On appeal from final administrative action of the Department of Environmental Protection and the Board of Public Utilities.
Antell, J. H. Coleman and Simpson. The opinion of the court was delivered by, Antell, P.J.A.D.
[198 NJSuper Page 44] On these appeals, which we have consolidated sua sponte, appellants are landfill operators, a solid waste transporter and a municipality which ask us to invalidate the State Wide Solid Waste Flow Plan, N.J.A.C. 7:26-6.1 et seq., which was adopted effective December 6, 1982. The action under review was taken November 17 and 18, 1982 after a public hearing jointly conducted by the Department of Environmental Protection
(DEP) and the Board of Public Utilities (BPU) on October 5, 1982. The hearing was held in compliance with the decision of the Supreme Court in A.A. Mastrangelo, Inc. v. Environmental Protec. Dep't, 90 N.J. 666 (1982), and opportunity was afforded interested parties to submit written comments until October 20, 1982.
In Mastrangelo, a similar regulation adopted by DEP was stricken in part on the ground that DEP's authority was limited to directing the inter-district flow of solid waste among the 22 solid waste management planning districts and that by undertaking to specify the destination of waste streams from the generating municipalities to disposal facilities within the districts, that agency had exceeded its statutory authority. Finding that DEP had participated in weighing and regulating the economic aspects of the solid waste industry, the Court concluded that such determinations were within the exclusive jurisdiction of the BPU. Accordingly, the matters were remanded for reconsideration and the following procedural framework was established for the guidance of the agencies:
Consistent with the foregoing, the cases are remanded to DEP for an administrative hearing pursuant to N.J.S.A. 52:14B-4, to be conducted within 45 days of this decision. Representatives from each of the appellants, as well as BPU, shall participate. Within 15 days of the conclusion of that hearing, the Department is to develop an interdistrict waste flow order in accordance with its statutory responsibilities as defined herein. Within five days thereafter, BPU is to conduct a hearing pursuant to N.J.S.A. 48:13A-5, after which it shall, if it finds "the public interest requires," designate the solid waste collectors and disposal facilities that will be required to collect, transport and receive the solid waste that has been redirected as a result of the above mentioned interdistrict waste flow order. The record developed at the DEP hearing should serve as the basis for the BPU proceedings.
Because these hearings are substantially contemporaneous, and inasmuch as they involve the same subject matter, albeit different aspects of the underlying problem, we leave it to DEP and BPU to decide whether in the alternative to conduct one joint administrative hearing. Whichever course the agencies decide on, their decision should focus principally on which alternative will bring about the most expeditious result.
Within 45 days after the conclusion of either the successive DEP, BPU hearings or the joint DEP-BPU hearing, DEP shall formulate a final interdistrict solid waste flow strategy, which shall reflect both DEP's findings and BPU's designation of those collection and disposal facilities required to collect,
transport and receive the solid waste flows. In the interim the regulations as originally promulgated by DEP remain in full force and effect. [ Id. at 688.]
The Supreme Court did not retain jurisdiction over the matter and in these appeals we are called upon to determine the validity of the agencies' action in light of the Mastrangelo standards.
Appellants' principal contention is that the mandate of the Supreme Court was disregarded by the agencies in three critical respects. They contend that the defect fatal to the regulation considered in Mastrangelo was perpetuated in this proceeding in that DEP, and not BPU, formulated much of the waste flow strategy that directed the waste stream from generating municipalities to specific disposal sites. They further contend that no economic analysis was made and, finally, that they were entitled to a trial-type evidentiary hearing, complete with the right to cross-examine witnesses, to present witnesses on their own behalf and to be provided with findings of fact.
The claim that the intra-district waste flows were designated by DEP, and not BPU, rests upon a statement made at the outset of the hearing on October 5, 1982 by Commissioner Barbour of the BPU. He announced that DEP had proposed not only an inter-district waste flow order, but also that it "proposed for the Board's consideration, a comprehensive state wide assignment of specific waste flows to specific disposal facilities." Appellants do not claim they attempted to explore the issue during the hearing that followed, and we have not been told of any further elaboration of the Commissioner's statement. In our view, DEP's presentation of a proposal "for the Board's consideration" is not a sufficient showing of irregularity to overturn the presumption favoring the validity of administrative proceedings. As the Supreme Court noted of administrative actions such as this, the burden rests on the party challenging the ...