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In re Certain Amendments to the Adopted and Approved Solid Waste Management Plan of the Warren County Solid Waste Management District

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 4, 2009

IN THE MATTER OF CERTAIN AMENDMENTS TO THE ADOPTED AND APPROVED SOLID WASTE MANAGEMENT PLAN OF THE WARREN COUNTY SOLID WASTE MANAGEMENT DISTRICT.

On appeal from the New Jersey Department of Environmental Protection.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 20, 2009

Before Judges Lisa, Reisner and Sapp-Peterson.

Appellant, Sanico, Inc., a solid waste hauler, appeals from the February 4, 2008 final administrative action of the Commissioner, New Jersey Department of Environmental Protection (DEP) approving amendments to the Warren County District Solid Waste Management Plan (the Warren County Plan). Appellant argues that the Warren County Plan amendments violate the express and implied legislative policies of the New Jersey Statewide Mandatory Source Separation and Recycling Act (Recycling Act), N.J.S.A. 13:1E-99.11 to -99.32. Specifically, plaintiff contends the amendments improperly require that recyclable material that is not "source separated" by the generator be treated as solid waste. We disagree and affirm.

In 1970, the Legislature adopted the Solid Waste Management Act (Act), N.J.S.A. 13:1E-1 to -225, the purpose of which was to establish "a comprehensive system for the regulation of solid waste collection, reprocessing and disposal." In re Certain Amendments to Adopted and Approved Solid Waste Mgmt. Plan of the Hackensack Meadowlands Dev. Comm'n, 275 N.J. Super. 375, 379 (App. Div.), certif. denied, 139 N.J. 289 (1994). Under the Act, New Jersey's twenty-one counties are designated as districts, N.J.S.A. 13:1E-2(b)(2), and each district is authorized "to develop and implement a solid waste management plan which meets the needs of every municipality within each such county[.]" Ibid.

The Recycling Act, which the Legislature enacted in 1987, recognized the State's overburdened landfills and encouraged recycling and resource recovery. The Recycling Act requires each county to include in its individual county plan:

(1) Designation of a district recycling coordinator;

(2) Designation of the recyclable materials to be source separated in each municipality which shall include, in addition to leaves, at least three other recyclable materials separated from the municipal solid waste stream;

(3) Designation of the strategy for the collection, marketing and disposition of designated source separated recyclable materials in each municipality. [N.J.S.A. 13:1E-99.13(b).]

The Recycling Act defines "designated recyclable materials" as "those recyclable materials . . . designated in a district recycling plan to be source separated in a municipality pursuant to . . . [N.J.S.A.] 13:1E-99.13." N.J.S.A. 13:1E-99.12. The Recycling Act also requires municipalities within each county to adopt ordinances requiring "persons generating municipal solid waste within its municipal boundaries to source separate from the municipal solid waste stream . . . the specified recyclable materials." N.J.S.A. 13:1E-99.16(b).

The Legislature has vested DEP with broad regulatory and oversight authority over all aspects of the solid waste industry, including the collection and disposal of solid waste and the collection of recyclable materials. N.J.S.A. 13:1E-4.

Its broad powers are implemented through regulation. See N.J.A.C. 7:26-1.

On December 27, 2005, DEP published the Solid Waste Management & Sludge Management State Plan Update, January 2006 (the State Plan Update). See State Wide Solid Waste Management Plan 2006, available at www.state.nj.us/dep/dshw. The executive summary of the State Plan Update states that as a "critical first" step towards achieving the objectives of the Act's recycling goal, "each county will have to adopt a new plan within one year of formal adoption of this Statewide Solid Waste Management Plan (SSWMP)." Section H of the State Plan Update specifically dealt with DEP's enforcement strategy to address the increase in recyclable materials being commingled "into the solid waste stream for disposal rather than being recycled." Ibid. That strategy included increasing DEP's "vigilance at transfer and disposal facilities by ensuring that processes are and remain in place to detect recyclables in incoming loads and undertaking additional investigations of hauling practices involving recyclable bottles, cans and paper." Ibid.

On August 7, 2007, the Warren County Board of Chosen Freeholders (the Board) proposed certain amendments to its existing Solid Waste Management Plan, including the Recycling Plan component. At issue here is Section VI of the County Recycling Plan Amendments. Section VI specifically addresses enforcement responsibilities of the Public Control Financing Authority (PCFA), the entity designated under the Warren County Plan to "provide a depot and/or will designate other recycling/disposal outlets for acceptance of these materials," and Covanta, the energy resource company with whom PFCA has partnered. Section VI also addresses enforcement responsibilities of haulers. The relevant provisions of Section VI provide:

PFCA and Covanta Enforcement

An inspection procedure consisting of a visual inspection of incoming waste loads needs to continue. In the event that recyclable material is detected in a delivery, the hauler delivering such waste should be asked to remove the material. A written record should be made of the detection, including the name of the hauler, vehicle registration number, and municipality of origin. A copy of these records should be provided to the County Recycling Coordinator and the appropriate municipal recycling coordinator for appropriate action as specified in the municipal recycling ordinance.

Hauler Enforcement

It is noted that the Solid Waste Utility Regulations at N.J.A.C. 7:26H-1 et seq. prohibit haulers/collectors of solid waste from collecting commingled loads of solid waste and designated source separated materials. N.J.A.C. 7:26H-4.4(a)6 states "Collectors are prohibited from collecting commingled loads of solid waste and designated source separated recyclable materials, except in those instances where a specific municipal exemption has been granted to the generator of those materials as provided by N.J.S.A. 13:1E-99.16(d).

