On appeal from Department of Environmental Protection and New Jersey Board of Public Utilities.
Pressler, Skillman and D'Annunzio. The opinion of the court was delivered by Skillman, J.A.D.
The opinion of the court was delivered by
The issue presented by this appeal is whether the emergency adoption of a solid waste flow redirection order must conform with the emergency rulemaking procedures of the Administrative Procedure Act.
The issue arises out of a series of administrative actions relating to the planned closure of Landfill I-E operated by the Hackensack Meadowlands Development Commission (HMDC), which formerly was the disposal site for all Hudson County solid waste. On December 22, 1989, the Department of Environmental Protection (DEP)*fn1 and Board of Public Utilities (BPU) jointly issued an order requiring closure of Landfill I-E
by December 31, 1990. Hudson County filed a notice of appeal from this administrative order. Subsequently, Hudson County, the DEP, BPU, HMDC and Hudson County Improvement Authority (HCIA) entered into a settlement agreement providing for the continued operation of Landfill I-E pending Hudson County's development of an alternative disposal plan. The settlement agreement fixed the capacity limit for the I-E Landfill and required Hudson County to submit an amendment to its Solid Waste Management Plan (Plan) that identified a short term disposal strategy for the remaining life of the landfill. The agreement also provided that Hudson County would "investigate means to decrease the waste flow presently going into [the facility]."
The parties then initiated a number of administrative actions to formalize and implement the terms of the settlement agreement. Hudson County submitted an amendment of its Plan to the DEP, dated September 27, 1990, which provided among other things that waste other than municipal waste, i.e., household and ordinary commercial waste, would be required to be brought to the HMDC baler facility for processing and shipment to an out-of-state landfill. In addition, the HCIA petitioned the BPU for an exclusive franchise encompassing all types 10, 13, 23, 25 and 27 solid waste, a waste flow redirection order and approval of its initial tariff.
On January 24, 1991, the DEP certified, with modifications not material to this appeal, Hudson County's amendment of its Plan. On February 4, 1991, the BPU awarded the HCIA a franchise for the disposal of types 10, 13, 23, 25 and 27 solid waste, except recyclables, and approved HCIA's initial rates and tariffs. The DEP and BPU also jointly issued an emergency waste flow redirection order pursuant to N.J.A.C. 7:26-6.7, which provided among other things that all waste collectors and waste facility operators were required, effective February 4, 1991, to bring all waste, except for municipal and certain asbestos waste, to the HMDC baler for processing and shipment out-of-state. The emergency redirection order further
provided that its duration would be "greater than 180 days" but that the DEP and BPU "will initiate formal rulemaking procedures to embody the above waste flow directive formally within N.J.S.A. 7:26-6.1 et seq. " However, we were advised at oral argument that the DEP and BPU still have not proposed the adoption of a permanent rule relating to the redirection of solid waste generated in Hudson County.
Prolerized Schiabo Neu (PSN), which operates an automobile recycling plant in Jersey City, filed separate notices of appeal, which were subsequently consolidated, challenging DEP's certification of Hudson County's amendment to its Plan and the joint DEP/BPU emergency waste flow redirection order.
PSN argues that the emergency redirection order is invalid because the DEP and BPU failed to comply with the provision[s] of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -15, governing emergency rulemaking. PSN argues, in the alternative, that the DEP and BPU failed to comply with their own regulation governing emergency rulemaking. PSN also argues that the DEP's certification of Hudson County's amendment to its Plan, insofar as it requires PSN to bring the residue from its recycling operation to a transfer station ...