On appeal from the Superior Court of New Jersey, Law Division, Gloucester County.
King, Deighan and Bilder. The opinion of the court was delivered by King, P.J.A.D.
In this case we must decide if a judicial order, based on emergency sanitation concerns, which bars any person or entity located outside the Southern New Jersey tricounty area of Salem, Gloucester and Camden Counties from using a privately-owned, state-regulated landfill (Kinsley) violates the Commerce Clause of the federal constitution. U.S. Const. Art. I, § 8, c. 3.*fn1
We previously denied leave to appeal this interlocutory order of Judge DeSimone of the Law Division and also denied a stay of his November 13, 1984 order. Our Supreme Court and the United States Supreme Court have also denied stays of this order. However, on December 7, 1984 our Supreme Court granted the City of Philadelphia's motion for leave to appeal, remanded the matter to us for disposition of the appeal on the merits, and ordered that the appeal be accelerated. Glassboro v. Gloucester Cty. Bd. of Chosen Freeholders, 98 N.J. 186 (1984). Upon receipt of the remand order, dated December 7, 1984, we immediately scheduled and heard oral argument on December 17, 1984. Unfortunately, we did not receive the transcript of the proceedings before Judge DeSimone until February 7, 1985. Thus any more expeditious decision of this appeal was frustrated.
The order for preliminary injunction under appeal, executed by Judge DeSimone on November 13, 1984, provided in substance that
1. The Counties of Salem, Gloucester and Camden must proceed immediately to designate sites and create landfills within their respective borders which must be operational by November 1985.
2. The Kinsley Landfill in Deptford Township, Gloucester County, must cease accepting solid waste generated within the City of Philadelphia, any other Pennsylvania communities and "other out-of-district [Gloucester County] solid waste not subject to interdistrict agreements." This provision effectively excluded all solid waste originating outside of Salem, Gloucester and Camden Counties, whether from New Jersey, Pennsylvania or elsewhere.
3. All municipalities within the three counties in New Jersey were ordered to maximize recycling efforts.
4. The Kinsley Landfill was ordered closed when the capacity of an emergency 16-foot vertical expansion allowed by the court was reached. This was anticipated in November 1985.
5. Kinsley Landfill was to be closed for all sludge disposal on March 15, 1985.
Several subsequent applications by Philadelphia for modification of this order were denied. This order implemented the Department of Environmental Protection's (DEP) recommendation made in early November.
At the outset we note that we are satisfied that the factual underpinnings of Judge DeSimone's conclusions are well-supported by the testimony in the record and that his findings are consistent with the weight of the evidence. See R. 4:52-1(c); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484 (1974); State v. Johnson, 42 N.J. 146, 161-162 (1964). We are required by our scope of review to accept his factual findings and the reasonable inferences he drew from them.
This is the way the matter developed. On October 11, 1984 defendant Kinsley Landfill, Inc., a state-regulated (N.J.S.A. 48:2-13) but privately-owned sanitary landfill in Gloucester County, notified its customers that it would reach the capacity permitted by its permit issued by the defendant, DEP, and would close on October 28, 1984. On October 18, 1984 the plaintiff, Borough of Glassboro, filed a verified complaint in lieu of prerogative writs and an order to show cause naming as ...