Each solid waste management district plan contains a definition of the district's designated recyclable materials. . . ." Haulers/collectors are expected to do the[ir] share in enforcement. If the driver of the truck sees that a load contains designated recyclables, the driver should not pick up the load. Instead, he should place a notice on the offending load stating that it contains recyclable material and must be separated from the load of solid waste. The repackaged load of solid waste will then be collected on the next scheduled collection day or a special run will have to be made. The recyclables will be collected on the next scheduled recycling pick[-]up. [Emphasis added.]

On September 12, 2007, the Board conducted a public hearing, at which time appellant appeared and presented its objections to the proposed amendments. Appellant's main objection was to the "Hauler Enforcement" section. Following the hearing, the plan amendments were adopted over appellant's objection.

On February 4, 2008, the Commissioner approved, with modifications, the Warren County Plan. In addressing appellant's public comment, the Commissioner stated:

The County Plan also notes that solid waste haulers should not collect a load of solid waste if they see that that load of solid waste is mixed with designated recyclables. During the public hearing, a commenter objected to this provision. The commenter expressed his belief that the Solid Waste Utility Control Act (N.J.S.A. 48:13A-1 et seq.) would prohibit a solid waste hauler from refusing to collect a load of solid waste commingled with designated recyclables. In response, the Department's Bureau of Solid Waste Regulation commented that regulations found at N.J.A.C. 7:26H-4.4(a)6 read that solid waste collectors are prohibited from collecting commingled loads of solid waste and designated source-separated recyclable materials, except in those instances where a specific municipal exemption has been granted to the generator of those materials as provided by N.J.S.A. 13:1E-99.16(d).

On appeal, appellant contends the Warren County Plan amendments violate the express and implied legislative policies of the Recycling Act, as implemented through N.J.A.C. 7:26H-4.4(a)(6). Specifically, appellant urges that under this regulation, collectors may not collect loads of solid waste and loads of recyclables that have been separated by the generator.

N.J.A.C. 7:26H-4.4(a)(6) provides:

Collectors are prohibited from collecting commingled loads of solid waste and designated source separated recyclable materials, except in those instances where a specific municipal exemption has been granted to the generator of those materials as provided by N.J.S.A. 13:1E-99.16(d). Each solid waste management district plan contains a definition of the district's designated recyclable materials. [Emphasis added.]

Further, appellant contends collectors may not collect source separated recyclable materials and commingle them in the truck with solid waste. DEP urges, however, that collectors are prohibited from collecting loads of solid waste that are commingled with recyclable materials designated to be source separated.

An administrative agency's interpretation of its own regulations should be followed, unless the language of the regulations is not reasonably susceptible to that interpretation. DiMaria v. Bd. of Trs. of Pub. Employees' Ret. Sys., 225 N.J. Super. 341, 351 (App. Div.), certif. denied, 113 N.J. 638 (1988). DEP's interpretation is supported by N.J.A.C. 7:26H-4.4(a)(12)(x), which states that a collector "shall have the right to refuse pick-up of waste" if "[s]olid waste is commingled with designated source separated recyclable material."

The Warren County Plan provides that "[i]f the driver of the truck sees that a load contains designated recyclables, the driver should not pick up the load. Instead, he should place a notice on the offending load stating that it contains recyclable material and must be separated from the load of solid waste."

Thus, as DEP has argued on this appeal, haulers of solid waste in Warren County must reject loads of solid waste if they visually observe recyclable materials, designated for source separation under the Warren County Plan, mixed in with the solid waste. This interpretation is reasonable and consistent with the intent of the Recycling Act.

As DEP's counsel confirmed at oral argument, the Warren County Plan imposes an obligation to enforce the Recycling Act upon collectors of solid waste contrary to the "express and unambiguous statutory language." We disagree.

The Warren County Plan does not contain any affirmative requirement that the haulers inspect every load of solid waste collected. Instead, it provides that a hauler reject a load if the hauler "sees" that designated recyclable materials are mixed with the solid waste. This is consistent with N.J.A.C. 7:26H-4.4(a)(6), and is not a new requirement for the haulers. Appellant also argues that the Warren County Plan results in an improper delegation of enforcement powers to the haulers of solid waste and recyclable materials, because the responsibility to enforce the district recycling plan rests with each municipality. However, haulers are given the authority to reject loads of solid waste for numerous reasons under the Act and its implementing regulations:

The collector shall have the right to refuse pick-up of waste for any of the following reasons:

i. Waste is not placed in proper containers;

ii. Waste is not placed at designated pick-up location;

iii. Waste contains hazardous material (as defined in N.J.A.C. 7:26, or other matter is likely to cause injury to the public or the collector's personnel;

vii. Containers exceed prescribed weight limits as prescribed in the collector's tariff;

viii. Containers are over filled or overflowing;

ix. The particular service and/or waste type is not included in the collector's tariff; or

x. Solid waste is commingled with designated source separated recyclable material. [N.J.A.C. 7:26H-4.4(a)(12).]

Thus, the Warren County Plan does not improperly delegate enforcement power to the haulers.

In appellant's reply brief, appellant argues that the proposed amendments lack ascertainable standards and therefore violate due process of law. This contention was not an allegation set forth in the complaint the parties agreed to dismiss in the Law Division and have transferred for resolution in the Appellate Division, and is being raised for the first time in the reply brief. We decline to consider this issue since it is improper to introduce new issues in a reply brief. State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed. 2d 256 (1970). Thus, the issue of whether the proposed amendments lack ascertainable standards and violate due process of law is not properly before us and will not be addressed.

We are satisfied the approval of the Warren County Plan does not demonstrate "arbitrary, capricious or unreasonable" action on the part of DEP, or violate legislative polices expressed or implied under the Recycling Act. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963).

Affirmed.

20090804

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