1983 Legal Issues in Solid Waste Management
Legal developments in the field of solid waste management have proliferated with increasing speed and complexity in recent years. The Supreme Court of New Jersey has referred to the disposition of solid waste as an issue of "crisis proportions"1 and "one of this state's most severe problems."2 In response to this "matter of grave concern to all citizens,"3 the Legislature has enacted a series of statutes and the Department of Environmental Protection and the Board of Public Utilities have promulgated regulations which are intended to provide a systematic, comprehensive and integrated approach to the disposition of solid waste. This article attempts to outline the various issues raised by these enactments and by numerous interpretive court decisions and to provide an overall framework within which to understand recent, and hopefully future, developments.
The collection and disposal of solid waste4 was considered to be a public health concern prior to 1970 and, as such, was left to municipalities and local boards of health to regulate.5 Although the Public Health Council of the New Jersey Department of Health promulgated the State Sanitary Code to regulate certain aspects of waste disposal, the Code gave enforcement authority to local boards of health and other local agencies and expressly permitted local authorities to adopt more restrictive regulations not in conflict with the Code.6
A number of compelling reasons existed in 1970 to transfer control of the disposition of solid waste from local authorities to the State level. Local government efforts in this area had "consist[ed] largely of piecemeal, uncoordinated activities developed to meet the immediate needs of local governments with little, if any, regard for regional planning and coordination"7. Of pressing concern to the Legislature was the rapid decrease in available disposal sites in the State,8 due in part to the large amounts of waste generated in neighboring states and deposited at New Jersey landfills. In an era of increasing environmental sensitivity, the need for alternatives to landfilling, such as resource recovery and recycling facilities, was becoming apparent. Statewide comprehensive regulation of solid waste was considered to be an appropriate means of encouraging the development of alternate technology and of providing a mechanism, ultimately through a state solid waste management plan,9 to address future disposal needs.
The New Jersey Department of Environmental Protection (NJDEP) was created in 1970 and was specifically empowered to assume the functions, powers and duties of the Public Health Council and of the Department of Health relating to solid waste.10Almost immediately thereafter, the Legislature enacted the Solid Waste Management Act (SWMA), N.J.S.A. 13:1E-1 et seq., and the Solid Waste Utilities Control Act (SWUCA), N.J.S.A. 48:13A-1 et seq., which were intended to provide a comprehensive, although bifurcated, legislative framework for the disposition of solid waste)11
Solid Waste Management Act
The Solid Waste Management Act grants to the NJDEP statutory and regulatory control over the health and environmental aspects of the collection, hauling and disposal of solid waste. No person is permitted to engage in the collection or disposal of solid waste without filing and obtaining approval from the NJDEP of a registration statement and engineering design for the facility.12 Although a person whose application for registration as a solid waste facility has been denied by the NJDEP may obtain an administrative hearing, it has been held that a township in which a landfill is to be located does not possess a right to a hearing on the department's review of the facility's registration application.13 The regulations promulgated by the department pursuant to the SWMA set forth detailed engineering and operational criteria for landfills and other solid waste facilities such as incinerators, transfer stations and resource recovery facilities.14 For example, regulations prescribe permissible landfill configuration, require the periodic placement of cover material over exposed surfaces of solid waste and mandate that new landfills provide gas venting and monitoring systems and groundwater monitoring systems.15 The Commissioner of Environmental Protection is granted the authority to proceed summarily in Superior Court to enjoin violations of the SWMA and/or regulations promulgated thereunder and for other relief, including the assessment of costs against the violator for investigating and remedying the violation of law and the appointment of a receiver.16 Interestingly, while the SWMA now expressly permits county health departments and local boards of health to institute penalty actions to enforce the SWMA, the SWMA appears to permit only the Commissioner to obtain injunctive relief and costs.17 The NJDEP has vigorously enforced the SWMA in recent years and by judicial action has successfully terminated the operation of landfills which had been operating contrary to law.18
Local government efforts since the enactment of the SWMA to regulate and control the disposition of solid waste, by contrast, have been largely unsuccessful. The SWMA and the SWUCA have been held to evince "a comprehensive plan on the part of the State to control all facets of [the solid waste] industry," Ringlieb v. Township of Parsippany-Troy Hills, 59 N.J. 348, 350 (1971). Accordingly, the Supreme Court of New Jersey and the Appellate Division of Superior Court have held consistently that local control of solid waste has been preempted by State law.19
Although the Legislature responded to the Ringlieb decision in 1971 by enacting legislation returning limited authority to local government agencies to promulgate health and environmental regulations more restrictive than those enacted by the NJDEP,20 these sections were repealed in 1975 as part of comprehensive legislation expanding and strengthening State control over solid waste management.21 In the most recent judicial statement on this subject the Appellate Division confirmed SWMA preemption of local regulation and accordingly held the local zoning ordinance at issue to be inoperative with respect to the construction of a landfill access road. Township of Chester v. Department of Environmental Protection of the State of New Jersey, 181 N.J. Super. 445 (App. Div. 1981). In recognition of the important role played by counties and the Hackensack Meadowlands District in the solid waste planning process, however, the Court in the Township of Chester case held, although without setting forth any specific guidance or standards, that the NJDEP nevertheless should not disregard local interests in its regulation of solid waste operations. Id. at 453.
