Trade Waste Management Ass'n, Inc. v. Hughey

Decision Date15 January 1986
Docket NumberNo. 85-5342,85-5342
Parties, 16 Envtl. L. Rep. 20,284 TRADE WASTE MANAGEMENT ASSOCIATION, INC.; Dinardi; Middlesex Carting Co., Inc.; Salvatore Falgiano; Falgi Carting Co.; Custom Disposal Service Corporation; Steve DiNardi; Joseph George; DiBella Sanitation, Inc.; Philip F. DiBella; Dependable Disposal Service, Inc.; Frank Novello, United Service Disposal Corporation; Andrew Coviello; Crystal Carting Corporation; Bert Garrabrant; Fred Strubel; Michael Barletta; Blue and White Disposal, Inc.; Art Sawyer; Hamlette Disposal, Inc.; Patrick Hamlette; Giambrone Enterprises, Inc.; Joseph Giambrone; and Joe Doe (said name being a fictitious name for a real person who sues on behalf of himself individually and on behalf of certain persons and classes of persons similarly situated, Appellees, v. Robert E. HUGHEY, Commissioner of the Department of Environmental Protection of the State of New Jersey: and Irwin I. Kimmelman, Attorney General of the State of New Jersey, Appellants.
CourtU.S. Court of Appeals — Third Circuit

Brendan T. Byrne (Argued), Kenneth L. Winters (Argued), Carella, Byrne, Bain & Gilfillan, Roseland, N.J., for appellees.

Irwin I. Kimmelman, Atty. Gen., Michael R. Cole, First Asst. Atty. Gen., Andrea M. Silkowitz (argued), John A. Covino, Deputy Attys. Gen., Trenton, N.J., for appellants.

Before GIBBONS, SLOVITER and STAPLETON, Circuit Judges.

OPINION OF THE COURT

GIBBONS, Circuit Judge:

The Commissioner of the New Jersey Department of Environmental Protection and the New Jersey Attorney General appeal from a final judgment declaring Pub.L.1983, ch. 392, N.J.S.A. 13:1E-126 to 13:1E-135 (Supp.1984-1985) (hereinafter referred to as Pub.L.1983, ch. 392), to be null and void as a violation of the United States Constitution, and enjoining them from enforcing it. That statute amended and supplemented the comprehensive statutory scheme under which New Jersey regulates the disposal of solid and hazardous waste. After a final hearing the district court held that some provisions of the statute violated federally guaranteed rights of association and privacy and that those provisions were not severable from the rest of the statute. Consequently, the district court concluded that the entire statute was void. We reverse.

I. The Legislative Background

New Jersey has a long, and almost unique, history of regulating the solid and hazardous waste industries as public utilities. As early as 1958 the New Jersey Attorney General's Office and several grand juries investigated the relationship between an organization called the Municipal Contractors Association and a labor organization representing employees in the garbage collection industry. These organizations were alleged to be limiting access to the business of collecting and disposing of solid waste. A report reflecting the investigation by the Attorney General's Office, dated May 12, 1959, was made public on May 17, 1959. Presentments on the subject were handed down by a Bergen County grand jury on March 21, 1958 and by a Union County grand jury on May 28, 1958. Although a New Jersey Senate committee investigated the allegations in the report and presentments, no legislation resulted at that time. A decade later the State Commission of Investigation conducted an inquiry entitled "In the Matter of the Investigation of Waste Disposal and the Garbage Industry in New Jersey." That inquiry was prompted by allegations of various forms of intimidation of garbage collectors to enforce anticompetitive practices, allegations that landfill owners who were also in the collection business were using their ownership of the landfill sites to gain competitive advantage over other collectors, and allegations that multiple municipal licensing requirements put some collectors at a competitive disadvantage. The Report of the State Commission on Investigation, dated October 7, 1969, made several recommendations to the legislature that resulted in a regulatory scheme enacted in 1970. See Pub.L.1970, chs. 39, 40 (codified as amended N.J.S.A. 13:1E-1 to 13:1E-135 (Supp.1984-1985) and N.J.S.A. 48:13A-1 to 48:13A-13 (Supp.1984-1985)).

