Opposition Brief — City of Philadelphia v. Borough of Glassboro

| Supreme Court, U.S.

FILED

(: 5) NOV g 1985

No. 85-707 JOSEPH F. SPANIOL, JR.

EW

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

CITY OF PHILADELPHIA,

Petitioner,

Vv.

BOROUGH OF GLASSBORO, et al.,

Respondents.

BRIEF OF GLOUCESTER COUNTY

BOARD OF CHOSEN FREEHOLVERS

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Petition for Writ of Certiorari

to the Supreme Court of New Jersey

Of Counsel: Bruce C. Hasbrouck

Lewis G. Adler First Assistant County Counsel!

Hasbrouck and Uliase 21 Delaware St.

21 Delaware St. Woodbury, New Jersey 08096

Woodbury, NJ (609) 845-3800

(609) 845-3800 Counsel of Record

Attorney for Respondent

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-200

QUESTIONS PRESENTED FOR REVIEW

Whether or not a New Jersey Court Order that en-

joins solid waste from outside New Jersey, counties of

Camden, Salem and Gloucester, from being disposed of

in a judicially created lift in an otherwise exhausted

landfill on the grounds that the landfill was the only

available interim disposal site available to those counties

is violative of the Commerce Clause of the United States

Constitution?

TABLE OF CONTENTS

Page

Question presented for review. .................. i

SA ee I vv boo SKN > io a ad Cal ees iii

Counter-Statement of Case ..................44. ]

PRE 5.5 vin ec ACR EAEEES SD OLE RES 6

I. Review by the Supreme Court of the United

States is currently premature.............. 6

A. The Petitioners should be denied a writ of

certiorari because there has been no final

judgment by the State Court. .......... 6

B. The Petitioners lack standing to seek re-

view by the Court because there has been

wu Me FN a i hae esc tnbaweietasees 7

II. The Order for preliminary injunction is not a

violation of the commerce clause........... 10

A. The Order of preliminary injunction is not

discriminatory on it’s face.............. 10

B. The Trial Court’s purpose in creating the

Order was to avert an immediate crisis,

not to discriminate against interstate com-

a ME eee ae ame ns Sg ory edo ear pee 14

C. The Order for preliminary injunction is

an even-handed, balanced approach to a

crisis in the disposal of solid waste...... 16

Ill. The judicially created lift is not a private en-

terprise, but a state-created facility......... 21

Conch oi occ sn saa edo eee eae eee 24

AUNT sw vc wna hcuinden eee eee Al

TABLE OF AUTHORITIES

Cases: Page

Chapman v. California, 405 US 1020 (1972) ..... 6

L. Costarelli v. Massachusetts, 421 US 193 (1975) 6

Gospel Army v. Los Angeles, 331 US 543 (1947)... 6

Hughes v. Oklahoma, 441 US 332 (1979). 7, 17, 18, 19

Hunt v. Washington State Apple Advertising

Comm., 432 US 333 (1977). .............. 10, 19

Local No 438 Construction and General Laborer’s

Union v. Curry, 371 US 542 (1963).......... 7

Minnesota v. Clover Leaf Creamery Co., 459 US 456

SEIS CHE SFE Pag tira cake en ae area a 17

National Socialist Party v. Skokie, 432 US 43

ies ns hos hooey ake k keke backs’ 7

Nebraska Press Assoc. v. Stuart, 423 US 1327

ris o5 osc eS chu as Mn Vet cep belev ie 7

New England Power Co. v. New Hampshire, 455 US

ta Sc Nn a Se 5 ks oe 22, 23

Philadelphia v. New Jersey, 437 US 617

ERE sereraae ere 32, 22. 15, 17.22. 3S

Pike v. Bruce Church Inc., 397 US 137

a nae 5 beg ie& don 2 ja-u: 0 90's 10, 16, 18, 21

Sporhase v. Nebraska, 458 US 941 (1982).. 12, 19, 23

NEW JERSEY CASES

Glassboro v. Board of Chosen Freeholders of

Gloucester County, 199 NJ Super 91, (1985)

Aff’d 100 NJ 134 (1985)...... 8, 9, 11, 12, 18, 21

STATUTES

AEE SA are ier aa ea 6

ce nae 17

ili

COUNTER-STATEMENT OF CASE

Petitioner, City of Philadelphia, is seeking a stay of

an interlocutory order of the Superior Court of New Jer-

sey, Law Division, wherein the trial court, faced with an

undisputed health and safety crisis arising out of the im- ©

minent closing of a sanitary landfill which had reached

its permitted capacity, directed an orderly closure of the

landfill, to wit, allowing certain New Jersey municipali-

ties which had no alternatives and which were in coun-

ties that had entered interdistrict waste agreements with

the host county to continue using the landfill for a lim-

ited period of time, conditioned upon agreeing to sub-

stantial remedial orders, while excluding other New

Jersey counties as well as Pennsylvania users, both be-

cause other alternatives were available to them and be-

cause they had not entered interdistrict waste

agreements with the host county.

