On appeal from Department of Environmental Protection and Energy.
Before Judges Michels, Skillman and Wefing.
The opinion of the court was delivered by
The Hudson Meadows Urban Renewal Development Corporation (Hudson Meadows) and the Town of Kearny (Kearny) appeal from a resolution of the Hackensack Meadowlands Development Commission (HMDC) approving an amendment to the solid waste management plan for the Hackensack Meadowlands District (the District), which designates the site of the former Keegan Landfill as the site for a new regional solid waste facility for non-processible waste, and from a final decision of the Department of Environmental Protection and Energy (DEPE) approving this amendment. We reject appellants' various challenges to this solid waste management plan amendment and affirm its validity.
The Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 to - 48, establishes a comprehensive system for the regulation of solid waste collection, reprocessing and disposal. It authorizes each county and the HMDC "to develop and implement a comprehensive solid waste management plan which meets the needs of every municipality within each such county and within the [District]." N.J.S.A. 13:1E-2(b)(2). In addition, the SWMA authorizes the DEPE "to develop through a Statewide solid waste management plan objectives, criteria and procedures to assure the orderly preparation and evaluation of the solid waste management plans." N.J.S.A. 13:1E-2(b)(6). A solid waste management plan must include, among other things, "[a] site plan, which shall include . . . sufficient additional available suitable sites to provide solid waste facilities to treat and dispose of the actual and projected amounts of solid waste contained in the report accompanying the plan." N.J.S.A. 13:1E-21(b)(3). Solid waste management districts are also authorized to enter into agreements to provide for the disposal of waste originating in other districts. Ibid. If districts are unable to reach agreement regarding the disposal of waste originating in other districts, the Commissioner of the DEPE, in conjunction with the Board of Public Utilities, may order the districts to amend their plans to provide for the inter-district flow of waste. See A.A. Mastrangelo, Inc. v. Commissioner, Dep't of Envtl. Protection, 90 N.J. 666, 449 A.2d 516 (1982). A solid waste management plan must also include "methods of financing solid waste management." N.J.S.A. 13:1E-21(b)(6). The SWMA sets forth detailed procedures which govern a district's adoption and the Commissioner of DEPE's review of a solid waste management plan. N.J.S.A. 13:1E-23, 24. These procedures also apply if a district proposes to amend its plan. In re Amendments to Solid Waste Management Plan of Hudson County Solid Waste Management Dist., 133 N.J. 206, 212 (1993).
A solid waste management plan's designation of a site for a solid waste facility does not provide authorization for the operation of that facility. Before a facility may be actually constructed, acquired or operated, the entity proposing the facility must obtain the approval of the Commissioner of the DEPE pursuant to N.J.S.A. 13:1E-26, as well as such other regulatory approvals as may be required based on the nature of the site and the proposed facility.
On December 6, 1991, the HMDC announced proposed amendments to its solid waste management plan, including the designation of a site in the Town of Kearny for the "HMDC Regional Solid Waste Materials Handling Complex," which would contain "a non-processible sanitary landfill, a construction/demolition recycling facility, and other possible accessory uses." The proposed designation of this site resulted from a joint study by the HMDC, the DEPE, the Board of Public Utilities, and Bergen, Essex and Hudson counties. The site, now owned by appellants, is comprised of the former "Keegan Landfill," and adjacent wetlands known as the "Kearny Freshwater Marsh." The proposed new solid waste facility will be located on top of the existing landfilled portions of the site, after environmental problems associated with the site's prior use have been remediated.
The HMDC received written comments regarding the proposed amendment to its solid waste management plan and conducted three days of hearings at which various members of the public, including appellants, presented comments. After completion of the hearings, the hearing officer submitted a detailed report which discussed the HMDC's proposal and the comments received from members of the public. This report stated in part:
It is believed that landfill operations began on the site in the 1940's or earlier. Operations continued until 1972 . . . .
Since the landfill was closed prior to the [SWMA], there are no environmental improvements at the site. The HMDC has estimated that there are approximately 65 million gallons of leachate being produced on-site each year. This leachate enters either the Kearny Freshwater Marsh, or Frank's Creek which bisects the site and flows south to Newark Bay. Frank's Creek has often been described as an open sewer, that usually has a green color. Leachate seeps are evident along the banks of the creek and the perimeter of the site.
The site has had a series of underground fires over the years that have caused air pollution problems for local residents. . . . The last fire in November, 1991 required an area the size of a football field to be disturbed, with water being pumped onto the site for over a week. Obviously, where there are underground fires there is methane, and there are no controls to prevent lateral migration of methane into adjacent structures.
The proposed non-processible landfill would be located on top of the existing landfilled portions of the lots noted herein. This site is generally referred to as the old Keegan Landfill. . . . The goal of the HMDC is to remediate the old landfill thereby containing and controlling the existing pollutants from the site, while siting a much needed non-processible landfill for the region. . . .
Tipping (disposal) fees would pay for site remediation and landfill design, construction, operation, closure, post-closure and end-use plans.
The HMDC reviewed the hearing officer's report as well as the written and oral comments received from members of the public, and on May 27, 1992, it passed a resolution adopting the proposed amendment to its solid waste management plan.
The amendment was submitted to the Commissioner of the DEPE, who certified his approval by a written decision dated December 7, 1992. However, the Commissioner identified a number of "issues of concern" which the HMDC would have to address before the Commissioner would authorize acquisition of the site and construction of the facility. The Commissioner's decision distinguished between the "planning phase" of the proposed solid waste facility, represented by the amendment to the HMDC's solid waste management plan, and the "technical phase," in which the HMDC would be required to make a detailed showing of the economic, technical and environmental feasibility of the project:
In general, from a planning perspective, the proposed site is located in the midst of an industrial area and was used for decades as a landfill. Proper landfill closure and/or remediation was never accomplished and the site may represent an ongoing source of pollution in the area. The HMDC proposal to reactivate the site to remediate existing pollution problems, and to develop a modern construction and demolition debris processing/recycling/disposal facility under state-of-the-art environmental standards, represents significant positive benefits locally and to the State. At the local level, existing sources of pollution would be remediated. The project will improve, not lessen the environmental condition of the site. From a statewide perspective, a regional facility to process construction and demolition debris would further advance both New Jersey's statewide recycling goals ...