# Jurisdictional Statement — Philadelphia v. New Jersey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2422%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1977 - **Citation:** 430 U.S. 141 ## Text ; — oY Gaprehe Ooh, é, 1 FILED FEB 13 1976 Supreme Court of the United | States. = October Term, 1975. No. 75-1150 (Now INTERSTATE WASTE REMOVAL CO., INC,), o. STATE OF NEW JERSEY, DEPARTMENT OF MENTAL PROTECTION OF THE STATE OF NEW JERSEY and RICHARD J. SULLIVAN, Commissioner of the Department of Environmental Protection of the State of Now Appellees. On Appeal From the Supreme Court of the State of _ New Jersey. JURISDICTIONAL STATEMENT. ARTHUR MEISE «, Joun R. P Nt beret S SoLo & Papova, A Professional Corporation, 3rd Floor, Lewis Tower Building, 19 Chancery Lane, 15th and Locust Streets, Trenton, N. J. 08618 Philadelphia, Penna. 19102 (608) 306-5511 dopant Oy of Attorneys for Appellants. ieternational Printing Co., 711 Go. 60m Ot, Phila., Pe, 10143 — Tet. (216) 727-6711 INDEX. Page I ED bg ck emai eect i edie veveucccdeceds 1 I i he hice ins gc detdas cclkviseesic 2 QUESTIONS PRESENTED ........0ccccccccccccccccees 4 STATEMENT OF THE CASE ............0cceseeseeeees 5 THE QUESTIONS ARE SUBSTANTIAL ................ 16 A. Solid and Liquid Waste, and the Process of Collect- ing, Treating and Disposing of Same, Is a Legitimate Subject of Interstate Commerce ...............-.- 16 B. P. L. 1973, c. 363, on Its Face, Discriminates Against and Directly Burdens Interstate Commerce ....... 20 L. Movembemdedeess 5. ccc ccc cccvccccccccccccsces 22 2. Legitimate Local Purpose ...............++0+: 31 3. Effect Upon Interstate Commerce ............. 38 C. Appellants Were Unconstitutionally Denied a Plenary Hearing on the Merits of Their Claim ............ 41 SEE nti ie nies adnded oeinuseé dee Gnd Canes een 47 CERTIFICATE OF SERVICE ...............ccceeeeeees 49 APPENDIX A-l—Transcript of Oral Opinion of Trial Court Al APPENDIX A-2—Opinion of Superior Court of New Jersey, Chancery Division, in Companion Case Hackensack Meadowlands v. Mun. Landfill Auth., 127 N. J. Super. Ss | REO TT (Or Ter TT eee Te eT Ete A9 APPENDIX A-3—Hackensack Mead. Dev. Com'n v. Munici- pal San. L. A., 68 N. J. 451, 348 A. 2d 505 (1975) ..... A27 APPENDIX B—Order of New Jersey Supreme Court Dated a TI iii Bis dba rk beeskEes Conse cheeses A55 APPENDIX C—Order of Superior Court of New Jersey, Law Division, Dated December 19, 1975 ................. A56 APPENDIX D-—Notice of Appeal Filed January 9, 1976 ... A58 APPENDIX E-—P. L. 1973, c. 363, Approved January 2, 1974 A61 APPENDIX F—Appellants’ Complaint Filed in Trial Court . A63 INDEX (Continued). Page APPENDIX G—Affidavit of Richard Peluso Dated January OR, FEED on cvncccvennedds seessscttecvetvdaveceaneum A86 APPENDIX H-—Letter Dated December 26, 1973 From Richard W. DeKorte, Esq., Counsel to Governor Cahill, Op Rawls Gath, TOO oak cvicccdocecssaseisksebies ens A89 APPENDIX I—Order to Show Cause With Restraints ...... A91 APPENDIX J—Verbatim Copy of N. J. A. C. 7:14 ........ A94 APPENDIX K—Order Granting Interlocutory Injunction ... A98 APPENDIX L—Affidavit of Arsen J. Darnay, Dated January GB Oe svccdcvcgedancancgdadsuadaobastalscehbulen A100 APPENDIX M—Appellees Answer to Complaint .......... A106 APPENDIX N—Rules of Bureau of Solid Waste Manage- snout, BF. 5, A, G. THES © GM, on ivscibecctvscouciaces All4 APPENDIX O—Portion of Transcript of Deposition of Lino F. Pereira Taken on March 13, 1974 .................. A195 APPENDIX P—Motion for Summary Judgment ........... A204 APPENDIX Q—Portion of Brief Filed in Trial Court by Ap- WEED. oon ccsconavcavedudesepadebed cadpsdtatecatian A206 APPENDIX R—Notice of Appeal Filed by Appellees on April BE Se cbc dcee os cust snceicdesbinbabeaatiadsl suce A207 APPENDIX S—Motion for Stay of Judgment ............. A209 APPENDIX T—Denial of Motion for Stay of Judgment .... A211 APPENDIX U—Certification of Appeal by New Jersey Ca CRITE 6 a.n.s0cccccncctconsdditacceecneseetasy A213 APPENDIX V—Order of New Jersey Supreme Court Grant- ing Stay of Judgment to Appellants on Emergency Basis A215 APPENDIX W—Application for Stay of Judgment and Other Relief to New Jersey Supreme Court by Appellants .... A217 APPENDIX X—Orders Issued by New Jersey Supreme Court Pee ee pe A222 APPENDIX Y—Order of Mr. Justice William J. Brennan, Jr. A225 APPENDIX Z—Affidavit of Richard Peluso Dated November GR, BOW. cc ccncscvicctsecc cadndbacabnedakenimasie. A226 DUD NOUR «on 0c odds theses cdedectddnseemelein. A231 CITATIONS. Cases: | . Page Alexandria Scrap Corporation v. Hughes, 391 F. Supp. 46 (MA. 1GTB) occ cccdcdcctvcccccccccincttseresocvess 17 American Can. Co. v. Oregon Liquor Control Commission, 15 Ore. App. 618, 517 P. 2d 691 (Ct. App. Ore. 1973) . .19, 27 Asbell v. Kansas, 209 U. S. 251 (1908) .........--- eee eeeee 18, 29 Baldwin v. G. A. F. Seelig, 294 U. S. 511 (1935) ........... 18, 30 Best & Co. v. Maxwell, 311 U. S. 454 (1940) ............... 23, 24 Bowie Inn, Inc. v. City of Bowie, 274 Md. 230, 335 A. 2d 679 (Ct. App. Md. 1975) ........cceccceeccceeeeeeseeees 19 Bowman v. Chicago &c. Ry. Co., 125 U. S. 465 (1888) ...... 18, 29 Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673 (1930) ....... 3, 46, 47 Clason v. Indiana, 306 U. S. 439 (1939) ...........---45-. 18 Construction Ind. Ass'n, Sonoma Cty. v. City of Petaluma, 522 F. 2d 897 (9th Cir. 1975) ......... cece cece eee eee 27 Crossman v. Lurman, 192 U. S. 189 (1904) ....... aceeetune 18 Dean Milk Co. v. Madison, 340 U. S. 349 (1951) .......... 3, 22 Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907) .... 3% Grannis v. Ordean, 234 U. S. 385 (1914) .............0005- 46 Hackensack Meadowlands v. Mun. Landfill Auth., 127 N. J. Super. 160, 316 A. 2d 711 (Ch. 1974) rev. 64 N. J. 451, 348 A. 2d 505 (1975) ........... 2, 12, 18, 22, 27, 28, 29, 40, 41 Head v. New Mexico Board, 374 U. S. 424 (1963) ......... 24 Horn v. Community Refuse Disposal, Inc., 186 Neb. 43, 180 a & . gs B & ppppenh en peer 36 Huron Cement Co. v. Detroit, 362 U. S. 440 (1960) .3, 19, 24, 25, 38 Judson v. Peoples Bank & Trust Co. of Westfield, 17 N. J. 67, SE i; Te Ee CF nhs 04 Rok oe ci di vib eceecsccnevad 41 Las Vegas Merchant Plumbers Ass'n v. United States, 210 F, 2d 732 (9th Cir. 1954) .............005. unbeneh te 17 Mintz v. Baldwin, 289 U. S. 346 (1933) ..............0055- 18 Mullane v. Central Hanover Tr. Co., 339 U. S. 306 (1950) .. 46 Myers v. City of Hagerstown, 214 Md. 312, 135 A. 2d 147 CGR, BI THE on cas coe ceccdcc sendpepenovp obety- 36 Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229 (1911) ..3, 29, 38 Penna. v. West Virginia, 262 U. S. 553 (1923) ............. 29 Pike v. Bruce Church, Inc., 397 U. S. 137 (1970) ........... 3, 21 CITATIONS (Continued). Cases (Continued): Page Plumley v. Massachusetts, 155 U. S. 461 (1894) ........... 18 Portland Pipe Line Corp. v. Environmental Imp. Com’n., 307 A. 2d 1 (Sup. Jud. Ct. Me. 1973) .............0..eees 26, 27 Proctor & Gamble Co. v. City of Chicago, 509 F. 2d 69 (7th Cir. 1974), Cert. den. 421 U. S. 978 (1975) ........... 19, 27 Railroad Co. v. Husen, 95 U. S. 465 (1877) ............. 3, 23, 24 Reid v. Colorado, 187 U. S. 137 (1902) ..............0005- 32 Rhodes v. Houston, 202 F. Supp. 624 (Neb. 1962), affd 309 F. 2d 959 (8th Cir. 1962), cert. den. 372 U. S. 909 (1963), SUS GU. &. GUE. CHIR) oc vcsceccsgecusteivecssbunibaues 46 Rocchi v. Zoning Bd. of App. of Town of Glastonbury, 157 Conn. 106, 248 A. 2d 922 (Sup. Ct. 1968) ............ 36 Savage v. Jones, 225 U. S. 501 (1912) .................... 18, 19 Sligh v. Kirkwood, 237 U. S. 52 (1915) ...............405. 18 Smith v. St. Louis and Southwestern Ry. Co., 181 U. S. 248 CHEER) ov cccvccccccsesececeguaguatede segues aawunne 32 United States v. Bishop Processing Company, 287 F. Supp. GBG (ROE. SRM) oo cccncesssccctuacevenisksatesuaneel 19, 38 U. S. v. Frankfort Distilleries, 324 U. S. 293 (1945) ........ 17 United States v. Pennsylvania Refuse Removal Ass'n, 242 F. Supp. 794 (E. D. Pa. 1965), affd 357 F. 2d 806 (3rd Cir. 1966), cert. den. 384 U. S. 961 (1966) ................ 16, 17 U. S. v. Underwriters Ass’n, 322 U. S. 533 (1944) .......... 17 Wood v. Town of Wilton, 156 Conn. 304, 240 A. 2d 904 (Sup. Ge. SEED) . oc cccoccussvéccskcannctesatancaneee 36 Statutes: Federal: SG. OG, OB. ..ccccscscoscesetdcesasaubenseneee 16 U.S. G GREED occcccccccdicdechcckiueeel 2,3 BU. B.C. GRIUIEDD «. 6ccscccdccoonccccanae 2,3 @ GU. BG: GEE cc cccicccecoccocdescunwen sauna 39 @ GU. SG GERARD cccvconccoucededucneasee 39 @ GU. &. G SHS ccecccesecccsceeccnsneaeneaee 39 Pak B. GG 0 cc cccvcscesecesoceseeetuanee 39 DU, Ee. GEGEED 0 cvcccccesenescessenaneanneeee 39 CITATIONS (Continued). Page State: BO. J. B A, WBE 2. cc cccccccccvcccccccccccccccees 14,33 NN. J. GS. A, USTED 2... nc ccccccccccccccccccceee 2, 4, 34, 35 on os cosa censeneceace 1, et seq Constitutional Provisions: U. S. Const.: i Pe EM Th. occccccacecssceseccecess 10, 11, 12, 17 os a. cow apedcosececse 48 TE a 20 Fourteenth Amendment ........... 6.6... c ess eee neues 46 Administrative Regulations: CE oi. enesnestees 6, 8, 35, 37 | SRE aa so diaiaaiabenlan 7,34 EEE i 9, 32, 35 EE 34 EE ee ee ee 18, 33 ee sis Loi cides bbactbesnones 33 casi cninicwecn cvbeescti 33 ES a RE 31 i i es snk acim serene 37 RE SA a 33 EE 37 SE 37 BE, B, A GS, Te GS occ ccccccccccccccccccccsccccccccess 3l SE 37 ET 35 ee isa buipdivi aces 33 Other Authorities: 1965 U. S. Code, Cong. and Adm. News, p. 3614 ........... 39 1970 U. S. Code, Cong. and Adm. News, p. 4553 ........... 39, 40 Annotation, “Public Dump as Nuisance", 52 ALR2¢d 116M... BB Supreme Court of the United States Ocroser Term, 1975. No. CITY OF PHILADELPHIA, CITY OF GLEN COVE, LANDFILL AND DEVELOPMENT COMPANY, MAC SANITARY LANDFILL, INC., KINSLEY’S LANDFILL, INC. anp DELORENZO-INTERSTATE WASTE REMOVAL CO., INC. (Now INTERSTATE WASTE REMOVAL CO., INC.), Appellants, STATE OF NEW JERSEY, DEPARTMENT OF EN- VIRONMENTAL PROTECTION OF THE STATE OF NEW JERSEY anv RICHARD J. SULLIVAN, COMMISSIONER OF THE DEPARTMENT OF ENVIRON- MENTAL PROTECTION OF THE STATE OF NEW JERSEY, Appellees. On APPEAL FROM THE SUPREME COURT OF THE STaTE OF NEw JERSEY. JURISDICTIONAL STATEMENT. OPINIONS BELOW. The opinion of the Superior Court of New Jersey, Law Division, declaring P. L. 1973, c. 363 (N. J. S. A. 13:11-9, 2 Jurisdictional Statement 10) unconstitutional is not reported. The opinion of the Superior Court of New Jersey, Chancery Division, in the companion case Hackensack Meadowlands v. Mun. Land- fill Auth. is reported in the official reports at 127 N. J. Super. 160 (Ch. 1974), and in the unofficial reports at 316 A. 2d 711. The opinion of the New Jersey Supreme Court, reversing the trial court’s decisions in each of the aforesaid eases, is published in the official reports as Hackensack Meadowlands v. Mun. Landfill Auth., 68 N. J. 451 (1975), and in the unofficial reports as Hackensack Mead. Dev. Com’n v. Municipal L. A., 348 A. 2d 505 (N. J. Sup. Ct. 1975). Said opinion is cited as Hackensack Meadowlands v. Mun. Landfill Auth., — N. J. — (1975) in the within Jurisdictional Statement. Copies of all of the aforesaid opinions are collected in Appendices A-1, A-2 and A-3. JURISDICTION. This matter is brought pursuant to 28 U. S. C. § 1257(2) and in the alternative, 28 U. S. C. § 1257(3) to set aside the judgment of the New Jersey Supreme Court which upheld the constitutionality of P. L. 1973, c. 363. Said judgment was rendered on November 18, 1975, and entered on the same date. Thereafter, on December 11, 1975, the New Jersey Supreme Court remanded the matter to the Superior Court, Law Division, “for such further proceedings, if any, that that Court may deem appropriate _ . .” (Appendix B, A55 infra). On December 19, 1975, the New Jersey Superior Court, Law Division, issued its order stating, in pertinent part, that“. . . no further pro- ceedings are deemed appropriate by this Court . . .” (Appendix C, A57 infra). A notice of appeal to the Supreme Court of the United States was thereafter filed in the New Jersey Supreme Court on January 9, 1976 (Ap- pendix D, A58 infra). The jurisdiction of the Supreme Court of the United States to review this suit (a) by direct Jurisdictional Statement 3 appeal is conferred by Title 28, United States Code, Sec- tion 1257(2), and alternatively (b) by certiorari is con- ferred by Title 28, United States Code, Section 1257(3). Appellants believe the following cases sustain the juris- diction of the Supreme Court of the United States to review the judgment of the New Jersey Supreme Court in this case: Pike ». Bruce Church, Inc., 397 U. S. 137 (1970); Huron Cement Co. v. Detroit, 362 U. S. 440 (1960); : Dean Milk Co. v. Madison, 340 U. S. 349 (1951); Brinkerhoff-Faris Co. v. Hill, 281 U. S. 673 (1930); Oklahoma v. Kansas Nat. Gas Co., 221 U. S. 229 (1911); ' Railroad Co. v. Husen, 95 U. S. 465 (1877). The text of P. L. 1973, c. 363, the constitutional valid- ity of which is involved in the present suit, reads as follows: “The legislature finds and determines that since the enactment of P. L. 1973, c. 39 (C 13:1I-l et seq.) the volume of solid and liquid waste continues to rapidly increase, that the treatment and disposal of these wastes continues to pose an even greater threat to the quality of the environ- ment of New Jersey, that the available and ap- propriate land fill sites within the State are being diminished, that the environment continues to be threatened by the treatment and disposal of waste which originated or was collected outside the State, and that the public, health, safety and wel- fare require that the treatment and disposal within this State of all wastes generated outside of the State be prohibited. 4 Jurisdictional Statement No person shall bring into this State any solid or liquid waste which originated or was collected outside the territorial limits of the State, except garbage to be fed to swine in the State of New Jersey, until the commissioner shall determine that such action can be permitted without en- dangering the public health, safety and welfare and has promulgated regulations permitting and regulating the treatment and disposal of such waste in this State. Any person violating this provision shall be subject to the penalty and en- forcement provisions of the “Waste Control Act,’ P. L. 1973, c. 39." Said statute is published in the pocket part of Title 13, New Jersey Statutes Annotated, Section 11-9 and 11-10 at pp. 85-86. QUESTIONS PRESENTED. 1. Is solid and liquid waste, or the process of collect- ing, treating and disposing of same, a legitimate subject of interstate commerce? 2. Does a state statute which prohibits the entry into the state of any solid or liquid waste (except garbage to be fed to swine in the state ) ccllected in another state, discrim- inate against or place an undue burden upon interstate commerce? 