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Matter of Certain Amendments to Adopted and Approved Solid Waste Management Plan of Hudson County Solid Waste Management Dist.

Decided: July 20, 1993.

IN THE MATTER OF CERTAIN AMENDMENTS TO THE ADOPTED AND APPROVED SOLID WASTE MANAGEMENT PLAN OF THE HUDSON COUNTY SOLID WASTE MANAGEMENT DISTRICT CERTIFIED BY THE NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION ON JANUARY 14, 1991. IN RE NEW JERSEY BOARD OF PUBLIC UTILITIES AND NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION EMERGENCY REDIRECTION OF SOLID WASTE FLOWS DATED FEBRUARY 1, 1991


On certification to the Superior Court, Appellate Division, whose opinion is reported at 258 N.J. Super.

For affirmance in part; reversal in part -- Chief Justice Wilentz and Justices Handler, Clifford, Pollock, O'Hern, Garibaldi, and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.

Handler

This case involves the interrelationship between two statutes -- the Administrative Procedure Act and the Solid Waste Management Act -- and their application to administrative orders regulating the Disposition of solid waste. Both statutes delineate extensive procedures for the promulgation of administrative regulations.

The Department of Environmental Protection and the Board of Public Utilities issued a joint emergency order that redirected the flow of solid waste in Hudson County in an attempt to stave off an impending overflow at a nearby landfill. Pursuant to that order, issued under the Solid Waste Management Act, certain types of commercial waste would have to be shipped out of state rather than to the local landfill. Respondent is one of the parties affected by the redirection of waste flow. Facing increased costs for out-of-state shipment, respondent challenged the validity of the emergency order. It claimed that the order was an administrative "rule" that should have been adopted pursuant to the rule-making provisions of the Administrative Procedure Act.

The narrow issues to be decided in this case is whether the promulgation of the plan amendment and emergency waste flow redirection order was governed by the procedures prescribed by the Administrative Procedure Act, and whether the failure to comply with those procedures renders the amendment and order invalid and unenforceable.

I

On December 22, 1989, the Department of Environmental Protection ("DEP" or the "Department") and the Board of Public Utilities ("BPU or the "Board") jointly ordered the closure of a landfill in North Arlington, operated by the Hackensack Meadowlands Development Commission ("HMDC"). Apparently this was the sole disposal site for all of Hudson County's solid waste.

Hudson County appealed the closure. On June 14, 1990, Hudson County, the HMDC, the BPU, the DEP, and the Hudson County Improvement Authority ("HCIA") entered into an agreement permitting the continued operation of the plant pending the County's implementation of an alternative waste-disposal plan.

On September 7, 1990, the Hudson County Board of Freeholders established an alternative plan through a series of proposed amendments to its current solid waste management plan. Pursuant to the amended plan, municipal waste (i.e., residential/small business waste) would continue to be processed at the landfill. Larger waste would be delivered to a processing facility for shipment to out-of-state locations. The charge for that plan alteration would be approximately three times the original cost of processing.

The amendments were approved in January 1991 by the Commissioner of the DEP. Subsequently, on February 4, 1991, the DEP and the BPU issued a joint emergency waste flow redirection order ("redirection order" or "order") that required Hudson County's non-municipal waste to be processed and shipped out of state. The redirection order was issued pursuant to rules, N.J.A.C. 7:26-6.7, promulgated under the Solid Waste Management Act ("SWMA" or "Act"), N.J.S.A. 13:1E-1 to -27.

The redirection order itself stated that the emergency would be greater than 180 days in duration. Consequently, the order included a proviso that the DEP and the BPU would initiate formal rule-making procedures with respect to the adoption of the amendment, pursuant to departmental regulations, N.J.A.C. 7:26-6.1 to 17.12, issued under the SWMA. In addition, acting under

the Solid Waste Utility Control Act of 1970, N.J.S.A. 48:13A-1 to - 13, BPU simultaneously granted the HCIA an exclusive franchise for the handling of all of the County's waste pursuant to the redirection order.

