Regional Recycling, Inc. v. State, Dept. of Environmental Protection

• Decision Date: 30 January 1991
• Parties: REGIONAL RECYCLING, INC., Plaintiff-Respondent, v. STATE of New Jersey, DEPARTMENT OF ENVIRONMENTAL PROTECTION, Defendant-Appellant, and County of Essex, Department of Planning and Economic Development, Division of Solid Waste Management, Defendant.
• Court: New Jersey Superior Court — Appellate Division

Page 94

256 N.J.Super. 94

606 A.2d 817

REGIONAL RECYCLING, INC., Plaintiff-Respondent, v. STATE of New Jersey, DEPARTMENT OF ENVIRONMENTAL PROTECTION Defendant-Appellant and County of Essex, Department of Planning and Economic Development, Division of Solid Waste Management, Defendant.

Superior Court of New Jersey Appellate Division.

Argued Dec. 5, 1990.

Decided Jan. 30, 1991.

Craig S. Provorny, Deputy Atty. Gen., for defendant-appellant (Robert J. Del Tufo, Atty. Gen., attorney; Mary C. Jacobson, Deputy Atty. Gen., of counsel).

Thomas A. McKinney, Hawthorne, for plaintiff-respondent (Waldman, Renda & McKinney, attorneys).

Before Judges GAULKIN, SHEBELL and HAVEY.

The opinion of the court was delivered by

GAULKIN, P.J.A.D.

The Department of Environmental Protection (DEP) appeals by leave granted from an interlocutory Chancery Division order directing that it "immediately commence a review" of the application of plaintiff Regional Recycling, Inc. (Regional) for a solid waste facility (SWF) permit. N.J.S.A. 13:1E-4b; N.J.S.A. 13:1E-26a; N.J.A.C. 7:26-2.4. We reverse, for we conclude that DEP is statutorily barred from issuing an SWF permit to a facility not included in the approved solid waste management plan of the solid waste management district in which the facility is to be located.

I.

Regional operates a recycling facility and transfer station ¹ at 295 Frelinghuysen Avenue in Newark, where it conducts business of two kinds. First, Regional receives solid waste generated in New York, removes the recyclable material, bales the residual solid waste and disposes of it outside New Jersey. Second, Regional receives solid waste generated in nearby New Jersey counties, removes and resells the recyclable waste, bales the residual solid waste and returns it to its county of origin for disposal in accordance with the applicable district solid waste management plan.

In October 1987, Regional applied to Essex County to be included in the Essex County Solid Waste Management Plan and also applied to DEP for an SWF permit. On November 23, 1987, Regional and DEP entered into an Administrative Consent Order authorizing Regional to operate pending completion and review of its permit application but for no longer than one year. The order recited that Regional had operated its transfer station "without having received approval ... since an unknown date prior to February 27, 1987" and had "petitioned the Essex County Board of Chosen Freeholders to adopt an amendment to its County Solid Waste Management Plan to be included as a solid waste facility in the Plan." Regional was required to submit a complete "application package" within 60 days; if the package was not timely submitted, "the application will be automatically rejected and [Regional] will cease operation immediately."

Regional submitted its application package to DEP on December 7, 1987. By letter of January 7, 1988, DEP advised Regional that "the application is incomplete until such time as the facility is included within the approved Essex County District Solid Waste Management Plan." Apparently after some inconclusive discussions over the ensuing months, DEP, joined by the Board of Public Utilities, brought a Chancery Division action against Regional alleging, among other things, that Regional was "operating in violation of the terms of the Administrative Consent Order." That action was resolved by a June 28, 1988 consent order permitting Regional to (1) dispose of waste generated in Essex County "in accordance with Essex County Waste Management Plan and the Emergency Waste Redirection Order for Essex County" and (2) receive waste generated outside New Jersey and dispose of its residue "directly out-of-state or in any other fashion authorized by law." We are told that that order is still in effect.

By letter of February 16, 1989, the Division of Solid Waste Management of the Essex County Department of Planning and Economic Development advised Regional as follows:

Inasmuch as the state regulatory agencies have not set state standards for intercounty and interstate waste flow regulations, Essex County will seek guidance as to the disposition of your request. Therefore your request for inclusion in the Essex County Plan will not be granted at this time.

