Long-Term Out-of-State Waste Disposal Agreement Between County of Hunterdon and Glendon Energy Co. of Glendon, Pa., In re

• Decision Date: 08 January 1990
• Docket Number: OUT-OF-STATE,LONG-TERM
• Citation: 237 N.J.Super. 516,568 A.2d 547
• Parties: In reWASTE DISPOSAL AGREEMENT BETWEEN THE COUNTY OF HUNTERDON AND GLENDON ENERGY COMPANY OF GLENDON, PENNSYLVANIA.
• Court: New Jersey Superior Court — Appellate Division

Page 516

237 N.J.Super. 516

568 A.2d 547

In re LONG-TERM OUT-OF-STATE WASTE DISPOSAL AGREEMENT BETWEEN THE COUNTY OF HUNTERDON AND GLENDON ENERGY COMPANY OF GLENDON, PENNSYLVANIA.

Superior Court of New Jersey Appellate Division.

Argued Sept. 20, 1989.

Decided Jan. 8, 1990.

Gaetano M. DeSapio, for appellant County of Hunterdon (John P. Gallina on the brief and Gaetano M. DeSapio and John P. Gallina on the reply brief).

Paul H. Schneider, Deputy Atty. Gen., for respondent State of New Jersey (Peter N. Perretti, Jr., Atty. Gen. of the State of New Jersey, attorney; Michael R. Clancy, Asst. Atty. Gen., of counsel; Paul H. Schneider, on the brief).

Before Judges KING, BAIME and KEEFE.

The opinion of the court was delivered by

KING, P.J.A.D.

This appeal challenges the Department of Environmental Protection's (DEP) disapproval of a long-term (20-year) contract between Hunterdon County and Glendon Energy Company. The contract called for Glendon to provide for disposal of solid waste generated in Hunterdon County for the 20-year period beginning June 1, 1991. The waste was to be disposed of at a resource recovery incinerator which Glendon proposed to build in Northhampton County in the Commonwealth of Pennsylvania. We reject the County's challenge to the DEP's administrative action and affirm.

By letter of November 8, 1988, DEP disapproved the contract. After communications concerning the finality of DEP's decision and the denial of the County's request for an administrative hearing, this appeal ensued. The County asserts five points challenging DEP's refusal to approve this long-term, out-of-state contract for solid waste disposal: (1) DEP's administrative action was illegal, unreasonable, arbitrary and capricious; (2) the disapproval violated the Commerce Clause of the federal Constitution; (3) the DEP erred in refusing to grant an administrative hearing; (4) the decision constituted administrative rule-making not in compliance with the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -14; and (5) the conditions for DEP approval of an in-county back-up facility were unreasonable.

In 1975 the Legislature amended the Solid Waste Management Act (Act) to establish a solid waste planning process which provides "a statutory framework within which all solid waste collection, disposal and utilization activity in this State" can be controlled. N.J.S.A. 13:1E-2b(1); L.1975, c. 326. The Legislature expressed particular concern that solid waste disposal activities had been carried out in a random fashion "with little, if any, regard for regional planning and coordination." N.J.S.A. 13:1E-2a. It sought to regulate such activity by means of a comprehensive state and regional planning program.

To accomplish this goal, each of 22 planning districts (the 21 counties and the Hackensack Meadowlands) was required to develop and formulate a ten-year plan which identified that district's waste disposal needs and proposed solutions to meet those needs. N.J.S.A. 13:1E-19, 20, 21 and 23. In particular, each solid waste management plan must include:

A site plan, which shall include all existing solid waste facilities located within the solid waste management district, ... and sufficient additional available suitable sites to provide solid waste facilities to treat and dispose of the actual and projected amounts of solid waste [generated in the district]. [ N.J.S.A. 13:1E-21b(3) ].

The Act recognizes that a district may lack sufficient suitable internal sites to provide the necessary solid waste disposal facilities. In that event, the Act provides:

Upon a certification to the commissioner [of DEP] by the board of chosen freeholders ... of the absence of sufficient existing or available suitable sites for such solid waste facilities within the solid waste management district, the site plan shall identify sufficient additional existing or available suitable sites for such facilities located in another solid waste management district. [ N.J.S.A. 13:1E-21b(3) ].

The district must then submit an interdistrict agreement with the board of freeholders of the county in which the solid waste facilities are to be located. Ibid.

