J. Filiberto Sanitation, Inc. v. State of N.J. Dept. of Environmental Protection
| Decision Date | 08 September 1988 |
| Docket Number | No. 88-5046,88-5046 |
| Citation | 857 F.2d 913 |
| Parties | , 57 USLW 2179, 18 Envtl. L. Rep. 21,303 J. FILIBERTO SANITATION, INC., Appellant, v. STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION and Board of Public Utilities; Hunterdon County Municipal Utilities Authority. |
| Court | U.S. Court of Appeals — Third Circuit |
Robert S. Moraff (argued), Steven T. Singer, Schwartz, Tobia & Stanziale, Montclair, N.J., for appellant.
W. Carey Edwards, Atty. Gen. of New Jersey, Michael R. Clancy, Harley A. Williams (argued), Deputy Atty. Gen., Trenton, N.J., for appellees, State of N.J., Dept. of Environmental Protection and Board of Public Utilities.
Gaetano M. De Sapio, John P. Gallina (argued), Flemington, N.J., for appellee, Hunterdon County Utilities Authority.
Before SLOVITER, SCIRICA and WEIS, Circuit Judges.
Appellant J. Filiberto Sanitation is a New Jersey Corporation engaged in the collection and disposal of solid wastes, registered and licensed as a public utility. See N.J.Stat.Ann. Sec. 48:2-13 (West Supp.1988). Appellees the New Jersey Department of Environmental Protection (DEP) and the New Jersey Board of Public Utilities (BPU) are state agencies with regulatory authority over aspects of the collection and disposal of solid waste. Appellee Hunterdon County Municipal Utilities Authority (Authority) is a public body created by the Hunterdon County Board of Freeholders pursuant to the New Jersey Municipal and County Utilities Authorities Law, N.J.Stat.Ann. Secs. 40:14B-1 et seq. (West 1967 & Supp.1988), to participate in the implementation of the county's Solid Waste Management Plan.
Under a regulation promulgated pursuant to the New Jersey Solid Waste Management Act, all trash collected in Hunterdon County must be deposited at the Authority's transfer station for processing and subsequent disposal. Filiberto, which wishes to continue to transport the waste it collects in Hunterdon County directly to out-of-state landfills for final disposal, challenges the regulation under the dormant Commerce Clause.
New Jersey's Solid Waste Management Act, N.J.Stat.Ann. Secs. 13:1E-1 to 1E-198 (West 1979 and Supp.1988) (the Act), sets forth a comprehensive waste management program founded on the determination that "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." Id. Sec. 13:1E-2(a).
The Act gives the DEP responsibility for promulgating and updating a statewide solid waste management plan. Id. Sec. 13:1E-6a(3). Each county in New Jersey is designated as a solid waste management district with the responsibility of developing a district solid waste management plan based on state guidelines. Id. Sec. 13:1E-19 to -21, -23. No plan may be adopted without a public hearing and the opportunity for written comment. Id. Sec. 13:1E-23. Upon adoption, a district plan must be reviewed and approved by the DEP. Id.
The BPU's role is to "assess and regulate the economic aspects of the solid waste disposal industry." A.A. Mastrangelo, Inc. v. Commissioner of Dep't Envtl. Protection, 90 N.J. 666, 681, 449 A.2d 516, 524 (1982). Under the Act, it must review the "economic aspects" of a district's plan. N.J.Stat.Ann. Sec. 13:1E-24. Only the BPU has the power to establish franchises for solid waste collection and disposal and to set the rates haulers may charge their customers for such services. Solid Waste Utility and Control Act, N.J.Stat.Ann. Secs. 48:13A-4 to -5 (West Supp.1988); see Mastrangelo, 90 N.J. at 681-82, 449 A.2d at 524. To some extent, the roles of each of the two agencies verge upon the other. As the New Jersey Supreme Court has explained, the DEP has the general authority to assess solid waste flow needs and to direct one district to dispose of its waste in another, but only the BPU has the power to "direct individual solid waste collectors to collect and transport waste ... to specific disposal sites and require or designate specific disposal facilities as the ultimate destination of particular waste streams." Id. at 686, 449 A.2d at 526-27.
Hunterdon County has the obligation under the Act to plan disposal of the approximately 80,000 tons of solid waste it generates each year. The affidavit filed in this case by the Director of Solid Waste for the County of Hunterdon explains the problem facing the Authority in implementing its statutory obligation. At the time the Plan was developed, there was no facility at which solid waste could be disposed of in Hunterdon County. In addition, App. at 24. She further explained that App. at 31.
Hunterdon County's Plan was adopted and approved by the DEP in 1979, as modified in 1981. The Plan mandated construction of a transfer station and originally provided that county trash could be deposited there for compacting and subsequent transport by the transfer station's operator to the Warren County site for ultimate disposal. The "key ingredient" of the Plan was an Interdistrict Waste Agreement with Warren County, approved by the DEP, under which Warren would, until at least 2005, accept all of Hunterdon's trash for processing at its planned trash-to-steam plant. App. at 27. As an interim measure, Warren County also agreed to accept all of Hunterdon County's trash at its landfill pending completion of the plant.
The Hunterdon County Plan was amended in 1984, following the required public hearing and the approval of the DEP and the BPU, by adoption of a Rule requiring most types of solid waste generated in Hunterdon County to be deposited only at the transfer station. 1 This Rule, codified at N.J.Admin.Code tit. 7, Sec. 7.26-6.5(k)(3), became effective on October 7, 1985, and is the regulation attacked in this case.
