City of Philadelphia v. State

• Citation: 73 N.J. 562,376 A.2d 888
• Parties: , 10 ERC 1312, 7 Envtl. L. Rep. 20,818 CITY OF PHILADELPHIA, City of Glen Cove, Landfill and Development Company, Mac Sanitary Landfill, Inc., Kinsley's Landfill, Inc., and De Lorenzo-Interstate Waste Removal Co., Inc. (now Interstate Waste Removal Co., Inc.), Plaintiffs- Respondents, v. STATE of New Jersey, Department of Environmental Protection of the State of New Jersey and Richard J. Sullivan, Commissioner of the Department of Environmental Protection of the State of New Jersey, Defendants-Appellants.
• Decision Date: 20 June 1977
• Court: United States State Supreme Court (New Jersey)

Page 562

73 N.J. 562

376 A.2d 888, 10 ERC 1312, 7 Envtl.

L. Rep. 20,818

CITY OF PHILADELPHIA, City of Glen Cove, Landfill and Development Company, Mac Sanitary Landfill, Inc., Kinsley's Landfill, Inc., and De Lorenzo-Interstate Waste Removal Co Inc. (now Interstate Waste Removal Co., Inc.), Plaintiffs- Respondents, v. STATE of New Jersey, Department of Environmental Protection of the State of New Jersey and Richard J. Sullivan Commissioner of the Department of Environmental Protection of the State of New Jersey, Defendants-Appellants.

Supreme Court of New Jersey.

Argued May 10, 1977.

Decided June 20, 1977.

Stephen Skillman, Asst. Atty. Gen., for defendants-appellants (William F. Hyland, Atty. Gen., attorney; Stephen Skillman, Asst. Atty. Gen., of counsel and on the brief; Peter J. Herzberg and Nathan M. Edelstein, Deputy Attys. Gen., on the brief).

Herbert F. Moore, Princeton, for plaintiffs-respondents (Jamieson, McCardell, Moore, Peskin & Spicer, Princeton, attorneys; Herbert F. Moore, of counsel; Arthur C. Meisel, Princeton, on the brief).

The opinion of the court was delivered by

MOUNTAIN, J.

On November 18, 1975, this Court rendered its decision in Hackensack Meadowlands v. Municipal Landfill Authority, 68 N.J. 451, 348 A.2d 505. The opinion upheld the constitutionality of L.1973, c. 39, as supplemented by L.1973, c. 363, known as the Waste Control Act, N.J.S.A. 13:1I-1 et seq. The principal purpose of this statute is to prohibit the disposal within New Jersey of waste originating out of state.

Plaintiffs appealed to the Supreme Court of the United States, where probable jurisdiction was noted April 5, 1976, 425 U.S. 910, 96 S.Ct. 1504, 47 L.Ed.2d 760, sub nom City of Philadelphia v. State of New Jersey. During the course of oral argument before the Supreme Court on November 3, 1976, it was brought to the attention of that Court that twelve days prior thereto the President had signed into law the Resource Conservation and Recovery Act of 1976, Pub.L. 94-580, 42 U.S.C.A. § 6901, et seq. This statute expands the federal role with respect to the disposal of solid wastes. In compliance with an order dated November 15, 1976, the parties filed supplemental briefs in the Supreme Court addressed to the issue as to the effect this act might have upon the constitutionality of the New Jersey legislation. On February 23, 1977 the Supreme Court, with four justices dissenting, issued a per curiam opinion vacating the judgment of this Court entered November 18, 1975 and remanding the case for reconsideration in light of the foregoing Congressional enactment. City of Philadelphia v. State of New Jersey, 430 U.S. 141, 97 S.Ct. 987, 51 L.Ed.2d 224. More specifically the opinion formulated the issue for determination on remand in these words,

We think it appropriate that we have the views of the New Jersey Supreme Court on the question whether or to what extent the Resource Conservation and Recovery Act of 1976 preempts the New Jersey statute. (430 U.S. at 142, 97 S.Ct. at 988, 51 L.Ed.2d at 226)

We have carefully examined the Congressional enactment as well as the materials bearing upon its history, and have had the benefit of briefs and argument of counsel addressed to the issue so presented. In our opinion, for the reasons set forth below, we believe the Congressional enactment does not effect federal pre-emption either as to the disposal of hazardous waste or with respect to any other area of solid waste disposal. In order that the basis for our conclusion may be fully comprehended we proceed to examine the two major subchapters of the federal act. Even though hazardous waste disposal is not clearly at issue in this case, we deem it appropriate to consider initially the subchapter of the Act which addresses that problem.

I

Subchapter III of the Act (42 U.S.C.A. §§ 6921-6931) is entitled, "Hazardous Waste Management." In this portion of the statute there is set forth a comprehensive program for the disposal of hazardous waste. The latter is defined as,

. . . a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may

(A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or

(B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed. (42 U.S.C.A. § 6903(5))¹

It seems clear that it would include nuclear waste.

