Appendix C FINALAGENCY DECISION WEINER, Commissioner: This matter is before me' for Final Decision following the Initial Decision by Administrative Law Judge Diana Sukovich (ALJ). Init, after finding that Jersey Carting had violated waste flow directives and interim rete relief orders, the ALJ recommended that the certificate of public convenience and necessity held by Jersey Carting, Inc. to operate as a solid waste collector be revoked, that Angela Moriano and Mario Moriano be debarred from the solid waste industry and that penalties in the amount of $109,000 be assessed. After carefully considering the record before the ALJ as well as the exceptions filed to the Initial Decision, and after having given the parties ample opportunity to try to achieve an amicable settlement of the matter, I am satisfied that because of the seriousness of the violations found to have been committed by Jersey Carting, Inc., and its principals, Angela and Mario Moriano, that the undisputed record amply supports the findings of specific violations and sanctions recommended by the ALJ. I am also convinced for the reasons set forth more fully below that the record supports the finding of tariff violations such that the ALJ’s decision in that regard will be modified. In view of my general acceptance of the ALJ's decision, this order will only address that area where I am modifying the ALJ's decision and issues raised since the issuance of the Initial Decision. Turning to the exceptions, Jersey Carting presented a number of unpersuasive arguments. Jersey Carting first argues that the ALJ erred by striking certain porions of the post-hearing brief because these matters went to extenuation and mitigation. Indeed, this theme of inability to present mitigation, particularly 58a Appendix C in relation to dumping at Hub,’ runs through most of Jersey Carting’s exceptions. Jersey Carting begins with two orders in connection with the Hub case entered by the bankruptcy court, two letters of solicitation from Hub as well as settlement papers in connection with another action brought against Jersey Canting by the Union County Utilities Authority. Jersey Carting had unsuccessfully moved for the admission of these materials at trial and then simply appended them to its post-hearing brief under the stated misapprehension that the hearing was narrowly limited to a determination of liability. Staff successfully moved to suppress these materials. Clearly, both orders to show cause made it clear that the issue of sanction was before the factfinder such that any evidence in mitigation should have been presented at trial. As the ALJ noted, the material consisted of “documents which are not marked for identification during seven days of evidentiary hearings conducted in this matter nor provided during discovery.” Jersey Carting’s basis for failure to offer mitigation is obscure. No pleading or anything else in the record provides a plausible basis for Jersey Carting’s theory of bifurcation. Nonetheless, particularly in view of the seriousness of the sanctions recommended, | HEREBY ORDER that the Hub bankruptcy orders be judicially noticed for consideration here.’ For the same reason I further have determined to consider the mitigating arguments presented by Jersey Carting. Turning to these arguments in more detail, judicial notice is appropriately taken of the Hub orders. Having included these orders in the record, | find, however, that regardless of the orders, and indeed of any solicitation, the applicable waste flow orders —_aneeaipiiaciaaaiiiibign tat tiniiie aemas ea te 59a Appendix C unequivocally directed waste to the lawful county transfer stations in compliance with solid waste franchises. These orders and franchises are the linchpin of the State’s approach to comprehensive solid waste planning. Examining the other mitigating factors, all of these arguments may be rejected. The argument that the company was financially straitened by the change in disposal site falls before the opportunity to obtain expedited rates, an opportunity actually taken by Jersey Carting. Moreover, the strong public policy reasons, such as long-range solid waste planning, behind the waste flow orders more than offset the “difficulties” of being in the solid waste business. Further, lawlessness by some haulers has a severely deleterious effect on all law-abiding haulers and their customers. Indeed, self-help disposal decisions harm lawful haulers unable to compete with costs rendered artificially low by unlawful dumping. Continuing with Jersey Carting’s arguments in mitigation, I expressly reject the contention that the Company's return to lawful disposal sites should have an ameliorative effect on the sanctions. Having opted to violate the law, Jersey Carting should not now be given credit for finally acting as it should have from the outset. Moreover, a more cynical explanation for the change in heart might be found in the success of other enforcement actions for violations of solid waste laws and regulations. See, ¢.g., Mater of Fiorillo Bros. of N.J.,242 NJ. Super. 667 (App. Div. 1990), certif. den. 122 N_J. 363 (1990). Turning to its other exceptions, Jersey Carting argues against the ALJ's having taken an adverse inference against the Morianos for their refusal to answer any questions based on the Fifth Amendment's protection against self-incrimination. In 60a Appendix C rejecting this exception, I would note particularly that Jersey Carting asserts this argument without the support of a single case and without even attempting to distinguish the long line of cases urged by the Staff which support this practice. Mahne v. Mahne, 66 N.J. 53 (1978). Thus, itis plain that this exception be rejected in toto.‘ Jersey Carting’s arguments as to the principals are similarly weak. Althou [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1843%3A1. Public record. Not legal advice.