931 F.Supp. 341 (D.N.J. 1996), C. A. 93-2669, Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County

Docket Nº:C. A. 93-2669
Citation:931 F.Supp. 341
Party Name:Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County
Case Date:July 15, 1996
Court:United States District Courts, 3th Circuit, District of New Jersey
 
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Page 341

931 F.Supp. 341 (D.N.J. 1996)

ATLANTIC COAST DEMOLITION & RECYCLING, INC., et al., Plaintiffs,

v.

BOARD OF CHOSEN FREEHOLDERS OF ATLANTIC COUNTY, et al., Defendants.

Civil Action Nos. 93-2669 (JEI), 94-3244 (JEI).

United States District Court, D. New Jersey.

July 15, 1996

Page 342

Mesirov Gelman Jaffe Cramer & Jamieson by Mark R. Rosen, Haddonfield, NJ, for Plaintiff Atlantic Coast Demolition & Recycling, Inc.

Steptoe & Johnson by William T. Hassler, Betty Jo Christian, Paul J. Ondrasik, Jr., F. Franklin Amanat, Washington, DC, for Plaintiffs C & A Carbone, Inc., National Solid Waste Management Association, Waste Management Association of New Jersey.

Peter Verniero, Attorney General of New Jersey by Gail M. Lambert, Deputy Attorney General, Stefanie A. Brand, Kevin A. Auerbacher, Deputy Attorneys General, Andrea M. Silkowitz, Assistant Att'y. Gen., of Counsel, Department of Law and Public Safety, Division of Law, Newark, NJ, for Defendant Robert Shinn, New Jersey Department of Environmental Protection.

Robert G. Millenky, Camden County Counsel, Camden, NJ, for Defendant Board of Chosen Freeholders of Camden County.

Murshell J. Bland, Bergen County Counsel by Barbara H. Parker, Assistant County Counsel, County of Bergen, Hackensack, NJ, for Defendant Bergen County Department of Health Services.

DeCotiis, Fitzpatrick & Gluck by J.S. Lee Cohen, Hackensack, NJ, for Intervenor-Defendants Hudson County Improvement Authority, Mercer County Improvement Authority, Essex County Utilities Authority, and Passaic County Utilities Authority.

Wolff & Samson, P.C. by Gage Andretta, David Samson, Roseland, NJ, for Intervenor-Defendant Camden County Energy Recovery Associates, L.P.

Sinisi, Van Dam, Sproviero & Sokolich by Stephen P. Sinisi, Scott G. Sproviero, Paramus, NJ, for Defendant Bergen County Utilities Authority.

Higgins, Slachetka & Long by Thomas S. Higgins, Joseph J. Slachetka, Laurel Springs, NJ, for Intervenor-Defendant Cape May County Municipal Utilities Authority.

OPINION

IRENAS, District Judge:

Plaintiffs have brought challenges under the dormant Commerce Clause1 to portions of the New Jersey Solid Waste Management Act, N.J.S.A. 13:1E-1 to -207, the Solid Waste Utility Control Act, N.J.S.A. 48:13A-1 et seq., and regulations promulgated thereunder, N.J.A.C. 7:26-1.1 et seq., a group of statutes and regulations that the Court shall refer to collectively as the "waste flow regulations."

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2 After granting plaintiff Atlantic Coast's motion for a preliminary injunction of waste flow control over construction and demolition ("C & D") waste and giving the parties an opportunity to further develop the record, the Court held a non-jury trial to consider the merits of the complaints filed by plaintiffs. Having reviewed the testimony submitted by all parties, the Court now holds that the defendants have failed to meet their burden of demonstrating that the local purpose behind flow control could not be served as well by available nondiscriminatory means. A permanent injunction against New Jersey's waste flow regulations will be entered, but the effective date of the injunction will be stayed to permit the defendants to review the impact of the injunction and develop alternative arrangements for the management of New Jersey's solid waste.

I. PROCEDURAL HISTORY

Plaintiffs here come from two consolidated cases, Atlantic Coast Demolition & Recycling, Inc., v. Board of Chosen Freeholders, et al., Civ. No. 93-2669 (JEI) (" Atlantic Coast "), and C & A Carbone, et al. v. Shinn, et al., Civ. No. 94-3244 (JEI) (" Carbone II "). The Atlantic Coast case was filed on June 23, 1993, by Atlantic Coast Demolition & Recycling, Inc. ("Atlantic Coast") against the Commissioner of the New Jersey Department of Environmental Protection and Energy (the "State" or "DEP"), the Board of Chosen Freeholders of Atlantic County, the Atlantic City Utilities Authority, the Board of Chosen Freeholders of Camden County, and the Pollution Control Financing Authority of Camden County. Atlantic Coast brought claims pursuant to the Commerce Clause and 42 U.S.C. § 1983 seeking a declaratory judgment that the solid waste plans identified in N.J.A.C. 7:26-6:5 violate the Commerce Clause of the United States Constitution and an injunction against enforcement of these regulations.

