On appeal from Superior Court, Law Division, Morris County.
Antell, Dreier and Skillman. The opinion of the court was delivered by Antell, P.J.A.D.
Plaintiff appeals by leave granted from an order of the Law Division denying its application for a preliminary injunction to restrain defendant Frank's Sanitation Service, Inc. (hereinafter "defendant") from diverting solid waste from plaintiff's transfer stations. The application for relief was made on the basis of common law equitable principles, the Solid Waste Utility Control Act, N.J.S.A. 48:13A-1, et seq., the Solid Waste Management Act, N.J.S.A. 13:1E-1, et seq., and the Environmental Rights Act, N.J.S.A. 2A:35-1, et seq. The Law Division denied relief on the ground that plaintiff failed to demonstrate threatened irreparable injury and failed to demonstrate its standing to invoke the statutory remedies aforementioned.
Plaintiff is the holder of a franchise awarded under N.J.S.A. 48:13A-5 in 1988 by the Board of Public Utilities (hereinafter "BPU"). The franchise gives plaintiff exclusive authority to dispose of all solid waste generated within Morris County. Plaintiff carries on its work through two transfer stations located in Mt. Olive and Parsippany-Troy Hills. A transfer station is a facility at which solid waste is transferred from a collection vehicle to a licensed solid waste haulage vehicle. The
solid waste is then transported to an offsite sanitary landfill facility for disposal. N.J.S.A. 48:13A-3.
Defendant, a licensed solid waste hauler, collects solid waste in Morris County, conducting its business from a garage located at 60 Riverdale Road, Riverdale, New Jersey. Defendant leases the garage from defendant Pan Automotive Parts and Supply, Inc. Pursuant to a waste flow order issued by the Department of Environmental Protection, now known as the Department of Environmental Protection and Energy (hereinafter "DEPE"), and the BPU, now merged with DEPE and functioning therein as the Board of Regulatory Commissioners, pursuant to N.J.A.C. 7:26-6.5, all solid waste generated and collected in Morris County is directed to plaintiff's two transfer stations.
In May 1988, plaintiff established an investigative unit to monitor compliance by Morris County solid waste haulers with the Morris County waste flow order. Plaintiff's employees maintained surveillances over defendant's collection routes and activities at its garage and yard in Riverdale. As a result, plaintiff determined that defendant had been diverting waste, which it collected in Morris County, to disposal facilities other than plaintiff's. Plaintiff alleges that during the preceding one and a half years, its enforcement unit has documented well over 150 instances of illegal diversion. It further alleges numerous instances in which the solid waste was delivered to defendant's own yard in Riverdale and, in some cases, thereafter taken to the Totowa Transfer Station in Passaic County.
On December 9, 1991, DEPE issued defendant a Notice of Violation for operating an illegal transfer station at its Riverdale yard. No further enforcement action has been taken by DEPE and, according to plaintiff, defendant continues to use its own facility as a transfer station.
Defendant's activities have caused plaintiff to lose revenue because tipping fees have been reduced. Tipping fees are normally paid by commercial haulers to plaintiff upon its acceptance
of solid waste for delivery to an out-of-state landfill. Because of defendant's actions the volume of waste plaintiff receives is reduced and defendant is not paying plaintiff the tipping fees that would be due if defendant were complying with the waste flow order.
Defendant does not challenge plaintiff's factual allegations. It asserts only that as a matter of law these fall short of supporting ...