The Town of Kearny brings this action seeking to enjoin the dumping of solid wastes originating in Jersey City onto a landfill in Kearny. The landfill site whereon the wastes are deposited is operated by defendant Municipal Sanitary Landfill Authority (MSLA) under a lease from Kearny. The wastes are transported in trucks by defendant Hudson Jersey Sanitation Co. under a contract with defendant Jersey City Incinerator Authority (Authority) which formerly disposed of these wastes at its incinerator plant located in Jersey City. The Authority ceased operation in November 1974.
In support of its application for a permanent injunction plaintiff alleges that this dumping of Jersey City wastes onto the MSLA site (1) violates a Kearny ordinance, (2) violates a previous order of the Hackensack Meadowlands Development Commission (HMDC) and (3) in general constitutes
irreparable injury to Kearny because the additional solid wastes can have only one effect, viz. , shorten the life span of the existing landfills in Kearny. Kearny also contends that cessation of operation of the Authority's incinerator plant without the approval of the Board of Public Utilities Commission (PUC) is invalid.
The Authority has moved for summary judgment. The other parties agree that the matter is ripe for summary judgment. R. 4:46-2. Hudson Jersey Sanitation Co. has defaulted.
Several of the issues may be disposed of in short order. The contention of Kearny that the contested dumping is in violation of an HMDC order is longer viable. Although there may have been some basis for this allegation at the time of the filing of the complaint, the HMDC has since clarified the issue and taken the position that "it did not object to the said use of the MSLA Site I-C Landfill * * *" This issue is moot. Kearny conceded this point at oral argument.
The question of whether the Authority is a "public utility" and therefore subject to the jurisdiction of the PUC is presently pending on appeal in the Appellate Division. The PUC has already ruled that the Authority is subject to its jurisdiction and the present appeal is from that determination. There is a petition also pending before the PUC for approval of the Authority's shutdown of the incinerator plant. This application was made at the direction of the Appellate Division without prejudice to the Authority's assertion of lack of administrative jurisdiction.
Accordingly, I will not entertain those same issues now pending before the Appellate Division. Review of an administrative agency's final decision or action is reposed in the Appellate Division. R. 2:2-3(a). It is appropriate that the extent of the PUC jurisdiction be passed upon by that body in the first instance. A court should not enmesh itself in fields that have been entrusted to the authority and regulation of an administrative body. First resort should be to
the administrative agency whenever there is a colorable claim that the agency has jurisdiction. Woodside Homes, Inc. v. Morristown , 26 N.J. 529, 540-41 (1958); Oliva v. Garfield , 1 N.J. 184 (1948); Junction Water Co. v. Riddle , 108 N.J. Eq. 523, 526-27 (Ch. 1931). See generally, United States v. Western Pac. R. Co. , 352 U.S. 59, 77 S. Ct. 161, 1 L. Ed. 2d 126 (1956); Great Northern R. Co. v. Merchant's Elevator Co. , 259 U.S. 285, 42 S. Ct. 477, 66 L. Ed. 943 (1922).
The Kearny ordinance which is allegedly being violated by the acts of the defendants provides, in pertinent part:
It shall be unlawful in the Town of Kearny for any person to throw, cast or place any waste matter * * * originating from beyond and outside the limits of the Town of Kearny without first securing permission from the Council of the Town of Kearny; provided, however, that the prohibitions of this Section shall not apply to prohibit the disposal of that amount of solid waste on a daily basis within the limits of the Town of Kearny as determined by a survey of the Hackensack Meadowlands Development Commission, which survey was mandated by the provisions of N.J.S.A. 12:17-10 [sic], and ...