3. In reversing an order granting a motion for sum- mary judgment, may an appellate court constitutionally decide the case on its merits without offering the moving parties an opportunity to be heard, prior to the final deter- mination, on the material issues of fact raised by their complaint? Jurisdictional Statement 5 STATEMENT OF THE CASE. On January 2, 1974, P. L. 1973, c. 363, being “An Act to prohibit any person from bringing into this State any solid and liquid waste which originated or was collected outside the State was approved by the Governor of the State of New Jersey, to become effective on February 1, 1974 (Appendix E, A61 infra). On January 21, 1974, appellants filed a complaint attacking the constitutionality of said statute on federal and state constitutional grounds (Appendix F, A63 infra). Their simultaneous application for a temporary restraining order was supported by an affidavit of a licensed profes- sional engineer (Appendix G, A86 infra) which averred that the transportation, treatment or disposal of solid waste in New Jersey in accordance with applicable Federal and New Jersey state and administrative laws, rules and regula- tions would not pose a threat to the health, welfare and safety of the residents of said state: “3. The transportation in New Jersey of solid waste in accordance with the terms and provi- sions of applicable Federal and New Jersey state and administrative laws, rules and regulations is not hazardous to the public health and does not constitute a threat to the health, welfare or safety of the residents of the State of New Jersey. 4. The treatment and disposal in New Jersey of domestic or foreign solid waste in accordance with the terms and provisions of applicable Fed- eral and New Jersey state and administrative laws, rules and regulations is not hazardous to 6 Jurisdictional Statement the public health and does not constitute a threat to the health, welfare or safety of the residents of the State of New Jersey.” ' It was further supported by a copy of a letter dated De- cember 26, 1973 from Richard W. DeKorte, Esq., Counsel to Governor William T. Cahill, to David Quient, Esq., city attorney of appellant City of Glen Cove (Appendix H, A89 infra), in which the Counsel to the Governor stated: “Also, I might add that Senate Bill No. 2367 (OCR) [P. L. 1973, c. 363] would not have been introduced had the sister states of New Jersey permitted solid wastes originating in their states to be disposed of at or near the point of orig- ination.” Based upon the aforesaid documents, and additional affi- davits which documented that immediate and irreparable harm would be suffered by appellants if temporary injunc- tive relief was not granted, the Superior Court of New Jersey, Law Division issued an Order to Show Cause with Temporary Restraints on January 21, 1974, which, inter alia, restrained the State from enforcing the provisions of P. L. 1973, c. 363 (Appendix I, A91 infra). On the return date of the Order to Show Cause, February 1, 1974, the trial court issued an interlocutory injunction continuing the restraints theretofore issued, and further specifically enjoining the enforcement of N. J. A. C. 7:1-4, until its further order” (Appendix K, A98 infra). In granting 1. The conclusions expressed in said paragraphs 3 and 4 have never been attacked or rebutted. Quite the contrary, they have been supported by appellees. See p. 9 infra. 2. N. J. A. C. 7:1-4, a rule governing the importation of solid and liquid waste from outside New Jersey, was adopted by the Commissioner of the New Jersey Department of Environmental Jurisdictional Statement 7 interlocutory injunctive relief, the trial court considered among others, an affidavit of the Deputy Assistant Admin- istrator for Solid Waste Management Programs, United States Environmental Protection Agency (Appendix L, A100 infra), which averred, in pertinent part, as follows: “It has not been established to the satisfaction of EPA that the continuation of disposal, in an environmentally sound manner, of solid waste generated outside New Jersey poses any greater immediate health threat to its citizens than the 2. (Cont’d.) Protection on ee to authority conferred by , rule, wes 2¢ as an emergency measure to become effective February 1, 1974, provides, in perti- nent part, as follows: N. J. A. C. 7:1-42 rials; 4) Pesticides, hazardous chemical waste, bulk ig Ea en Jurisdictional Statement continued disposal of domestically generated solid waste. Therefore, there appears to be no immediate health threat to justify the precipitious passage and implementation of this statute [P. L. 1973, c. 363] and these regulations. [N. J. A. C. 7:14] . a State importation ban such as that enacted by New Jersey is in conflict with the national policy set forth in Section 206 of the Solid Waste Disposal Act. . . . Moreover, the continuation of such a restriction would establish an unfavor- able precedent which, if followed by a substan- tial number of other States, would render re- gional and interstate solutions to solid waste disposal problems impossible to attain. °/ The foregoing is not to say that appropriate standards should not be applied in the areas of treatment and disposal of solid wastes and of land use planning. We strongly favor the adop- tion of standards applicable to domestic and imported solid wastes so that they apply on an equal basis with out-of-state waste subject to the same statutory and regulatory treatment as domestic waste. . A single thrust to ban out-of-state wastes impedes rather than enhances environmental quality. In conclusion, it is EPA policy that no munici- pality or State should take action to prevent the free flow of waste across municipal or state Jurisdictional Statement g boundaries provided the transport, processing, and disposition of the waste is in accordance with the provisions of applicable federal and state environmental and land use laws, guide- lines, regulations, and recognized engineering practices.” A plenary hearing on the merits of appellants’ complaint was scheduled by the Court for March 25, 1974. On February 11, 1974, John P. Fazzio, Inc., t/a John P. Fazzio Landfill Co. and Continental Vanguard, Inc. were granted leave to intervene. Thereafter on February 13, 1974, appellees filed their answer to the complaint in this matter, wherein they spe- cifically admitted that the principal concern of the New Jersey Legislature in adopting P. L. 1973, c. 363 was to preserve landfill acres in New Jersey for solid waste gen- erated in said State. They further admitted that there is no qualitative difference between the solid waste which originates or is collected outside the State of New Jersey and that which originates or is collected within the State, and there is no difference with respect to the disposal of same (Appendix M, A106 infra). On March 13, 1974, appellants deposed the Principal Environmental Engineer of the Bureau of Solid Waste Management, New Jersey Department of Environmental Protection. During the course of said deposition, the engineer admitted that the proposed Rules of the Bureau of Solid Waste Management, N. J. A. C. 7:26-1 et seq. (effective July 1, 1974) (Appendix N, A114 infra), were entirely adequate to protect the health, safety and welfare of the people of the State of New Jersey and the quality of its environment.’ He also revealed that no effort had been 3. Said rules "lid and liqud waste dapenl fac om ticular attention was Gres cnilog ples wick Sod scooluler Ween soastianell ade Game (a) dust, (b) 10 Jurisdictional Statement made by the Department of Environmental Protection to calculate the total acreage available for sanitary landfill purposes in the State of New Jersey or to identify the location and availability of facilities which presently exist or may hereafter be developed outside the State of New Jersey (Appendix O, A195 infra). Appellants thereafter moved for summary judgment yn two federal constitutional grounds which, in their opinion, raised solely questions of law: (a) P. L. 1973, c. 363, on its face, discriminates against interstate com- merce in violation of Art. 1, Sec. 8, cl. 3 of the Consti- tution of the United States, and (b) the Congress of the United States has preempted the narrow field preventing the adoption of laws, ordinances and regulations which prohibit the interstate movement of solid waste for pur- poses of treatment or disposal (Appendix P, A204 infra). Appellees cross-moved for summary judgment on the same issues, and urged in a portion of their brief filed with the trial court (Appendix Q, A206 infra), that summary judg- ment not be granted to appellants pending a hearing on the merits: “At this stage of the litigation sub judice the Court has not had an opportunity to consider any of the relevant facts and circumstances except for affidavits submitted in favor of and in opposi- tion to the issuance of ad interim restraints. Among those proofs which the court must con- sider are: the nature and extent of the dangers to the health, safety, welfare and environment of 3. (Cont'd. ) odor, (c) fire, (d) insects, (e) rodents, (f) scattering of pa and other lightweight materials, (g) gas generation, (h) cules and ground water quality, (i) collection and haulage, (j) open burning, and other related problerns. Jurisdictional Statement 11 New Jersey presented by the disposal of wastes tue tein, Aciass haan ike wd waste crisis in New Jersey; the rapid exhaustion of landfill life in New Jersey; the volume of out- of-state waste being disposed of in New Jersey; the severe limiting effects on the future develop- ment of property which has been used for sani- tary landfill purposes; the extent of the effect on interstate commerce.” Pending a determination of the motions, the hearing date was rescheduled to April 15, 1974, if necessary. On March 25, 1974, the trial court heard oral argu- ment on the cross-motions for ew are supra) The action taken by the New Jersey Supreme Court in upholding the constitutionality of P. L. 1973, c. 363 without affording appellants an opportunity to be heard on the merits violates due process of the law. Fundamental rights cannot so lightly be discarded. CONCLUSION. The New Jersey Supreme Court has decided an issue of national importance in a way not in accord with the decisions of this Court, and in conflict with de- cisions of other state and federal courts which have re- cently decided cases involving environmental questions. 48 Jurisdictional Statement It has also so far departed from the accepted and usual course of judicial proceedings as to violate appellants’ right to due process of the law in violation of the 5th and 14th amendments to the Constitution of the United States. Because ot the critical issues of great and general pub- lic interest involved, it is respectfully urged that this Court note jurisdiction and hear the case on its merits. Respectfully submitted, HERBERT F. Moore, ARTHUR MEISEL, Jamieson, McCaRrpELL, Moore, Peskin & SPICER, Joun R. Papova, A Professional Corporation, SoL_o & Papova, Attorneys for Appellants. . Special Legal Counsel to Appellant City of Philadelphia. 49 Certificate of Service. We hereby certify that on this (OP aay of February, 1976, three copies of this Jurisdictional Statement were mailed, with adequate first class postage prepaid, to Assistant Attorney General Stephen Skillman, at his office located in the State House Annex, Trenton, New Jersey, 08625; to Vincent J. Dotoli, Esquire, attorney for plaintiffs- intervenors at his law office located at Interstate 287 & McKinley Street, Plainfield, New Jersey 07080; and to David N. Samson, Esquire, attorney for defendants- respondents in the companion case Hackensack Meadow- lands v. Mun. Landfill Auth., A-81 (decided November 18, 1975), at his law office located at 80 Main Street, West Orange, New Jersey 07052. We further certify that all parties required to be served have been served. . Appendix A-1 Al APPENDIX A-l. Superior Court oF NEw JERSEY. Law Drvision—MERCER COUNTY. Docket No. L-15068-73 P. W. CITY OF PHILADELPHIA, a Municipat CorPporATION OF THE COMMONWEALTH OF PENNSYLVANIA, CITY OF GLEN COVE, a MunicipaL CoRPORATION OF THE State oF New Yorx, LANDFILL & DEVELOP- MENT CO., a N. J. Conporation, MacSANITARY LANDFILL, Inc., a N. J. Corporation, KINSLEY’S LANDFILL, Inc., a N. J. Corporation, anp DeE- LORENZO-INTERSTATE WASTE REMOVAL COMPANY, a N. J. Corporation, JOHN P. FAZZIO, Inc., T/A JOHN P. FAZZIO LANDFILL COMPANY, AND CONTINENTAL VANGUARD, a N. J. Cor- PORATION, Plaintiffs, 0. q \ STATE OF NEW JERSEY, DepartMent or ENvinon- MENTAL PROTECTION OF THE STATE OF NEW JERSEY, AND RICHARD J. SULLIVAN, CommissIONER OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION OF THE STATE OF NEw JERSEY, Defendants. ORAL OPINION. Before: HonoraB_e Georce Y. Scuocn, J.S.C. Place: Mercer County Courthouse, Trenton, New Jersey. March 25, 1974. Appearances: Jamieson, WaLsH, McCarpELL, Moore & Peskin, by Mr. Hersert F. Moore, and ARTHUR MEISEL, appearing on behalf of the plaintiffs, attorneys. Mr. Vincent J. Doroui, appearing on behalf of de- fendant Fazzio, attorney. Witu1aM F. Hyanp, Attorney General of the State of New Jersey, by Mr. Mark L. First, Deputy Attorney General, appearing on behalf of the defendant-State of New Jersey. THe Court: Well, there are three separate points raised by the motions or, I should say, by the motion and countermotion presented here. Each side makes this argument for summary judgment conceding that as to these particular issues there are no material issues of fact involved and so that the issues before the court at the moment are ripe for summary judgment. The New Jersey Legislature passed a law, Public Law 1973, Chapter 363, which says in part, “No person shall bring into this state any solid or liquid waste which origi- nated or was collected outside the territorial limits of the state, except garbage to be fed to swine in the State of New Jersey, until the Commissioner shall determine such action can be permitted without endangering the public health, safety and welfare and has promulgated regula- tions permitting and regulating the treatment and dis- posal of such waste in this state.” There were emergency regulations promulgated by the Commissioner, N. J. A. C. 7:1-4.1 and N. J. A. C. 7:1- 4.2. The second regulation sets forth certain exceptions, descriptions of exceptions to the prohibition of solid or liquid waste, including separated waste material that is Appendix A-1 A3 intended for re-cycling and certain other exceptions which are immaterial to the issue at hand. Obviously the first matter that must be decided is whether the item of solid or liquid waste, we have been calling it garbage but it obviously includes more than just garbage, whether that item is a proper subject of interstate commerce. If it is not then there would be no prohibition against