By way of this action in lieu of prerogative writs, Waste Disposal, Inc. ("WDI") challenges the action of the Monmouth County Board of Chosen Freeholders in amending the Monmouth County solid waste management plan. The effect of the amendment is the removal of the WDI facility from that plan*fn1 thereby depriving plaintiff of the economic benefits of continued use of its landfill in Howell Township.
The facts are not in dispute. It is the validity of the adoption of the amendment which is at issue. Both sides move for summary judgment.
The Historic Perspective.
WDI's solid waste disposal landfill began operating in 1946. At that time Howell Township was a rural community. There were no state regulations governing landfill (i.e., garbage dump) operations and few, if any, municipal regulations. The entire WDI property contained 246 acres. WDI determined where the garbage would be dumped. The Muddy Ford Brook meanders through the tract; the Sandy Hill Brook forms its boundary on one side. The waters of both eventually find their way into the Metedeconk River. The Kirkwood-Cohansey Aquifer lies under ground below the landfill.
In 1975, the New Jersey Solid Waste Management Act was adopted. (N.J.S.A. 13:1E-1 et seq.) Its purpose was to improve solid waste disposal operations and monitor their environmental impact through the issuance of state permits based on compliance with regulations. On February 25, 1976, the WDI facility received a certificate of public convenience and necessity from the Board of Public Utilities ("BPU"), which authorized the facility to engage in the business of solid waste disposal as a public utility. On June 30, 1976, WDI was issued its initial New Jersey Department of Environmental Protection (DEP) certificate of registration approving its engineering design and operations. Seventy-seven of the 246 acres received a landfill permit. The balance of the site was used as a buffer zone and "borrow" area.
In May 1981, during the period that WDI was owned and operated by SCA Services of N.J., Inc., SCA voluntarily entered into an administrative consent order ("ACO") with the DEP under the terms of which the SCA agreed to make improvements at the landfill to conduct environmental analyses and to limit its operations to acres already filled. That order contained no admission of liability nor any finding of violations. It arose, however, because of local complaints about the landfill operation. By that time Howell Township had undergone a metamorphosis into a largely residential community. Civilization was coming closer to the landfill.
In October 1982, a second, more comprehensive ACO was entered into by WDI, the DEP and Howell Township. This order also was signed without any admission of liability or finding of violations. Under the order, SCA was obligated to, inter alia, design, construct and install a clay cap and liner system for the working face of the landfill as well as a 1700-foot cut-off slurry wall underneath the surface, well points, a groundwater pumping system and a six-inch force main and gravity sewer connected to the Ocean County Utilities Authority plant to dispose of contaminated runoff.
In December 1982, the WDI facility was issued a revised certificate of approved registration and engineering design by DEP.
Pursuant to N.J.S.A. 13:1E-24, the Monmouth County Board of Freeholders adopted a solid waste management plan for the county by resolution dated December 1983. The WDI facility was included as part of that original plan and continued to be included in that plan as amended in May 1984, March 1985, April 1986 and August 1986, despite the fact that the WDI landfill was not operating during any of that time. Under the plan, and had it been operating, plaintiff's landfill would have been receiving all of the solid waste from ten specified municipalities plus part of another. Under its BPU franchise, once the WDI landfill reached its approved capacity it could no longer receive solid waste and would be closed in accordance with DEP closure requirements. Since the county was planning for construction of a resource recovery facility (combining recycling and incineration), the BPU franchise would terminate -- even if capacity were still available -- once the resource recovery facility was opened.*fn2
However, in November 1983, SCA, (the then owner of WDI), upon notice to the BPU and DEP voluntarily suspended acceptance of solid waste at the site in order to install the clay lined disposal areas for the landfill in accordance with the October 1982 administrative consent order. The suspension was caused by its inability to obtain required governmental permits to do so as well as the shortage of available clay at that time. Since November 23, 1983, the county landfill has received all solid
waste generated from within Monmouth County. All other private landfills have permanently ceased operation.
In August 1984, Monmouth County, by means of an amendment to the county solid waste management plan, attempted to redirect flow of solid waste from WDI to the county-operated reclamation center then under expansion. In its January 1985, certification of the county plan, DEP rejected this attempt to redirect waste flow away from WDI; reaffirmed WDI's inclusion in the county solid waste plan and its continuing right to a ten-and-a-half town waste flow upon the facility's reopening.
