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In re Stream Encroachment Permit No. 12400 .

Decided As Amended May 26 1989.: January 5, 1989.


On appeal from Final Determination of the New Jersey Department of Environmental Protection.

Petrella, Shebell and Gruccio.

Per Curiam

The Borough of Ridgefield appeals in these consolidated matters from the issuance of various permits to American Ref-Fuel of Bergen County, including a stream encroachment permit, a temporary solid waste facility permit and other related permits with regard to the proposed construction of a resource recovery facility for Bergen County in Ridgefield. The site for the facility was designated by the Bergen County Utilities Authority (Utilities Authority) and approved by the county after the Hackensack Meadowlands Development Commission (the HMDC) and the Utilities Authority determined that it was the best available alternative site. Ridgefield separately appealed the issuance of the stream encroachment permit and the temporary solid waste facility permit. The two appeals have been consolidated.

Approximately 72 acres of vacant land in Ridgefield were designated as the proposed site for the development and construction of a resource recovery facility. The site selection process has been going on since at least 1984 when the Utilities Authority selected American Ref-Fuel Company of Bergen County (American Ref-Fuel) to design, construct and operate the resource recovery facility for a period of 25 years. A January 15, 1985 service agreement between the Utilities Authority and American Ref-Fuel incorporated those aspects and required the latter to obtain all permits and licenses to operate the facility. It was contemplated that the site would be owned by the Utilities Authority and leased to American Ref-Fuel.

During the summer and fall of 1985 the Utilities Authority submitted a draft Environmental and Health Impact Statement. On July 27, 1985 American Ref-Fuel applied to the State Department of Environmental Protection (DEP) for a certificate

of approved registration and engineering design as required by the Solid Waste Management Act (N.J.S.A. 13:1E-1 et seq.), a permit to construct, install or alter control apparatus or equipment, and a prevention of significant deterioration permit (air pollution control permit).

American Ref-Fuel submitted an application on October 8, 1985 for a New Jersey Pollution Discharge Elimination System/Discharge permit (NJPDES permit). On October 22, 1985 it also applied to the DEP for a stream encroachment permit (number 12400) to place fill and construct certain structures on the proposed site.

On May 7, 1986, the DEP issued stream encroachment permit number 12400, effective June 6, 1986, and containing specified terms and conditions. Ridgefield filed its notice of appeal and challenged the permit on the basis that no required findings were made by the DEP for its issuance.*fn1 On November 2, 1987 the DEP issued a new stream encroachment permit to American Ref-Fuel bearing the same number. Ridgefield filed an amended notice of appeal challenging this November 2, 1987 permit.

In the meantime, the DEP held a public hearing on December 18, 1986 for consideration of the application for a solid waste facility permit, air control permit and NJPDES permit. Comments were solicited by the DEP through January 17, 1987. The DEP approved the remaining permits sought by American Ref-Fuel on November 23 and 24, 1987. These permits included a temporary solid waste recovery permit, a NJPDES permit and an air pollution control permit. The Environmental and Health Impact Statement was also approved at this time. Ridgefield filed a notice of appeal on December 18, 1987 challenging

the issuance of this set of permits.*fn2 Both appeals were consolidated on February 23, 1988.


None of the parties to this appeal dispute the existence of the increasing solid waste disposal crisis in Bergen County, the State and indeed the northeastern part of the country. The problem is not recent in New Jersey. The 1970 enactment of the Solid Waste Management Act (N.J.S.A. 13:1E-1 to 15) and the Solid Waste Utility Control Act (N.J.S.A. 48:13A-1 to 13), represented the culmination of years of growing concern over garbage siting problems as well as increasing costs of collection, disposal and regulation. 1975 amendments to the Solid Waste Management Act further addressed the problem. Under the 1970 legislation the Hackensack Meadowlands District and each of the State's 21 counties were designated as solid waste management districts with the responsibility for preparing a Comprehensive Solid Waste Management Plan to deal with the problem in their respective districts. See N.J.S.A. 13:1E-2b(2); N.J.S.A. 13:1E-19 to 24.

Resource recovery and recycling has been encouraged by the Legislature in order to relieve the burden on landfills which have reached and exceeded their maximum capacity. See N.J.S.A. 13:1E-2b(7); Clean Capital County Committee v. Driver, 228 N.J. Super. 506 (App.Div.1988). In 1985 N.J.S.A. 13:1E-136 was enacted as an amendment to the Solid Waste Management Act and sets forth as a state policy:

The record before us demonstrates that pursuant to the statutory requirements Bergen County, one of the 22 designated

solid waste management districts, in conjunction with the Utilities Authority, undertook investigations to identify a suitable site for a proposed resource recovery facility. Although 76 parcels of property within the county were identified as potential sites, 67 were eliminated from consideration because of environmental factors. After comparative evaluation the Ridgefield site was found to be the best of the nine remaining proposed sites. The Ridgefield site, bounded by Conrail Freight Yards and the Public Service Electric and Gas Company generating station to the north, the New Jersey Turnpike to the east and south and the Utilities Authority's sewage treatment plant to the west, had previously been used as a dredge soil disposal site. There are no residences within a half mile. The entire Ridgefield site area was filled in in the late 1960s and early 1970s with soil excavated during the construction of the Vince Lombardi service area of the New Jersey Turnpike to an elevation of six to eight feet above mean sea level.