the state passing a law that prohibits the passage or importation of such item either through or into the state, since it would not violate the interstate commerce clause of the United States Constitution. With reference to that point my attention has been called to two cases. One is the case of Barnett v. A-1 Scavenger Service Co., Inc., a Missouri Court of Appeals case (1971) reported at 466 Southwestern 2d at 150. That case involved an interpretation of the Fair Labor Standards Act. A helper on a refuse truck who worked for an employer engaged exclusively in the collection and disposal of garbage and waste in the City of St. Louis, whether or not he was subject to the Fair Labor Standards provisions regarding minimunt wage and overtime, be- cause the employer collected waste from companies en- gaged in interstate commerce. At page 156 the court said, and I quote, “In the instant case it can scarcely be plausibly argued that the garbage and refuse after being collected by plaintiff entered the channels of interstate commerce, or the mere transportation of such garbage and other refuse for the purpose of disposing of it could be said to be commerce among the several states within the meaning of the Fair Labor Standards Act.” So we have the authority of that case which indicates that the transportation of trash and waste across the state line is not engaging in interstate commerce. On the other hand, there is a case of U. S. v. Pennsylvania Refuse Re- A4 Appendix A-1 moval Association, at 242 Federal Supplement 794, U. S. District Court case for the Eastern District of Pennsyl- vania (1965) where the court said at page 799, “Defend- ants argue at various points in their brief that because trash itself is by definition a worthless commodity, it cannot be the subject of ‘trade or commerce’ as those terms are used in the Sherman Act. That argument misses the point. Here, the relevant subject of ‘trade or commerce’ was not worthless debris, but the valuable service of removing and disposing of it. Since services are encompassed within the meaning of the words ‘trade or commerce’ as used in the Act, the defendant’s position has no merit.” And on appeal to the U. S. 3rd Circuit Court reported at 357 Fed- eral 2d, 806 (1966), the 3d Circuit Court said at page 808, “From the record we are satisfied that the factual holding of the trial judge that ‘the hauling and disposing of refuse was an integral part of the refuse removal business’ is en- tirely correct. In that situation the refuse transported from Pennsylvania to New Jersey and disposed of in the latter state is a vital element of the one business operation which plainly is a proper subject of interstate commerce.” Then there is a citation of Hoke v. U. S. Then we have the case of U. S. v. Bishop Processing Company, U. S. District Court, District of Maryland (1968) 287 Federal Supplement 624, which I think could be analogized to our case. In the Bishop case the question was whether a business or factory that polluted the air and that air pollution, malodorous pollution obviously affected business conditions and property values in the neighbor- ing state when the wind blew the smell and pollutants across the state line. One of the questions that had to be decided was whether the Clean Air Act covered this ac- tivity, that is, whether or not movement of the air pol- lutants across state lines constituted interstate commerce. Appendix A-1 A5 And the District Court in Maryland decided, at page 629, that it did, saying, “The movement of pollutants across a state line is proper jurisdictional basis for the provisions of the Act relating to the abatement of interstate air pollu- tion. Such movement of pollutants across state lines con- stitutes interstate commerce subject to the power granted the Congress by the Constitution to regulate such com- merce. From my analysis of the cases that I have just cited I think that the proper viewpoint to accept is that of the 3d Circuit that the transportation of waste across the state line is a subject of interstate commerce and, therefore, subject to the controls of Congress in accordance with the interstate commerce laws. However, that is not dispositive of the problem. The plaintiff suggested the second point that the Federal Government has pre-empted this field, and when I say this field I mean the field of prohibition of interstate movement of solid waste for either treatment or disposal. I prefer to decide the problem on the basis of ‘lis- crimination rather than on the theory of pre-emption be- cause I think the issue is more clearly defined when we consider discrimination. I have already read certain por- tions of the federal code. I will refer to them again. 42 U. S. C. A. 3254. Let me read this in full. “The secre- tary shall encourage cooperative activities by the states and local governments in connection with solid waste dis- posal programs; encourage, where practicable, interstate, interlocal and regional planning for, and the conduct of, interstate, interlocal and regional solid-waste disposal pro- grams; and encourage the enactment of improved and, so far as practicable, uniform state and local laws governing solid waste disposal.” In Section 3251 there are five parts to subsection (b) setting forth the purposes of this particular law, all of A6 Appendix A-1 which talk about assistance, technical advice, training grants, et cetera. None of which seems to me indicate the type of pre-emption that I feel would be required in order to find the Federal Government has pre-empted this field in the fashion that the plaintiffs suggest and to arrive at the decision the plaintiffs suggest. So we come to the question of whether or not this statute passed by the Legislature of New Jersey which, as I have already indicated, I find involves material which is the subject of interstate commerce, whether the statute discriminates against interstate commerce to the extent that it should be declared unconstitutional. I immediately concede that I am aware of the cases which hold that there is a strong presumption that the statute is constitutional and the legislative act will not be declared void unless its repugnancy to the Constitution is clear beyond a reason- able doubt. Further, to declare a statute unconstitutional is a judicial power to be delicately exercised, quoting from Harvey v. Essex County Board of Freeholders, 30 N. J. 381. The Court in the case of Supermarket General v. Sills, 93 N. J. Superior, 326 (Chancery Div. 1966) cites a quotation from the U. S. Supreme Court case of Head v. New Mexico Board of Examiners at page 345. The New Jersey Court says, “A state law may not be struck down on the mere showing that its administration affects interstate commerce in some way. State regulation based on the police power which does not discriminate against interstate commerce or operate to disrupt its required uniformity may con- stitutionally stand.” As Judge Schreiber said in the case of Hackensack Meadows Development v. Municipal Sanitary Landfill Authority, a Chancery Division slip opinion dated Febru- ary 13, 1974, page 12 of that slip opinion, “State regu- lations and laws based on the exercise of the police power Appendix A-1 AT7 may only stand if they do not discriminate against inter- state commerce.” I am aware of the long line of cases that deal with the transportation of deleterious substances. They are listed in Baldwin v. Seelig, 294 U. S. 511 (1934), opinion of Mr. Justice Cardozo, at page 525, 7 Lawyers Ed., 1039, which recites some of the cases which have upheld the statutes regulating the importation of unhealthy cattle, decayed foods. Mr. Justice Cardozo’says, “Things such as these are not proper subjects of commerce (and notes ) there is no unreasonable interference when they are in- spected and excluded.” . I think the situation is different in this case before me and I see a relationship between the natural gas cases and this case. Some may say it’s a strained reason but the natural gas cases that I refer to are Pennsylvania v. West Virginia, 262 U. S. 553, and West v. Kansas Natural Gas Company, 221 U. S. 229. Each of those cases, the so-called home state attempted to prevent the exportation of one of its natural resources and the statutes were struck down as unconstitutional in derogation of the free flow of commerce, that it is Congress’ prerogative to control and not the state. If we consider, as I do, that the purpose of the statute in question here is to conserve natural resources of the state, that by restricting the amount of solid waste that is presented to the various disposal companies, the natural resources, the land, the availability of the land will be prolonged or extended or used less quickly. I don’t see any difference between a state being prevented from prohibiting exportation of natural gas than the state being prevented from prohibiting the importation of something that will in effect use one of the state’s natural resources. Therefore, I find that the statute in question here is attempting to control material that is properly the sub- A8 Appendix A-1 ject of interstate commerce, that the method of attempting is discriminatory and, therefore, unconstitutional. You will prepare an order, Mr. Moore? Mr. Moore: Yes, sir. (End) COURT REPORTERS CERTIFICATION. I, ANTHONY D1 STEFANO, one of the Official Court Reporters of the Superior and County Courts of the State of New Jersey, do hereby certify that the foregoing is a true and accurate transcript of my stenographic notes taken by me in the above entitled matter. ANTHONY D1 STEFANO Anthony Di Stefano Dated: March 28, 1974. Appendix A-2 A9 APPENDIX A-2. [127 N. J. Super. 160, 316 A. 2d 711 (Ch. 1974)] [160] HACKENSACK MEADOWLANDS DEVELOPMENT COMMISSION AND STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PRO- TECTION, PLAINTIFFS, v. MUNICIPAL SANI- TARY LANDFILL AUTHORITY, A JOINT VEN- TURE OF WILLIAM A. KEEGAN, INC., RECLA- MATION AND IMPROVEMENT CO., PETER ROSELLE & SONS, INC. AND DELAWARE SANITARY CO., DEFENDANTS, AND CITY OF YONKERS, NEW YORK, DEFENDANT-INTER- VENOR. Superior Court of New Jersey Chancery Division Decided February 13, 1974. oO ° “ [162] Mr. Mark L. First, Deputy Attorney General, for plaintiffs (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney ). Mr. David Samson for defendants (Messrs. Lieb, Wolff & Samson, attorneys ). Mr. Eugene J. Fox, of the New Ycrk Bar, Corp. Coun- sel for City of Yonkers, pro hac vice for defendant-inter- venor ( Messrs. Schapira, Steiner & Walder, attorneys ). Scurerer, J. S.C. The Hackensack Meadowlands Development Commission (HMDC) and the State of New Jersey, Department of Environmental Protection (DEP), Al0 Appendix A-2 [163] seek to enjoin the Municipal Sanitary Landfill Authority (MSLA) from accepting for disposal in its landfill site located within the Hackensack Meadowlands District any solid wastes originating from or collected outside the territorial limits of New Jersey. Both HMDC and DEP had adopted regu- lations, effective September 1, 1973 and August 31, 1973, respectively, which prohibited such disposal. An ad interim restraint, consented to by defendant, had been entered pending determination of the request for a permanent injunction. On the return date of the order to show cause defendants answered by challenging the con- stitutionality of the regulations and the Waste Control Act, N. J. S. A. 13:11-1 et seq. The hearing was adjourned to allow plaintiffs time to respond to the challenges. In the meantime the City of Yonkers, New York, whose refuse was being deposited on the MSLA site, moved for and was granted leave to intervene as a party defendant. No testi- mony was taken at the hearing. The parties relied on affidavits and the transcript of proceedings taken before the Hackensack Meadowlands Commission on June 18, 1973. MSLA has made a three-fold attack. It contends that (1) the Waste Control Act, regulation N. J. A. C. 7:26-1.5 promulgated thereunder, and certain regulations of HMDC, namely, N. J. A. C. 19:7-1.1(g) and (h), are in- valid, arbitrary and unreasonable; (2) the procedure fol- lowed by DEP in promulgating its rule, N. J. A. C. 7:26- 1.5, violated due process of law, and (3) all the above designated regulations and the Waste Control Act must fall because they violate Article 1, Section 8, paragraph 3 (the Commerce Clause) and Article 4, Section 2 (the Privileges and Immunities Clause), of the U. S. Consti- tution. Appendix A-2 All I The Waste Control Act, N. J. S. A. 13:1I-1 to 8, re- cites that the Legislature found that the disposal of wastes generated or collected outside the State poses a threat to the quality of New Jersey's environment and that the Com- missioner of Environmental Protection was empowered to create [164] regulations prohibiting the “landfill of solid waste” and the “disposal of liquid wastes” within the State which origi- nated or were collected outside New Jersey. The Com- missioner adopted Regulation N. J. A. C. 7:26-1.5, effective August 31, 1973, which reads as follows: Out of State waste (a) No person engaged in the collection of solid or liquid wastes shall dispose of any solid or liquid wastes which originated or were collected outside the territorial limits of this State in sanitary landfills in the Hackensack Meadowlaads District. (b) No person owning or operating a sanitary landfill within the Hackensack Meadowlands District shall accept for disposal in such sanitary landfill any solid or liquid wastes which originated or were col- lected outside the territorial limits of this State. Defendant contends that there is no basis for the Legisla- ture’s findings, that the regulation is invalid in the absence of a showing of a causal relationship between banning out- of-state garbage in New Jersey and a threat to its environ- ment, and that the regulation is overly broad by banning all wastes. The statute and the administrative regulations are presumptively valid. Harvey v. Essex County Board Al2 Appendix A-2 of Freeholders, 30 N. J. 381 (1959); Burton v. Sills, 53 N. J. 86 (1968); State v. Profaci, 56 N. J. 346 (1970). Since one can reasonably and readily conceive of facts which would support the Legislature’s findings and the Commissioner’s regulations, the onus is on defendant to establish that the Legislature’s and Commissioner's actions are arbitrary. Consolidation Coal Co. v. Kandle, 105 N. !. Super. 104 (App. Div. 1969), aff'd 54 N. J. 11 (1969); Municipal Sanitary Landfill Authority v. Hackensack Mea- dowlands Development Comm’n, 120 N. J. Super. 