On appeal from the Board of Public Utilities and the Department of Environmental Protection.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
This matter comes on before the court on appeal from a joint order of the New Jersey Department of Environmental Protection (DEP) and the New Jersey Board of Public Utilities (BPU), dated May 15, 1984, redirecting solid waste flow in Cape May County, New Jersey, for a period of 180 days. The matter is complex so that an understanding of the case requires that its factual and procedural history be set forth at length. Implicated in the case are substantive and procedural questions concerning the validity of the order. We conclude that while the case may be technically moot, we should nevertheless decide the substantive issues raised. However we will not consider the procedural questions as the situation giving rise to them is not likely to be repeated.
In 1970 the Legislature adopted the New Jersey Solid Waste Management Act, L. 1970, c. 39, N.J.S.A. 13:1E-1 et seq., requiring each county to develop and formulate a solid waste management plan. N.J.S.A. 13:1E-20. However prior to 1979 Cape May County had not adopted any solid waste management plan. Thus solid waste in the county was being disposed of at that
time in various landfills expected to reach their capacity by 1986. In recognition of the problem and in conformity with the law, the county adopted a Solid Waste Management Plan in 1979. This plan after being modified by the county was further modified and approved by the DEP on February 4, 1981. The plan contemplated that local landfills including one operated by respondent Foundations and Structures (F & S) on municipally owned land in Woodbine were to close by December 31, 1982. The F & S landfill received solid waste from Avalon, Sea Isle City and Woodbine and was under the regulatory jurisdiction of the BPU.*fn1 After December 31, 1982 solid waste was to be disposed of at a regional landfill to be constructed and in operation by January 1, 1983. This regional landfill was to be owned and operated by appellant Cape May County Municipal Utilities Authority (CMCMUA) which was designated as the implementing agency for the plan by the freeholders. On December 6, 1982 the BPU and DEP adopted interdistrict and intradistrict solid waste flow regulations pursuant to the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq., and the Solid Waste Utility Control Act, N.J.S.A. 48:13A-1 et seq. See N.J.A.C. 7:26-6.1 et seq. While these regulations are state-wide, we are concerned with the fact that they implement the Cape May County Solid Waste Management Plan and provide for interim direction of solid waste flow prior to the completion of the regional landfill. These interim provisions allowed continuation of the Woodbine facility for receipt of waste from Avalon, Sea Isle City and Woodbine. N.J.A.C. 7:26-6.5(e).
Inasmuch as the regional facility was scheduled to supersede the existing landfills, F & S contemplated closing its Woodbine landfill, a procedure which it initially thought would pose no major problems. While F & S was required to comply with State closure regulations, it believed it could do so by placing two feet of cover on the landfill and grading and seeding it.
Additionally it anticipated drilling some monitoring wells. Overall F & S expected total termination expenses of $245,000. In fact the regional landfill was not ready by January 1, 1983. Thus the opening date was postponed until July 1, 1983, a date also not met. Subsequently an opening date of April 1, 1984, was anticipated.
The delays in opening the regional landfill and closing the local operations proved to have an enormous economic significance. In May 1983 the DEP promulgated new and more comprehensive regulations governing the closure and post-closure care and record-keeping requirements for landfills. F & S recognized the impact of these changes and thus wrote to the DEP on July 21, 1983 stating that it had insufficient funds to pay for the new requirements and because of the imminent closing of its operation it would have inadequate time to generate additional funds to cover the enhanced costs. It claimed that as of July 21, 1983 it had only $51,838 in its landfill closure escrow account with no alternative funds available. F & S said that Woodbine, which owned the landfill site, was in tight financial condition and could not be expected to pay any closure expenses.
Notwithstanding these financial problems the DEP notified F & S in September 1983 of its obligation to comply with the new closure requirements. Meetings between representatives of the DEP and F & S ensued concerning the details of the new rules. Then on January 17, 1984 the DEP issued an order specifying the steps necessary for F & S to comply with the new regulations. These steps included submission of a supplemental engineering closure design which would include plans for final grading, operations, a two-foot permeable cap covered with 12 inches of soil to support vegetative growth, storm water management, cross sections, construction detail sheets and methane gas evacuation. The matter was further complicated by requirements that F & S comply with the Pinelands Comprehensive Management Plan and obtain a New Jersey Pollutant Discharge Elimination System permit. Further F & S
was required to install scales and to submit a closure and post-closure financial plan.
The adverse financial impact of these plans on F & S was clear. It estimated the cost to satisfy the new regulations would be $1,992,000. Quite understandably F & S sought relief in this situation. On March 2, 1984 it filed a verified petition in support of emergency relief with the BPU seeking: interim rate relief to enable it to recover the costs of closing the landfill in accordance with the new DEP regulations; continuation of its waste flow to enable it to comply with the DEP regulations; and an amendment to the waste flow regulations to permit continuation of waste flow to the Woodbine landfill. It is not clear from the record whether notice of this petition was given to the CMCMUA. However, even before the petition was filed the DEP had encouraged the CMCMUA to meet with officials from the DEP, Woodbine and F & S to discuss F & S's problem. Further we note that the county seems to have recognized the problem for at that time the freeholders were considering adoption of an amendment to their plan which would have redirected waste then being disposed of in another landfill to the F & S Woodbine site pending the opening of the regional landfill.
Eventually F & S became aware that the county would not support the continued operation of the Woodbine landfill. Thus on April 4, 1984 F & S requested a declaratory ruling from the BPU suspending the operative date of the provision in the waste flow regulations, N.J.A.C. 7:26-6.5(e)(7), which directed that the waste previously placed in the Woodbine site be redirected to the regional landfill when it opened. F & S desired the suspension pending an agreement allowing it to operate following the opening of the regional landfill.
On April 9, 1984 F & S filed an amendment to its verified petition of March 2, 1984 pursuant to N.J.A.C. 14:1-6.5 seeking ex parte emergent relief as requested in the April 4 letter. The amendment included: (1) a pro forma statement of income for
the period April 1 to June 30, 1984 reflecting a loss of $1,935,715; (2) a pro forma balance sheet as of June 30, 1984 showing that its total liabilities were greater than its total current and accrued assets; (3) a second revised rate schedule no. 1; and (4) a supporting affidavit by William E. Monaghan, its president, representing that cessation of the landfill's waste flow would prevent F & S and Woodbine from closing the landfill in an environmentally sound manner and from maintaining proper closure.
Joseph Ferrante, Jr., the attorney for F & S, served a copy of the amendment to its petition on George Marinakis, a representative of the CMCMUA, by certified mail on April 9, 1984 and the CMCMUA received this material on April 11, 1984. According to John J. Pislor, a BPU official, on April 9, 1984 he, Pislor, notified Theodore O'Neill, waste manager of the CMCMUA of the F & S applications. Pislor indicates he told ...