Solid Waste Utility Control Act
The Solid Waste Utility Control Act, N.J.S.A. 48:13 A-1 et seq. (SWUCA), was enacted in 1970 as a companion to the SWMA to regulate the economic and public utility aspects of solid waste collection and disposal.22 The SWUCA is intended to increase the economic fairness and efficiency of the solid waste industry by establishing "just and reasonable rates"23 for collection and disposal services and by eliminating abuses, such as favoritism, corruption and bid-rigging, which have plagued the industry.24 By including under the jurisdiction of the Public Utility Commission (now Board of Public Utilities (BPU) great numbers of small and medium-sized businesses engaged in garbage collection and disposal, "the Legislature departed to some extent from the traditional concept of a public utility" which typically had been a "monolithic entity." In re Application of Saddle River, 71 N.J. 14, 21(1976).
Notwithstanding the public utility status of solid waste facilities, however, the SWUCA does not discourage economic competition within the industry. The Supreme Court of New Jersey has held in this regard that municipalities may enter into contracts for the collection and disposal of solid waste only after advertising for competitive bids pursuant to the Local Public Contracts Law, N.J.S.A. 40A:11-1 et seq., notwithstanding that utilities generally are exempt from local bidding requirements. In re Application of Saddle River, supra. The construction of resource recovery facilities by counties or county authorities pursuant to the SWMA is also subject to Local Public Contracts Law requirements.25
The SWUCA delegates authority to the BPU to promulgate appropriate rules for the regulation of rates within the industry.26 After hearing, and when the public interest so requires, the BPU may also designate any municipality or solid waste management district as a franchise area for solid waste service by one or more disposal facilities.27 The SWUCA accords the BPU licensing authority for solid waste collection and disposal facilities through issuance of a certificate of public convenience and necessity to persons who successfully establish their qualifications by experience, training or education and by furnishing proof of financial responsibility.28
In recognition of dual agency jurisdiction, the BPU is specifically prohibited from issuing a certificate of public convenience and necessity until the applicant is licensed by the NJDEP as a solid waste facility.29 It has been held, in this context as in the environmental area, that a township in which a sanitary landfill is to be situated does not have the right to an administrative hearing on the issuance of a certificate of public convenience and necessity.30 Industry competitors have no right to intervene in BPU licensing proceedings nor must the BPU make a finding of inadequate existing service before it issues a certificate of public convenience and necessity.31 As is the case with an engineering design for a waste disposal facility, it also has been held that a solid waste facility is legally bound to operate in accordance with the terms and conditions set forth in its tariff filed with the BPU.32
One controversial aspect of the Legislature's efforts to provide a centralized, long-term solution to New Jersey's waste disposal problems has been its attempt to eliminate the deposition at New Jersey facilities of waste originating out of state. The Legislature enacted the Waste Control Act, N.J.S.A. 13:11 et seq., in 1973 in recognition of the increasing quantity of waste being generated in New Jersey and the decreasing availability of appropriate disposal sites. For example, a report released in 1972 alarmingly projected that all lands then committed to landfilling capacity in the Hackensack Meadowlands would be fully expended by 1975.33 This act statutorily prohibited the importation of any waste into the State for the purpose of treatment and disposal.34 In a case challenging this Act, the Supreme Court of New Jersey upheld the prohibition on out-of-state waste as a legitimate exercise of state police power because of the law's salutary objectives:
To preserve the health of New Jersey residents by keeping their exposure to solid waste and landfill areas to a minimum [and] to preserve for the benefit of both present and future generations the natural habitat and ecological values which landfill usage would destroy
Hackensack Meadowlands Development Commission v. Municipal Sanitary Landfill Authority, 68 N.J. 451, 473(1975), aff'd on other grounds sub nom. City of Philadelphia v. State Department of Environmental Protection, 73 N.J. 562(1977).