118 (App. Div. 1972); Borden’s Farm Products Co., Inc. v. Baldwin, 293 U. S. 194, 55 S. Ct. 187, 79 L. Ed. 281 (1934). Defendant's proof consisted of an affidavit of an engineer, Dennis L. Backus, and the transcript of proceed- ings before the Hackensack Meadowlands Commission held on June 18, 1973 with respect to its proposed regula- tions. The affidavit asserts that quantities of solid [165] wastes are used for construction purposes and that there- fore a complete ban on disposal of out-of-state solid wastes is inappropriate. This conclusion does not necessarily fol- low because no reference is made to the amount of New Jersey refuse which is being used for landfill purposes, the limited amount of area available, and the environmental and public health impacts involved. Further, an affidavit of Lino Pereira, the Principal Environmental Engineer of DEP, asserts that sanitary landfills “present a pollution danger because they do not conserve or recover resources but bury them, and because they severely limit the future use of the land on which they are located.” Additionally, he avers that sanitary landfills present a unique fire prob- lem. An affidavit of Bernhard V. Lind, Acting Chief of the Bureau of Solid Waste Management in the DEP, asserts EE Appendix A-2 Al3 that of the 55,000 tons per week of solid waste being dis- posed of in the Hackensack Meadowlands District, 10,000 tons originated outside New Jersey and there was an acute shortage of remaining landfill life located there. In view of all the foregoing, it is obvious that MSLA has not met its burden. The same type of attack has been made upon regula- tions N. J. A. C. 19:7-1.1(g) and (h) of the HMDC. These regulations read as follows: 19:7-1.1(g). No solid waste originating or col- lected outside of the territorial jurisdiction of New Jersey shall be disposed of or treated within the Hack- ensack Meadowlands District. No sanitary landfill operator shall accept for disposal, at a sanitary landfill within the Hackensack Meadowlands District, any solid waste originating or collected outside of the territorial limits of New Jersey. 19:7-1.1(h). All operators of sanitary landfills within the Hackensack Meadowlands District shall submit to the Commission, tegether with their applica- tions, as provided in Sections 3 and 4 of this sub- chapter, a certification stating that no solid waste originating or collected outside of the territorial limits of New Jersey will be accepted for disposal or treat- ment. Defendant has made no showing that there was no basis for these regulations. The affidavits of William D. Mc- Dowell, Executive Director of HMDC, and George D. Cascino, its [166] Chief Engineer, disclosed that three surveys had been made to determine the volume and origin of solid waste disposed of in landfills in the Hackensack Meadowlands District. Al4 Appendix A-2 The first disclosed that in 1968 some 30,000 tons were entering the District each week, of which 4,900 tons orig- inated outside New Jersey. HMDC study in 1971 revealed that the weekly tonnage was 42,000, of which 5,000 emanated from outside the State. In April 1973 HMDC updated its study. At that time weekly tonnage had in- creased to 55,000, of which 10,000 came from sources out- side of New Jersey. The Commission concluded that the sites had only three years of life remaining and that ban- ning of out-of-state garbage would extend the landfill life some six months. Under the Hackensack Meadowlands Development Act the Commission must provide disposal facilities for the New Jersey municipalities (totalling 118, according to plaintiffs ) which had been utilizing the District. N. J. S. A. 13:17-10(a), (b) and (e). The affidavits point out that the Commission needs as much time as possible to develop a viable alternate method of disposal. One cannot reason- ably contend that promulgation of the regulations under the totality of these facts and circumstances was arbitrary. Defendant also argues that the HMDC regulations contravene N. J. S. A. 13:17-6(w) and 13:17-10(b) and (e) by failing to provide for disposal facilities for waste equai to levels at the time the statute was passed, which levels included out-of-state waste. N. J. S. A. 13:17-6(w) authorizes HMDC “to provide solid waste disposal facilities for the treatment and disposal of solid waste, as hereinatter provided.” N. J. S. A. 13:17-10 reads: (a) Within 6 months of the effective date of this act the commission shall undertake and complete a survey of the district to determine the total amount of solid waste treated and disposed on a daily basis in the district as of the effective date of this act by per- sons in this State. Appendix A-2 Al5 (b) The commission is hereby authorized, em- powered and directed to guarantee that solid waste disposal facilities sufficient to treat and [167] dispose of the total amount of solid waste determined by its survey shall be available or be provided by the commission. (e) The commission, in its discretion, may pro- vide solid waste disposal facilities sufficient to treat and dispose of more than the total amount of solid waste determined by its survey, and may make such facilities available to persons other than those treating and disposing of solid waste in the district as of the effective date of this act. [Emphasis added] Defendant reads these three sections together as guarantee- ing continued use to all persons utilizing the disposal facili- ties in the Meadowlands at the time the act was passed. To interpret the statute in that way, however, one must delete the last three words in subsection (a). The inclusion of those words, “in this State,” demonstrates that the Legis- lature was concerned about waste collected in New Jersey. If it intended to include all waste disposed of in the Meadowlands no matter where its origin, the phrase, “in this State” would not have been inserted, since, obviously, garbage dumped in the Meadowlands is dumped in this State. One must assume in interpreting a statute that the legislators would not insert a redundant or meaningless phrase. The only significance in these words is that the referring to the “total amount of solid waste determined by its [the Commission’s] survey,” are concerned with the Al6 Appendix A-2 total amount of garbage disposed of in the Meadowlands by persons in this State, i.e., the total amount of New Jersey waste dumped in the Meadowlands. This is the only sensible interpretation. The concern of the New Jersey Legislature was to safeguard the area for New Jersey op- erations—not New York, Pennsylvania, or other jurisdic- tions. As Justice Jacobs wrote in J. C. Chap. Prop. Owners’, etc., Ass'n v. City Council, 55 N. J. 86 (1969): When all is said and done, the matter of statutory construction here will not justly turn on literalisms, technisms or the so-called formal rules of interpreta- tion; it will justly turn on the breadth of the objectives of the legislation and the commonsense of the situa- tion. [at 100] [168] To the same effect: State v. New Jersey National Bank and Trust Co., 62 N. J. 50 (1972). Defendant's contention that the regulations contravene the enabling statute is unsound for the statute mandates only that the Commission guar- antee disposal facilities for New Jersey communities utiliz- ing the landfill sites as of the effective date of the act. II Defendant attacks the procedure followed by the DEP in adopting N. J. A. C. 7:26-1.5, claiming that the failure to hold a hearing prior to adoption of the rule denied defendants due process. This contention has no merit. Plaintiff DEP caused the proposed regulation to be published in the New Jersey Register on July 5, 1973, with the statement that “interested persons may present statements or arguments in writing relevant to the pro- posed action on or before August 3, 1973.” 5 N. J. R. 220(c). This notice was consistent with the Adminis- Appendix A-2 AlT7 trative Procedure Act, N. J. S. A. 52:14B-1, et seq., and complied with N. J. S. A. 52:14B-4(a)(2), affording any interested person a reasonable opportunity to be heard. Defendant concedes that the act does not require a formal hearing and that it did not submit a statement or request a hearing. The uncontroverted statement in the affidavit of Mr. Lind is that no written statement or argument was received by DEP from any interested person. Under these circumstances there was no constitutional or statutory re- quirement that a hearing be held prior to the promulga- tion of the regulations. Motyka v. McCorkle, 58 N. J. 165 (1971). Ill There remains defendant’s constitutional challenges. i.e., that the DEP and HMDC regulations set forth above violate Article I, Section 8, paragraph 3 (Commerce Clause) and Article IV, Section 2 (Privileges and Immunities Clause) of the U. S. Constitution. (Defendant has not [169] argued the Waste Control Act\is unconstitutional). De- fendant has not vigorously advanced its argument with respect to Article IV, Section 2, and it is not necessary to deal with that contention in depth. Suffice it to say there are serious infirmities in that position, such as the fact that it is not applicable to corporations and that it only applies where there is no substantial reason for the discrimination. Peul v. Virginia, 8 Wall. 168, 75 U. S. 168, 19 L. Ed. 357 (1868); Hemphill v. Orloff, 277 U. S. 537, 48 S. Ct. 577, 72 L. Ed. 978 (1928); Toomer v. Witsell, 334 U. S. 385, 68 S. Ct. 1156, 92 L. Ed. 1460 (1948). Article I, Section 8, provides that “Congress shall have power ° ° ° to regulate commerce ° ° ° among the several States *° * *.” DEP and HMDC contend that garbage is not a legitimate subject of trade or comr serce and therefore A18 Appendix A-2 not within the purview of the Commerce Clause. They rely upon a number of cases which recognize the power of a state to forbid the sale or importation of impure foods or such articles as would spread disease and pestilence and would be immediate causes of destruction of or injury to human health and life. A state’s prohibition of the inter- state transportation of diseased animals has been held not to contravene the Commerce Clause. Clason v. Indiana, 306 U. S. 439, 59 S. Ct. 609, 83 L. Ed. 858 (1939). Simi- larly, “statutes forbidding the importation and sale of adulterated or injurious food or drugs have withstood con- stitutional attacks. Crossman v. Lurman, 192 U. S. 189, 24 S. Ct. 234, 48 L. Ed. 401 (1904); Price v. Illinois, 238 U. S. 446, 35 S. Ct. 892, 59 L. Ed. 1400 (1915). In Sligh v. Kirkwood, 237 U. S. 52, 35 S. Ct. 501, 59 L. Ed. 835 (1915), a Florida statute prohibiting the exportation of fruits which were unfit for human consumption was held valid. All these cases classified the matter (diseased ani- mals, adulterated food, fruit unfit for human consumption ) as nonmerchantable. In all the food and drug cases the articles were banned to protect the public from mistaking them for pure and wholesome foods and to prevent the spread of disease. The articles in- [170] volved had no useful purpose and were per se dangerous to health. On the other hand, refuse may be utilized for construction, landfill, recycling of paper, bottles and metal, and production of electricity. In passing, it might be noted that some successful incinerator systems which cre- ate waste heat for power generation exist in Germany, the Netherlands, France and Switzerland. In the instant situ- ation there is no prohibition against the transportation of out-of-state garbage in or through New Jersey or the dis- Appendix A-2 Al9 posal of such refuse in New Jersey landfill sites located in places other than the Hackensack Meadowlands District.’ the danger to public health due to transportation in New Jersey or location of the garbage in a licensed landfill site in the State which is the evil that the Waste Control Act and the regulations are directed at. The purpose is conservation of the iand used for disposal sites in the Hackensack Meadowlands District so that their life expectancy will be extended from 3 to 3% years. In any event, the regulations in question here which are directed to the restricted use of sites for New Jersey gar- bage cannot be sanctioned on the concept that garbage is not a legitimate subject of interstate commerve. [171] It is well established that a state may, in the exercise 2+ L. Ed. 878 (1898); Sligh v. Kir supra.; Yellow Cab A20 Appendix A-2 Co. of Camden v. State, 126 N. J. Super. 81 (App. Div. 1973), certif. den. 64 N. J. 498 (1974). The Federal Government has not adopted legislation dealing with the use of waste landfill sites. Further, the regulations and statute in question are clearly within the authority of the State’s police power to conserve its landfill sites. It has been recognized that the dumping of garbage in a landfill is an unattractive and undesirable use of land and that it creates potential health and fire hazards. In Shaw v. Byram Tp., 86 N. J. Super. 598 (App. Div. 1965), Judge (now Justice) Sullivan wrote: * * * Garbage or refuse is unsightly, smelly, at- tracts flies and rodents, and is a potential fire hazard. It is a prime source of disease and contamination. It has been called a necessary evil because it is a by- product of civilized society. Ordinarily, some provi- sion is made for its collection and disposal by the local government. However, problems of public health and welfare are involved, and no matter how care- fully regulated, garbage dumps present some hazard to a community, the degree of hazard being directly related to the amount of garbage dumped. [at 602] In Municipal Sanitary Landfill Authority v. Hackensack Meadowlands Development Comm'n, Judge Lynch ap- proved the Commission’s finding that: Sanitary landfills conducted on virgin land for- ever ruin the possibility of preserving the site for con- servation. Additionally, such landfill operations can have an adverse effect on the ecological balance of the surrounding area. A sanitary landfill operation also has severe limiting effects on future development of the property. Problems of settlement, gas genera- tion, and fires make it difficult to construct structures on former landfill sites. [120 N. J. Super. at 122] Appendix A-2 A21 [172] However, state regulations and laws based on the exercise of the police power may only stand if they do not discriminate against interestate commerce. In other words, the exercise of the police power may not be predicated on a method directed against interstate commerce. Plaintiffs concede that this is so. This nondiscrimination principle has been expounded in several United States Supreme Court decisions. In Huron Portland Cement Co. v. De- troit, 362 U. $. 