Old Bridge Chemicals, Inc. v. New Jersey Dept. of Environmental Protection
| Decision Date | 08 July 1992 |
| Docket Number | No. 91-5789,91-5789 |
| Citation | 965 F.2d 1287 |
| Parties | , 61 USLW 2031, 22 Envtl. L. Rep. 21,142 OLD BRIDGE CHEMICALS, INC., Appellant, v. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION. |
| Court | U.S. Court of Appeals — Third Circuit |
Catriona Glazebrook (argued), Richard L. Caplan, Caplan & Luber, Paoli, Pa., for appellant.
Edward J. Dauber, Acting Atty. Gen. of New Jersey, R. Brian McLaughlin, Deputy Atty. Gen. (argued), Mary C. Jacobson, Deputy Atty. Gen., Trenton, N.J., for appellee.
Before: GREENBERG, SCIRICA, and ROSENN, Circuit Judges.
This appeal presents questions arising from a state's regulatory scheme for the disposition and management of toxic wastes within its jurisdiction and a potential conflict with the commerce clause of the federal Constitution and congressional legislation. The New Jersey Department of Environmental Protection (NJDEP), the agency charged with the promulgation and enforcement of regulations governing waste management in the State of New Jersey, enacted a regulatory program governing the management of hazardous wastes. Old Bridge Chemicals, Inc. (OBC) claims that the regulations relating to recyclable by-product hazardous wastes violate the commerce clause and the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§ 6901 et seq. OBC sought relief in the United States District Court for the District of New Jersey to enjoin NJDEP from using RCRA hazardous waste codes to identify this class of hazardous wastes. OBC also sought a declaration that New Jersey's definition of solid waste, without state-specific waste codes, violates the commerce clause. The district court entered summary judgment for the New Jersey Department of Environmental Protection. OBC appealed and we affirm.
OBC is a chemical manufacturing company chartered under New Jersey laws with gross annual sales approaching $20 million. For twenty years, it has purchased chemicals, including zinc oxide, sulfuric acid, copper sulfate solution and crystals, copper chloride, and copper ammonium chloride, from out-of-state companies. These out-of-state companies produce the chemicals as necessary adjuncts to the manufacture of primary marketable commodities. OBC uses them in the production of pure, basic chemicals for sale to agriculture, water treatment, dry cell battery, and textile industries.
Under the New Jersey Solid Waste Management Act, NJDEP has the responsibility to promulgate and update rules and regulations concerning the State's waste management. N.J.Stat.Ann. § 13:1E-6. In 1987, NJDEP adopted a revised definition of "solid waste," which made its definition of solid waste more expansive and stringent than the federal definition. 1 Although the federal definition excludes any materials recycled "as effective substitutes for commercial products," 40 C.F.R. § 261.2(e)(1)(ii), New Jersey's amended definition includes "by-product" materials that are recycled. 2 N.J.A.C. 7:26-1.6(b)5. As a consequence of the new regulations, many of the raw materials used by OBC are now classified as solid wastes under the New Jersey definition notwithstanding their exemption from federal regulation. In addition, under both the federal and state regulations, a substance considered a "hazardous waste" must first classify as a solid waste. See 40 C.F.R. § 261.3; N.J.A.C. 7:26-1.4. Because NJDEP's definition of "solid waste" includes by-product materials that are recycled, such materials may be hazardous only under the New Jersey scheme.
On January 11, 1990, NJDEP notified OBC that virtually all of OBC's imported raw materials were by-product solid wastes subject to New Jersey's hazardous waste regulations. Under NJDEP's expanded regulations, OBC's imported raw chemicals, copper chloride, and copper ammonium chloride, further classify as by-product solid wastes exhibiting hazardous waste characteristics and are thus hazardous wastes. See N.J.A.C. 7:26-8.1(v). OBC concedes that these raw materials are of a hazardous nature.
Under the New Jersey scheme, these recyclable hazardous wastes must be labelled and identified for record keeping and recording purposes by their characteristic EPA hazardous waste code, even if they originate from out-of-state sources. See id. 7:26-8.5(e), 8.8(e). In addition, although RCRA does not require shipments of such recyclable hazardous wastes to be done "under manifest," New Jersey requires that shipments of these wastes to and from the state be made pursuant to the State's manifest system, modelled after RCRA's. A manifest is a document used to identify the quantity, composition, and the origin, routing, and destination of hazardous wastes during their transportation. 42 U.S.C. § 6903(12). It provides a "cradle to grave" means for tracking hazardous wastes through a paper trail from the point of generation to the point of treatment, storage, or disposal. Id.