Success was short-lived, however. The Supreme Court of the United States struck down the statute as violative of the Commerce Clause of the United States Constitution because, both on its face and in its effect, the Waste Control Act discriminated against articles of commerce, i.e., waste, coming from outside the State. City of Philadelphia v. State of New Jersey. 437 U.S. 617, 57 L. Ed. 2d 475, 985. Ct. 2531 (1978). The motivation of the Legislature in enacting the statute was deemed irrelevant in the Court's analysis. Rather, the Court found no basis upon which New Jersey could treat waste originating out-of-state differently from its own waste. It consequently refused to allow New Jersey "to attempt to isolate itself from a problem common to many by erecting a barrier against the movement of interstate trade." City of Philadelphia v. State of New Jersey, supra at 628.35
Solid waste planning
Ironically, while New Jersey attempted unsuccessfully to insulate itself from waste generated by neighboring states, within its own borders the State is imposing upon its municipalities and counties a regional approach to solid waste disposal through the solid waste planning process. This planning effort forms the centerpiece of the State's response to the solid waste crisis and is currently the source of much activity and controversy. The SWMA, as amended by L. 1975,c. 326, designates each county and the area within the jurisdiction of the Hackensack Meadowlands Development Commission (HMDC)36 as solid waste management districts. Each district is mandated by the SWMA to formulate a solid waste management plan which is to include, for example, an inventory of waste generated within the district, a 10-year waste projection, an appraisal of existing solid waste collection systems and facilities and a strategy to encourage the use of resource recovery technology.37 A solid waste plan may direct waste to specific disposal facilities and may provide for uniform average disposal rates.38
Each district is to adopt its plan after a formal public hearing and thereafter submit it to the NJDEP and BPU for review. Districts are encouraged to negotiate interdistrict agreements in furtherance of efficiency and environmental protection. Upon review of a district plan, the Commissioner of NJDEP thereafter may approve, modify or reject the plan. The planning portions of the SWMA do not limit the licensing authority of NJDEP to register solid waste facilities prior to passage of a district solid waste management plan.39
This planning mechanism invests county governments with significant authority to develop both publicly and privately owned solid waste facilities and encourages them to assume an active role in solid waste planning. Nonetheless, ultimate decision-making authority over the development of county plans rests with the NJDEP and BPU. Pursuant to this authority, these agencies have imposed interdistrict arrangements upon counties and municipalities when the district plans themselves, in the agencies' view, failed to adequately do so.40
The Supreme Court of New Jersey recently upheld the authority of the NJDEP to generally redirect the flow of solid waste from county to county.A.A. Mastrangelo v. Cornmissioner of the Department of Environrnental Protection, 90 N.J. 666 (1982). In light of the complementary power of the BPU over economic aspects of solid waste facilities, however, the Court invalidated the NJDEP's efforts to direct specific waste streams to specific disposal sites until such time as the two agencies held public hearings on this proposal. Immediately following the Mastrangelo decision the agencies held joint public hearings and jointly promulgated substantially identical interdistrict waste flow regulations; these regulations are the subject of several pending appeals.41
The overall historical aim of New Jersey's solid waste management program has been nothing less than to transform inefficient and often environmentally unsound collection and disposal methods into a coordinated and centrally regulated industry utilizing modern waste disposal technology. The Legislature, with firm and consistent judicial support, has enacted legislation centralizing solid waste control in two State agencies which have developed considerable expertise since becoming invested with this responsibility. The closure of environmentally unsound disposal facilities has begun to reduce the potential for environmental contamination. One interesting recent development, however, is the refusal by a Chancery Division judge to close a landfill operating beyond its legal authority where no suitable alternate disposal site is available, notwithstanding possible environmental harm.42 This decision indicates increasing awareness that the solution to the solid waste disposal problem must be regional in scope.