440, 80 S. Ct. 813, 4 L. Ed. 2d 852 (1960), the City of Detroit had passed an ordinance which limited the permissible amount and density of smoke emissions from the boiler stacks of vessels while docked in the city. Huron Portland Cement Co., a Michigan corporation whose ships travelled among several states via the Great Lakes, challenged the code as an unlawful interference with interstate commerce. The court held that the ordi- nance was a valid exercise of the state’s police power since it applied generally to all ships and did not discriminate in favor of local industry. Mr. Justice Stewart wrote: #* * State regulation, based on the police power, which does not discriminate against interstate com- merce or operate to disrupt its required uniformity, may constitutionally stand. Hennington v. Georgia, 163 U. S. 299, 16 S. Ct. 1086, 41 L. Ed. 166; Lake Shore & M. S. R. Co. v. Ohio, 173 U. S. 285, 19 S. Ct. 465, 43 L. Ed. 702; Pennsylvania Gas Co. v. Public Service Com. 252 U. S. 23, 40 S. Ct. 279, 64 L. Ed. 434 [PUR 1920E 18]; Milk Control Bd. v. Eisenberg Farm Products, 306 U. S. 346, 59 S. Ct. 528, 83 L. Ed. 752; Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28, 68 S. Ct. 358, 92 L. Ed. 455. ° ° ° A22 Appendix A-2 It has not been suggested that the local ordi- nance, applicable alike to “any person, firm or corpo- ration” within the city, discriminates against interstate commerce as such. It is a regulation of general ap- plication designed to better the health ‘and welfare of the community. °° ° We conclude that no imper- missible burden on commerce has been shown. [at 448, 80 S. Ct. at 818]. In S. C. Hwy. Dept. v. Barnwell Bros. Inc., 303 U.S. 177 58 S. Ct. 510, 82 L. Ed. 1522 (1938), Mr. Justice Stone, in upholding a state law which limited the width and load of trucks on state highways, wrote: [173] The commerce clause by its own force, prohibits discrimination against interstate commerce, whatever its form or method, and the decisions of this Court have recognized that there is scope for its like opera- tion when state legislation nominally of local concern is in point of fact aimed at interstate commerce, or by its necessary operation is a means of gaining a local benefit by throwing the attendant burdens on those without the state. Robbins v. Shelby County Taxing District, 120 U. S. 489, 498, 30 L. Ed. 1189; Caldwell v. North Carolina, 187 U. S. 622, 626, 47 L. Ed. 336. It was to end these practices that the commerce clause was adopted. In Guy v. Baltimore, 100 U. S. 434, 25 L. Ed. 743 (1879), a Maryland statute authorized Baltimore to collect wharfage fees from all vessels which docked in city wharves, provided that the material to be loaded or un- loaded was not produced in Maryland. The city adopted an ordinance accordingly. The court commented: Appendix A-2 A23 In the exercise of its police powers, a State may exclude from its territory, or prohibit the sale therein of any articles which, in its judgment, fairly exercised, are to the health or which would endanger the lives or property of its people. But if the State, under the guise of exerting its police powers, should make such exclusion or prohibition applicable solely to articles, of that kind, that may be produced or manufactured in other States, the courts would find no difficulty in holding such legislation to be in con- flict with the Constitution of the United States. [at 443] The court invalidated the ordinance on the ground that: * © * no State can, consistently with the Federal Constitution, impose upon the products of other States, brought therein for sale or use, or upon citizens because engaged in the sale therein, or the transporta- tion thereto, of the products of other States more onerous public burdens or taxes than it imposes upon the like products of its own territory. [at 439] The court also indicated that the wharves were property held for public use by the municipality, which could not “be permitted by discrimination to impede commercial intercourse. That property held for public use may not be limited on a discriminatory basis has peculiar perti- nence here. The New Jersey Legislature has deemed it appropriate to classify op- [174] erations of garbage landfill sites as public utilities. N. J. S. A. 48:2-13. As such they would appear to be affected with a public interest as much as a municipally owned wharf. It might be noted that the State has expressly pro- A24 Appendix A-2 hibited a public utility from directly or indirectly making or giving “any undue or unreasonable preference or ad- vantage to any person, locality or particular description of traffic, or subject any particular person, locality or par- ticular description of traffic to any prejudice or disad- vantage.” N. J. S. A. 48:3-4. DEP and HMDC rationalize that discrimination is absent because the regulations do not prefer New Jersey over out-of-state landfill operators or garbage haulers. The difficulty with that rationale is that it is the discrimination based on the origin of the refuse, not the residence of the owner or carrier, which is invidious. Transportation of the refuse, whether carried by New Jerseyans or nonresidents, in interstate commerce is directly affected by the ban. Although the State’s objective in attempting to con- serve a local natural resource for local needs is a proper police power purpose, that cannot be accomplished by discrimination based on the source of the refuse. In Penn- sylvania v. West Virginia, 262 U. S. 553, 43 S. Ct. 658, 67 L. Ed. 1117 (1923), a West Virginia statute restricted the exportation of natural gas to ensure a sufficient supply for its own citizens. Although the Supreme Court recognized (at 598, 43 S. Ct. at 665) that “the gas is a natural product of the state and has become a necessity therein, that the supply is waning and no longer sufficient to satisfy local needs and be used abroad, and that the act is therefore a legitimate measure of conservation in the interest of people of the state,” the statute had to fall because it interfered with interstate commerce. Oklahoma enacted a law which prevented a pipeline company from transporting natural gas outside the state. The purpose of the law was to conserve natural gas in the Oklahoma fields for consumption in the state. In declaring the statute violative of the Commerce Clause, the U. S. Supreme Appendix A-2 AD [175] Court, in West v. Kansas Natural Gas Co., 221 U. S. 229, 31 S. Ct. 564, 55 L. Ed. 716 (1911), commented: ° * © The statute of Oklahoma recognizes it to be a subject of intrastate commerce, but seeks to prohibit it from being the subject of interstate com- merce, and this is the purpose of its sisson Da rds, the purpose of its conservation a a saiddineedli-is business welfare of the State, as coal might be, or timber. Both of those products may be limited in amount, and the same consideration of the public welfare which would confine gas to the use of the inhabitants of a State would confine them to the inhabitants of the State. If the States have such power a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the min- ing States their minerals. And why may not the products of the field be brought within the principle? Thus enlarged, or without that enlargement, its in- fluence on interstate commerce need not be pointed out. To what consequence does such power tend? If one State has it, all States have it; embargo may be retaliated by embargo, and commerce will be halted at state lines. And yet we have said that “in matters of foreign and interstate commerce there are no state lines.” In such commerce, instead of the States, a new appears and a new welfare,—a welfare which transcends that of any State. But rather let us say it is constituted of the welfare of all of the States and that of each State is made the greater by a division of its resources, natural and created, with every other State, and those of every other State with it. This was the purpose, as it is the result, of. the interstate commerce clause of the Constitution of the United A26 Appendix A-2 States. If there is to be a turning backward it must be done by the authority of another instrumentality than a court. [at 255, 31 S. Ct. at 571] The Commissioner of Environmental Protection and the Hackensack Meadowlands Development Commission adopted the regulations in question to expand the life of the landfill sites for garbage collection in the Hackensack Meadowlands District from 3 to 3% years. To attempt to accomplish that end by discriminating against sources of refuse solely because they originate or are collected outside the State under the circumstances here contravenes Article I, Section 8, Clause 3 of the U. S. Constitution. The regu- lations are invalid. Appendix A-3 A27 APPENDIX A-3. [68 N. J. 451, 348 A. 2d 505 (1975)] [451] HACKENSACK MEADOWLANDS DEVELOPMENT COMMISSION and State of New Jersey Department of Environmental Prot»ction, Plaintiffs-Appellants, MUNICIPAL SANIT. ARY LANDFILL AUTHORITY et al., Defendants-Respondents, and City of Yonkers, New York Defendant-Intervenor-Respondent CITY OF PHILADELPHIA, etc., et al., Plaintiffs-Respondents, and. ohn P. Fazzio Landfill, Inc., t/a John P. Fazzio Landfill ' Co., et al., Plaintiffs-Intervenors-Respondents, STATE of New Jersey et al., Defendants-Appellants. Supreme Court of New Jersey. Argued Dec. 2, 1974. Decided Nov. 18, 1975. (455). Mr. Stephen Skillman, Assistant Attorney General, argued the cause for defendants-appellants (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Skillman, of counsel; Mr. Mark L. First, Deputy At- torney General, on the brief). A28 Appendix A-3 Mr. Herbert F. Moore argued the cause for plaintiffs- respondents, City of Philadelphia, etc., et al (Messrs. Jamieson, Walsh, McCardell, Moore and Peskin, attorneys; Mr. Moore, of counsel; Mr. Arthur Meisel, on the brief). Mr. Vincent J. Dotoli argned the cause for plaintiffs- intervenors-respondents, John P. Fazzio, Inc., t/a John P. Fazzio Landfill Co., et al. Mr. David Samson argued the cause for defendants- respondents, Municipal Sanitary Landfill Authority, etc. (Messrs. Leib, Wolff and Samson, attorneys). Mr. Stephen Skillman, Assistant Attorney General, argued the cause for plaintiffs-appellants (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Skillman, of counsel; Mr. Mark L. First, Deputy Attorney _ General, on the brief). The opinion of the Court was delivered by Mounta, J. These proceedings involve the joint review of two separate cases. In one case the judgment was entered pursuant to an opinion rendered in Hackensack Meadow- lands Development Commission v. Municipal Sanitary Landfill Authority, 127 N. J. Super. 160, 316 A. 2d 711 (Ch. Div. 1974). In the other, judgment was entered following the rendition of an oral opinion in a suit brought by the - City of Philadelphia, together with the owners of several landfill operations in South Jersey, against the State of New Jersey and its Department of Environmental Protection (DEP). The [456] cumulative effect of these two judg- ments was to render unconstitutional certain sections of the Waste Control Act, N. J. S. A. 13:11-1 et seq., together with regulations promulgated by DEP and by the Hacken- sack Meadowlands Development Commission (HMDC). The measures declared unconstitutional had as their pur- ——e Appendix A-3 A29 the exclusion from this State of solid waste originating ‘auahinn In each suit the trial court found that the laws and regulations under review violated the Commerce Clause, Article 1, §8, clause 3, of the United States Constitution. Bees l A30 Appendix A-3 thorized and directed [457] the DEP to promulgate rules and regulations “prohibiting . . . the incineration or land- fill of solid waste and the treatment or disposal of liquid wastes within the State which originated or were collected outside the territorial limits of the State.” N. J. S. A. 13:11- 4. Both HMDC and DEP promulgated regulations re- sponsive to these legislative enactments, all looking to bar the importation of solid and liquid waste from outside the State.’ 1. (Cont'd. ) the State, exept guibege to be fed to ontns Sp Sop Sian 0 ew ersey, until commissioner [Commissioner of Environmental ection] shall determine that such action can be permitted with- out endangering the public health, safety and welfare and has pro- vision shall be subject to the penal enforcement provisions the “Waste Control Act.” P. L. 1973. c. 39. [N. J. S. A. 13:1I-10] 2. The pertinent portions of the HMDC regulations, which became effective September 1, 1973, reads as follows: \S) 1 wetottaton 6 Nie tee Oe te Get oe territorial jurisdiction ew disposed or wentee ee oe eee ae es Set. Ta eeae- operator s rays at a sanitary lari within the Hackensack 1d eadbes og Aen dhac ee waste originating or collected outside of the territorial limits of New Jersey. (h i ies landfills within the Hacken- sack Meadowlands District submit to the Commission [Hackensack Meadowlands Dev ent Commission] . . . a certification stating that no solid waste originating or col- lected outside of the territorial limits of New J will be accepted for disposal or treatment. [N. J. A. C. 19:7-1.1] The on of the DEP in its t form became effective Felwuary 11014 tnd vento as SO (a) No person shall bring into this State, or accept for dis- posal in this State, any solid or a ager tek ay a a A108 Appendix M Count 2. 1. Defendants repeat their answer to the First Count of the Complaint and incorporate same herein by refer- ence. 2. The allegations contained in Pragraph 2 of the Second Count of the Complaint are denied. Count 3. 1. Defendants repeat their answers to the First Count of the Complaint and incorporate same herein by refer- ence. 2. The allegations contained in Paragraph 2 of the Third Count of the Complaint are denied. Count 4. 1. Defendants repeat their answers to the First Count of the Complaint and incorporate same herein by refer- ence. 2. The allegations contained in Paragraph 2 of the Fourth Count of the Complaint are denied. Count 5. 1. Defendants repeat their answers to the First Count of the Complaint and incorporate same herein by refer- ence. 2. The allegations contained in Paragraph 2 of the Fifth Count of the Complaint are denied. Count 6. 1. Defendants repeat their answers to the First Count of the Complaint and incorporate same herein by refer- ence. Appendix M A109 2. The allegations contained in Paragraph 2 of the Sixth Count of the Complaint are denied. Count 7. 1. Defendants repeat their answers to the First Count of the Complaint and incorporate same herein by refer- ence. 2. The allegations contained in Paragraph 2 of the Seventh Count of the Complaint are denied. Count 8. 1. Defendants repeat their answers to the First Count of the Complaint and incorporate same herein by refer- ence. 2. The allegations contained in Paragraphs 2 through 12 of the Eighth Count of the Complaint are admitted, except that the various laws of the State of New Jersey referred to in said allegations speak for themselves. 3. Defendants admit that the preservation of addi- tional landfill acres for solid waste generated in New Jersey was one of the reasons for the enactment of a ban - - disposal in New Jersey of waste originating outside tate. 4. The allegations contained in Paragraph 14 of the Eighth Count of the Complaint are admitted. 5. The allegations contained in Paragraph 15 of the Eighth Count of the Complaint are denied. 