On appeal from Certifications of the Department of Environmental Protection, transferred by the Chancery Division to the Appellate Division.
Petrella, Dreier and Baime. The opinion of the court was delivered by Dreier, J.A.D.
[221 NJSuper Page 560] Plaintiff, the City of Newark (City) has appealed from an approval by the New Jersey Department of Environmental Protection (DEP) of an amended Essex County Solid Waste Management Plan. On July 2, 1987, the City filed an order to show cause and a verified complaint in lieu of prerogative writs in the Law Division challenging the construction and operation of two waste transfer facilities in the City of Newark. The City challenged the adoption by the Essex County Board of Chosen Freeholders (County) of an ordinance which amended the Essex County solid waste management plan to authorize these transfer stations; the City opposed the contracts that the
County entered into with two waste management companies for the construction and operation of these transfer stations; and the City contested the certification of the County plan amendment by the DEP.
On July 7, 1987, the parties argued plaintiff's motion before the Law Division. On the same day, the State successfully moved to transfer the case to the Appellate Division on the basis that final State action (DEP certification) was involved.*fn1 The Law Division judge temporarily restrained all defendants, except the Port Authority of New York and New Jersey (Port Authority) from "permitting the opening and/or operating of" the two planned transfer stations in Newark without further court order. He refused to enjoin the continued construction of the stations.
On July 9, 1987, we heard emergent applications for an accelerated briefing schedule and lifting of temporary restraints. We granted defendants' cross-motion requesting that the temporary restraints be lifted on the basis that "the public good demands utilization of the disputed sites on or before July 31, 1987," and directed an accelerated briefing schedule.
On August 19, 1987, the City moved to amend its complaint, to remand counts one and two of the amended complaint to the Law Division for trial, and to stay the Appellate Division action. On September 10, 1987, we permitted the filing of the amended complaint, but denied the motions for a partial remand and a stay, noting that the factual issues raised in counts one and two of the City's complaint will only be adjudicated if the City prevails on the legal issues presented in this appeal.
Historically, on March 2, 1982 a consent judgment was entered which provided that Essex County could only dispose of its solid waste at the Hackensack Meadowlands landfills until
September 2, 1988. An amended consent judgment was entered on May 2, 1983, whereby the County agreed to cease all use of the Meadowlands facility on July 31, 1987 in exchange for financial assistance from the DEP and from the Hackensack Meadowlands Development Commission to construct a resource recovery project for Essex County waste. This long-term solid waste disposal plan was jointly developed by the County and the Port Authority and was expected to be in operation by January 31, 1987. The County decided to locate the facility in Newark, and the County entered a Host Municipality Agreement (Agreement), filed May 31, 1985, with the City of Newark and the Port Authority. In exchange for the property, construction permission and the necessary easements, the City was to receive processing priority at the facility, financial payments for the waste processed at the facility, and financial assistance for industrial development projects. Contained within this comprehensive agreement is the disputed clause, which in pertinent part provides:
5.6 Transfer Stations and Landfills. The County and the Authority hereby covenant and agree that no transfer station or landfill shall be established within the corporate boundaries of the City without the consent of the City. . . .
Unfortunately, the Essex County resource recovery facility construction plans were delayed, and the facility is not scheduled to be operational until 1990. Because the Hackensack landfill was closing on July 31, 1987, the County on December 10, 1986 proposed an interim disposal plan. The County's plan was to solicit companies engaged in solid waste collection, disposal and/or recovery who were interested in the construction and operation of temporary transfer stations, which are facilities where collection trucks are emptied into larger trucks which transfer refuse to out-of-state disposal sites. The County received nine proposals, and on the basis of these proposals the County prepared a proposed amendment to its solid waste management plan. On June 3, 1987, the County held a public hearing on the amendment, and thereafter amended the plan by ordinance to include one transfer station located in Newark
which was proposed by Waste Management of New Jersey (WMNJ), another transfer station located in Newark which was proposed by Solid Waste Transfer and Recycling (SWTR), and one in Orange also proposed by SWTR.
On June 8, 1987, DEP certified its approval of this amendment, and on June 18, 1987, adopted a new rule by emergency procedures to streamline the master performance permit process necessary for the immediate development of these transfer station facilities. The rationale was
to avert imminent peril to the public health, safety, welfare and the environment posed by the solid waste disposal crisis facing Essex County. . . .
Governor Kean, on June 23, 1987, certified DEP's findings that an emergency existed sufficient to warrant the emergency rule adoption. On July 31, 1987, the Board of Public Utilities (BPU) accepted the contracts, approved the County's petition for a franchise to cover interim transfer station disposal and the proposed resource recovery facility, and approved a Certificate of Public Convenience and Necessity. The Newark stations have now been operational since August 1, 1987.
The City raises two main points on appeal: First, the City argues that the Host Municipality Agreement was breached because the County amended its solid waste management plan and executed contracts for transfer stations in Newark without the City's approval. Second, the City contends that the transfer station contracts are void because they were awarded in violation of the Local Public Contracts Law which requires public bidding. The City is seeking relief either by an injunction against the operation of the transfer stations or alternatively by a declaration that the host municipality agreement is void and that financing and construction of the resource recovery facility is suspended pending negotiations of another agreement.*fn2
The first argument presented by the City is that because the Port Authority is jointly financing and constructing the resource recovery facility with the County, the statutes covering the powers and responsibilities of the Port Authority in industrial projects should govern. N.J.S.A. 32:1-35.79 (paragraph 1) authorizes the City to consent to a resource recovery facility, and N.J.S.A. 32:1-35.72p requires municipal consent in certain limited areas:
p. No such port district industrial development projects or facilities are to be constructed unless and until the port authority has entered into an agreement or agreements with the municipality in which any such project or facility is to be located with respect to payments in lieu of real ...