The solid waste planning process as embodied in the SWMA provides a flexible framework within which to address this State's waste disposal needs. Although an articulated goal since 1970, the planning effort remains in its early stages. This mechanism creatively returns significant power to local authorities but properly retains overall planning control and environmental regulatory control at the State level. The planning process ultimately may succeed (where the Waste Control Act failed) at limited overall waste disposal because it does not facially discriminate against any particular waste stream and because out-of-state waste may be limited by the district plans themselves.
Unfortunately certain counties in dire need of disposal facilities have been extremely reluctant to site new facilities. Additional State intervention may be necessary to compel these counties to fulfill their obligation in this area. Burlington County, to provide one contrasting example, is aggressively developing an extensive solid waste plan which provides for a sanitary landfill to be owned and operated by the county.
Resource recovery remains the most environmentally sound disposal methodology currently available. Unfortunately, implementation is proceeding at a sluggish pace. Current BPU hearings are examining the possibility of awarding franchises and permitting rate averaging for resource recovery facilities as methods of encouraging investment in and development of these facilities.44
One method of further coordinating New Jersey's management of solid waste would be to centralize solid waste jurisdiction in a single State agency. Legislation transferring all of BPU jurisdiction to the NJDEP has been introduced in the New Jersey Senate but is given little chance of enactment.45 This proposal contains some appeal since centralization would eliminate certain duplicative administrative efforts and thereby streamline licensing, regulatory and enforcement activities. A question remains, however, as to whether the NJDEP would be willing and able to develop the expertise necessary to regulate the public utility aspects of the solid waste industry.
1. Southern Ocean Landfill, Inc. v. Mayor and Council of the Township at Ocean, 64 N.J. 190, 193 (1974).
2. A.A. Mastrangelo, Inc. v. Commissioner of the Department of Environmental Protection, 90 N.J. 666, 671 (1982).
3. N.J.S.A. 13:1E-2(a).
4. "Solid Waste" includes garbage, refuse, and other discarded materials resulting from industrial, commercial and agricultural operations, and from domestic and community activites, and shall include all other waste materials including liquids except for liquids which are treated in public sewage treatment plants and except for solid animal and vegetable wastes collected by swine producers licensed by the State Department of Agriculture to collect, prepare and feed farms. N.J.S.A. 13:1E-3(a), N.J.A.C. 7:26-1.4. Hazardous waste is one form of solid waste and includes any waste or combination of waste which poses a present or potential threat to human health, living organisms or the environment. N.J.A.C. 7:26-1.4. A sizable body of federal and state law is currently developing which pertains exclusively to hazardous waste and which merits separate treatment. This article is limited to a discussion of developments pertaining to non-hazardous solid waste.
5. Pleasure Bay Apartments v. City of Long Branch, 66 N.J. 79, 85(1974); Township of Dover v. Witt. 7 N.J. Super. 259 (App. 6. Div. 1950).
6. N.J.S.A. 26:1A-9; Pleasure Bay Apartments v. City of Long Branch, supra at 85. Included in the powers of municipalities, for example, were the rights to license and regulate scavengers, to grant exclusive licenses for municipal garbage collection and to prescribe the character of garbage receptacles and vehicles Id. at 88.