Atlantic Coast moved for a temporary restraining order, and on September 2, 1993, after a period of intensive discovery, the Court held a hearing on the motion. On September 8, 1993, the Court rendered its oral findings of fact and conclusions of law. In light of the Third Circuit's decision in J. Filiberto Sanitation, Inc. v. New Jersey Dep't of Envtl. Protection, 857 F.2d 913 (3d Cir. 1988), the Court concluded that the waste flow regulations should be analyzed under the balancing test articulated in Pike v. Bruce Church, Inc., 397 U.S. 137, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970), and that the state interest served by the waste flow regulations outweighed any burden on interstate commerce. The Court therefore denied Atlantic Coast's application for a temporary restraining order. On September 10, 1993, the Court granted the motion of the Mercer County Improvement Authority and the Gloucester County Improvement Authority for leave to appear as amicus curiae. On February 28, 1994, with the consent of the parties, the Court entered final judgment in defendants' favor on the basis of its prior findings of fact and conclusions of law.

Plaintiff appealed. In an opinion filed February 16, 1995, the Third Circuit reversed this Court's decision and remanded the case for further proceedings. Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders, 48 F.3d 701 (3d Cir. 1995). The Third Circuit concluded that in light of the Supreme Court's recent decision in C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994) (" Carbone I "), which was decided after this Court's entry of final judgment, New Jersey's waste flow regulations discriminate against interstate commerce and are subject to heightened scrutiny under the dormant Commerce Clause rather than the less strict Pike balancing test. 48 F.3d at 713. However, the Circuit also held that it would remand the matter to the district court to determine whether the regulations could be upheld under strict scrutiny. Id. at 718. In doing so, the Circuit specifically stated that "Atlantic Coast is free at any time to apply for pendente lite relief." Id.

Atlantic Coast filed a motion for a preliminary injunction on April 12, 1995. Also on that date, this Court granted the motions of

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Hudson County Improvement Authority, Mercer County Improvement Authority, Essex County Utilities Authority, Passaic County Utilities Authority (the "County Authorities") and Camden County Energy Recovery Associates, L.P., ("CCERA") to intervene as defendants. By order dated May 1, 1995, Cape May County Municipal Utilities Authority ("CMCMUA") was also permitted to intervene in the case.

Carbone II was filed on July 11, 1994, and assigned to the Newark vicinage. The case was brought by C & A Carbone, Inc., the National Solid Waste Management Association, and the Waste Management Association of New Jersey (the "association plaintiffs"), and the mayors of Jersey City and Northvale (the "municipal plaintiffs"), against the State, Bergen County Utilities Authority ("BCUA"), Bergen County Health Department, Hudson County Improvement Authority, and officials at these agencies. The case, which raised essentially the same challenges to the New Jersey waste flow regulations as those brought in Atlantic Coast, but which sought damages as well as declaratory and injunctive relief, was stayed pending the Third Circuit's decision in Atlantic Coast. When that case was remanded, Carbone II was transferred to this Court. On April 12, 1995, this Court granted defendants' motion to consolidate the case with Atlantic Coast. On April 17, 1995, the association plaintiffs and the municipal plaintiffs in Carbone II moved for pendente lite relief.

The Court indicated that it would exercise its discretion "to reopen the record for supplementary evidence," 48 F.3d at 718 n. 21, in relation to the motions for a preliminary injunction, but the parties elected to proceed on the basis of the previous record before this Court and the briefs, exhibits, and affidavits submitted in connection with the preliminary injunction motions and defendants' response thereto. The Carbone II plaintiffs filed an amended complaint on May 25, 1995, in which they added additional municipal plaintiffs. The Court held oral argument on the motions on June 6, 1995, and issued a conditional preliminary injunction on June 9, 1995, only as to the flow control of C & D waste. Atlantic Coast, 893 F.Supp. 301 (D.N.J.1995). The Court concluded that a preliminary injunction banning the entire present waste flow regulatory scheme was not warranted at the time due to the substantial harm such an injunction would cause to the defendants and the public. In its order conditionally granting only plaintiff Atlantic Coast's motion for a preliminary injunction, the Court dismissed the municipal plaintiffs from the case.

The State was given additional time to submit an alternative plan for the control of C & D waste in New Jersey. After the State had submitted such a plan, and all parties had been given an opportunity to comment, the Court held oral argument on November 6, 1995. On November 28, 1995, the Court granted the motion for pendente lite relief as to C & D waste and issued a preliminary injunction subject to implementation by the State of the alternative plan for the control of C & D waste. Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen...

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