A-2677-99T1 on appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-596-97. A-3257-99T1 on appeal from a Final Decision of the Commissioner of the Department of Environmental Protection, OAL Docket Nos. ESW 10865-4 and ESW 11788-94.
Before Judges Pressler, Wefing and Lesemann.
The opinion of the court was delivered by: Wefing, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
A-2677-99T1 Submitted: December 4, 2001
A-3257-99T1 Argued: December 4, 2001
These two appeals involve related issues and the same parties; we thus consolidate them for purposes of this opinion. In A-2677- 99 National Transfer Inc. (National) appeals from a final order dismissing the complaint in lieu of prerogative writs it had filed in the Superior Court, Law Division, against the New Jersey Department of Environmental Protection (DEP). In A-3257-99, National appeals from a Final Decision of the DEP finding that National was operating a transfer facility in Lodi at substantially in excess of its permitted capacity and assessing fines against National of $1,100,000. We have carefully reviewed the records presented in both appeals and have concluded that the Commissioner's Final Decision should be affirmed in A-3257-99; we have also concluded that the appeal in A-2677-99 should be dismissed, for reasons we will set forth later in our opinion.
We turn first to A-3257-99, for that revolves around the fundamental contested issue: whether National has, indeed, been operating its transfer facility at a capacity beyond that which is legally permitted by DEP. DEP maintains that when it initially granted National a permit to operate a transfer facility in 1976, it was conditioned upon National accepting no more than eighty tons per day of solid waste. National, on the other hand, contends that it was never informed until 1991 that DEP took the position that it was restricted to eighty tons per day. It also contends that DEP was fully aware from the time National commenced its operations that it was accepting, separating, and transferring solid waste in amounts substantially in excess of that limit and, in consequence, should be estopped from enforcing it now.
Unfortunately, the matter has a complex background, both in terms of its own factual and procedural development, and in terms of the general subject matter of the appeal, involving as it does the solid waste industry in New Jersey. Some of this background must first be set forth in order to permit a proper analysis and understanding of the issues.
The collection and disposal of solid waste in New Jersey has been a closely regulated industry for years. We have long recognized that "the activity of collecting and disposing of solid waste is affected with a public interest. . . ." In re Application of Saddle River, 71 N.J. 14, 21 (1976). For much of the time frame encompassed by this appeal, DEP was engaged in a comprehensive effort to make New Jersey self-sufficient in the disposal of solid waste. Its efforts in this regard have been set forth in Borough of Princeton v. Board of Chosen Freeholders of Mercer County, 333 N.J. Super. 310, 316-319 (App. Div. 2000) and Camden County Energy Recovery Assoc. v. Dep't. of Env'l. Prot., 320 N.J. Super. 59 (App. Div. 1999), aff'd. 170 N.J. 246 (2001). Some of the actions to which the parties point as evidence in this case were taken as a result of that system, portions of which were struck down as unconstitutional by the Court of Appeals for the Third Circuit in Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 112 F.3d 652, 668 (3d Cir. 1997), amended, 135 F.3d 891 (3d Cir. 1998), cert. den., 522 U.S. 966, 118 S. Ct. 412, 139 L. Ed.2d 316 (1997).
In 1975, National applied to DEP for permission to operate a transfer facility at a site it owns on Main Street in Lodi. After reviewing the initial submission, DEP requested further information, including the facility's daily capacity. Fred Holzman, an engineer working on the project on behalf of National, responded thusly:
The narrative states solid waste to be in the station 15-30 minutes with daily design capacity of 230 cu. yds. The narrative does not state that the compactor will be working continuously; we are asking for a 230 cu. yd. transfer station.
Several months thereafter, on June 23 1976, DEP issued the requested permit, the face sheet of which contains the statement, "It [permission to operate this transfer facility] is subject to all regulations promulgated by this Department and the conditions or limitations listed herein." The face sheet contains no conditions or limitations nor is there any space on the face sheet denominated for that purpose.
DEP asserts that the permit was a two-page document, the second page of which contained various specifications, such as delineating the types of waste which could be accepted at the facility and which could not, and stated rules for the movement of trucks and traffic entering and leaving the facility. In addition, it contained the following language:
In accordance with the statement contained in a letter dated February 2, 1976 from Mr. Fred Holzman of Bayliss Parsells Engineering, this facility is limited to receiving a maximum of 230 cubic yards ...