Respondent, Prolerized Schiabo Neu Co. ("PSN" or "respondent"), a scrap metal recycling company, challenged the Department's certification of the amendments and the joint issuance of the emergency waste flow redirection order. PSN had originally been able to take its waste to the local landfill, but under the new regulations would have to take it to a baler facility to be shipped out of state.

On appeal, the Appellate Division determined that the emergency waste flow redirection order was an administrative rule, and consequently it should have been issued in conformance with the procedures governing rule-making contained in the Administrative Procedure Act ("APA"), N.J.S.A. 52:14B-1 to 15. 258 N.J. Super. 290, 609 A.2d 501 (1992). The court found that the amendments had not been validly approved and, further, that the redirection order itself was not valid because it had not been issued in accordance with the emergency rule-making procedures of the APA. Id. at 299-300, 609 A.2d 501. Consequently, respondent was not required to deliver its waste to an alternative waste facility.

The Appellate Division thereafter denied HCIA's request for reconsideration and a stay. It simultaneously denied the DEP's motion for a partial stay that would have permitted PSN to haul its waste directly out of state. The Court, however, granted the motion for a partial stay. We subsequently granted certification, 130 N.J. 398, 614 A.2d 620 (1992).

II

The regulation of solid waste in New Jersey is governed by a complex network of requirements derived from overlapping statutes and administrative rules. Their examination is essential to an understanding of the issues in this case.

The State, through the enactment of the Solid Waste Management Act, as supplemented by the Solid Waste Utility Control Act of 1970, assumed the responsibility for regulating and managing solid waste on a statewide basis. The scope and complexity of that regulatory regime was thoroughly explained in A.A. Mastrangelo, Inc., v. Commissioner of Department of Environmental Protection, 90 N.J. 666, 449 A.2d 516 (1982). The SWMA was characterized as "a comprehensive statement by the legislature that provides a framework for the coordination of solid waste collection, disposal and utilization activity in New Jersey." Id. at 672, 449 A.2d 516.

The Act requires the boards of freeholders in each of the twenty-one counties and HMDC to develop and adopt a solid-waste management plan. The plan determines the Disposition of solid waste in each district. The adoption of the plan requires published notice and an open hearing. N.J.S.A. 13:1E-24a(3). After adoption, the plan is forwarded to the DEP Commissioner who assesses the plan in light of the "objectives, criteria, and standards developed in the Statewide Solid Waste Management Act." N.J.S.A. 13:1E-24a(3).

The Commissioner also submits copies of the plan to various agencies and divisions of the DEP and to the BPU "for its review and recommendations on the economic aspects of the plan." N.J.S.A. 13:1E-24a(3). The DEP Commissioner subsequently determines whether to approve, modify, or reject the plan. N.J.S.A. 13:1E-24b. Once approved, the district waste management plan is effective for ten years. N.J.S.A. 13:1E-20a(1). On their expiration, new plans are to be developed and formulated in the same manner as the original ones. N.J.S.A. 13:1E-20a(1). The DEP must also review the plans at least once every two years but has the authority to review the plan at any time. Ibid.

If the district or the DEP determines that the plan, or any part of the plan, "is inadequate for the purposes for which it is intended, such board of chosen freeholders or the Hackensack Commission, as the case may be, shall develop and formulate a

new solid waste management plan, or any part thereof, and such new plan or part thereof, shall be adopted thereby pursuant to the procedures contained in [ N.J.S.A. 13:1E-23]." N.J.S.A. 13:1E-20.

A district can modify its plan by adopting an amendment in accordance with the same procedures for adopting an initial plan. Once a district has proposed an amendment to its own solid-waste plan, the district must, pursuant to published notice, hold an open hearing for all those interested in the amendment, or who might be affected by the amendment. N.J.S.A. 13:1E-23b, 23c, d. All interested persons may be ...


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