are means available to enable the State to gather reasonably accurate information on the quantity of C&D waste being transported out of the state.
3. Financing the Plan
There is significant disagreement among the co-defendants
as to the appropriate way to fund the Plan and to make up revenues lost by the cessation of flow control of C&D waste. What funding mechanisms are permissible or whether the current rate-making structure can be suspended are matters to be decided by state authorities based on state law, and not by a federal district court. Several counties have suggested that haulers taking C&D waste out-of-state be required to pay a fee to cover the costs associated with providing the weighing and inspection services mandated by the Plan. Whether such a fee can be charged, who should charge it, and how it might be computed are matters, in the first instance, of New Jersey law. Whether such fees might constitute a Commerce Clause violation will not be decided by this Court in the abstract.
When a federal court grants injunctive relief to a party, it must require that the party seeking this relief provide security for any damages that may be incurred by a party found to have been wrongly enjoined, Fed. R. Civ. P. 65(c), unless the action brought by the plaintiff complies with "certain narrowly drawn circumstances," Temple University v. White, 941 F.2d 201, 219 (3d Cir. 1991). These circumstances include possible loss to the enjoined party and hardship to the injunction applicant, and they will rarely be found. Id.; Frank's GMC Truck Center, Inc. v. General Motors Corp., 847 F.2d 100, 103 (3d Cir. 1988). The Court does not find that this case fits within the Third Circuit's narrow exception to the security requirement, and will thus require that plaintiffs post appropriate bonds.
The amount of a bond is within the discretion of the Court. Frank's GMC, 847 F.2d at 103. When setting the amount, it is appropriate for a Court to consider both (i) the potential financial harm to defendants, Alexander v. Primerica Holdings, Inc., 811 F. Supp. 1025, 1038-39 (D.N.J. 1993) (bond of $ 7,733,514 required, equal to losses defendant may incur), and (ii) the fact that plaintiffs seek to vindicate a federal right or public interest, see, e.g., Temple University, 941 F.2d at 220 and 220 n.28 (noting that a nominal bond would have sufficed in suit to enforce Medicaid rights); Lee v. Oregon, 869 F. Supp. 1491, 1503 (D.Or. 1994) (setting nominal bond of $ 1.00 in case challenging constitutionality of physician-assisted suicide law); Lysaght v. New Jersey, 837 F. Supp. 646, 654 (D.N.J. 1993) (setting bond of $ 15,000 when First Amendment challenge raised against a state telemarketing law).
The first factor suggests that the bond be substantial since the defendants have asserted that they will suffer extensive damage under the preliminary injunction. On the other hand, the defendants' revenue losses can largely be recouped through cross-subsidization of disposal fees or the establishment of a fee for inspection and weighing of C&D loads. As plaintiffs have brought this action under the Commerce Clause and are seeking enforcement of a constitutional right, the Court finds it appropriate that plaintiffs each post an injunctive bond in the amount of $ 50,000.
We understand that under the Plan and existing regulations haulers of mixed loads of C&D waste, including multi-district loads, will be permitted to dispose of the non-recyclables either out-of-state or in New Jersey without regard to flow control regulations. Before such mixed loads of C&D waste are taken out-of-state, they must be inspected and weighed in the district which would have governed its disposal under the waste flow control district plans.
The Court finds the Plan to be an acceptable nondiscriminatory means of monitoring the processing and disposal of C&D waste generated in New Jersey which will not cause the public or the defendants irreparable harm. The State will have sixty days to implement the Plan with appropriate regulatory action. If no regulations are in place at that time, haulers of C&D waste will be permitted to (i) take mixed loads of C&D waste to any properly licensed recycling facility, whether in New Jersey or elsewhere, and (ii) dispose of the unrecycled residue at any lawfully operated site, whether in New Jersey or elsewhere.
Nov. 28, 1995
JOSEPH E. IRENAS