On appeal from an order of the New Jersey Department of Environmental Protection and Energy.
Before Judges J.h. Coleman, Muir, Jr., and Thomas.
The opinion of the court was delivered by
The narrow issue we decide in these appeals is whether an order by The Commissioner of the Department of Environmental Protection and Energy (DEPE) redirecting the flow of solid waste from an out-of-state landfill to the Cape May County Municipal Utilities Authority (CMCMUA) Landfill purely for economic reasons, was based on an "emergency condition." We hold there was no emergency condition and the order is therefore vacated.
The controlling facts are not disputed. CMCMUA owns a landfill located in Woodbine and Upper Township, New Jersey. The landfill is located within the Pinelands Preservation Area and is subject to the jurisdiction of the Pinelands Commission. N.J.S.A. 13:18A-1 et seq., N.J.A.C. 7:50-1 et seq. The anticipated closure date for the landfill was changed on July 6, 1981, to August 8, 1990. N.J.A.C. 7:50-6.75(a). The 1981 extension permitted CMCMUA to use a not yet constructed landfill after August 8, 1990, but from that date only for disposing of its proposed resource recovery operation's residual non-processible waste, and to serve as an emergency backup system for approximately twenty-five years. The landfill became operational in 1984.
In March 1989, CMCMUA applied to the Pinelands Commission to waive the August 8, 1990 closure date. The application was not completed until September 1989. The Pinelands Commission denied the application administratively and CMCMUA sought a contested hearing. The matter was referred to the Office of Administrative Law. An ALJ's Initial Decision dated July 11, 1990, concluded CMCMUA "has failed to satisfy the requirements of N.J.A.C. 7:50-4.66(a)21 to establish a compelling public need for a waiver of [its] strict compliance." Out-of-state solid waste disposal was regarded as a feasible alternative.
The Pinelands Commission issued its final decision on July 13, 1990, and amended the ALJ's decision by extending the closure date to December 31, 1992. This extension was granted because the Commission found no available alternative except out-of-state landfills existing outside the Pinelands area prior to December 31, 1992. The Pinelands Commission also permitted CMCMUA to develop Phase 1C of the landfill but gave CMCMUA the discretion to reduce the size of Phase 1C.*fn1
CMCMUA appealed the Pinelands Commission's decision to the Appellate Division and we affirmed in an unpublished opinion dated June 30, 1992. While that appeal was pending, CMCMUA increased its Pinelands landfill capacity by approximately one million tons when it constructed Phase 1C. Just a few months after the expansion, CMCMUA reported on May 4, 1992, that it used 114,160 tons of landfill capacity between April 1991 and March 1992, and that the landfill had an unused capacity of 1,644,897 cubic yards, or approximately 1,110,305 tons of solid waste capacity. See N.J.A.C. 7:27-21.1, (cy x 27 / 40 = tons).
CMCMUA also threatened to file a petition for certification with the Supreme Court. Even though adequate documentation prevents us from being certain why it occurred, an order dated July 29, 1992, is captioned in the Supreme Court of New Jersey. This document is called a "Stipulation of Settlement" and it extends the landfill closure date to May 1, 1996.
In March 1993, the landfill had a remaining capacity of approximately 670,000 tons. CMCMUA still utilized approximately 115,000 tons per annum. The DEPE calculated that on May 1, 1996, based on CMCMUA's utilization rate, the landfill will have an unused capacity of approximately 325,000 tons. The Pinelands Commission restricts use of this landfill to Cape May, Ocean, Burlington and Atlantic Counties. N.J.A.C. 7:50-6.74. Ocean and Burlington Counties deposit their solid waste in landfills within the State and advised CMCMUA that they had no available solid waste to send to CMCMUA landfill. This left Atlantic County as the only possible sender to CMCMUA from within the Pinelands Area.
The CMCMUA having exhausted all efforts to obtain a closure date later than May 1, 1996, turned to the DEPE for assistance. It advised the DEPE Commissioner that unless the 325,000 tons of available solid waste disposal capacity is utilized, Cape May County "will have a significant amount of unretired debt . . . approximately $15 Million. . . ." The Commissioner was advised further that failure to utilize the anticipated 325,000 tons of solid waste disposal capacity "would constitute an act of financial irresponsibility ($15 million unretired debt = $20.00 per ton additional tipping fee for 20 years)." Finally, on March 17, 1993, CMCMUA sought an emergency order from the DEPE redirecting solid waste flow into the CMCMUA landfill.
The DEPE conducted informational hearings to decide how to cope with CMCMUA's problems. The first such hearing was conducted on July 30, 1993, and it was attended by representatives of CMCMUA, Atlantic County Utility Authority (ACUA), Waste Management of Pennsylvania (WMPA), and the Pinelands Commission. During the next five months, briefs were exchanged and many Discussions were conducted. A second informational hearing was conducted on January 4, 1994, and a representative of Miners Fuel Company, Inc. (Miners) was present also because it had entered a hauler's contract with ACUA in June 1993. During these hearings, alternatives to redirecting solid waste from ACUA to the CMCMUA landfill were explored. When other alternatives could not be ...