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Borough of Glassboro v. Gloucester County Board of Chosen Freeholders

December 7, 1984

BOROUGH OF GLASSBORO, ET AL., PLAINTIFFS,
v.
GLOUCESTER COUNTY BOARD OF CHOSEN FREEHOLDERS, NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION, KINSLEY LANDFILL, INC., THE CITY OF PHILADELPHIA AND THE COUNTY OF CAMDEN, DEFENDANTS AND TOWNSHIP OF DEPTFORD, DEFENDANT-INTERVENOR


DECISION AND ORDER

This matter is before the Court on motions brought by parties primarily seeking relief from provisions of an annexed injunctive order entered by the Superior Court, Law Division. The applications for relief are accompanied by motions for leave to appeal and ancillary applications for consolidation and acceleration. In addition to parties who participated in the original proceedings at the trial level, other parties were permitted to intervene and are before the Court, all seeking virtually identical relief. The Court in the consideration of this matter has reviewed all of the pleadings and evidentiary materials, as well as all of the extensive briefs, submitted to the lower courts and directly to this Court.

The record indicates that in early October 1984, defendant Kinsley Landfill, Inc., a state-regulated landfill operator, notified its customers that the landfill would soon reach the maximum capacity authorized by the permit issued by defendant New Jersey Department of Environmental Protection (Department), at which time the landfill would close. Shortly thereafter, on October 18, 1984, plaintiff Borough of Glassboro (Glassboro) filed a verified complaint in lieu of prerogative writ with an order to show cause, naming as defendants the Gloucester County Board of Chosen Freeholders, the Department and its Commissioner, Kinsley Landfill, Inc., the City of Philadelphia (City), and the County of Camden. Glassboro, which used the Kinsley Landfill to dispose of solid waste generated within its borders, sought to enjoin the closure of the landfill as well as the use of the landfill for disposal of waste generated in the City of Philadelphia (Pennsylvania) and the County of Camden (New Jersey). Thereafter, various parties intervened as plaintiffs, including numerous New Jersey municipalities that also use the Kinsley Landfill to dispose of wastes generated within their communities. Deptford Township, in which the landfill is located, also intervened. Others intervened as defendants, including numerous private waste haulers that service

municipalities, public entities, and private concerns both within and without New Jersey.

The trial court conducted an evidentiary hearing over several days. On October 26, 1984, it rendered a decision. It found that the Kinsley Landfill was rapidly approaching the end of its useful life and that it would be required to close. While immediate closure would cause irreparable injury to certain plaintiff municipalities, the continued use of the landfill beyond its capacity would cause direct injury to the citizens of Deptford Township. The court further found that a single vertical expansion of the landfill could extend its capacity and that this might be environmentally acceptable. It concluded that the landfill should close, but in an orderly manner. Accordingly, the trial court entered a temporary restraining order forbidding defendants to take any action that would interrupt the use of the Kinsley Landfill until November 13, 1984. The court also ordered that Kinsley submit to the Department complete engineering designs for one sixteen-foot vertical expansion of the landfill. Additionally, the court ordered the Department to review this engineering design to ascertain its effect on the local environment and to formulate a plan for the orderly closure of the Kinsley Landfill, its report to be submitted to the court and all parties by November 9, 1984.

Kinsley presented the court-ordered engineering designs, which the Department determined were environmentally acceptable if certain deficiencies were corrected. The Department also submitted a plan for the orderly closure of the landfill contingent upon court approval of the one-lift expansion.

The Department also emphasized in its report to the court the urgent need for Gloucester, Camden, and Salem Counties to develop new landfill facilities as soon as possible. It noted that while ordinarily it would take at least two years to comply with all the regulatory and environmental requirements relative to siting, implementing, permitting, and preparing a landfill, if extraordinary measures were taken then new landfills could be

operational within twelve months. However, at the current rate of waste flow into Kinsley the landfill would be exhausted in three and one-half months. The one additional lift expansion would extend the longevity of the landfill for the needed one-year period, but this could be accomplished only if the amount of waste flowing to Kinsley were reduced.