The County entered into a contract with Browning-Ferris Industries to operate the transfer station, which opened in August 1985. The operation, including the cost of final disposal elsewhere, was to be financed by "tipping fees", the rates charged haulers who deposit waste at the station. The tipping fees were to be set by the Authority, to which the County had delegated general responsibility for the complete operation and administration of all financial aspects of the station.
In 1983, before the transfer station was completed, the Warren County landfill was closed by the DEP. The DEP authorized Hunterdon haulers to haul their waste for disposal to a facility in Ocean County, and also allowed them the option of arranging disposal with private landfills in Pennsylvania. Although the transfer station had been constructed in anticipation of the disposal of all of Hunterdon County's trash at the planned Warren County trash-to-steam plant, DEP announced in 1985 that Warren's trash production was such that Warren would not be able to accommodate all of Hunterdon's trash. A new Interdistrict Waste Agreement was negotiated under which Warren would accept 30,000 tons per year from Hunterdon for ten years once the trash-to-steam plant commenced operation. This was a "put or pay" agreement, whereby Hunterdon would be required to pay for the reserved capacity "irrespective of whether it delivers the waste." App. at 29-30.
During the first twenty months that the transfer station operated, it disposed of the waste it compacted at the Keystone Landfill in Pennsylvania. In April of 1987, the Pennsylvania authorities ordered Keystone to reduce the volume of waste accepted. Keystone then declined further contributions from Hunterdon. Browning-Ferris immediately found alternative sites, including the GROWS landfill in Pennsylvania, but because this entailed increased costs, the Authority increased the tipping fees from approximately $40/ton to more than $125/ton (although the price was lowered the next month to $100/ton). 2
Despite the Rule requiring haulers picking up trash in Hunterdon to deposit that trash at the transfer station, Filiberto deposited no trash at the station between August 1985, when the station opened, and April 1987. Apparently, although the record is not clear, it was transporting the bulk of the waste it collected directly to the Keystone Landfill. When Keystone closed, Filiberto contracted to deliver waste directly to GROWS Landfill in Pennsylvania at a rate it asserts in its complaint was approximately half the station's tipping fee, despite the fact that the station's waste also ended up at the GROWS disposal site.
On May 29, 1987, the DEP issued an Administrative Order requiring Filiberto to dispose of all solid waste it collected in Hunterdon at the transfer station, and its request for a stay was denied. On September 10, 1987, Filiberto initiated this action. 3 Its complaint, in five counts, filed in federal court on the basis of 28 U.S.C. Sec. 1331 and 28 U.S.C. Sec. 1337, sought declaratory and injunctive relief on the theories that the Rule requiring haulers to use the transfer station and the Administrative Order against it were unconstitutional and in violation of the New Jersey Antitrust Act.
Defendants moved for summary judgment, with supporting affidavits. Neither side sought discovery. Filiberto filed no response to the motion and no motion pursuant to Fed.R.Civ.P. 56(f) stating that it needed discovery to respond to the motion.
The district court, stating that the Rule "does not discourage the interstate transportation of solid waste," App. at 169, and "appears...
To continue reading
Request your trial
-
National Paint & Coatings Ass'n v. City of Chicago, 93-3969
...or in practical effect, there is no reason to require special justification. See also J. Filiberto Sanitation, Inc. v. New Jersey Department of Environmental Protection, 857 F.2d 913, 919-21 (3d Cir.1988); Norfolk Southern Corp. v. Oberly, 822 F.2d 388, 406 (3d Where does Chicago's spray pa......
-
Philip Morris Inc. v. Harshbarger, Civil Action No. 95-12574-GAO.
...Shaw have noted, and approved, this quirk of federal jurisdiction. See, e.g., J. Filiberto Sanitation, Inc. v. State of New Jersey Dept. of Envt'l Protection, 857 F.2d 913, 918 (3d Cir. 1988); 13B Charles Alan Wright et al., Federal Practice and Procedure § 3566, at 100-02 (2d ed. 1984); No......
-
Union County Utilities Authority v. Bergen County Utilities Authority, Civil Action No. 97-6126 (JEI).
...U.S. 617 (1978); Harvey & Harvey, Inc. v. Delaware Solid Waste Auth., 600 F. Supp. 1369 (D. Del. 1985); J. Filiberto Sanitation, Inc. v. State of New Jersey, 857 F.2d 913 (3d Cir. 1988), overruled by Atlantic Coast Demolition & Recycling, Inc. v. Bd. of Freeholders of Atlantic County, 48 F.......
-
Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 94-5173
...has been documented in the caselaw of both this court and the New Jersey courts. See, e.g., J. Filiberto Sanitation v. Department of Envtl. Protection, 857 F.2d 913, 918-19 (3d Cir.1988); Trade Waste Management Ass'n, Inc. v. Hughey, 780 F.2d 221, 223 (3d Cir.1985); A.A. Mastrangelo, Inc. v......
-
Congress, the courts, and solid waste transport: good fences don't always make good neighbors.
...114 S. Ct. 1677 (1994). (51) 587 N.Y.S.2d at 686 (citations omitted). (52) Id. at 687. (53) 437 U.S. 117 (1978). (54) Id. at 125-29. (55) 857 F.2d 913 (3d Cir. 1988). (56) C & A Carbone, Inc. v. Town of Clarkstown, 114 S. Ct. 1677 (1994). (57) Id. at 1681. (58) Id. at 1682. (59) Id. at ......