For wastes originating in or destined for points in New Jersey, a generator 3 of hazardous waste must complete a RCRA Uniform Hazardous Waste Manifest, RCRA's manifest for hazardous wastes adopted by NJDEP regulations. N.J.A.C. 7:26-7.4(a)(3); 40 C.F.R. § 262 app. The Uniform Manifest requires, inter alia, information regarding the particular nature of the hazardous wastes and the generator and transporter of the wastes. The Uniform Manifest also requires the generator's EPA identification number, a number unique to each generator of hazardous waste.
To obtain an EPA identification number, the generator must file a Form 8700-12 entitled "Notification of Regulated Waste Activity" with the EPA. This form, which is designed in part to help companies determine whether and how they must comply with RCRA notification requirements, specifically designates a space labelled "other wastes" that is reserved for listing "state or other wastes requiring an I.D. number." The instructions for completing this form advise generators that Companies are informed that they are required to learn about and comply with all state regulations that apply to them and are "strongly urged" to contact the appropriate state hazardous waste contact agencies, alphabetically listed with addresses and phone numbers in the instructions accompanying the form.
Before allowing the hazardous waste to leave its property, the generator must forward one copy of the Uniform Manifest to the state of origin and one copy to the state of destination. N.J.A.C. 7:26-7.4(a)(5)(iii). Additional notification requirements apply for shipments by railroad or water. Id. 7:26-7.4(a)(7), (8). Although the shipment of hazardous wastes by manifest is a federal requirement, RCRA expressly allows a state to require a copy of each manifest used in connection with hazardous waste generated within that state or transported to a treatment, storage, or disposal facility within the state. 42 U.S.C. § 6929 (West Supp.1992).
OBC does not object to New Jersey's more expansive definition of "solid waste," but argues that New Jersey's use of the RCRA hazardous waste codes creates a detrimental impact upon interstate commerce because it appears that such coding ipso facto renders New Jersey-only hazardous wastes subject to nationally restrictive RCRA hazardous waste regulations in interstate shipment. OBC asserts that as a consequence, its out-of-state suppliers are refusing to continue to sell such recyclable by-product materials to OBC or are threatening to withdraw as suppliers because they do not wish to be burdened by New Jersey's requirements for manifesting, labelling, and transporting non-federally designated hazardous wastes. They fear that identifying their routinely marketed products as federal hazardous wastes could subject them to federal regulatory liability as unlicensed hazardous waste generators or transporters. OBC claims that these potential losses to its sources of supply may force it to close its operations.
In deciding this case, we recognize the serious difficulties inherent in hazardous waste management, particularly in the State of New Jersey. As we have previously noted, the disposition of solid waste in New Jersey "has been in a state of crisis since the midseventies, and continues to be 'one of [the] state's most severe problems.' " J. Filiberto Sanitation, Inc. v. New Jersey Dep't of Envtl. Protection, 857 F.2d 913, 918 (3d Cir.1988) (quoting A.A. Mastrangelo, Inc. v. Commissioner of Dep't of Envtl. Protection, 90 N.J. 666, 670-71, 449 A.2d 516, 518-19 (1982)). However, solid waste is an increasingly common commodity of interstate commerce, City of Philadelphia v. New Jersey, 437 U.S. 617, 621-23, 98 S.Ct. 2531, 2534-35, 57 L.Ed.2d 475 (1978); therefore, New Jersey's regulations must be consistent with the dictates of the commerce clause. In addition, although the state is understandably driven to correct the public health and safety problems posed by hazardous wastes, New Jersey, in its efforts to do so, must not contravene RCRA.
In interpreting the applicable federal legislation and regulations to determine Congress's intent, and in interpreting New Jersey's regulations to determine whether they comport with the Constitution and the federal environmental scheme, our role is not to pass judgment on the effectiveness and wisdom of the particular state regulations at issue, but only to apply the law as we find it. We conduct a plenary review of the district court's decision to ascertain whether the record reveals any disputed issues of material fact and whether NJDEP, as the moving party, is entitled to summary judgment as a matter of law. Arnold Pontiac-GMC, Inc. v. General Motors Corp., 786 F.2d 564, 568 (3d Cir.1986).
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