7. N.J.S.A. 13:1E-2(a). For example, early efforts by municipalities to ban the disposal of waste originating beyond their borders were upheld on several occasions. Leimpeter's Disposal Service v. Mayor & Council of the Borough of Carteret, 125 N.J. Super. 535 (App. Div. 1973); Public Health Council v. Franklin Township Board at Health, 108 N.J. Super 239 (App. Div. 1970)
8. A.A. Mastrangelo v. Commissioner of Department of Environmental Protection, supra at 671; Southern Ocean Landfill, Inc. v. Mayor & Council of the Township of Ocean, supra at 193.
9. N.J.S.A. 13:E-20 though 24.
10. L. 1970 c. 33 Section 10: N.J.S.A. 13:1D-7(a).
11. The Solid Waste Management Act was enacted by L. 1970, c. 39; the Solid Waste Utilities Control Act was promulgated by L. 1970, c. 40.
12. N.J.S.A. 13:1E-5(a)
13. Township of Little Falls v. Bardin, 173 N.J. Super. 397 (App. Div. 1979); In re Application of Modern Industrial Waste Service, 53 N.J. Super. 232 (App. Div. 1977); See N.J.S.A. 52:14B-2(b). N.J.A.C. 7:26-5.4.
14. N.J.A.C. 7:26-1.1 et seq.
15. N.J.A.C. 7:26-2.5 (a), (e); N.J.A.C. 7:26-2.5 (m)-(r); N.J.A.C. 7;26-2.5 (u), (v). A recently proposed regulation would require that sanitary landfills set aside funds to assure that closure and post-closure care of these facilities will be accomplished in an environmentally sound manner. 14 N.J.R. 883 (a).
16. N.J.S.A. 13:1E-9(c). Violations of the SWMA or regulations promulgated thereunder are punishable by a fine not to exceed $25,000 per violation.
17. N.J.S.A. 13:1E-9, as amended by L. 1981. c. 438. To assist counties in the development and implementation of a solid waste program, recently promulgated regulations permit counties to collect fees from owners and operators of sanitary-landfills in support of county enforcement activities. N.J.A.C. 7:26-4.10, 15 N.J.R. 330 (d).
18. See, for example, In the Matter of the Closure Order of April 23, 1979 issued to Henry Harris Landfill, (A-1787-80 T4. decided February 25, 1981) (landfill operations terminated because facility was placing waste at elevations in excess of those set forth in facility's approved engineering design); State at New Jersey, Department of Environmental Protection v. Sanitary Landfill, Inc., (A-450-80T2, decided July 19, 1982) (landfill terminated because facility was operating at elevations in excess of those approved by the NJDEP); Gloucester Environmental Management Services, Inc. v. State of New Jersey, Department at Environmental Protection (A-550-78, A-4535-78) (landfill operations enjoined because facility was operating without approved engineering design and in an environmentally unsound manner).
19. Southern Ocean Landfill, Inc. v. Mayor and Council of the Township of Ocean, supra at 195 (township ordinance banning sewerage and septic materials from landfills unless generated within the township invalidated as offensive to overall legislative plan and to key concept of regionalization of solid waste disposal facilities); Ringlieb v. Township of Parsippany-Troy Hills, supra. (local ordinance attempting to license and regulate solid waste facilities struck down as duplicative of State statutory and regulatory scheme); Township of Chester v. Departmental Environmental Protection of the State at New Jersey, 181 N.J. Super. 445 (App. Div. 1981) (township zoning ordinance is preempted with respect to construction of landfill access road); Township at Little Falls v. Bardin, 173 N.J. Super. 397 (App. Div. 1979) (neither Local Health Services Act, N.J.S.A. 26:3A2-1 et seq., nor Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., grants to municipalities concurrent jurisdiction with NJDEP and BPU over solid waste). See Pleasure Bay Apartments v. City of Long Branch, 66 N.J. 79 (1974) for historical discussion of preemption in the context of solid waste management.