6. The laws of the United States, specifically 42 U. S. C., § 3254, speak for themselves. 7. The allegations contained in Paragraph 17 of the Eighth Count of the Complaint are denied. > t i: FE - td y ; : ' : ¥ A110 Appendix M 8. The allegations contained in Paragraph 18 of the Eighth Count of the Complaint are denied. 9. Defendants repeat their answers to the allegations contained in Paragraphs 20 through 22 of the First Count of the Complaint and incorporate same herein by refer- ence. Count 9. 1. Defendants repeat their answers to the Eighth Count of the Complaint and incorporate same herein by reference. 2. The allegations contained in Paragraph 2 of the Ninth Count of the Complaint are denied. Counr 10. 1. Defendants repeat their answers to the Eighth Count of the Complaint and incorporate same herein by reference. 2. The allegations contained in Paragraph 2 of the Tenth Count of the Complaint are denied. Count 11. 1. Defendants repeat their answers to the Eighth Count of the Complaint and incorporate same herein by reference. 2. The allegations contained in Paragraph 2 of the Eleventh Count of the Complaint are denied. Counr 12. 1. Defendants repeat their answers to the Eighth Count of the Complaint and incorporate same herein by reference. Appendix M Alll 2. The allegations contained in Paragraph 2 of the Twelfth Count of the Complaint are denied. Count 13. 1. Defendants repeat their answers to the Eighth Count of the Complaint and incorporate same herein by reference. 2. The allegations contained in Paragraph 2 of the Thirteenth Count of the Complaint are denied. Count 14. 1. Defendants repeat their answers to the Eighth Count of the Complaint and incorporate same herein by reference. 2. The allegations contained in Paragraph 2 of the Fourteenth Count of the Complaint are denied. Count 15. 1. Defendants repeat their answers to the Eighth Count of the Complaint and incorporate same herein by reference. 2. The allegations contained in Paragraph 2 of the Fifteenth Count of the Complaint are denied. Count 16. 1. Defendants repeat their answers to the Eighth Count of the Complaint and incorporate same herein by reference. 2. The allegations contained in Paragraph 2 of the Sixteenth Count of the Complaint are denied. » te ane ee All2 Appendix M Count 17. 1. Defendants repeat their answers to the Eighth Count of the Complaint and incorporate same herein by reference. 2. The allegations contained in Paragraph 2 of the Seventeenth Count of the Complaint are denied. o Count 18. 1. Defendants repeat their answers to the Eighth Count of the Complaint and incorporate same herein by reference. 2. The allegations contained in Paragraph 2 of the Eighteenth Count of the Complaint are denied. Count 19. 1. N. J. S. A. 13:11-4(a) speaks for itself. 2. The allegations contained in Paragraph 2 of the Nineteenth Count of the Complaint are denied. Finst SEPARATE DEFENSE. The complaint fails to state a claim upon which relief can be granted. SECOND SEPARATE DEFENSE. To the extent that the complaint constitutes a chal- lenge to the administrative regulations adopted by the Department of Environmental Protection, the Supevior Court, Law Division, lacks jurisdiction over the subject matter thereof. Tuirp SEPARATE DEFENSE. The enactment of L. 1973, c. 363 has superseded the proposed regulations referred to in the complaint as Appendix M All3 N. J. A. C. 7:26-1.8.1 and 1.8.2. The Department has indicated its intent to not adopt those proposed regula- tions. Thus the allegations with respect to those regu- lations are moot. FourTH SEPARATE DEFENSE. Plaintiffs have failed to exhaust their administrative remedies. WiuiaM F. Hytanp Attorney General of New Jersey Attorney for Defendants Joseru M. Crayton, Jr. Joseph M. Clayton, Jr. Deputy Attorney General I hereby certify that the within pleading has been served within the time prescribed by Rule 4:6. Josern M. Crayton, Jr. Joseph M. Clayton, Jr. Deputy Attorney General All4 Appendix N _ APPENDIX N. RULES OF THE BUREAU OF SOLID WASTE MANAGEMENT N. J. A. C. 7:26-1 et seq. NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION David J. Bardin, Commissioner Effective July 1, 1974 STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION ADOPTION OF RULE REVISION BUREAU OF SOLID WASTE MANAGEMENT As Commissioner of the Department of Environmental Protection, in accordance with N. J. S. A. 13:1E-1 et seq., I have promulgated new Rules of the Bureau of Solid Waste Management (N. J. A. C. 7:26-1 et seq.). These rules replace the 1970 Rules known as N. J. A. C. 7:26-1 (formerly Chapter VIII—Refuse Disposal, a chapter of the New Jersey State Sanitary Code, adopted April 30, 1970 by the Public Health Council). The new rules have an effective date of July 1, 1974 and govern disposal, col- lection/haulage and fees. ; Legal notice of the proposed regulations and the public hearing concerning them, as required by law, was given November 8, 1973. The public hearings were held on December 11, 1973, December 13, 1973, January 21, 1974, January 23, 1974, and January 25, 1974, during which eighty-five (85) organizations and private citizens testified. In response to public testimony, 140 out of 335 sub- sections were altered. Most of the revisions consisted of _rewording to clarify the intent of the regulations; some Appendix N A115 were made less restrictive because they were found to be more stringent than necessary. No rule was altered in such a way as to provide less protection to the public health, safety or welfare than provided by the Chapter VIII regulations. Richard D. Goodenough, Director of the Division of Environmental Quality solicited opinions from approximately 120 organizations, agencies and indi- viduals (including all 85 who testified at the public hear- ings) on the draft revisions of May 15, 1974. Nineteen responses were received; four recommended adoption as revised, five recommended adoption with some minor changes, three recommended adoption with more stringent requirements, six recommended major (less restrictive) changes before adoption, ond one was against the adoption of any new rules. Nine sub-sections of the May 15th draft have been reworded, three have been deleted and the defi- nition of the word “putrescible” was added. We do not now adopt the proposed sub-section requiring that, “no registration for a new facility shall be approved which would be in conflict with existing state, county or regional plans”, pending further progress on regional solid waste planning. Language with respect to the concept of regionalization and applicability of these rules will be proposed at a later date. In addition to the need for specific guidelines and criteria concerning regional plans, the thorough public scrutiny given the proposed rules has emphasized the need for additional chapters to be added to these ruies. I expect, therefore, in the coming months, to propose new rules governing water sampling and analytical procedures, pesticide disposal, hazardous waste disposal, the review of environmental assessment statements for solid waste facilities, and rules concerning the disposal of shredded wastes. . —t.. —-- nn ee ee eT, A116 Appendix N An analysis of the cost of the new regulation to New Jersey's taxpayers, prepared by the Solid Waste Industry Council of New Jersey (SWIC), projected an average increase of 200% in the cost of solid waste disposal. SWIC admitted in testimony to the Bureau of Solid Waste Man- agement that their projected increase in cost of 200% was a result of comparing full compliance with the 1974 regulations with the cost of non-compliance with the 1970 regulations. In preparing their analysis, SWIC assumed that all sanitary landfills purchased their soil cover, would be required to install leachate collection and treatment systems and would have to install scales. A more realistic comparison of the differences between Chapter VIII and the new Rules which I have adopted discloses an expected increase in disposal costs of 18 cents per ton (5% rise) and an increase in collection costs of about 2 cents (1/10 of 1%). The cost of solid waste collection and disposal to the average family of three will rise approximately 20% cents per year (present average rate is $48 “annually), with the adoption of these new Rules. These new Rules will entail an increase of approximately $50,000 in State administrative expenses over the currently budgeted $296,361. The adoption of these rules is ex- pected to generate some $300,000 in fees. The far greater protection to the lands and waters of this State as a result of the new Rules of the Bureau of Solid Waste Management in my judgement, far out-weighs the small increase in cost which will be incurred. I consider the promulgation of these rules as an important first step in developing responsible State leadership in the field of Solid Waste Management. Diligent enforce- ment of this regulation is necessary to protect the public health, safety, and welfare. However, regional solid Appendix N All7 waste management program development and imple- mentation including resource recovery is the real answer to New Jerseys solid waste. crisis. Development of strategies to establish such a system is a high priority for New Jersey. Davw J. BARDIN David J. Bardin Commissioner Approved: 28 June 1974 Filed with Secretary of State: 28 June 1974 a. A118 Appendix N STATE OF NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION Davi J. Barpin, Commissioner P. O. Box 1390 Trenton, N. J. 08625 609 - 292 - 2885 ADOPTION OF REVISION TO RULES OF THE BUREAU OF SOLID WASTE MANAGEMENT N. J. A. C. 7:26-1 et seq. Docket No. DEP 021-75-02 David J. Bardin, Commissioner of the Department of Environmental Protection, pursuant to the authority of N. J. S. A. 13:1E-1 et seq. as amended, and N. J. S. A. 13:1D-1 et seq. hereby adopts revisions to Subchapter 7:26-4 of the Rules of the Bureau of Solid Waste Manage- ment concerning fees. The Department will hereafter pro- pose and adopt additional revisions to the Rules of the Bureau of Solid Waste Management. ‘> On March 6, 1975, the Department published notice of the proposed revisions to the Rules of the Bureau of Solid Waste Management in the New Jersey Register (7 N. J. R. 101(a), Docket No. DEP 021-75-02). In addition, notification was mailed io landfill operators, registered collectors/ haulers, environmental commissions, health offi- cers, municipal mayors and councils, watershed associa- tions, organizations and private citizens. ' In the Notice published in the New Jersey Register it ‘ was proposed to exempt those landfills operated in a mu- nicipality with a population of 10,000 or less and limited to residents hauling their own household refuse. At that time, it was estimated that 74 facilities would fall into this category. Upon re-examination, it was found that only in 6 Appendix N A119 or 7 communities do residents haul their own household refuse. The rules adopted here exempt from the in- spection and regulation fee not only landfills in those com- munities where the residents haul their own refuse, but also landfills operated in communities with a population of 5,000 or less. In those communities having a population of 5,000 or less, handling only municipal type wastes, the Department is of the opinion that one inspection per year by Department personnel in conjunction with inspection reports by the town engineer would be adequate. A public hearing was held on March 31, 1975 with the record remaining open for written comments thereto until April 7, 1975. Twenty-five written comments were re- ceived in addition to oral testimony presented at the hear- ing. The groups testifying included representatives of the New Jersey State Chamber of Commerce, the Chemical Manufacturers Association, the Solid Waste Industry Coun- cil (SWIC), watershed associations, environmental organi- zations, and private citizens. A list of those interested re- spondents who have contributed their thoughts is attached. =~ present oo of the Bureau of Solid Waste Man- agement require a annual fee for registration regard- less of the size of the facility or type of waste accepted. There are no additional fees for inspection and regulation. The rules as hereby adopted reduce the annual regis- tration fee to $50 for all facilities. Inspection and regu- lation fees are on a sliding scale and are based on the size of the facility as well as the type of waste accepted. The staff of the Department of Environmental Pro- tection has reviewed all of the comments received. The Department realizes that additional review and study will be necessary prior to promulgation of revisions to the rules dealing with the definition and listing of hazardous the siting and number of monitoring wells, test and interpretation and the costs involved. J BIT R P ere eene nee gs ~ s a z_ aos EY eee to A120 Appendix N However, there is no reason to delay promulgation of the rules dealing with the fee schedule. These rules will become effective immediately. Davi J. BARDIN David J. Bardin Commissioner 29 April 1975 Date Appendix N Al21 Oral Testimony @ Public Hearing—March 31, 1975 1) W. P. Anderson for: State Chamber of Commerce and the New Jersey Chemical Industry Council of Environmental Commissions 2) Susanna Waterman for: Sierra Club (NJ Chapter & The South Jersey Group ) 3) R. K. Altreuter for: Exxon Company USA 4) John Surmay for: The City of Elizabeth 5) William P. Philibar for: Rollins Environmental Services 6) Ian Walker for: Stony Brook-Millstone Watershed Association 7) Theodore Schwartz for: Solid Waste Industry Council of New Jersey 8) Dennis Fenn Engineering Consultant for: Solid Waste Industry Council 9) David Nalven for: NJ Manufacturers Association 10) Warren Gragory for: National Solid Waste Management Association 11) Kenneth DiMuzio for: Deptford Township Board of Health 12) Lief Sigmund for: Scientific Chemical Processing Company eee =a Sl hv ”.lhUe ae a ts ee ee a! —= Beene wr ¢ Pe A122 Appendix N 13) Betty Little for: Passaic River Coalition 14) Wallace Coster for: Nassau Inc. 15) Arthur Albohn for: The Comline-Sanderson Engineering Corporation of Peapack 16) Peter Larson for: Upper Raritan Water Association 17) Dr. Marvin Mahan for: Scientific Inc. 18) Vincent Dotoli for: John P. Fazzio Landfill Company & Southern Ocean Landfill Written Testimony 1) Jerry Couvaras for: Jerry’s Cesspool and Septic Tank Service 2) Jan F. VanPeppen Ph.D. private citizen 3) A. D. Grant for: S. B. Pennick & Company 4) Lawrence E. Ward, Jr. for: Garden State Septic Cleaners Association 5) Arthur R. Kobin for: Browning-Ferris Industries 6) Ann Hunter for: Solid Waste Advisory Council 7) Fred Hebeler for: Solid Waste Advisory Council (Dept. of Health) Appendix N A123 8) Richard O. Johnson for: Solid Waste Advisory Council 9) Roger W. Johnson for: Woodbridge Metropolitan Chamber of