On appeal from Department of Environmental Protection, Solid Waste Administration.
Lynch, Crane and Horn. The opinion of the court was delivered by Horn, J.A.D.
This appeal calls upon us to interpret the Solid Waste Management Act (act), N.J.S.A. 13:1E-1 et seq. , within the context of delineating the contours of the jurisdiction and powers of counties as opposed to the State Department of Environmental Protection (Department) with respect to authorization to construct new solid waste facilities. An earlier confrontation between the parties is recorded in Essex Cty. Bd. of Chosen Freeholders v. O'Hern , 161 N.J. Super. 274 (Law Div. 1978). And, although the issues before us are related to those which arose in that case, they are not the same. We are of the view, however, that there is sufficient similarity between the issues to impel us to state that, although we disagree with some of the declarations made by the trial judge in that case, we are, of course, not bound by same, and such of them as are in conflict with our own stated concepts are overruled.
Specifically, appellant Essex County Improvement Authority (ECIA) challenges the action of the Department as ultra vires in awarding a "Certificate of Approved Registration" to respondent Combustion Equipment Associates, Inc. (CEA) for the establishment and construction of a solid waste disposal and resource recovery facility in the City of Newark. ECIA is the agency designated by the County of Essex, through its board of freeholders, to develop a solid waste management system for the county. Accordingly, its standing in this case is for all intents and purposes synonymous with that of the county.
Essex County, the largest county in New Jersey, generates approximately 3,000 tons of solid waste a day. Newark, which has nearly 40% of the county's population, generates about 23% to 25% of the county's solid waste. Because of the imminent closings of landfills in Newark and the Hackensack
Meadowlands, Newark decided in the early 1970s to undertake a program for improved solid waste disposal to protect its own interests.
On September 26, 1976 Newark received competitive public bids for a long-term solid waste disposal contract. In June 1977 Newark and CEA entered into a 20-year disposal and recycling contract. On August 16, 1978, after a series of hearings, the Department issued the Certificate of Registration for the CEA facility.
ECIA specifically objects to the registration certificate insofar as it is "permanent," as opposed to a "temporary" registration which would expire when ECIA had obtained approval of a District Solid Waste Management Plan for the County of Essex. ECIA also complains that the registration certificate does not include any limitation upon the size of the resource recovery facility based upon the anticipated volume of municipal solid waste of the City of Newark.
The basic question on this appeal is whether the approval given by the Department to a resource facility for the disposal and recycling of solid waste material generated by the City of Newark improperly interferes with the county-wide planning scheme of the act. The Department and ECIA differ as to whether the Department has the authority to register a municipal waste disposal system which arguably could conflict with a future county-wide solid waste disposal system.
The act, adopted in 1970,*fn1 was amended significantly in 1975 to provide new procedures to promote regionalism of solid waste disposal. The amended statute contained legislative findings that "the management of solid waste in New Jersey consists largely of piecemeal, uncoordinated activities developed to meet the immediate needs of local governments with little, if any, regard for regional planning and coordination
* * *." N.J.S.A. 13:1E-2(a). Therefore it declared it to be the "policy of this State to (1) Establish a statutory framework within which all solid waste collection, disposal and utilization activity in this State may be coordinated * * *." N.J.S.A. 13:1E-2(b).
The vehicle chosen by the State to implement regional solid waste planning was the county. Each county (and the Hackensack Meadowlands Development Commission) (22 districts) was vested with:
Pursuant to the act, the counties in the State were divided into three groups and given various deadlines for various planning stages in their development of a district plan. The deadline for Department consideration of the Essex ...