In October 1980 an indictment was returned by a state grand jury against New Jersey Trade Waste Association, 1 charging that unlawful efforts were made to insulate particular commercial, industrial, or residential scavenger accounts from competition in violation of the New Jersey Antitrust Act, N.J.S.A. 56:9-1 to 56:9-19 (Supp.1984-1985). 2 Before the trial on that indictment took place, a joint task force of the Department of Law and Public Safety (headed by the Attorney General), the Department of Environmental Protection, and the Board of Public Utilities studied the waste disposal industry and filed a report. That report described the structure of the industry, the increasing complexity of environmental regulations applicable to it, the decreasing availability of landfill sites, and the deficiencies in the existing regulatory structure. The report noted proposed legislation that would prevent organized crime from having ownership interests in the industry--a recurring concern in New Jersey for almost a quarter century. The report recommended legislative changes, and those recommendations provided the general framework for the legislation challenged in this action.

II. The New Jersey Statutory Scheme

In the Solid Waste Management Act of 1970, Pub.L.1970, ch. 39 (codified as amended N.J.S.A. 13:1E-1 to 13:1E-135 (Supp.1984-1985)), New Jersey undertook to regulate the disposition of solid waste in that state. A central feature of that Act is the requirement that solid waste collection and disposal facilities and operations be registered with the Department of Environmental Protection. See N.J.S.A. 13:1E-4. Registrations may be revoked by the Department if such facilities or operations are not in compliance with state environmental protection laws and regulations. See N.J.S.A. 13:1E-12. Simultaneously, in the Solid Waste Utility Control Act of 1970, N.J.S.A. 48:13A-1 to 48:13A-13 (Supp.1984-1985), New Jersey determined that "the collection, disposal and utilization of solid waste is a matter of grave concern to all citizens and is an activity thoroughly affected with the public interest," the economic aspects of which should be regulated as a public utility by the New Jersey Public Utility Commission. See N.J.S.A. 48:13A-2. A central feature of the Solid Waste Utility Control Act is that no person may engage in the business of solid waste collection or disposal until found by the Board of Public Utility Commissioners to be "qualified by experience, training or education to engage in such business, is able to furnish proof of financial responsibility, and holds a certificate of convenience and necessity ...." N.J.S.A. 48:13A-6. Thus, the New Jersey statutory scheme, since 1970, has treated solid waste collection and disposal as an environmentally sensitive public utility, the environmental aspects of which are regulated by the Department of Environmental Protection and the economic aspects of which are regulated by the Public Utility Commission. Both the Solid Waste Management Act of 1970 and the Solid Waste Utility Control Act of 1970 were amended in 1975 to increase the regulatory authority of the Department of Environmental Protection and the Public Utility Commission, in manners not challenged in the instant case. See Pub.L.1975, ch. 326. In 1981 the Solid Waste Management Act of 1970 was further amended and supplemented. See Pub.L.1981, chs. 278, 279. Chapter 278 of the 1981 amendment imposed a recycling tax for every cubic yard of solid waste accepted for disposal at a facility to fund the State Recycling Fund. See N.J.S.A. 13:1E-95, 13:1E-96. Chapter 279, entitled the "Major Hazardous Waste Facilities Siting Act," contains a legislative finding that hazardous waste disposal has been made "on an indiscriminate and illegal basis...." N.J.S.A. 13A:1E-50. To monitor the disposal of hazardous waste, Chapter 279 requires special registration and approval for hazardous waste facilities. See N.J.S.A. 13:1E-60. The Department of Environmental Protection was required to review all applications, and that review included consideration of a disclosure statement as well as an investigation report by the Attorney General based on that disclosure statement. See N.J.S.A. 13:1E-60(b). Approval of such a registration could not be granted unless

[t]he applicant, in its prior performance record in the treatment, storage or disposal of hazardous waste, exhibits sufficient reliability, expertise, and competency to operate a major hazardous waste facility given the potential harm to human health and the environment which would result from the irresponsible operation of the proposed facility. In no case may approval be granted to the applicant if any person shown to be a party to the application by the disclosure statement [required by the Act] has been convicted of a crime for any act or omission related to the collection, treatment, storage or disposal of hazardous waste in this or any other jurisdiction within 10 years of the date on which the application was filed.

N.J.S.A. 13:1E-60(b)(1) (deleted by amendment Pub.L.1983, ch. 392). The disclosure statement required of an applicant for a hazardous waste treatment registration by Chapter 279 was to include:

(1) The names and addresses of all officers, directors, or partners of the business concern seeking a registration and engineering design approval and all persons or business concerns holding more than 10% of the equity in or debt liability of that business concern;

(2) The names and addresses of all officers, directors, or partners of any business concern disclosed in the statement and the names and addresses of all persons holding more than 10% of the equity in or the debt...

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