Months after the case began, a Superior Court judge in Ocean County is set to decide if a farm that the state alleges is home to a massive illegal dumping operation should be effectively shut down.
The state sued Sam Russo and two businesses that he owns — Russo, Inc. and Suzie Q. Farm — last August, accusing Russo of using the businesses as cover to illegally import solid waste to the roughly 100-acre Plumsted Township property for profit. The state immediately sought a court order to block Russo from bringing any material to the property.
Russo’s actions, the state argues, have threatened the health of the surrounding environment. Testing done by the state after the lawsuit was filed found cancer-linked substances contaminating parts of the Russo property.
But Russo’s lawyers have claimed that much of the material brought on to the property is to support hundreds of heads of livestock, and the defense has pinned contamination at the site on the property’s previous owner.
Judge Craig Wellerson presided over a two-day-long hearing in December and visited the Russo property in January, and now lawyers for both sides have filed their arguments over the state’s requested court order.
The state wants a court order to halt the import of all material to the Russo property, until Russo obtains recycling and stormwater permits from the New Jersey Department of Environmental Protection.
That’s needed, the state argues, because Russo is operating a commercial recycling center at the property: Charging landscapers and other businesses hundreds of thousands of dollars each year to dump dirt, wood chips, leaves and grass clippings on the property, then composting or blending this waste with manure before selling or giving away the new material to landscapers.
“Commercial compost production is regulated by DEP, not by the New Jersey Department of Agriculture (NJDA), and Defendants’ activities are not exempt from DEP’s recycling rules just because they raise livestock,” Deputy Attorney General Aaron Love wrote in a brief.
The state also notes that DEP ordered Russo to stop bringing asphalt millings to the property in 2017, because Russo lacked proper stormwater permits. Russo was fined $173,825 as part of that decision.
Russo has largely ignored that 2017 order, racking up hundreds of thousands of dollars in DEP fines since then.
From April 2018 to April 2019 alone, Russo made $300,800 for accepting 3,253 truck loads of material to the property, according to the state’s complaint, including more than 1,300 loads of fill dirt and 300 loads of asphalt millings.
Those disposal fees were all charged by Suzie Q. Farm, which reported only $25,000 of income related to actual farming in the calendar year 2018, according to the state’s complaint.
The state also notes that the NJDA has not approved a farm plan or an animal waste management plan for the Russo property, undercutting the defense’s argument. The only NJDA approval that Russo currently has, according to the state, is to feed his livestock food waste and grass clippings.
In a direct response to the defense’s claim that the DEP cannot regulate commercial farms, Love writes that New Jersey’s Right to Farm Act only protects such farms from municipal regulations. There is no protection from state and federal rules, according to Love.
Russo’s team argues that the state has repeatedly failed to prove that his operations at the property pose a direct threat to water quality or public health.
“All NJDEP did in presenting its case was to allege violations of statutes and regulations, all of which was disputed,” Craig Provorny, Russo’s lawyer, wrote in a brief. “What NJDEP did not do, however, was tie any of those alleged violations to claims of irreparable harm to surface water, ground water or the health of the surrounding community.”
The defense emphasizes the contamination found by DEP was not widespread, but limited to specific spots on the property. And, the defense argues that the contamination could have been caused by the previous owner.
The defense also notes that in June 2018, an NJDA official, found Russo had fulfilled the requirements of a self-certified animal waste management plan. The defense uses that to underscore that Russo is operating a legitimate farm, and that his importation of materials is for farm-work.
Finally, the defense relies on an expert witness to defend massive mounds of material that Russo has constructed on the property. According to the witness, retired University of Nebraska animal science professor Terry Mader, such mounds are commonly used in cattle management to keep the animals out of low lying areas when it rains.
The mounds are described by the state as the primary dumping sites for the material brought on to the property, and the mounds are where some of the site’s contamination was found.
Russo and his family have suffered “great hardship,” according to the defense, because of negative press from the lawsuit. The defense claims that Russo has lost his supplier of food waste, 80% of his wood chip supply and 90% of his grass clipping supply.
It is unclear when Wellerson will make his decision on whether or not to stop deliveries of all materials to the Russo property.
In his closing remarks at the December hearing, Wellerson said that he had to determine if the concerns of the DEP outweighed Russo’s freedom to work his land as he wishes, and that at that time, he saw no threat to the health of Russo’s neighbors.
“There is no situation in the Court’s mind that has created an emergency. The farm needs to operate 365 days a year. To place restrictions on the operation of the farm that are adverse to the health of the cattle and the operation is unwarranted as long as the safety and the health standards which would ensure the neighboring property owners that they can continue to enjoy their homes peaceably and in a safe manner is of the utmost concern to the Court,” Wellerson said at the time.
Read the state’s proposed findings of fact and conclusions of law here.
Read the defense’s proposed findings of fact and conclusions of law here.
Read the transcripts of the December hearings for this case: Part 1, Part 2, Part 3, and Part 4.
Michael Sol Warren may be reached at [email protected]. Follow him on Twitter @MSolDub. Find NJ.com on Facebook.
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