In opposition to petitioner’s application, respondent

Gloucester County Board of Chosen Freeholders shows

as follows:

1. Kinsley Landfill is located in Deptford Township,

Gloucester County, New Jersey, and is owned and op-

erated by Kinsley Landfill, Inc. In recent years, Kinsley

has been utilized for the disposal of solid waste generated

in a number of municipalities within New Jersey and

also in Pennsylvania and Delaware. The Gloucester

County Board of Chosen Freeholders and the New Jer-

sey Department of Environmental Protection are regu-

lators of Kinsley Landfill pursuant to the New Jersey

Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.

They are charged with the responsibility of having a co-

ordinated countywide and statewide scheme for the col-

lection and disposal of solid waste and for weighing the

public risks and benefits with regard to the siting of land-

fills and with regard to landfill capacity. (Ra A-4)

“Ra Respondents appendix

2

2. During the early part of 1984, it became apparent

that the maximum capacity authorized for Kinsley pur-

suant to a permit issued by the New Jersey Department

of Environmental Protection would be reached before

the end of 1984 rather than the original projected date of

1988. (Pa 132A) Waste in excess of the permitted

amount could not be legally accepted unless first autho-

rized by Gloucester County pursuant to an amendment

to the County Solid Waste Plan and then subsequently

approved by the New Jersey Department of Environ-

mental Protection. (Ra A-4) During the summer of 1984,

Gloucester County held hearings to determine if addi-

tional capacity should be authorized for Kinsley and con-

sidered substantial testimony with regard to the various

issues inherent in such a determination. On September

28, 1984, Gloucester County determined that the public

interest would best be served by adhering to and not de-

viating from the original capacity authorized for Kinsley

and thereby rejected an application for a plan amend-

ment for landfill expansion at Kinsley. (Ra A-5) On Oc-

tober 11, 1984, Kinsley gave notice that, based upon

anticipated volume in the next few weeks, the approved

capacity would be reached during the week of October

28, 1984, and therefore all users should make plans for

switching to another facility. (Ra A-5)

3. On October 18, 1984, the Borough of Glassboro

filed suit against the Gloucester County Board of Chosen

Freeholders; the New Jersey Department of Environ-

mental Protection and its commissioner; Kinsley Land-

fill, Inc.; the City of Philadelphia and the County of

Camden, seeking to enjoin both the closure of the land-

fill and the use of the landfill for disposal of waste gen-

erated in the County of Camden and the City of

Philadelphia. Thereafter, various parties intervened as

plaintiffs, including numerous New Jersey municipali-

ties which utilized the Kinsley landfill for disposal of

*Pa Petitioners appendix

3

waste generated within their communities. Deptford

Township, the situs of the Kinsley Landfill, intervened as

a defendant and joined the New Jersey Department of

Environmental Protection and Gloucester County in ar-

guing that the trial court should not authorize the landfill

to operate in excess of permitted levels. Defendant Phil-

adelphia did not oppose the closing of the landfill, but it

argued that if the landfill remained open, Philadelphia

should be one of the parties authorized to continue uti-

lizing the facility. (Pa 112A)

4. The trial court first held a hearing on October 19,

1984, and then heard testimony on October 23, October

24, October 25, and October 26, 1984. On October 26,

1984, the Court entered a temporary restraining Order

directing , among other things, that Kinsley and the New

jersey Department of Environmental Protection report to

the Court on November 9th, 1984 on the environmental

feasibility of a vertical expansion of Kinsley for one ad-

ditional lift of compacted solid waste, and that the New

Jersey Department of Environmental Protection file with

the Court a plan for the orderly closure of the landfill. All

parties were directed to return before the court on No-

vember 13, 1984. During the interim all parties were per-

mitted to continue to utilize the facility. (Ra A-12)

5. On November 13, 1984, the trial court made fac-

tual findings and entered a preliminary injunction, in-

cluding the following:

a. Kinsley Landfill was directed to implement a

vertical expansion of one additional lift (16 feet) of

compacted solid waste in accordance with the de-

sign approved by the New Jersey Department of En-

vironmental Protection; (Pa 90A)

b. This additional capacity, which at best wou!d

last for one year, was te be restricted for use by

Gloucester County and those other districts which

4

had entered into interdistrict waste agreements with

Gloucester County, to wit, Camden and Salem

Counties; (Pa 89A)

c. Camden, Gloucester and Salem Counties

were placed under the court order to proceed imme-

diately with the siting of landfills which were to be

operational within 12 months of the November 13,

1984 court order; (Pa 89A)

d. As of November 27, 1984, except for waste

generated in Camden, Gloucester and Salem Coun-

ties, all solid waste therefore disposed of at Kinsley

which had been generated in other New Jersey

counties and municipalities as well as in Pennsylva-

nia and Delaware communities and which was not

subject to interdistrict waste agreements with

Gloucester County, would no longer be accepted at

Kinsley; (Pa 89A)

e. All municipalities within the borders of

Camden, Gloucester and Salem Counties were

placed under court order to maximize their recycling

efforts so as to reduce the amount of waste being

disposed of during the interim period and to report

periodically to the court and New Jersey Department

of Environmental Protection. (Pa 89A)

6. On November 15, 1984, Philadelphia moved be-

fore the trial court seeking reconsideration of the No-

vember 13, 1984, order so as to allow Kinsley Landfill to

continue accepting waste generated within the City. The

City also asked the court to authorize a second vertical

expansion of the landfill. After hearing testimony from

experts from both the City and the New Jersey Depart-

ment of Environmental Protection and considering the

potential impacts, the trial court denied the application

for a second lift and affirmed its prior Order of November

5

13, 1984. (Pa 112A) On November 21, 1984, Philadel-

phia again returned to the trial court and sought recon-

sideration regarding the application for a second lift.

