On certification to the Department of Environmental Protection.
For affirmance in part, reversal in part and remandment -- Chief Justice Wilentz, Justices Pashman, Clifford, Schreiber, Handler and Pollock. Opposed -- None. The opinion of the Court was delivered by Clifford, J.
[90 NJ Page 670] More than eight years ago this Court declared that "[t]he disposition of solid waste in this State [had] reached crisis proportions", Southern Ocean Landfill v. Mayor of Ocean Township, 64 N.J. 190, 193 (1974); that "serious problems of public health, welfare and environmental control existed", ibid.; and that the legislature had "assumed the responsibility for regulating solid waste management on a statewide basis through regional, county and intercounty plans" under the Solid Waste Management Act (1970) and the Solid Waste Utility Control Act of 1970. Id. at 194. In 1975 the increasing scarcity of sites for dumping and landfill "reinforce[d] very strongly our consciousness of this extremely serious situation." Hackensack Meadowlands v. Municipal Landfill Auth., 68 N.J. 451, 460 (1975), rev'd
on other grounds, 437 U.S. 617, 98 S. Ct. 2531, 57 L. Ed. 2d 475 (1978); and see id. at 460-65.*fn1
The Solid Waste Management Act, N.J.S.A. 13:1E-1 to -37 (Act), is the manifestation of the legislature's continuing concern with one of this state's most severe problems: the rapid disappearance of available solid waste disposal facilities. To implement the provisions of the Act, the Department of Environmental Protection (DEP or Department) promulgated certain rules and regulations, N.J.A.C. 7:26-1.11 to -1.15.*fn2 These appeals challenge the validity of those regulations.
The subject of the regulations under attack is the interdistrict flow of solid waste between solid waste planning districts in northeastern New Jersey. Appellants are various companies engaged in solid waste collection and disposal, the County of Union, the City of Elizabeth, and the Borough of Kenilworth. Appellants claim that the regulations exceed the scope of DEP's authority under the Act, that the regulations were promulgated in violation of the Act's procedural requirements, and that the regulations are arbitrary and capricious. More specifically, the arguments are that DEP has imposed a state response to solid waste management and disposal problems that has short-circuited the process of county decision-making and interest group
participation envisioned by the Act; that DEP has improperly assumed the power to create waste collection and disposal franchises; and that the solution imposed by DEP is unfairly and irrationally burdensome on private solid waste haulers and landfill owners and on Union County municipalities.
We uphold the regulations in part, strike them in part, and remand for further proceedings.
The Solid Waste Management Act, with substantial amendments, L. 1975, c. 326, became effective on July 19, 1977. The Act represents a comprehensive statement by the legislature that provides a framework for the coordination of solid waste collection, disposal, and utilization activity in New Jersey. It sets forth a structured scheme for the integration of solid waste management planning at local, regional, and state levels. Central to the Act is the planning role of the DEP, which is directed to formulate, promulgate, and review biennially a statewide solid waste management plan. N.J.S.A. 13:1E-6(a)(3). That plan, which is to be promulgated within 180 days of the effective date of the Act, is to "provide the objectives, criteria and standards" for the Department's review of local plans submitted by each of the twenty-two Solid Waste Management Districts (districts) created by the Act.*fn3 It is also designed in part to assist the districts as they embark upon the development of county-wide solid waste management plans pursuant to the procedures and requirements set forth in N.J.S.A. 13:1E-20 and N.J.S.A. 13:1E-21.
Upon formulating a county-wide plan, each district is required to "cause a hearing to be held * * * for the purpose of hearing persons interested in, or who would be affected by, the adoption
of the solid waste management plan" for that district. N.J.S.A. 13:1E-23(c). After the hearing, the district is to "adopt or reject, in whole or in part," its solid waste management plan. N.J.S.A. 13:1E-23(e).