Commerce 10) J. H. Rook for: American Cyanamid Company 11) P. A. Palmer for: E. I. Du Pont de Nemours & Company 12) W. P. Anderson for: Tenneco Chemicals 13) Watson B. Smith for: City of Summit 14) Carlyle W. Crane for: Plainfield Area Cartman’s Association 15) Margaret Sprout for: Township of Princeton 16) Mrs. Louis Bessire for: Borough of Princeton 17) Denise E. Reid and H. Philip Minis for: Princeton Township Environmental Commission 18) John W. Richard, Jr. for: Atlantic Sanitation Service 19) Mrs. R. O. Rippere, 2nd for: League of Women’s Voters of Monmouth County 20) Joseph M. Smith for: B. F. Goodrich Chemical Company 21) Gene Laningham for: Browning-Ferris Industries, Inc. ‘th Sei: SEs Bi Fad > IG dd 6 MM te ol ie A124 Appendix N 22) Mary Owen private citizen 23) Geraghty & Miller, Inc., Port Washington, NY 24) Rossnagel & Associates, Cherry Hill, NJ 25) Marvin Mahan for: Scientific Inc. Appendix N A125 Docxet No. DEP-021-75-02 Notice oF ADOPTION OF AMENDMENTS TO N. J. A. C. 7:26-4 RULEs OF THE BUREAU OF SOLID WASTE MANAGEMENT CONCERNING FEES Pursuant to N. J. S. A. 13:1E-1 et seq. Commissioner David J. Bardin hereby adopts the following revision in the Rules of the Bureau of Sol:'d Waste Management iden- tified as N. J. A. C. 7:26-1 et seq. The provisions of N. J. A. C. 7:26-4 adopted june 28, 1974, and effective July 1, 1974, are hereby repealed. The following rules are effective as of 7:26-4 RuLes oF THE BureEAv or SoLmiy WASTE MANAGE- MENT CONCERNING FEEs. —4.1 General —4.1.1 In accordance with N. J. S. A. 13:1E-18, there is hereby established a Fee Schedule. Said schedule shall apply to all sanitary landfill operations, incinerators, trans- fer stations, processing facilities, resource recovery facil- ities or any other methods of collection or disposal requir- ing registration with the Department. —4.2 Payment of Fees Fees shall be paid by certified check or money order and made payable to: Treasurer, State of New Jersey. —4.3 Fee Schedule for Solid Waste Facilities —4.3.1 Annual Registration Fee $50 —4.3.2 Fee for Transfer of a Registration 50 —4.3.3 Inspection and Regulation Fee A126 Appendix N Fee per quarter during which wastes Solid Waste Facilities accepting are accepted Hazardous wastes, non-hazardous bulk liquids, non- hazardous semi-liquids and non-hazardous chemicals i titi ter than in mini wn Bae ye Toy Bog nt waste ). 40,000 tons or more of solid waste annually. $500 500 Between 20,000 and 39,999 tons of solid waste an- nually. 400 300 200 100 Between 10,000 and 19,999 tons of sold waste an- nually. Between 6,000 and 9,999 tons of solid waste an- nually. 5,999 tons or less of solid waste annually. Transfer stations and all facilities accepting septic tank clean-out waste only. 50 Facilities Qualifying under —4.8. 0 —4.4 Engineering Design Review (per design). This fee will entitle the registrant to submit or resubmit all informa- tion found deficient on the first submission until such time as the approval of the engineering design is granted or denied. $500 —4.5 Reserved —4.6 Reserved —4.7°Fee Schedule for Collection and Haulage —4.7.1 Annual registration, inspection, and regulation: Appendix N A127 a. First vehicle $30 b. Each addition vehicle on the same registration 10 —4.7.2 The Registration of a solid Wate collection and/or haulage system is non-transferable. —4.7.3 Fees filed after July 1 shall be as follows: (a) if initially submitted on or after January 1, be 50% of the full year’s registration fee, or (b) if initially submitted on or after April 1, be 25% of the full year’s registration. Partial fees paid shall only cover the fee requirement until July 1, of the year in which they were paid. —4.8 Exemption from Fee Payment —4.8.1 Any solid waste facility is exempt from payment of annual registration, inspection, and regulatior fees pro- vided that: The facility is operated solely for the purpose of com- posting leaf and other vegetative yard wastes; and The operation of the facility does not require a Certificate of Public Convenience and Necessity issued by the Board of Public Utility Commissioners; and The annual Updated Registration Statement form (N. J. B. S. W. M. —41) filed with the Department prior to May 1 of each calendar year, is accompanied by a certification, executed by the operator of the facility on forms supplied by the Department, that the facility qualifies under the conditions set forth above. —4.8.2 A sanitary landfill or transfer station is exempt from payment of inspection and regulation fee (see 4.3.3) pro- vided that: A128 Appendix N The operation of the facility does not require a Cer- tificate of Public Convenience and Necessity issued by the Board of Public Utility Commissioners; and The facility is limited to municipal waste of the resi- dents of the host municipality; and | The solid waste facility is operated in a municipality having a population, based upon the most recent United States decennial census, of 5,000 or less—or— the facility is limited to residents of the host mu- nicipality hauling their own household refuse; and The annual Updated Registration Statement form (N. J. B. S. W. M. —41) filed with the Department prior to May 1 of each calendar year, is accompanied by a certification, executed by the operator of the facility on forms supplied by the Department, that the facility qualifies under the conditions set forth above. —4.8.3 Fees are not required for any solid waste facility or vehicle whose registrant is an agency of the New Jersey State Government. —4.8.4 Fees are not required for any solid waste facility whose registrant is the federal government and whose op- eration is conducted on federal lands. Specifically not exempt are federal vehicles transporting solid waste to a solid waste facility registered with the Department. —4.8.5 Persons hauling only their own household refuse in vehicles bearing passenger license plates or persons hauling solid waste in vehicles registered with the New Jersey Divi- sion of Motor Vehicles as having a maximum gross weight of 5,000 pounds, need not pay a registration fee to the Department. Appendix N A129 —4.9 Time for Submission of Fees Fee Jul Oct Jan Apr Others 1 1 1 1 Annual registration (—4.3.1) xX Transfer of registration At time of submission (4.3.2) of Updated Registra- tion Statement Inspection and Regu- lation (—4.3.3) an ee At time of submission Review (—4.4) Collector /Hauler Registration (—47.1) xX The provisions of N. J. A. C. 7:26-4 adopted June 28, 1974, and effective July 1, 1974, are hereby repealed. A130 7:26-1 7:26-2 7:26-3 7:26-4 New Jersey Administrative Code (N.J. A.C.) General Provisions of the Rules of the Bureau of Solid Waste Management Rules of the Bureau of Solid Waste Management Concerning Disposal Rules of the Bureau of Solid Waste Management Concerning Collection and Haulage Rules of the Bureau of Solid Waste Management Concerning Fees Appendix N TABLE OF CONTENTS Subject Section Subchapter 1—General Provisions ........ 1.1-1.9 Scope of Rules ...................... 1l SL dn cep denghs segnsessce « 12 Practice Where Rules Do Not Govern .._ 1.3 Ee Bae aN vn ccna cbeeeccecs 14 - Repeal of Regulations ............... 15 PEE “SRS cAeuRneccesedacccceccaee 17 EE, ees. caanicee cee cveasdes 19 Subchapter 2—Disposal ................ 2.1-2.12.5.1 Dumps Prohibited ................... 2.1 Registration ............6..ceeeeeeees 2.2 Domestic Refuse ................... 2.3 Submission of Engineering Designs .... 2.4 Landfill Require- ments (General) ................ 2.5 Width of working face ............. 25.1 Compaction of waste .............. 2.5.2 ROPE. SRG Tia ced vciccccecececs 2.5.3 Contact with water ................ 2.5.4 Grading of lifts ................... 2.5.5 Control of litter ................... 2.5.6 Control of dust ..................4. 2.5.7 Control of odors ................4.. 2.5.8 BEE A dbanecvectosccccececase 2.5.9 Inoperative equipment ............. 2.5.10 Fire provisions ............ 2.5.11 Control of insects and rodents ...... 2.5.12 Cover requirements ................ 2.5.13-2.5.18 Non-registered vehicles at the work- | SER Se 2.5.19 Providing containers for non-registered panel Gas venting and monitoring ........ 2.5.21 Ground water 2.5.22 tel Pee IE SS eS a 2.5.25 A132 Appendix N TABLE OF CONTENTS (Continued). Subject Section ments (Specific) ................ 2.6 Sewage sludge, septic tank and catch Bde aee or aes Ge MIS. 5 kc adc cdeancecccssana 2.6.1 UE WRN iva cava eeu aeisces 2.6.2 end nbidrenéeiirkoncki 2.6.3 DORE “i cho ovtscuvas cae a eae 2.6.4 Infectious wastes ................: 2.6.5 Disrupted Landfill Requirements ...... 2.7 Smoking Smoldering or Burning Landfills 2.8 Termination or Change of Owner of a bb ane bo hbated Babe cies 2.9 General Requirements for In- cinerators, Stations, Proc- essing Facilities, and Resource Re- covery Facilities ................. 2.11 Guidelines and Criteria for Preparation of Engineering Designs .......... 2.12 GUE coud dn caduds cindcuwetnes 2.12.1 Sanitary landfills .................. 2.12.2 IO, niin hid ein sudasudedeus 2.12.3 Transfer stations and resource recovery UE cndca niece wath accouie 2.12.4 Other methods of disposal .......... 2.12.5 Subchapter 3—Collection and Haulage ... 3.1-3.9 Improper Collection and Haulage Pro- a RAMEE kdabisss ce, ech a GED ss 2 cn snictbbasonsans 3.3 Collector-Hauler Requirements CUMIN nd bvccc-cccascanctewies 3.4 Collector-Hauler Requirements GUNN Sctiiesve teccusecescuvall 3.5 Sewage sludge and other fecal material 3.5.1 DE WHER 5 ico vcivccsecincsanee 3.5.2 27 29 Appendix N TABLE OF CONTENTS (Continued). a” A134 Appendix N [1] 7:26-1 GENERAL PROVISIONS OF THE RULES OF THE BureAu oF SOLID WASTE MANAGEMENT —1.1 Scope of Rules Unless otherwise provided by rules or statute, the follow- ing shall constitute the rules of the Bureau of Solid Waste Management and shall govern registration, operation and maintenance of landfill operations in the State of New Jersey, and other methods of solid waste disposal as may be approved by the Department; registration, operation and maintenance of collection and haulage operations in the State of New Jersey and other methods of collection and haulage of solid wastes as may be approved by the Department; a fee schedule for engineering review, regis- tration, and inspection of solid waste disposal and registra- tion of collection, haulage, and disposal operations in the State of New Jersey. These rules shall not apply to: —1.1.1 The purchase, sale, collection, transport or other handling of separated, recycled or secondary materials ex- clusively in connection with the processing, recycling or utilization of such materials for re-introduction into indus- try as raw materials for further processing or use, provided that such materials are free from putrescible matter and are not mixed with other solid or liquid waste as defined herein. Specifically Nor exempted are solid waste re- source recovery facilities designed or operated for the purpose of separating mixed solid waste into useful sec- ondary materials (including fuel and usable energy). —1.1.2 Container-pickup facilities as herein defined. —1.1.3 Garbage to be fed to swine in the State of New Jersey. Appendix N A135 —1.1.4 Recycling Centers where individuals or organiza- tions may deposit separated materials such as newsprint, bottles, cans, etc., prior to transport to the secondary ma- terials industry. —1.1.5 The intra-plant transport, temporary storage or other handling of plant generated waste materials. Spe- cifically Nor exempt are those materials to be, or which are, deposited on or in the lands of this state for periods exceeding six months, or which through transport, storage _ or other handling will cause pollution of the surface or ground waters of this state, or which may pose a substan- tial or material threat to the public health, safety or welfare. —1.2 Construction These rules shall be liberally construed to permit the Department and the Bureau of Solid Waste Management to discharge its statutory functions. [2] —1.3 Practice Where Rules Do Not Govern The Commissioner may rescind, amend, or expand these rules from time to time, and such rules shall be filed with the Secretary of State as provided by law. In any matter concerning solid waste management that arises not gov- erned by these rules, the Commissioner, the Director or the Bureau Chief shall exercise his discretion within the authority of N. J. S. A. 13: 1E-1 et seq. —1.4 Definitions —1.4.1 Approved Registration The registration of a solid waste disposal site, collector/ hauler, or other solid waste facility issued by the Bureau of Solid Waste Management, Department of Environ- A136 Appendix N mental Protection, after review and approval of the Regis- tration Statement. —1.4.2 Bulk Liquid or Bulk Semi-liquid Liquid or semi-liquid which is contained within, or is dis- charged from, any one vessel, tank or other container which has the capacity of twenty (20) gallons or more. —14.3 Bulky Waste Large items of solid waste which because of their size or weight requires handling other than normally used for municipal solid waste. Bulky waste includes but is not limited to such items as tree trunks, auto bodies, demoli- tion or construction material, appliances, furniture, and drums. —144 Bureau The Bureau of Solid Waste Management in the Division. —1.4.5 Bureau Chief The Chief of the Bureau of Solid Waste Management or any person designated to act on the Chief’s behalf. —1.4.6 Catch-basin A chamber or well, usually built at the curbline of a street, which admits surface water for discharge into a storm water drain. —1.4.7 Cell Compacted solid wastes that are enclosed by natural soil or cover material in a land disposal site. [3] —1.4.8 Chemical Waste A material normally generated by or used in chemical, petrochemical, plastic, pharmaceutical, biochemical or Appendix N A137 microbiological manufacturing processes, which has been Nee a cee mais aed ain ee lize, ionize or decompose, which is soluble, burns or oxi- dizes, or which may react with any of the waste materials which are introduced into the landfill, or which is bouyant on water, or which has a viscosity less than that of water or which produces a foul odor. Chemical waste may be either hazardous or non-hazardous. —1.4.9 Collection The act of picking up solid waste at its point of generation or storage and placing it in a vehicle. —1.4.10 Collection Vehicle A vehicle (usually a specially designed truck) used in collection. —1.4.11 Collector-Hauler A person engaged in the act of collection of solid waste and/or transporting such waste between solid waste facilities. —],4.12 Commissioner The Commissioner of the Department of Environmental Protection or any other person designated to act on the Commissioner's behalf. —1.4.13 Container-Pickup Facility A site where one or more containers are located for tem- porary storage of solid waste at the point of waste genera- tion while awaiting periodic removal to a registered solid waste facility. A container-pickup facility differs from a transfer station (q. v.)