Additional affidavits were considered by the trial court,

which subsequently found no basis to change the orig-

inal factual findings upon which it had rejected the ap-

plication for a second lift.

7. On November 26, 1984, the Appellate Division of

the Superior Court of New Jersey denied Philadelphia's

motion for leave to appeal and for a stay of the trial court

order. (Pa 49A)

8. On November 27, 1984, Justice Alan B. Handler

of the Supreme Court of New Jersey, sitting as a single

justice, granted the City’s motion for a stay pending con-

sideration of the matter by the full New Jersey Supreme

Court. Between November 27, 1984 and December 7,

1984, Philadelphia and two other haulers who had joined

in the City’s stay application continued to utilize the

landfill. As a result, less than eleven months’ capacity is

left at Kinsley Landfill for Camden, Gloucester and Sa-

lem Counties before their new landfills must be sited,

approved and become operational.

9. On December 7, 1984, the New Jersey Supreme

Court vacated the interim stay granted by Justice Han-

dler sitting as a single justice and denied the motion for

a stay of the order of the trail court of November 13,

1984. However, the New Jersey Supreme Court granted

Philadeiphia’s motion for leave to appeal and summarily

remanded the appeal be accelerated. In accordance with

the November 13, 1984, trial court order authorizing the

parties to seek modification or dissolution of that order on

short notice, the New Jersey Supreme Court directed the

Appellate Division to continue limited jurisdiction in the

trial court subject to appellate supervision. (Pa 51A)

The trial Court’s preliminary injunction was af-

firmed unanimously by the New Jersey Superior Court,

Appellate Division on February 15, 1983. (Pa 49A)

6

On July 10, 1985, the New Jersey Supreme Court

also, in a unanimous opinion, affirmed the decision of

the New Jersey Superior Court, Appellate Division. (Pa

1A)

ARGUMENT

I. Review by the Supreme Court of the United States is

currently premature.

A. The Petitioners should be denied a writ of certio-

rari because there has been no final judgment by

the State Court.

The Supreme Court of the United States only has

jurisdiction to entertain appeals from State Court deter-

minations which are Final Judgments. 28 USC 1257; L.

Costarelli v. Massachusetts, 421 US 193, 195, n. 3

(1975). Specifically, the federal issue in a particular case

must have been finally resolved by the highest Court of

a State before the Court can intervene. Chapman v. Cal-

ifornia, 405 US 1020, (1972); Gospel Army v. Los

Angeles, 331, US 543 (1947).

_ In the instant case, the federal issues are still very

much alive at the trial level. Specifically, it is alleged that

the Freeholders, when they denied Kinsley its’ expan-

sion, did so because of a desire to discriminate against

interstate commerce. If such an allegation is found to be

true, the trial court is authorized to exercise its’ equitable

discretion to fashion a remedy. Such a remedy could in-

clude re-opening the landfill to interstate commerce.

Until this issue is resolved at the trial level, review by the

Court would be both duplicative and premature.

Petitioners argue that the federal issue before the

Court surrounds the trial court’s order for preliminary

injunction. The Order itself is open to modification until

the trial court divests itself of jurisdiction. This will occur

when a final judgment is reached. The paragraph 10 of

7

the Oct. 26, 1984 Order expressly provides for it’s dis-

solution or modification on application made on one (1)

day’s notice (Pa 129A). Thus the Petitioners may seek

relief from the trial court at anytime should they believe

current facts warrant such relief.

The Court could treat the federal issue as final, not

withstanding the pending state proceedings. Local No.

438 Construction and General Laborer’s Union v.

Curry, 371 US 542 (1963); Nebraska Press Assoc. v.

Stuart, 423 US 1327 (1975); and National Socialist

Party v. Skokie, 432, US 43 (1977). Yet in those cases,

the Court was acting to protect an infringement on per-

sonal fundamental rights. In those cases the Court has

placed a heavy presumption against any infringement to

First Amendment Freedoms. Local No. 438; National

Socialist Party; and Nebraska Press Association. Those

fundamental freedoms are not at issue in the instant

case.

The Court has adopted a much different standard

when reviewing state actions under the commerce

clause. In commerce clause cases the initial burden to

demonstrate discrimination rests with the party attack-

ing the state regulation. Hughes v. Oklahoma, 441 US

332 (1979). The presumption instead favors the regula-

tion, a standard opposite that applied in the First Amend-

ment cases. The Petitioners have failed, at any time to

establish an irreversible or immediate harm to them-

selves constitutional or otherwise. The Courts of New

Jersey have so held as findings of fact. Speedy review is

not required to safeguard the rights of the Petitioners.

The Court would do well to wait until all the issues

are fully developed by the trial court and reviewed by the

highest New Jersey Courts before accepting a petition

for certiorari.

