On appeal from Final Action of the Department of Environmental Protection and the Board of Public Utilities.
Pressler, Gaulkin and Baime. The opinion of the court was delivered by Baime, J.A.D.
This is an appeal by 23 municipalities challenging the validity of an emergency order issued by the Department of Environmental Protection (DEP) and the Board of Public Utilities (BPU) redirecting Camden County's solid waste flows from the now closed Kinsley landfill in Gloucester County to a transfer station operated by the Forge, Inc. in Philadelphia, Pennsylvania. Appellants contend that the emergency order transcends the territorial jurisdiction of the DEP and the BPU and, in any event, is ultra vires because the agencies failed to adhere to the requisites of the Administrative Procedure Act (N.J.S.A. 52:14B-1 et seq.) and the applicable Administrative Code provisions.
We need not recite the facts at length. Suffice it to say, the joint action of the DEP and the BPU came in the wake of protracted litigation resulting in a court order directing the phased closure of the Kinsley landfill. See Glassboro v. Gloucester Cty. Bd. of Chosen Freeholders, 98 N.J. 186 (1984), on
remand, 199 N.J. Super. 91 (App.Div.1985), aff'd, 100 N.J. 134 (1985), cert. den. U.S. , 106 S. Ct. 532, 88 L. Ed. 2d 464 (1985). Virtually all the solid waste generated within New Jersey which was deposited at that landfill emanated from Gloucester, Camden and Salem Counties. Since the Kinsley landfill had reached its maximum capacity, the court's order directed those counties to develop new solid waste disposal facilities as soon as possible.
In response, the Camden County Solid Waste Advisory Council retained a consultant to assist it in locating potential sites for new landfills. Several sites were investigated but none was found to be environmentally acceptable. Inquiries to other New Jersey districts concerning the possibility of utilizing out-of-county facilities proved unavailing.
Ultimately, the Camden County Board of Chosen Freeholders entered into negotiations with the Forge, Inc., which, as we have noted, operates a disposal facility in Philadelphia. Following public hearings, the Board approved an amendment to the county's solid waste management plan redirecting waste flows formerly deposited in the Kinsley landfill to the Forge, Inc. The amendment was then presented to the DEP which submitted it to various state review agencies for comment.
On November 25, 1985 the Commissioner of the DEP certified the amendment with certain minor alterations. The certification directs that various types of solid waste are to be transported to the transfer station operated by the Forge, Inc. A landfill located in Winslow Township is to be used as a back-up solid waste facility subject to the county's obtaining waivers of strict compliance from the New Jersey Pinelands Commission. In the certification, the Commissioner emphasized that the redirection of solid waste to these facilities was not intended to be a permanent solution to Camden County's problem. Rather, the redirection of Camden County's solid waste is said to be a temporary emergency measure which is to terminate at the end of a three and one-half year period.
During this period, Camden County is obliged to consider other sites and adopt a new sold waste management plan. Under the certification, the approved amendment was to take effect on December 1, 1985.
On the date that the Commissioner issued his certification of the plan amendment, he sent a memorandum to the President of the BPU informing her of the problems confronting Camden County and requesting that she approve an emergency redirection order. Pursuant to his request, the ...