20. L. 1971, c. 461 §§1, 2; N.J.S.A. 13:1E-16,17.
21. L. 1975, c. 326, §36.
22. In addition to the SWUCA, other statutes address economic aspects of solid waste collection and disposal. See, County Solid Waste Disposal Financing Law, N.J.S.A. 40:66A-31.1 et seq. (an act empowering and encouraging counties to develop regional solid waste disposal facilities); Solid Waste Management Authorities Law, N.J.S.A. 40:66A-32 et seq., an act to enable municipalities to create solid waste management authorities which, in turn, would finance solid waste disposal facilities); New Jersey Industrial Pollution Control Financing Law, N.J.S.A. 40:37C-1 et seq. (an act providing for alternative financing for industrial pollution control facilities.); Interlocal Services Aid Act, N.J.S.A. 40:8B-1 et. seq. (an act establishing a fund to be made available to local government units to assist in providing, inter alia solid waste facilities.
23. N.J.S.A. 48:13A-7(a).
24. See In re Application at Saddle River, 71 N.J. 14, 22 (1976). Abuses in the solid waste collection industry apparently have not ended. See State of New Jersey v. New Jersey Trade Waste Association, et al., (Law Division, Somerset County, Criminal No. 73-80-S, Indictment No. SGJ 66-80-8) (numerous individuals and entities engaged in garbage collection were found guilty in April 1983 of illegal restraint of the business of providing garbage collection services).
25. Attorney General Formal Opinion No. 14-1980.
26. N.J.S.A. 40:13A-4.
27. N.J.S.A. 48:13A-5.
28. N.J.S.A. 48:13A-6.
30. Township of Little Falls v. Bardin, supra;
31. In re application of Mason, 134 N.J. Super. 500 (App. Div. 1975)
32. State of New Jersey, Board of Public Utilities v. Helen Kramer Sanitary Landfill, 171 N.J. Super 500 (App. Div. 1979) (landfill could not change its hour of operation as set forth in its tariff without first receiving BPU approval.
33. State of New Jersey County and Municipal Government Study Commission, Solid Waste: A Coordinated Approach (1972)
34. L. 1973, c. 363; N.J.S.A. 13:11-9, 10.
35. Similarly, the Supreme Court of the United States recently refused to review two federal appellate court decisions which struck down as violative of the Commerce Clause, and for other reasons, attempts by Illinois and Washington to ban the importation of radioactive waste produced out of state. Don't Waste Washington Legal Defense Foundation v. State of Washington, U.S. (1983) (No.82-841); Hartigan v. General Electric Co., U.S. (1983) (No. 82-648).
36. The Legislature has declared that the Hackensack Meadowlands needs "Special arrangements for the provision of facilities for the disposal of solid waste ." N.J.S.A. 13:17-1. See Municipal Sanitary Landfill Authority v. Hackensack Meadowlands Development Commission, 120 N.J. Super. 118 (App. Div. 1972), Which held that State preemption of the solid waste field does not preclude the HMDC from promulgating regulations governing sanitary landfills in the Meadowlands. Cf. Town of Kearny v. Jersey City Incinerator Authority, 140 N.J. Super. 279 (Chan. Div. 1976).
37. N.J.S.A. 13:1E-21
38. Attorney General Formal Opinions No. 3-1980 and No. 12-1980.
39. In re Application of Combustion Equipment Associates, Inc., 169 N.J. Super. 305 (App. Div. 1979). See Board of Chosen Freeholders of Essex County v. O'Hern, 161 N.J. Super. 274 (Law Div. 1978).
40. "Rules Governing the Flow of Solid Waste Between and Among Solid Waste Planning Districts in Northeastern New Jersey." N.J.A.C. 7:26-6.1 et seq.
41. 14 N.J.R. 1368(a): Waste Disposal, Inc. v. New Jersey Department of Environmental Protection, (A-2237-82T2); Ocean County Landfill Corp. v. New Jersey Department of Environmental Protection, (A-2275-82T2).
42. Filcrest Realty, Inc. v. New Jersey Department of Environmental Protection (L-44944-80, Chancery Division, Middlesex County, decided January 18, 1982).
43. The Burlington County Solid Waste Management Plan was recently upheld in Township of Florence v. The Board of Chosen Freeholders of the County of Burlington, (L-70141-81, Law Division, Burlington County, Decided March 10, 1983).
44. Resource Recovery Generic Proceedings, BPU Docket No. 883-236.
45. s-1272 (1982).