8

B. The Petitioners lack standing to seek review by the

Court because there has been no injury in fact.

The Petitioners argue that their denial of access to

Kinsley is impermissable. This analysis ignores the re-

alities of the situation. The landfill was exhausted. There

was no capacity at the landfill for anyone until the Trial

Court created the additional space.

Kinsley had no legal right to continue. It is not the

closure which the Petitioners seek to attack but instead

access to the judicially created lift. But for the trial courts

actions there would be no one using the landfill. The

petitioners, however, are not denied access to any other

private landfill in the State of New Jersey. In order to

have standing in the instant case the Petitioners must

prove that they are foreclosed due to state action from

any other private site in New Jersey, and also that the

exclusion works a real injury to the petitioners. This two

prong test has not been met by the petitioners.

The evidence is clear. The petitioner has access to

many other sites in New Jersey. There is no state action

which bars Philadelphia from contracting with any other

private landfill in the State of New Jersey. The first prong

of the test can not be met by the petitioners.

The petitioners as well, can not satisfy the second

prong of the test, as there is no real injury to the peti-

tioner. As the New Jersey Supreme Court noted in its’

opinion: y

“Philadelphia’s last access to an exhausted

landfill must be contrasted with the disastrous

results that its’ continued use would visit on the

tri-county municipalities. With respect to the

economic impact of the closure, the Appellate

Division observed than Philadelphia, a city of ap-

proximately 1.7 million people with a solid waste

disposal budget of approximately $4,000,000.00

would suffer much less than the fifty-nine (59)

9

municipalities in the tri-county area. 199 NJ Su-

per at 100. The estimated increase in

Philadelphia’s budget for solid waste disposal is

5% for the first year following Kinsley’s closure

and 2% thereafter. Id. By contrast, the solid

waste disposal! t. Jget of Glassboro, a municipal-

ity of some 14,500 people, could escalate from

$100,000.00 to $1,000,000.00 per year ***, * ana

the cost to Camden County, with a population of

approximately 500,000 people, could increase

from $3,000,000.00 to $12,000,000.00 annually.

Id.

The closure of Kinsley, however, involves

more than cost considerations. It would force

the tri-county municipalities to embark on a

crash garbage disposal program, one that would

include, for example, siting and establishing

transfer stations to store garbage temporarily,

pending delivery to a permanent site. Such a

program, as formidable and costly as it would be,

would become obsolete in one (1) year, when the

new dump sites become operative. Furthermore,

as the Appellate Division stated:

‘Some towns, such as Clayton, Elmer, and

Woodstown, had no alternatives to their present

private-hauler service if insley were closed

without access to an alternate local source. The

private haulers would simply close down.’ Id

Thus practical considerations demonstrated that

the task confronting the tri-county mzunicipali-

ties would be not merely difficult, but virtually

impossible to perform. Such considerations con-

firm that the burden on Philadelphia is not

excessive.” Glassboro at 151, 152... Moreover,

Philadelphia has alternative sites to dispuse of

it’s garbage, albeit ones that impose increased

10

costs on the City. In contrast, the tri-county mu-

nicipalities do not have access to alternative

sites, to trucks, or to what may be of greater im-

portance, to transfer stations. “Glassboro v.

Board of Chosen Freeholders of Gloucester

County, 100 NJ 134, at 153, (1985).

As the petitioners have noted in their belief, simple

economic protection is not enough to legitimate state ac-

tion. However, the reverse is also true, simply because

the City must pay more for it’s solid waste disposal does

not justify overturning a legitimate state action. Aside

from the incidental increase in costs, Philadelphia can

not demonstrate any burden to interstate commerce.

There is no state erected barriers which prohibits the pe-

titioners from sending their trash elsewhere in New Jer-

sey. The petition for writ of certiorari should be denied

because the petitioner lacks standing to bring the appeal

to the Court since there was no injury to interstate com-

merce.

II. The Order for preliminary injunction is not a violation

of the Commerce Clause.

The court has established a tripartite analysis in dor-

mant commerce clause cases. The first test is to see if the

state action is discriminatory on it’s face. Philadelphia v. |

New Jersey, 437 US 617 (1978). The second test is to see

if there is a discriminatory purpose or effect of an oth-

erwise neutral state action. Hunt v. Washington State

Apple Advertising Commission, 432 US 333 (1977). The

final test and the modern approach is the balancing test

articulated in Pike v. Bruce Church, Inc., 397, US 137

(1970).

11

A) The order of preliminary injunction is not discrim-

inatory on it’s face.

The petitioners argue that the order discriminates

against all interstate commerce. The Court in Phila. v.

NJ 437 US 617 (1978), gave the test to be applied as

follows:

“{A] state may not accord it’s own inhabit-

ants a preferred right of access over consumers

in other states to natural resources located

within it’s borders.” [citations omitted] Id at 627.

“But whatever New Jersey’s ultimate pur-

pose, it may not be accomplished by discrimi-

nating against articles of commerce coming

from outside the State unless there is some rea-

son, apart from their origin, to treat them

differently.” Id at 626.

