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S. Rotondi & Sons, Inc. v. New Jersey Department of Environmental Protection

A-1819-02T1 (N.J. Super. App. Div. 2004) (Unpublished)

RECYCLING - - The New Jersey Department of Environmental Protection’s regulations governing recycling center that receive grass clippings are upheld by a court.

A leaf and grass transfer station appealed from the Department of Environmental Protection’s (DEP’s) adoption of N.J.A.C. 7:26A-4.5(a)(6), which requires recycling centers that receive grass clippings to maintain a buffer of 1,000 feet between their staging areas and any areas of human use and occupancy. In 1988, the station’s application for a use variance was approved by the local board of adjustment to allow it to use property in the municipality as a facility for the transfer of vegetative matter consisting of leaves and grass clippings. The board imposed certain conditions in connection with its variance approval, including a requirement that the station allow the municipality to deposit its own grass clippings at the facility without cost. The facility was surrounded by residential and commercial properties, many of which were located within 1,000 feet of the entrance of the facility. Therefore, the station violated the regulation.

The station contended that the regulation arbitrarily extended the 1,000-foot buffer requirement to recycling facilities that transfer grass clippings. The Court disagreed. The purpose of the buffer was to prevent the migration of odors associated with the decomposition of grass clippings to areas of human use or occupancy in the vicinity of recycling facilities. The application of the buffer to all recycling centers that accept grass clippings was the result of years of regulatory experience and studies that established that grass clippings are relatively high in nitrogen and moisture content and are highly odorous.

The station also argued that the rule was arbitrary because the DEP failed to consider what the station claimed were the significant differences between composting facilities and transfer stations. The station asserted that there was considerably less potential for offensive odors emanating from a transfer facility. The station noted that it was required to remove all grass clippings accepted at the site within a day of their delivery, whereas composting facilities place grass clippings in windrows, treat the clippings, and allow them to decompose. The Court rejected this distinction, relying on DEP’s studies and regulatory experience showing that grass clippings are highly odorous by the time they are delivered to a recycling facility. For that reason, the Court held there was no significant difference between a composting facility and a transfer station.

The station also claimed that there was no evidence of any odor problem at its facility since it had never been cited by the DEP for an odor violation. The facts, however, were that DEP issued a report regarding the facility after it was visited by DEP employees. The report stated that an odor was noticeable within the vicinity of the drop off area and that the odor was emanating off site. The report cited the odor emanating from grass clippings as a “major issue” and recommended that the station “control the odor from the grass clippings.”

The station also argued that the regulation was irrational because certain composting facilities that accept grass clippings were permitted to operate with a 500-foot buffer. In order to qualify for the 500-foot buffer, however, a facility may not receive more than 10,000 cubic yards of yard trimmings per year, and if grass clippings are accepted, those clippings may not constitute more than ten percent by volume of all yard trimmings received annually. The Court concluded that the DEP could reasonably draw a distinction between composting facilities that accept only 10,000 cubic yards of grass material per year, and other recycling facilities that accept greater amounts. The DEP could reasonably assume that fewer odors would emanate from smaller amounts of decomposing grass material and that a 500-foot buffer would suffice to protect the public’s health. Therefore, the Court affirmed the DEP’s adoption of the regulation.

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