In order to effectuate the needed reduction of waste flow, the Department proposed that access to the landfill be permitted only to municipalities in Gloucester County, which surrounds the Kinsley Landfill, and to municipalities in counties that have executed interdistrict agreements with Gloucester County. Under this proposal, both New Jersey and Pennsylvania municipalities would be excluded from Kinsley, although the City of Philadelphia would be the major generator of waste to be denied access to the dump. The Department also suggested that in order to ensure that the Kinsley Landfill has sufficient capacity to meet waste disposal needs until new landfills are opened, all communities using the Kinsley Landfill should be required to maximize their recycling efforts, including the adoption of mandatory recycling ordinances and curbside pickup.

Based upon the entire evidential record, the trial judge on November 13, 1984, made a determination and issued an Order. Among the findings made by the judge were that the Department had required since 1980 that Camden and Salem Counties, as well as the City of Philadelphia, enter into waste flow agreements with Gloucester County as a condition of continued use of the Kinsley Landfill. Such inter-district waste flow agreements are integral aspects of the solid waste planning process under the Solid Waste Management Act, N.J.S.A. 13:1E-1 to -38. In respect of the factual dispute between Gloucester County and the City of Philadelphia, each claiming bad faith on the part of the other, the court found no bad faith by Gloucester County. It further found that the City of Philadelphia had failed to share equally in the efforts of other waste-generating communities to slow the flow of all waste

into the Kinsley Landfill and that waste flows into Kinsley Landfill generated within the City of Philadelphia had "continued to escalate at an alarming rate unlike those districts subject to interdistrict agreements." The judge also found that the City of Philadelphia's Commissioner Michaels, the official responsible for municipal waste removal, was a credible witness when he stated that the City could accommodate the closure of Kinsley Landfill.

On November 15, 1984, the City of Philadelphia moved before the trial court seeking reconsideration of the November 13, 1984 Order so as to allow Kinsley Landfill to continue accepting waste generated within the City. The City urged the court to approve an additional vertical expansion. The court denied the City's motion, finding that the testimony of Walter Burshtin, the Department's expert, was more credible than the testimony of the City's expert concerning the feasibility of an additional vertical expansion. A similar subsequent application made by the City was also denied.

Thereafter the City of Philadelphia and several other aggrieved parties brought motions for leave to appeal and for a stay of the trial court order. On November 25, 1984, the Appellate Division denied these motions for leave to appeal and stay. On November 27, 1984, applications for emergency relief under Rule 2:9-8 and motions for leave to appeal and ancillary procedural relief were filed with this Court. On that date, a single justice of the Court granted a partial stay pending consideration by the full Court of the motions for leave to appeal and stay pending such appeal. This emergency relief was granted to the City of Philadelphia and two private haulers, Quick-way, Inc., and Edward Lawrenson, Inc. The order was limited to paragraph three of the trial court's order and authorized the continued disposal at the landfill of wastes delivered by the City in City-owned vehicles, but reduced such waste flow to 1981 levels; waste generated in the City of Philadelphia but transported by private waste haulers was not permitted to be disposed

of at Kinsley, unless it was carried by the two private waste hauling companies that had intervened.

Defendants seek a stay of the trial court's order of November 13, 1984, the effect of which is to preclude them from disposing of their solid waste at the Kinsley Landfill. It is important to note that generally they do not challenge other critical provisions of the lower court's order, such as the provision that the Counties of Gloucester, Camden, and Salem immediately embark upon steps to develop new landfills within their respective borders, to achieve this within one year, and to report to the court not later than December 24, 1984; that the landfill be expanded in accordance with the approved engineering design; and that all municipalities in the respective Counties take affirmative steps to improve the removal of waste. It is also to be emphasized that the focus of these proceedings is primarily upon the need for a stay. See Rule 2:9-5 and Rule 2:9-8. In ...


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