It is clear from the face of the Order that the origin of the

trash was not the deciding factor in its exclusion. “The

mere fact that Philadelphia is in another state should not

imbue it with greater rights than it would possess if it

were located in New Jersey. The commerce clause was

intended as a shield against discrimination, not as a

sword, to obtain a preference.” Glassboro at 147 “Addi-

tional garbage from any source, either within or outside

New Jersey, will displace space at Kinsley needed to

avert a health crisis in the three counties.” Id at 147.

The New Jersey Supreme Court concluded by hold-

ing that “the injunction is not discriminatory in purpose

or effect. It is plainly not a mere protection and measure

and, therefore, does not constitute a per se violation of

the commerce clause. [citations omitted|” Id at 147.

The petitioners rely on Philadelphia v. New Jersey,

Supra, as controlling in the instant case. This reliance is

misguided. The Court in Philadelphia v. New Jersey was

reviewing a statute passed by the legislature which

closed completely New Jersey’s sanitary landfills to out of

12

state trash. In the instant case, the Court is reviewing an

Order of preliminary injunction which created extra ca-

pacity at an otherwise closed landfill. Incident to that Or-

der, out of state waste producers were prohibited from

using that single site. The borders of New Jersey are still

open and other private sites are still available for

Philadelphia’s use.

The Court itself, in Philadelphia v. New Jersey, spe-

cifically excluded it’s opinion from applying to

state-owned resources. As Justice Brennan, writing for

the majority, noted in footnote number 6:

“We express no opinion about New Jersey’s

power, consistent with the commerce clause, to

restrict to state residents access to state-owned

resources. . .” Id at 627.

As in Sporhase v. Nebraska, 458 US 941 (1982), the

ownership of the resource does not have to be absolute.

Justice Stevens, writing for the majority, held that the

State’s claim to public ownership, although not absolute,

could “support a limited preference for it’s own citizens

in the utilization of the resource.” Id at 956. In the in-

stant case, Kinsley may not be publicly owned but it is a

public utility, NJSA 48:2-13; NJSA 48:13A-1 to 1 E. and

must operate in the public interest, NJSA 48:13A-1.

Glassboro at 150. Finally, Kinsley is not currently oper-

ating as a private landfill but on “an emergent basis pur-

suant to a Court Order and Department of

Environmental Protection approval”. Judge DeSimone,

Stenographic transcript of Decision of the Superior

Court of New Jersey, Law Division, Gloucester County,

dated November 19, 1984. (p.126A). Just as the ground

water at issue in Sporhase, the sixteen foot (16’) lift cre-

ated by the trial court is for the purposes of the com-

merce clause, a state-owned resource. The trial court’s

allocation of this sparse capacity is not controlled by Phil-

adelphia v. New Jersey, Supra, but by Sporhase v. Ne-

braska, Supra.

13

The Court noted in Philadelphia v. New Jersey, that

New Jersey could legitimately slow the flow of all waste

into the states landfills, even though interstate com-

merce may incidentally be affected. Id. at 626. This was

exactly what the Court sought to do by allowing only the

tri-counties to use the judicially created capacity. More-

over, as the Court held in Sporhase v. Nebraska, 458 US

941 (1982)

“{In] the absence of a contrary view ex-

pressed by Congress, we are reluctant to con-

demn as unreasonable measures taken by a

State to conserve and preserve for it’s own citi-

zens this vital resource in times of severe

shortage.” Id at 956.

“{A] State’s power to regulate the use of wa-

ter in times and places of shortage for the pur-

pose of protecting the health of it’s citizens —

and not simply the health of it’s economy — is at

the core of it’s police power.” Id at 956.

In the instant case the crisis facing the three (3)

counties was immediate and significant. Without the use

of the sixteen. foot (16’) lift, the three counties, as the

lower Courts have held, would have faced trash piling up

in their streets. The crisis was limited geographically to

only three (3) of New Jersey’s twenty-one (21) counties.

The Order was tailored to the specific needs of the area.

No trash from outside the three (3) counties was to be

allowed into the lift. The Petitioners argue that the No-

vember 29th, 1984 Order opened the lift to intrastate

commerce but closed the landfiil to interstate commerce.

This argument lacks any merit. The Order of November

29th, 1984, only allowed for one (1) sewerage authority

outside the three (3) counties to use the lift, Rockaway

Valley Regional Sewerage Authority. The other four (4)

14

sewage treatment facilities are all located in the three (3)

counties. The Petitioners completely ignore Paragraph

#6 of the November 13th, 1984, Order which states:

“6) Disposal of sewage sludge at Kinsley

Landfill shall cease on March 15th, 1985.” (Pa

121A)

As of March 15, 1985 no sewage sludge has been

deposited in the lift. The issue of the November 13 Order

opening the lift has become moot.

The Order of preliminary injunction, as embodied by

the October 26th, November 13th, and November 29th,

1984 Orders, is finely tuned to meet the crisis at hand.

Only upon a showing of extraordinary need has the

Court allowed access to the lift. Philadelphia, has on

many occasions, petitioned the trial court for access to

the lift. However, it has never proven that access to the

lift was necessary to avert a crisis of any kind.