Regional shortly filed this action against both DEP and Essex County. Its complaint demanded judgment requiring Essex County to include it in the Essex County Solid Waste Management Plan and requiring DEP to issue an SWF permit. Regional also sought to restrain DEP from terminating the November 23, 1987 Administrative Consent Order and asserted that termination of its right to operate would violate the June 28, 1988 Chancery Division order.

We need not recite all that has since occurred in the trial court. Suffice it to say that Regional ultimately moved to compel DEP "to undertake a review" of its SWF permit application notwithstanding the fact that it was not yet included in the Essex County Solid Waste Management Plan. The Chancery Division judge granted the motion based upon a ruling he had earlier made that "Regional does not have to be included in the County Plan, but must simply conform to it." That ruling is the focus of the appeal. ²

II.

The Solid Waste Management Act ( N.J.S.A. 13:1E-1 et seq.) grants DEP "power to supervise solid waste collection and disposal facilities or operations" and directs DEP to "require the registration of new and existing solid waste collection and disposal facilities and operations." N.J.S.A. 13:1E-4a. In determining whether and under what conditions to approve a solid waste facility or operation, N.J.S.A. 13:1E-4b provides that 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, as such plan shall have been approved by the department as hereinafter provided. Prior to the approval by the department of the solid waste management plan of any solid waste management district, the department may grant approval to any new solid waste collection or disposal operation or facility planned to be located in any such district and that district shall include said operation or facility in its plan.

Similarly, N.J.S.A. 13:1E-26 mandates that

No person may proceed to construct, acquire, or operate any solid waste facility without having first obtained the approval of the commissioner. Such approval shall be granted only if the commissioner determines that:

a. The proposed construction, acquisition, or operation is consistent with the adopted and approved or promulgated solid waste management plan of the solid waste management district within which the solid waste facility is to be located; and

b. Any such proposed solid waste facility will be constructed or acquired, and operated, pursuant to the standards adopted and promulgated therefor by the department pursuant to the provisions of section 6 of the act to which this act is amendatory and supplementary.

In its rules, DEP has provided that the processing of an SWF permit application "shall not begin ... until the applicant has fully complied with the submission requirements of this subchapter" ( N.J.A.C. 7:26-2.4(g)1); those requirements include "[d]ocumentation establishing that the facility has been included in the applicable district solid waste management plan." N.J.A.C. 7:26-2.4(b)2.

Regional contends that its operations "conform to" ( N.J.S.A. 13:1E-4b) and are "consistent with" ( N.J.S.A. 13:1E-26a) the Essex County Solid Waste Management Plan because, following removal of recyclable material, the residual New York-generated solid waste is returned to New York and the residual New Jersey-generated solid waste is returned to the solid waste management district whence it came for disposal in accordance with that district's plan. Since the waste flow emanating from its operations is directed as the Essex County Plan requires, Regional urges that the statutes cannot sensibly be read to foreclose DEP from granting a permit. The trial judge essentially adopted that view, stating that Regional was not statutorily barred from licensure as long as it "give[s] to the County all the waste the County is entitled to based upon the amount of waste picked up from within the County."

DEP argues, to the contrary, that a solid waste facility must be included within the solid waste management plan of the local district in order to "conform to" or be "consistent with" that plan. Any other reading of the statutory provisions, DEP says, "has the capacity to throw solid waste management planning in the State of New Jersey into chaos." DEP's brief elaborates that argument as follows:

If facilities are allowed to operate without being included in district plans as long as they ship their waste to the same disposal facility used by everyone else in the district ..., then the role of solid waste planning expressly entrusted by the Legislature to the solid waste management districts and the DEP has been emasculated. Indeed, based on the flawed reasoning employed below, a solid waste facility could be set up by anyone in any location, consistent with the local zoning ordinances, thus depriving the solid waste management district and the DEP of any control over where such solid waste facilities should be located. Such a result flies in the face of the legislative intent underlying the Solid Waste Management Act and would prevent district and State officials from accomplishing the unequivocal goals of the Act--proper regional solid waste management planning.

Our reading of the relevant statutory sections persuades us that DEP's position is sound. N.J.S.A. 13:1E-20a mandates the formulation of "a solid waste management plan for each respective solid waste management district." The plan must be based upon and accompanied by a report containing

[a]n inventory and...