In order to provide for coordination of the various district solid waste management plans, the Act calls for DEP to "[d]evelop, formulate, promulgate and review for the purpose of revising or updating not less than once every 2 years, a Statewide solid waste management plan." N.J.S.A. 13:1E-6a(3). This Statewide plan is to include the "objectives, criteria and standards for the evaluation" of the various district plans. Ibid. Concomitantly with the authority to promulgate a Statewide solid waste management plan, DEP is directed to "study and review" each district's solid waste management plan "according to the objectives, criteria and standards developed in the Statewide solid waste management plan," N.J.S.A. 13:1E-24a(1), to "approve, modify or reject" each district plan, and to direct affected districts to adopt modifications and replacements where the commissioner considers such actions to be appropriate. N.J.S.A. 13:1E-24b.

To assure that the Statewide solid waste management plan and the various districts' solid waste management plans serve as "comprehensive" blueprints which address the waste disposal needs of every municipality within the State, N.J.S.A. 13:1E-2b(2), A.A. Mastrangelo, Inc. v. DEP, 90 N.J. 666, 679, 449 A.2d 516 (1982), the Act includes various provisions to assure that solid waste disposal activities conform to the plans. In reviewing applications for permits for new solid waste collection operations and for new solid waste disposal facilities, DEP "shall not approve the registration of any new operation or facility that does not conform to the solid waste management plan of the solid waste management district in which such operation or facility is to be located." N.J.S.A. 13:1E-4b. While the Act provides for State grants for experimental solid waste collection, disposal and utilization projects, no such grant may be made unless the Commissioner finds that the proposed project "is consistent with the adopted and approved solid waste management plan of the solid waste management district within which the project is to be undertaken and is in conformity with the objectives, criteria and standards contained in the Statewide solid waste management plan." N.J.S.A. 13:1E-31a.

By the 1975 amendments the Legislature sought also to ensure that all contracts relating to solid waste activities conform to the applicable solid waste plans. N.J.S.A. 13:1E-29b provides that

no renewal of any ... contract ... and no new contract for solid waste collection or solid waste disposal, shall be entered into after the effective date of this act, unless such renewal or such new contract shall conform with the applicable provisions of the approved solid waste management plan of the relevant solid waste management district or unless such contract is approved by the commissioner.

When the Legislature amended the Local Public Contracts Law in 1985 to allow, subject to certain approvals, long-term contracts for resource recovery services, it expressly provided that these contracts must be approved by DEP and other State agencies, and that these contracts must conform to applicable solid waste management plans. N.J.S.A. 40A:11-15(17); L.1985, c. 38.

Pursuant to this solid waste planning scheme, Hunterdon County in 1979 adopted its initial solid waste management plan. Once the County had adopted modifications to the plan required by DEP, then-DEP Commissioner English on October 2, 1981 issued a certification of approval with modification of the Hunterdon County district solid waste management plan. The plan as approved provided for disposal of Hunterdon County waste in an existing landfill and contemplated the construction of a new resource recovery facility in Warren County which would, once operational, process Hunterdon County waste in accordance with an interdistrict agreement between the two counties.

On September 12, 1983 DEP closed the landfill in Warren County, to which some of Hunterdon's waste was taken, for health and safety reasons. Thus, the Hunterdon-Warren County waste disposal agreement failed. Although Hunterdon and Warren counties later agreed on a plan for disposal of some Hunterdon County waste at the recently opened Warren County resource recovery facility, Hunterdon found it necessary to pursue alternative waste disposal arrangements. Therefore the County constructed a transfer station to which all wastes in the County were directed. That waste which was not disposed of in Warren County was transferred to the transfer station to be disposed of out-of-state. Hunterdon County also adopted other amendments to its solid waste management plan not directly relevant to this appeal.

Pursuant to N.J.S.A. 13:1E-24, DEP reviewed the entire Hunterdon County district solid waste management plan to determine whether the plan fulfilled the requirements of the Act. DEP found the Hunterdon County plan deficient. Then-Commissioner Hughey's certification of the August 28, 1984 amendment stated:

N.J.A.C. 13:1E-21b(3) requires a site plan which shall include all existing solid waste disposal facilities located within the Solid Waste Management District ... and sufficient additional available suitable sites to provide solid waste facilities to treat and dispose of the actual and projected amounts of solid waste contained in the report accompanying the plan.

With the exception of sole-source landfills, Hunterdon County has no operating solid waste disposal facilities. Furthermore, no sites for a landfill or resource recovery facility have been selected. Since most of the waste generated in Hunterdon County is now disposed of at out-of-state facilities, the Department considers this arrangement to be tenuous and unacceptable. Therefore, I find this section of the Hunterdon County Solid Waste Management...