To suggest that intrastate commerce remains unaf-

fected by the Order is to mistake the facts. No solid waste

which originates outside the three (3) counties may be

deposited in the lift. It is irrelevant whether the trash

originates in Trenton or in Philadelphia, both are ex-

cluded. Prior to Kinsley’s closure, anyone was free to

contract with the landfill to deposit their solid waste. To-

day only those communities which can prove they have

no alternate sites are granted access. The situs of the

community is irrelevant in this determination. The New

Jersey Courts’ characterization of the Order as an even-

handed regulation must be upheld and the petition for

certiorari denied.

B) The trial Court’s purpose in creating the Order was

to avert an immediate crisis, not to discriminate

against interstate commerce.

The petitioner’s argue that the Order for preliminary

injunction was enacted with a desire to discriminate

15

against interstate commerce. The record before the

Court does not support that conclusion. In the Trial

Court’s decision of October 26, 1984, which the peti-

tioner omitted from their appendix, Judge DeSimone

quite clearly states the criteria he used in making the

decision.

“In making this determination this court

must be satisfied that several criteria are met;

one, that plaintiffs have no adequate remedy at

law; two, an immediate and irreparable harm

will result without the restraint requested;

three, that there is the reasonable probability of

eventual success on the merits of plaintiffs’

claim; and four, the balancing of the equities in-

volved resulting in the determination that the

harm to the plaintiffs outweighs the harm that

may result to the defendants if the injunction is

granted to the plaintiff or is denied as the case

may be.” (Ra A-2)

In applying this criteria, the trial court concluded:

“The court is satisfied today in a temporary

nature that the plaintiffs have properly invoked

its equitable jurisdiction, there being no ade-

quate remedy at law; the reasonable likelihood

that the plaintiffs are entitled to relief has been

met by them for the purpose of this hearing. The

court recognizes that if Kinsley were permitted

to close this Sunday there woud be in actuality

no county plan for solid waste disposal in this

district. All the possible alternatives, which may

be suggested or modifications of the County

Solid Waste Plan and under the act would be

required to undergo certain procedures before

their acceptance and subsequent submission for

approval by the DEP. This court is not going to

wait until the 11th hour. The imminent crisis is

16

upon us today and before this Court and it ap-

pears to be taking place in many districts all

through this state due to the all-decreasing land-

fill areas and the ever- increasing public con-

cerns of the environment.” Stenographic

Transcript of Oral Decision of the Superior

Court of New Jersey, Law Division, Gloucester

County, Dated October 26, 1984. (Ra A-7)

The facts are clear, the purpose of the Order was to

avert a major crisis in the Delaware Valley. Unlike in

Philadelphia v. New Jersey, Supra, the Order was de-

signed to deal with an actual crisis in a single locale.

Kinsley landfill only had a few weeks of capacity remain-

ing. When that capacity was exhausted, the three (3)

counties, Gloucester, Camden and Salem, would have no

where to send their waste. (Pa 34A) Philadelphia, how-

ever, could easily divert it’s waste to alternate sites. (Pa

45A) The borders of New Jersey were not closed by the

Order, only access to a judicially ordered lift in «» oth-

erwise closed landfill facility. The trial judge was taced

with the Solomonesque task of dividing the minimal

space which the lift created. Philadelphia had the means

to divert its waste and also singly accounted for over 50%

of the waste disposed of at the site. (Pa 9A) While the

communities in the three (3) counties had no way to di-

vert its waste. Given these realities, the Court bought the

three counties enough time to get alternate sites on line. .

Before the year is out the crisis will have passed as the

new facilities come on line. The wisdom of judge

DeSimone’s bold stroke is today clear to the naked eye.

But for an accident of geography, Philadelphia is not

in New Jersey. That accident of geography does not im-

bue Philadelphia with any rights greater than those of

the citizens of New Jersey. The Delaware Valley faced a

17

shared crisis in sclid waste disposal. The Order at-

tempted to resolve the health problems of not just New

Jersey, but the region as a whole. It was not adopted with

an eye to discriminate against commerce.

C. The Order for preliminary injunction is an even-

handed balanced approach to a crisis in the disposal

of solid waste.

As was noted earlier in the facts support, a conclu-

sion that the Order for preliminary injunction was an

evenhanded measure. The final hurdle that must be

overcome is the balancing test articulated in Pike v.

Bruce Church, Inc., 397, U.S. 137, 142 (1970):

“Where the statute regulates evenhandedly

to effectuate a legitimate local public interest,

and its effects on interstate commerce are only

incidental, it will be upheld unless the burden

imposed on such commerce is clearly excessive

in relation to the putative local benefits. . . . If

a legitimate local purpose is found, then the

question becomes one of degree. And the extent

of the burden that will be tolerated will of course

depend on the nature of the local interest in-

volved, and on whether it could be promoted as

well with a lesser impact on interstate activities.

Accord, Minnesota v. Clover Leaf Creamery Co.,

449 U.S. 456, 471 (1981); Hughes v. Oklahoma,

supra, At 336; Philadelphia v. New Jersey,

Supra, at 624.

The remaining issues are:

1. Is there a legitimate local interest involved?

2. Is there a less drastic alternative?

3. Is the impact on interstate commerce excessive in

relation to the local problem?

