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Regional Recycling Inc. v. State

decided.: January 30, 1991.

REGIONAL RECYCLING, INC., PLAINTIFF-RESPONDENT,
v.
STATE OF NEW JERSEY, DEPARTMENT OF ENVIRONMENTAL PROTECTION, DEFENDANT-APPELLANT, AND COUNTY OF ESSEX, DEPARTMENT OF PLANNING AND ECONOMIC DEVELOPMENT, DIVISION OF SOLID WASTE MANAGEMENT, DEFENDANT.



Gaulkin, Shebell, Havey

Gaulkin

The opinion of the Court was delivered by GAULKIN, P.J.A.D.

The Department of Environmental Protection (DEP) appeals by leave granted from an interlocutory Chancery Division order

directing that it "immediately commence a review" of the application of plaintiff Regional Recycling, Inc. (Regional) for a solid waste facility (SWF) permit. N.J.S.A. 13:1E-4b; N.J.S.A. 13:1E-26a; N.J.A.C. 7:26-2.4. We reverse, for we conclude that DEP is statutorily barred from issuing an SWF permit to a facility not included in the approved solid waste management plan of the solid waste management district in which the facility is to be located.

I.

Regional operates a recycling facility and transfer station*fn1 at 295 Frelinghuysen Avenue in Newark, where it conducts business of two kinds. First, Regional receives solid waste generated in New York, removes the recyclable material, bales the residual solid waste and disposes of it outside New Jersey. Second, Regional receives solid waste generated in nearby New Jersey counties, removes and resells the recyclable waste, bales the residual solid waste and returns it to its county of origin for disposal in accordance with the applicable district solid waste management plan.

In October 1987, Regional applied to Essex County to be included in the Essex County Solid Waste Management Plan and also applied to DEP for an SWF permit. On November 23, 1987, Regional and DEP entered into an Administrative Consent Order authorizing Regional to operate pending completion and review of its permit application but for no longer than one year. The order recited that Regional had operated its transfer station "without having received approval . . . since an

unknown date prior to February 27, 1987" and "had petitioned the Essex County Board of Chosen Freeholders to adopt an amendment to its County Solid Waste Management Plan to be included as a solid waste facility in the Plan." Regional was required to submit a complete "application package" within 60 days; if the package was not timely submitted, "the application will be automatically rejected and [Regional] will cease operation immediately."

Regional submitted its application package to DEP on December 7, 1987. By letter of January 7, 1988, DEP advised Regional that "the application is incomplete until such time as the facility is included within the approved Essex County District Solid Waste Management Plan." Apparently after some inconclusive discussions over the ensuing months, DEP, joined by the Board of Public Utilities, brought a Chancery Division action against Regional, alleging, among other things, that Regional was "operating in violation of the terms of the Administrative Consent Order." That action was resolved by a June 28, 1988 consent order permitting Regional to (1) dispose of waste generated in Essex County "in accordance with Essex County Waste Management Plan and the Emergency Waste Redirection Order for Essex County" and (2) receive waste generated outside New Jersey and dispose of its residue "directly out-of-state or in any other fashion authorized by law." We are told that that order is still in effect.

By letter of February 16, 1989, the Division of Solid Waste Management of the Essex County Department of Planning and Economic Development advised Regional as follows:

Inasmuch as the state regulatory agencies have not set state standards for intercounty and interstate waste flow regulations, Essex County will seek guidance as to the disposition of your request. Therefore your request for inclusion in the Essex County Plan will not be granted at this time.

Regional shortly filed this action against both DEP and Essex County. Its complaint demanded judgment requiring Essex County to include it in the Essex County Solid Waste Management Plan and requiring DEP to issue an SWF permit.

Regional also sought to restrain DEP from terminating the November 23, 1987 Administrative Consent Order and asserted that termination of its right to operate would ...


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