Legal Lode: Tipping Point

Is a car an “import” if it’s manufactured overseas and “domestic” if it’s not? The top-selling passenger cars in America — Toyota Camry and Honda Accord — are built by American workers. Are Ford’s hot F-series pick-up and GM’s popular Chevy Tahoe any less American because they are assembled in Mexico?

Some parts and know-how may originate abroad, other elements here. The BMW Z4 roadster engine comes from Germany, but everything else, from fabricating the chassis to applying the clear coat, takes place in Spartanburg, S.C. Ford’s hybrid vehicles use Toyota technology. These days, one can’t easily draw the line between foreign and domestic vehicles.

Coincidentally, a BMW assembly plant in Jersey City, N.J., provides the setting for a dispute about another kind of threshold or tipping point. When do “recyclables” transform into “solid waste”? A stubborn hauler paid a stiff price to find out.

The Hudson County Improvement Authority (HCIA) adopted a state-sanctioned solid waste management plan that requires all locally generated solid waste, but not recyclables, to be delivered to designated facilities. Miele Sanitation Co. (Miele) hauled mixed loads of recyclable materials and non-recyclable waste stored in a 40-cubic-yard compactor at the BMW plant. The compactor contents typically included metal, plastic, paper, cardboard, used oil and food waste from the employee cafeteria.

Admittedly, Miele did not transport any loads from the BMW site to a HCIA-specified location. Instead, it brought them to a materials recovery facility (MRF) that it owned in Clarkstown, N.Y., where it claimed to have processed the mixed loads as recyclables.

As Miele contended, the loads contained only a de minimis amount of solid waste, and thus, by law, were exempt from the regulations mandating decals and markings on waste containers and requiring haulers to use assigned facilities.

Based on observations by its enforcement officers, HCIA found more than a negligible amount of solid waste in the compactor, contaminating the recyclable materials and thereby converting the purported recyclables into regulated solid waste. HCIA issued 50 separate complaints against Miele, including 28 violations for bypassing designated facilities and 22 violations related to required decals and markings.

At trial, with testimony and photographs, HCIA corroborated the allegations of what the compactor contained: ordinary garbage; recyclables contaminated with lunch room waste; oil and other liquids. Astoundingly, “BASURA” — the Spanish word for “garbage” — was printed on the compactor. Talk about self-incrimination!

In its defense, Miele relied on an expert on solid waste and recycling who, as it turned out, had never visited the BMW facility or the Clarkstown MRF and had no personal knowledge of the contents of the mixed loads. His testimony essentially played down the adverse effects of cross-contamination of recyclables. When company owner Joseph Miele took the witness stand, he insisted that his company was recycling more than 90 percent of the mixed loads, but he had no paperwork to support this claim.

Based on testimony from the HCIA inspectors and from the BMW site manager, plus the exhibits that included photos substantiating the alleged violations, the trial judge ruled in favor of HCIA on all 50 complaints, levying $340,500 in fines and penalties.

On appeal, the lower court judgment, including fines and penalties, was affirmed. The appellate panel found that HCIA produced “sufficient credible evidence” that Miele’s compactor repeatedly contained more than a de minimis amount of solid waste — based on a cap of 10 percent consistently used in prior litigation between the parties. The panel also concluded that Miele failed to produce any evidence that the mixed loads were 90 percent recyclable other than Miele’s own “self-serving testimony.”

[Hudson County Improvement Auth. v. Miele Sanitation Co., Inc., No. A-4590-07T3 (N.J.Super.App.Div, June 18, 2010)]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].