18

Is there a legitimate local interest involved? Con-

gress, when it adopted Resource Conservation and Re-

covery Act of 1976, as amended, 42 USC §6901, et sec.,

noted that the disposal of solid waste and human health

were inextricably intertwined.

~ “. . . disposal of solid waste and hazardous

waste in or on the land without careful planning

and management can present a danger to hu-

man health and the environment.” 42 USC

§6991 (b2)

In acknowledging the dangers to the environment

concurrent with solid waste disposal, Congress expressly

authorized the States to take the primary role in regu-

lating solid waste disposal.

“. . . [T]he collection and disposal of solid

wastes should continue to be primarily the func-

tion of state, regional and local agencies. . .” 42

USC §6901 (A4).

As a finding of fact, Congress has stated that the reg-

ulation of solid waste is a legitimate local interest.

The New Jersey Courts have been unanimous in

holding that the trial judge was acting to solve an actual

public health emergency.

“One would be hard pressed to discover a

more legitimate state interest than that of pro-

tecting the health of the citizenry,. . . , in the

preservation of diminishing sources of waste

disposal.” [citations omitted] Glassboro at 147.

“We find the injunction to be a measured

response to a genuine local health problem”. Id.

at 149.

In light of both congressional and judicial recogni-

tion of the legitimacy of the iocal need, the next issue is,

19

were there any less drastic alternatives available? In re-

solving this issue, the New Jersey Supreme Court stated:

—. ae

“The final inquiry in evaluating a state con-

servation program under Pike is whether the lo-

cal interest can be achieved as weil with a lesser

impact on interstate commerce. Pike v. Bruce

Church, Inc., supra, 397 U.S., at 142, 25 L.Ed.

2d at 78. Put differently, the question is whether

a less discriminatory injunction might ade-

quately protect the health of the citizens of

southern New Jersey. See Hughes v. Oklahoma,

supra, 441 U.S. at 336, 60 L.Ed. 2d at 162.”

In this regard, Philadelphia argues that all

former users should be allowed continued ac-

cess at proportionately reduced levels. At first

glance, that argument appears to be fair. On

closer examination, however, it becomes appar-

ent that what is superficially fair is, in reality, a

request for a preference. As stated previously,

were it not for the emergent need of the three

counties, Kinsley would be closed to all users.

Use of Kinsley has been restricted for a limited

time to avert a public health crisis in southern

New Jersey. Moreover, Philadelphia has alterna-

tive sites to dispose of its garbage, albeit ones

that impose increased costs on the City. In con-

trast, the tri-county municipalities do not have

access to alternative sites, to trucks, or to what

may be of greater importance, to transfer sta-

tions.

The threat to local health, which the trial

court described as raising a “horrendous spec-

ter: could not be averted by a less-restrictive in-

junction. See Sporkase v. Nebraska, supra, 432,

U.S. at 957, 73 L.Ed. 2d at 1267; Hughes v

Oklahoma, supra, 441 U.S. at 336, 60 L.Ed. 2d

20

at 261-62; Hunt v. Washington Apple Advertis-

ing Comm’n, supra, 432 U.S. at 353, 53 L.Ed.,

2d at 400.

Based on the record before us, a plan that

accorded to Philadelphia access, even if propor-

tionately reduced, would foreshorten the life of

the landfill. Such a plan would not merely be a

less effective means of obtaining time for the de-

velopment of alternative sites; it would be inef-

fective. See Minnesota v. Clover Leaf Creamery

Co., supra, 459 U.S. at 464, 473-74, . So

viewed, Philadelphia’s demand that _ the

tri-county municipalities incur substantial costs

for a short-term solution is not so much a re-

quest for a less discriminatory alternative as it is

an attempt to place an excessive burden on

those municipalities. Sporhase v. Nebraska,

supra, 458 U.S. at 956, _. That the injunction

operates evenhandedly is apparent from the bur-

den it places on the three (3) counties to develop

premanent alternatives.” Id. at 152-153.

Philadelphia did suggest alternatives, but those al-

ternatives were not feasible. The first suggestion of al-

lowing Philadelphia, as well as New Jersey communities

to utilize Kinsley Landfill at reduced levels, was com-

pletely unworkable. The problem which was being ad-

dressed by the trial court was how to buy some extra time *

for the tri counties to get alternate disposal sites on line.

To allow Philadelphia to utilize the lift would be to leave

the solution stillborn. Philadelphia accounted for over

fifty per cent (50%) of the trash disposed of at the site.

Even at reduced levels, the non tri county trash would

quickly exhaust the remaining capacity, before the tri

counties could get their alternate sites ready. This basic

fact has been undisputed by the Petitioners throughout

the proceedings. Without the judicially created lift, the

tri-counties had no where to dispose of their trash. The

21

non-tri county waste producers did have alternate sites

available. Given the very limited space the lift contained,

non tri-county trash had to be excluded, there was no

less drastic alternatives.