The entire process culminates in the submission by the district of its plan to the Commissioner of DEP (Commissioner). See generally N.J.S.A. 13:1E-24. After receiving a district plan, the Commissioner is to (1) study and review the plan against the backdrop afforded by the statewide plan adopted pursuant to N.J.S.A. 13:1E-6(a)(3); (2) submit a copy of the plan for review and recommendations to a number of agencies, bureaus and divisions within the Department; and (3) submit a copy of the plan to the Board of Public Utility Commissioners (BPU) for its review and recommendations on the economic aspects of the plan. See N.J.S.A. 13:1E-24(a)(1), (2) and (3). Upon completing its study of the plan, and after receiving the recommendations from the services alluded to above, the Commissioner is to "approve, modify or reject" the district plan and certify his decision in that regard to the district in question. N.J.S.A. 13:1E-24(b).
In August of 1977, pursuant to statutory directive, the Department adopted a set of guidelines for use by the districts in the formulation of their individual solid waste management plans.*fn4 Thereafter, the Department distributed to the districts a series of management manuals that purported to be guides setting forth planning methodologies and implementation strategies designed to aid the districts in their local planning. The guidelines, in conjunction with the management manuals, were intended by DEP to satisfy in part its responsibility to provide
the districts with a statewide solid waste management plan within 180 days of the effective date of the Act. N.J.S.A. 13:1E-6(a)(3). The interdistrict waste flow regulations addressed herein and a Department memorandum entitled "Policy and Procedures for Review of District Solid Waste Management Plans" are identified by DEP as the final segments of that Plan.
Upon receipt of the DEP guidelines and management manuals, the Solid Waste Management Districts began developing local solid waste plans. Throughout the district planning period DEP personnel met with district officials to discuss planning strategies and other problems.
On April 19, 1979, in accordance with the procedures outlined in the Act, Middlesex County adopted the first of the district solid waste management plans. Thereafter, the Hackensack Meadowlands Development Commission (HMDC) and the counties of Mercer, Union, Burlington and Somerset adopted their plans on May 2, 1979, June 6, 1979, June 7, 1979, June 10, 1979 and July 11, 1979, respectively, and each plan was submitted to the Commissioner of DEP for review.*fn5 See generally N.J.S.A. 13:1E-24.
The Commissioner found the plans to be unacceptable, in that they amounted to little more than a reflection of each district's parochial needs and were detrimental to the integrated statewide approach to solid waste management that was envisioned by the Act. In this connection the Commissioner noted the conspicuous absence of any agreement providing for interdistrict
waste flow and disposal,*fn6 which DEP believed was required by the Act and which was emphasized in the material distributed to the districts pursuant to N.J.S.A. 13:1E-6(a)(3).*fn7
In response to what it viewed as the impending failure in regional solid waste planning, the Department undertook a study in the spring and summer of 1979 to develop an appropriate strategy with which to approach the pronounced need for interdistrict waste flow.*fn8 DEP concluded from that study that there existed a pressing need for an interdistrict solution to solid waste disposal. It indicated, for instance, that without interdistrict waste flow, the counties of Bergen, Essex, Hudson and Union had projected the useable lives of their solid waste facilities to be about two years.
Thereafter, the DEP Solid Waste Administration conducted a series of meetings with officials from various Solid Waste Management Districts. At a meeting held in June 1979, the Commissioner told district officials that unless a workable approach to the interdistrict solid waste problem was developed within 90 days, DEP would impose its own solution.
At the final meeting between district officials and DEP on September 18, 1979, the Commissioner outlined the DEP interdistrict solid waste disposal strategy. Many of those in attendance were quick to articulate their concern about the inflated transportation and disposal costs that they expected would result from the redirection of established waste flow patterns, whereupon the Commissioner assured them that every effort would be made to provide state aid to cover additional costs.
In the fall of 1979, after it had reviewed the proposed solid waste management plans submitted by the districts, DEP issued its modifications of the HMDC, Middlesex, and Union plans pursuant to N.J.S.A. 13:1E-24. In each case, the modification mandated compliance with the proposed interdistrict waste flow regulations.
The Department's position regarding the interdistrict flow of solid waste was ultimately codified on November 5, 1979, with the Commissioner's promulgation of "Rules Concerning Inter-District Flow of Solid Waste Between and Among Solid Waste Management Planning Districts in Northeastern New Jersey." N.J.A.C. 7:26-1.11 to -1.15 (but see supra at 671 n.1). The regulations appeared in the New Jersey Register on December 6, 1979, 11 N.J.R. 616(b), and they were held open ...