In 1979 the adopted Bergen County Solid Waste Management Plan designated the Ridgefield site for use as a resource recovery facility. The DEP approved that plan on May 1, 1980. Thereafter, the Bergen County Board of Chosen Freeholders adopted a resolution on December 30, 1980 which designated the Utilities Authority as the agency to implement the county's plan.

The proposed resource recovery facility would generate high pressure steam from the incineration of waste from Bergen County municipalities and selected dry industrial waste generated within the county. The generated steam is proposed to be utilized to produce electricity for sale to Jersey Central Power and Light Company and transmitted across Public Service Electric and Gas Company lines to the Jersey Central Power Grid System. Operation of the facility would also produce waste water discharges, air emissions and ash residue. The waste water is planned to be treated at the Utilities Authority's plant in Little Ferry and the ash residue would be temporarily stored and then sold as ferrous metal to the secondary materials

market. A site in North Arlington has been designated as the repository for the ash residue.

The HMDC had also contemporaneously investigated resource recovery sites since it had responsibility to provide sufficient solid waste disposal facilities for municipalities who disposed of their waste within the district. It considered approximately 30 vacant parcels of land within the district which were identified and evaluated as a potential resource recovery system site. Consideration was narrowed to eight sites for detailed study of land use, site access and environmental features. Five of these sites were selected by the HMDC for further consideration, including sites in the Borough of Teterboro and Ridgefield. A 1975 Rutgers University study had recommended these two Bergen County sites as more suitable than the three other potential sites located in the district but outside of Bergen County. However, the Teterboro site was developed in 1976, rendering it economically unavailable for development as a resource recovery facility. The Ridgefield site thus became the preferred location to serve both Bergen County and the Hackensack Meadowlands District. The HMDC also identified Ridgefield as the site for such a facility in its proposed Solid Waste Management Plan dated July 1, 1978, which was approved by the DEP on October 1, 1979. The Utilities Authority argues that Ridgefield never challenged its designation as the preferred site in either the county or HMDC plan and thus it is too late to now challenge the designation.

The HMDC and Bergen County jointly applied to the United States Environmental Protection Agency (EPA) for funding to complete the planning and design of a 3,000 ton per day resource recovery facility at the Ridgefield site.

The Utilities Authority conducted a further study in 1983 in an effort to identify viable alternative facility sites because the Ridgefield site contained wetlands and such a study was required because an Army Corps of Engineers permit was required pursuant to section 404 of the federal Clean Water Act

(33 U.S.C. ยง 1344). It was necessary to perform this additional site selection study to determine the availability of alternative upland sites. The screening criteria of a parcel size greater than 45 acres and present vacant land use were utilized. This resulted in a site in Lyndhurst, located on a previously landfilled area, being selected. The site was within the district and had been zoned residential by the HMDC. Ultimately it was determined that the site was not available because the zoning could not be changed and moreover approximately 1.3 million cubic yards of solid waste would have to be removed prior to construction. There was a likelihood that some of the waste could be toxic while no place for safe disposal of that waste existed.

Ridgefield appealed the HMDC's denial, after public hearings, of the Utilities Authority's request for a zoning change on the Lyndhurst site. That determination was upheld on appeal in Mayor and Council of the Boro. of Ridgefield v. Hackensack Meadowlands Development Commission, Docket No. A-3747-84 (decided December 26, 1985). The Utilities Authority later conducted further site selection review and evaluation studies which concluded, despite the study of some 81 potential sites, that there was no feasible alternative outside of the Ridgefield site. The Utilities Authority then selected American Ref-Fuel to construct and operate the resource recovery facility and issued $183,300,000 in Solid Waste Resource Recovery Revenue Variable Rate Demand Bonds, Series A, contemporaneously and on a parity basis with its Series B bonds valued at $183,500,000. Subsequently, the Utilities Authority entered into the above-mentioned service agreement with American Ref-Fuel. The HMDC rezoned the Ridgefield site from marshland preservation to heavy industrial to make it consistent with the proposed use.

Upon receipt of the draft Environmental and Health Impact Statement and the permit applications the DEP identified the project as one involving "special concerns." Thus, compliance with N.J.A.C. ...

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