In 1984, Waste Management of North America, Inc. acquired SCA and undertook to complete SCA's obligations at the WDI site under the October 1982 administrative consent order. Because of its delay in meeting various deadlines contained in that order, an action was commenced in the Superior Court by Howell Township and its board of health against WDI and by the DEP against both WDI and its predecessor, SCA. That action ended with the entry of a consent judgment with no admission of fault by defendants. That judgment, dated August 20, 1984, extended some of the deadlines for corrective action contained in the October 1982 ACO; fixed added penalties for noncompliance and added the full contempt power of the court to insure effectuation of the administrative consent order.
During 1984-1986, Waste Management began construction on many of the improvements at the WDI facility. Considerable delays, however, arose due to the difficulties in obtaining various permits including a permit necessary to withdraw the groundwater by means of the facilities of the Municipal Utilities Authority of Howell Township. That system was completed and has been operational since May 1988.
Finally, on March 25, 1987, having obtained the necessary permits and anticipating the completion of the required improvements to the facility, Waste Management wrote DEP requesting: (1) recognition of the existence of approximately
918,000 cubic yards of remaining disposal capacity at the landfill; and (2) an extension of the WDI facility's present certificate of approved registration. Under paragraph 19 of the existing 1982 registration, WDI had the right to request an extension as long as disposal capacity remained. The Assistant Chief, Bureau of Solid Waste Facility Review at DEP, wrote back acknowledging the existence of remaining capacity for waste disposal and conditioning extension of WDI registration upon the submission of a state-of-the-art engineering design.
In a letter to Waste Management, dated August 22, 1988, Larry Zaayenga, the Monmouth County Solid Waste Coordinator for the past 14 years, stated that "(t)he Waste Disposal Landfill does still have a place in our County Solid Waste Plan." Zaayenga went on to state that "(s)hould this landfill re-open, the ten towns previously using the site now using the Reclamation Center as a 'back-up' facility, would be redirected to WDI"; and that "(t)he re-opening of WDI would undoubtedly offer some relief for our men and equipment, and extend the useful life of our permitted site by 6 months to a year."
In an April 13, 1989 letter to Waste Management, Zaayenga (at the request of the county administrator) set out three possible alternative solid waste flow scenarios for the reopening of the WDI facility.
Thereafter, Waste Management submitted an updated engineering design to DEP in May 1989 and applied to use the remaining capacity of the landfill. That capacity is limited to an area of 17 acres to be constructed on top of part of the old compacted 77-acre landfill. The design capacity allows receipt of 935,500 cubic yards or approximately 600,000 tons of solid waste. DEP reviewed the submission and over the next several months, sought additional information. Neither the county nor Howell Township, although provided copies of all correspondence, offered any comments or objections to the submitted engineering design or any reports submitted therewith. By early 1990, the DEP appeared satisfied that WDI's submission
complied with DEP environmental technical requirements. There have been no further requests from DEP for supplementation of that submission. The permit is awaiting DEP's formal approval. Under N.J.A.C. 7:26-2.4(g), notice to both Howell Township and Monmouth County is required subject to their right to review all documents as well as the right to a public hearing under N.J.A.C. 7:26-2.5.
Meanwhile, in August 1989, the BPU issued an order awarding a solid waste disposal franchise to Monmouth County. That order recognized that the WDI facility was included in the county's solid waste management plan along with the county reclamation center and reaffirmed WDI's entitlement to receive waste flow from the 11 Monmouth County municipalities that had been directed to it under existing flow regulations, upon DEP's allowing it to become operational once again. The BPU recognized that the existing flow allocation for WDI would remain in effect until the start-up of the county's planned resource recovery facility, which at that time was projected to become operational in 1994.
In November and December 1989 with the reality of the probable early DEP approval of the required site-work at the WDI facility and reopening of the same, a series of meetings took place between representatives of WDI, Monmouth County and Howell Township. At these meetings, the county and township set forth their respective concerns with regard to the reopening and suggested requirements that should be imposed on WDI as conditions of the ...