The Administrator of the Environmental Protection Agency is directed to ". . . develop and promulgate criteria for identifying the characteristics of hazardous waste . . . taking into account toxicity, persistence, and degradability in nature, potential for accumulation in tissue, and other related factors such as flammability, corrosiveness, and other hazardous characteristics." 42 U.S.C.A. § 6921(a). Based upon such study, particular hazardous wastes are to be identified, the list to be revised from time to time as may be appropriate. Id.

The sections of the statute immediately following very carefully set forth detailed standards to be applied to (1) generators of hazardous waste (42 U.S.C.A. § 6922); (2) transporters of hazardous waste (42 U.S.C.A. § 6923); and (3) owners and operators of hazardous waste treatment, storage, and disposal facilities. (42 U.S.C.A. § 6924). This hazardous waste program is not an exclusively federal venture. Individual states are authorized to develop their own hazardous waste control and disposal programs subject to the approval of the Administrator. 42 U.S.C.A. § 6926(b). Significantly, under a section entitled "Retention of State Authority," the states are prevented from imposing hazardous waste requirements less stringent than those authorized by the federal guidelines. (42 U.S.C.A. § 6929). If a state-enacted program deviates from the federal mandates the Administrator has the power to withdraw federal approval. (42U.S.C.A. § 6926(e) ).

This Subchapter may fairly be characterized as an effort to achieve a degree of uniformity in hazardous waste control. The federal guidelines pertaining to parties involved in the generation, transportation and disposal of such waste establish a minimum national standard below which a state hazardous waste program may not operate. However, the Act does not prevent the State from imposing more stringent standards to hazardous waste operations within its borders. New Jersey has done just this through the enactment of N.J.S.A. 13:1I-1 et seq.

We view this ban on disposal of waste originating out-of-state as entirely consistent with the federal program. That the federal hazardous waste guidelines and the New Jersey prohibition of out-of-state waste can function smoothly together is illustrated by using a hypothetical New Jersey hazardous waste disposal plant as an example. Once the federal regulations establishing performance standards are promulgated,² this plant will be required to comply with announced guidelines pertaining to recordkeeping, reporting systems, plant design and training of personnel. (42 U.S.C.A. § 6924(1)-(7) ). The sole state restriction imposed upon the operation of the plant will be the ban on the receipt of hazardous waste which originated outside of New Jersey. N.J.S.A. 13:1I-10. It is readily apparent that both the federal and state regulations operate without conflict. The New Jersey plant will be in strict compliance with all federal requisites even though out-of-state wastes are prohibited.

The critical inquiry relevant to federal pre-emption is "whether both (federal and state) regulations can be enforced without impairing the federal superintendence of the field . . . ." Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248, 256-57 (1963). Having concluded that "federal superintendence" of the field of hazardous waste is indeed unimpaired we perceive no federal pre-emption resulting from Subchapter III.

II

Subchapter IV of the Congressional enactment (42 U.S.C.A. §§ 6941-6949) is entitled "State or Regional Solid Waste Plans." This portion of the Act deals with the treatment and disposal of non-hazardous solid wastes, materials that are or may become "environmentally sound," 42 U.S.C.A. § 6941, and that may either be reclaimed or disposed of with a minimum of danger to human life and health. It is with wastes of this sort that we are here directly concerned.

As to the disposal of solid waste of a non-hazardous nature, it also seems clear that there has been no federal pre-emption by virtue of this statute. On the contrary, as will be seen, the Act affirmatively encourages state action and expressly eschews any intent on the part of Congress to do more than offer guidance together with technological and fiscal support.

It is well-settled today that pre-emption deriving from federal legislation must take the form of "an unambiguous Congressional mandate." Florida Lime and Avocado Growers, Inc. v. Paul, supra, 373 U.S. at 147, 83 S.Ct. at 1219, 10 L.Ed.2d at 259 (1963). Where no such mandate is discernible, there will be no pre-emption. The Supreme Court appears to have been especially reluctant to find an intent to pre-empt where state legislation has been enacted to serve local environmental interests, Askew v. American Waterways Operators, 411 U.S. 325, 93 S.Ct. 1590, 36 L.Ed.2d 280 (1973), or to protect public health. Huron Portland Cement Co. v. Detroit, 362 U.S. 440, 80 S.Ct. 813, 4 L.Ed.2d 852 (1960). Our state statute, as was made clear in this Court's earlier opinion, 68 N.J. at 472-73, 348 A.2d 505, is an exercise of the police power of this State enacted in the interest of protecting the environment of New Jersey and the welfare of its citizens, i.e., the public health.

The intent of Congress to leave this power with the several states,...