On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4583-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Collester.
Jones Industrial Service Company t/a JIS Co. Inc. (JIS), appeals from the dismissal of its complaint in lieu of prerogative writs to compel the Middlesex County Board of Chosen Freeholders (Board) to approve its application for inclusion in the County's solid waste management plan. We affirm.
In 1956 JIS acquired property located at 999 Cranberry-South River Road in the Township of South Brunswick. It has used the property in connection with its solid waste operations to recycle concrete, asphalt, scrap metal, wood and cardboard as well as to conduct a collector/hauler operation.
The property includes a landfill contaminated from ground water, and it has been listed as a federal superfund site since 1982. As such, it is also the subject of a Department of Environmental Protection (DEP) mandated site remediation plan.
In 1998 the Middlesex County Health Department filed suit alleging that JIS was illegally operating a recycling facility without proper permits and demanding that JIS file for inclusion as a solid waste facility in the County's solid waste management plan pursuant to N.J.S.A. 13:1E-4(b) and N.J.S.A. 13:1E-26. A final consent order specified that JIS was to apply for inclusion in the County plan and submit its application to the Board's Solid Waste Advisory Committee (SWAC) for review. However, after JIS submitted the application for plan inclusion, the SWAC recommended to the Board that the application be rejected, and the Board followed the recommendation in a resolution on January 25, 2005. JIS then filed an action in lieu of prerogative writs on September 29, 2005, against SWAC and the Board to compel its inclusion in the County plan as a class B recycling facility operating at its site.
On December 5, 2006, the South Brunswick Township Council responded to a request by the County Planning Board for comment as host community by adopting a resolution opposing JIS's application for inclusion in the County waste management plan. The resolution set forth numerous reasons for opposition including claims of excessive volume of concrete and excessive noise. The resolution concluded with the statement that, "[t]he history of the site and the prior actions of the owner indicate the owner is unreliable and will not abide by all laws, ordinances, rules and regulations governing the operation and maintenance of a recycling facility."
The following day, December 6, 2006, the SWAC reviewed the results of a subcommittee visit at the JIS site and voted eleven to one to recommend approval of JIS's application to the Board.
Meanwhile, the head of the County Division of Solid Waste Management inquired of the DEP whether its prior concerns about the site had been adequately addressed. By letter of March 6, 2007, the DEP chief of recycling and planning responded affirmatively but added,
[T]he impact that any proposed recycling operation could have on the ongoing remediation activities at the site will have to be addressed during the General Approval process. . . . Please note that this letter shall not be construed as an expression of the DEP's intent to issue a General Approval of the proposed recycling center or operation.
A public hearing was held by SWAC on March 8, 2007, to gather public comments on the inclusion of JIS in the County plan. Carol Barrett, Deputy Mayor of South Brunswick, articulated the Township's objection to granting JIS permission to use the site as a recycling center. She stated that throughout the history of JIS's use of the site there had been improper discharge to ground water. Moreover, she objected because while both the Township and the County had sought but not received written verification that JIS's recycling operations would not affect the superfund operations at the site, no such assurance was given by the DEP.
Counsel for JIS responded that JIS was not a "responsible party" for the superfund contamination and that the recycling and other JIS operations were unrelated to the superfund cleanup. He further stated that there had been no ...