- A138 Appendix N —1.4.14 Construction Waste Waste building material and refuse resulting from con- struction, remodeling, and repair operations on houses, commercial buildings, pavements, and other structures. —1.4.15 Cover Material Soil, earth, or other insoluble and non-degradable material approved by the Department which is used to cover com- pacted solid waste in a sanitary landfill for the purpose of rodent and vector control, to minimize moisture entering the fill, to provide a fire break, and in the case of final cover, to grow vegetation for erosion control. The depth or thickness of cover material is to be measured after com- paction with at least one pass of a bulldozer or other suit- able equipment having a gross weight in excess of 10,000 pounds. [4] —1.4.16 Daily Cover Cover material that is a minimum of six (6) inches in depth. —1.4.17 Demolition Waste Waste generated from the razing of buildings, factories, and other man-made structures, including streets, roads, and fences. —1.4.18 Department The New Jersey Department of Environmental Protec- tion. —1.4.19 Director The Director of the Division of Environmental Quality or any person designated to act on the Director’s behalf. Appendix N A139 * —1.420 Disposal The storage, treatment, utilization, processing, or final dis- position of solid waste. 1.4.21 Disposal Facility A solid waste facility used for the disposal of solid waste. —14.22 Division The Division of Environmental Quality in the Department. sew pao is disposed of in a manner Oo ah eS * game is susceptible to open burning, or is exposed to the elements, vectors, and scavengers. pb wings, including a narrative operating de- u ey Oe et by a New dee licensed Professional Engineer to describe a solid waste facility and its proposed operation. (5) —1,4.25 Environmental Impact Statement tement as to the probable impact of the proposed solid can facility upon the air quality, water quality, sa : supply, hydrology, geology, soils, topography, ame oe wildlife, aquatic organisms, ecology, demograp a tions, land use, aesthetics, history and archeology; a g of “adverse environmental impacts which cannot be avoided; a description of the steps to be taken to minimize adverse environmental impacts during construction both at the project site and in the surrounding region; a listing of alternatives to all or any part of the project with reasons for their acceptability or nonaccept- A140 : Appendix N ability; and a reference list of pertinent published informa- tion relating to the project, the project site and the sur- rounding region. —1.4.26 Existing Solid Waste Facility That portion of an active solid waste facility which, as of the effective date of these regulations, possesses a valid approved registration from the Department. —1.4.27 Final Cover Cover material that is a minimum of twenty-four (24) inches in depth. —1.4.28 Free Moisture Liquid that drains freely by gravity from solid materials. —1.4.29 Generation The act or process of producing solid waste. —1.4.30 Generator The person who causes solid waste to be generated. —1.4.31 Ground Water That water below ground, the static pressure of which is equal to or greater than prevailing atmospheric pressure; that water present in the saturated zone of an aquifer. —1.4.32 Haulage Vehicle A vehicle used to transport solid waste between one solid waste facility and another. A transfer vehicle. [6] —1.4.33 Hazardous Waste Any waste or combination of waste which poses a present or potential threat to human health, living organisms or the environment. It shall include waste material that is Appendix N Al4l corrosive, irrita or sensitizing, radioactive, bio- norm infectious, yon or flammable. It includes but need not be limited to, those materials and concentra- tions of materials that are determined to be toxic by the Federal Secretary of Health, Education and Welfare pur- suant to section 20(6) of the Occupational Safety and Health Act of 1970 (Public Law 9-596) (OSHA) and those materials listed in the current Part 172, Title 49 of the Code of Federal Regulations issued by the Federal Department of Transportation. —1.4.34 Impermeable Liner A layer of natural and/or man-made material of sufficient thickness, density, and composition so as to have a maxi- mum permeability for water of 10~* cm/sec at the maxi- mum anticipated hydrostatic pressure. —1.425 Infectious Waste and disposable fomites attendant thereto; (3) surgical op- erating room pathologic specimens and disposable fomites attendant thereto and similar disposable materials from out-patient areas and emergency rooms. —1.4.36 Intermediate Cover Ps Cover material that is a minimum of twelve (12) inches in depth. Al42 Appendix N —1.4.37 Incinerator A thermal device in which solid waste is burned for the purpose of volume reduction (an incinerator used to ob- tain energy shall be classified as a Resource Recovery Fa- cility—q.v. ). —1.4.38 Leachate Liquid that has been in contact with solid waste and con- tains dissolved or suspended materials from that solid waste. (7) —1.4.39 Lethal Chemical Ammunition, chemical or biological warfare agent, pyro- technic material and military store of any kind capable of being used in inflict death or harm to man or his environ- ment. —1.4.40 Lift A compacted layer of solid waste plus its overlying cover material in a sanitary landfill. —1.4.41 Municipal Solid Waste Residential, commercial and institutional solid waste gen- erated within a community. —1.4.42 New Solid Waste Facility Any solid waste facility or portion thereof which does not qualify as an existing solid waste facility (q.v.). —1.443 Open Burning Any fire whose products of combustion are emitted directly into the open air, and are not directed thereto through the stack or chimney of an incinerator. —1.4.44 Pathological Waste See Infectious Waste Appendix N Al43 —1.2.45 Person Any individual, corporation, company, association, society, firm, partnership, joint stock company or any political sub- division of this State or any agency or instrumentality thereof. —1.4.46 Putrescible Waste Any waste liable to enter into a state of putrefaction, the typically anaerobic splitting of proteins by bacteria and fungi with the formation of foul-smelling, incompletely oxydized products. —14.47 Recycling Facility Any place, equipment, or plant designed and/or operated to collect, store, process or to redistribute separated waste so as to return the material to market. —1.4.48 Registration See approved registration. (8) —1.4.49 Registration Statement An application for approved registration executed on forms provided by the Bureau and containing such information as may be required. —1.4.50 Residue Any material that remains after completion of thermal, mechanical or chemical processing. —1.4.51 Resource Recovery Facility sa a as Ct See as operated to separate or process solid or liquid waste into usable secondary materials, including fuel and energy. Al44 Appendix N —1.4.52 Runoff The liquid that drains from an area as surface flow. —1.4.53 Salvaging The controlled removal of waste materials from a solid waste disposal facility for reuse. —1.4.54 Sanitary Landfill The land disposal site employing an engineered method of disposal of solid waste in a manner that minimizes environ- mental hazards, including, but not limited to the spreading of the solid waste in thin layers, compacting the waste to the smallest practical volume, and applying cover mate- rial on a daily or more frequent basis. —1.4.55 Scavenging The uncontrolled removal of solid waste material. —1.4.56 Segregation The systematic division of solid waste into components. —1.4.57 Semi-liquid A mixture consisting of solid matter suspended in a liquid media (e.g. a slurry). —1.4.58 Septic Waste The solid, liquid, or semi-liquid waste removed from septic tanks or cesspools. & (9] —1.4.59 Sewage Sludge The solid residue consisting of sewage solids combined with water and dissolved materials in varying amount. —1.4.60 Solid Waste Garbage, refuse, and other discarded materials resulting from industrial, commercial, and agriculture operations Appendix N Al45 and from domestic and community activities, and shall include all other waste materials including liquids dis- posed of incident thereto except it shall not include solid animal and vegetable wastes collected by swine producers licensed by the State Department of Agriculture to collect, prepare, and feed such wastes to swine on their own farms. —1.4.61 Solid Waste Facility Any system, site, equipment or building which is utilized for the storage, collection, processing, transfer, transporta- tion, separation, recycling, recovering, or disposal of solid waste. —1.4.62 Solid Waste Management The purposeful, systematic control of the generation, stor- age, collection, processing, transfer, transportation, separa- tion, recycling, recovery, and disposal of solid wastes. —14.63 Storage The interim containment of waste after generation and | prior to disposal. —1.4.64 Surface Water A body of water whose top surface is exposed to the at- mosphere including a flowing body such as a river, as well as a standing body, such as a pond or lake, whose waters may reach any ground waters or classified surface waters of this state and shall include all waters of this state classi- fied by the Department as FW-1, FW-2, FW-3, TW-1, TW-2, TW-3, CW-1 or CW-2. —14.65 Toe The bottom of the working face or side slope of a land dis- posal site where deposited solid waste is in contact with virgin ground or previous lift. A146 Appendix N —1.4.66 Transfer Station A facility at which solid waste is transferred from collec- tion vehicles to haulage vehicles for transportation to a solid waste facility. [10] —1.4.67 Vector An organism, including insects, other arthropods, or rodents, that is capable of transmitting a pathogen from one organism to another. —1.4.68 Waste Useless, unwanted or discarded solid, semi-liquid, or liquid material. —1.4.69 Working Face That portion of a land disposal site where solid waste is discharged by a collection and/or haulage vehicle and is spread and compacted prior to placement of cover mate- rial —1.5 Repeal of Regulations The provisions of the New Jersey Administrative Code 7:26-1 et seq., (formerly Chapter VIII—Refuse Disposal ), a chapter of the New Jersey State Sanitary Code, adopted April 29, 1970, by the Public Health Council, to become effective July 1, 1970) are hereby repealed. This repeal shall not affect actions, proceedings, or departmental or- ders pending or outstanding on the effective date of the new regulation; said actions, proceedings, or departmental orders may be prosecuted, defended and continued in the same manner and to the same effect as if the new regula- tions had not been adopted. The adoption of these regu- lations shall not require the alteration of the engineering Appendix N A147 design submitted for an existing solid waste facility pro- viding that the implementation of all features contained in that engineering design will not fail to meet the operational requirements contained in these new regulations. —1.6 Reserved —1.7 Variance Upon written presentation of acceptable evidence that deviation from these rules and regulations will satisfy the intent and purpose of these regulations, a variance may be granted by the Commissioner in accordance with the Rules of Practice and Procedure for the Bureau of Solid Waste Management, adopted pursuant to the Administra- tive Procedure Act (N. J. S. A. 52:14B-1 et seq.). —1.8 Reserved —1.9 Penalties Penalties for violation of the provisions of these regula- tions shall be those provided by statute. ie (11) 7:26-2 Ruves or THE Bureau or SoLm WasTz MANAGEMENT CONCERNING DisPOsAL —2.1 Dumps Prohibited —2.1.1 Dumps are hereby declared to be nuisances haz- ardous to human health and are prohibited. —2.12 The disposal of solid waste in this State shall be made only through use of: a. Sanitary Landfills established, operated and main- tained in accordance with the regulations set forth in this subchapter. b. Incinerators constructed, operated and maintained in accordance with Regulations of the New Jersey State Department of Environmental Pro- tection promulgated under authority of the Air Pollution Control Act 1954 and regulations set forth in this subchapter. c. Transfer station, composting facility, resource re- covery or other processing facility, constructed and operated in accordance with regulations set forth in this subchapter. —2.2 Registration —2.2.1 Registration statement: No person shall hereafter engage or continue to engage in disposal of solid waste in this State without first filing a completed registration statement with the Bureau for each disposal facility. The Registration Statement shall be signed by the person en- gaged in or desiring to engage in solid waste disposal, shall be executed on forms furnished by the Department, and shall state such information necessary and proper for the enforcement of this subchapter as the Department may require. An Engineering Design must be submitted with the Registration Statement. —2.2.2 Approved registration: No person shall engage in disposal of solid waste in this State without having first obtained Departmental approval of the registration state- ment required under 2.2.1. [12] —2.2.3 Approved engineering design: No new facility shall begin operations without first obtaining Departmental approval of the engineering design submitted with the registration statement; nor shall any existing facility con- tinue to operate subsequent to receiving notice that the Department has disapproved the engineering design for Appendix N A149 that facility. Failure to comply with the requirements of this subsection shall be cause for revocation of an ap- proved registration for an existing facility or the denial of registration for a new installation. —2.2.4 No person shall engage in disposal of solid waste in this state if such an operation does not meet the opera- tional requirements listed in 7:26-2. In addition, each disposal facility must comply with any conditions or limitations which may be specified on the Approved Reg- istration. Approved Registrations are further contingent upon implementation of all features contained in the approved engineering design. —2.2.5 Prior to May 1, in each calendar year, each regis- trant shall submit to the Department, a statement updat- ing the information contained in the initial registration statement. This update shall be on forms furnished by the Department. In no case shall submission of an [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2422%3A01. Public record. Not legal advice.