On appeal from the Department of Environmental Protection, Bureau of Solid Waste Compliance and Enforcement, Docket No. MA-2011-014.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 14, 2012 -
Before Judges Fisher and Waugh.
Appellant Atlantic County Utilities Authority (Authority) appeals from a final order of the Department of Environmental Protection (Department), approving respondent Waste Management of New Jersey's (Waste Management) purchase of a solid waste transfer station and related assets owned by respondent Cifaloglio, Inc. (Cifaloglio). We affirm.
In March 2011, Waste Management and Cifaloglio entered into an asset purchase agreement in which Waste Management agreed to purchase the assets of Cifaloglio, including a transfer station/materials recovery facility (facility) located in Buena Vista. The facility is a "solid waste facility which receives incoming waste from collection vehicles and, after removal of any recyclables, transfers the waste residue to haulage vehicles for delivery to an off-site final disposal facility." At the time of the agreement, the facility received waste from the following counties: Atlantic, Burlington, Camden, Gloucester, Ocean, Salem, Cumberland and Cape May. Waste originating in Atlantic County was subsequently delivered by Cifaloglio to the Authority's landfill in Egg Harbor Township for final disposal.
In April, Waste Management and Cifaloglio filed a joint petition requesting the Department's approval of the purchase. Waste Management subsequently submitted a revised operations and maintenance manual for the facility. The manual stated that "[m]arket conditions will dictate which disposal facility is utilized, unless the origin of the waste is from a county that has flow regulations; in which case the county waste flow regulations will be followed," and that solid waste would be "delivered to disposal facilities in accordance with the applicable solid waste management plans of the service area." Attached to the manual was a list of disposal facilities, all located in New Jersey.
The Authority sent an email to the Department on April 20, asking to be "advise[d] . . . about any public comment format and schedule for interested parties to provide input" during the approval process. The Department replied that it would be sending the transfer request documents to the Authority for comments and that in addition, "[o]nce a decision has been made to approve the transfer of ownership, a 30 day public comment period will be opened to accept comments from anyone." The Authority sent the Department a follow up email asking for the transfer request documents in May. The Department replied that it would send the documents after it had issued a determination of administrative completeness to Waste Management, and that the Authority would then have thirty days "to provide any comments regarding the transfer."
In June, the Department sent the Authority and the municipalities served by the Cifaloglio facility copies of the Waste Management application and a cover letter summarizing the proposed transfer of ownership. The letter stated, "If you wish to provide comments, it would be appreciated if your comments were submitted to the Bureau within thirty (30) days from the date of this letter." The Department received no comments.
In August, the Department sent the Authority and other potentially interested parties copies of the draft permit authorizing the sale. The cover letter included information about the upcoming public notice to be published in two newspapers on August 29, and stated that should this notice result in the scheduling of a hearing, a subsequent notice of the hearing will be provided . . . . If the action does not result in a public hearing, the public comment period will close 30 days after the publication of this notice and a final decision on the permit application will be taken in accordance with N.J.A.C. 7:26-2.4(g)(19).
No public hearing was requested or scheduled.
In September, the Authority sent its comments on the transfer of ownership to the Department. Those comments are not directly relevant to this appeal. Significantly for the purposes of this appeal, however, the comments did not include
(1) any objection to Waste Management's purchase of Cifaloglio's assets, (2) any concerns related to market share or competitive pricing resulting from the purchase, or (3) any objection to the manner in which the Department had conducted the approval process up to that point.
On October 12, 2011, the Department's Bureau of Solid Waste Compliance and Enforcement issued a solid waste order approving Waste Management's purchase of Cifaloglio's ...