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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

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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