Petitioners quickly analyzed the above and sug-

gested that a second lift be created. The idea that with

double the capacity, there would be room for outside

waste, was an unworkable alternative. The trial court

held that a second lift would endanger the health and

welfare of the citizens of Deptford Township. The ex-

perts from the New Jersey Department of Environmen-

tal Protection concurred that one (1) lift was all that

would be safe. It was for these safety concerns that the

trial court declined to approve a second lift. (Pa 194A)

There were no other alternatives available to the trial

court.

The Petitioners request for an across-the-board pro-

portional allocation of the available capacity at Kinsley

Landfill is just another way of phrasing the first alter-

native. As was stated earlier, the goal was to buy time for

those entities which had no alternate disposal site to get

such on line. It was not adopted as a permanent solution

but an interim one.

The lower courts have been unanimous. There was

no less drastic alternative available to the trial court to

solve the crisis.

The Order clearly satisfies the first three require-

ments of the Pike test. The Order was an evenhanded

approach to a legitimate local concern where there were

no less drastic alternatives available. The final issue to be

resolved is whether the impact on interstate commerce is

outweighed by the emergent needs of the Delaware Val-

ley.

Any interference with interstate commerce is out-

weighed by the emergent needs of the Delaware Valley.

“New Jersey is in the throes of a solid waste crisis.” Glass-

boro at 141. “As the trial court found, garbage would

accumulate in the streets of Salem, Gloucester and

22

Camden counties if those municipalities could not use

the additional sixteen foot (16) lift.” Id at 149. The pros-

pect of trash piling in the streets must be balanced

against the minimal increase in costs to Philadelphia to

dispose of its’ waste. As the Petitioners have noted, a

mere increase in cost is not enough of a harm to justify

an infringement on another’s right. However, an actual

threat to the health and welfare of thousands of people in

Salem, Gloucester and Camden counties is a sufficient

reason to justify the limited minimal burden on inter-

state commerce imposed by the trial court’s Order.

III. The judicially created lift is not a private enterprise,

but a state-created facility.

“. . . [ want to emphasize to all of you gen-

tlemen, ladies and gentlemen in these proceed-

ings, Kinsley Landfill is no longer operating as a

landfill, as a private landfill; it is operating on an

emergent basis pursuant to a Court Order and

Department of Environmental Protection ap-

proval of the minimal of a one (1) lift expansion.”

Judge DeSimone, Stenographic Transcript of

Decision of the Superior Court of New Jersey,

Law Division, Gloucester County, dated *' vem-

ber 19, 1984. (p. 126A).

The Petitioners, in arguing the instant case, relied .

heavily on the Court’s opinion in Philadelphia v. New

Jersey, supra. Philadelphia v. New Jersey, was never

meant to apply to this situation. As Justice Brennan,

writing for the majority noted in footnote number 6:

“We express no opinion about New Jersey’s

power, consistent with the commerce clause, to

restrict to state residents access to state-owned

resources .. .” Id at 627.

The instant case is not the situation where, as Peti-

tioners argue, Kinsley has continued operating pursuant

23

to a state license. Instead, it is operating under strict ju-

dicial scrutiny. The Court could have selected any site to

place its’ temporary landfill. It chose the site to be

Kinsley. The fact that the site is on privately owned land,

rather than public lands, is irrelevant, to Commerce

Clause analysis, since without the judicial intervention

there would be no useful life at the site whatsoever.

The Petitioners argue that the lift is a private enter-

prise. They analogize the lift to the hydroelectric plant in

New England Power Co. v. New Hampshire, 455 US 331,

(1982). As with Philadelphia v. New Jersey, New En-

gland Power is not applicable. New England Power dealt

with a New Hampshire statute which provided:

“No corporation engaged in the generation

of electrical energy by water power shall engage

in the business of transmitting or conveying the

same beyond the confines of the State, unless it

shall first file notice of its’ intention so to do with

the Public Utilities Commission and obtain an

Order of said Commission permitting it to en-

gage in such business”. Id at 335.

The scope alone of the statute is far greater than the

Order in the instant case. The New Hampshire statute

attempts to regulate all the hydroelectric power exported

from the State. The purpose of the statute was to gain an

economic advantage for the citizens of New Hampshire

at the expense of its’ neighbors. This was clearly a case

of “simple economic protectionism.” New England

Power Co., Supra, Philadelphia v. New Jersey, 437 US at

624.

In contrast, the instant case is a judicial Order cre-

ating additional limited space at an otherwise closed

landfill. The purpose of that Order was to avert an un-

disputed crisis in the disposal of the area’s solid waste.

Just as the ground water in Sporhase, the judicially cre-

ated lift was imbued with the “indicia of a good publicly

produced and owned in which a state may favor it’s own

24

citizens in times of shortage.” Id at 957. It is not simply

the fact that Kinsley Landfill is a public utility subject to

state regulation, but also the fact that the trial court cre-

ated the additional capacity which makes the lift a state

enterprise. It was not Kinsley acting as a private enter-

prise which is operating today, but merely an extension

of the trial court.

CONCLUSION

The Founding Fathers provided the Commerce

Clause as a safeguard of trade among the States. It was

an effort to give each State equal access to all the mar-

kets within the country. However, it was not envisioned

as a sword to threaten the health and safety of any States’

citizenry. The health and welfare of a States’ citizens

were to be protected by the police power reserved to each

State.

The remedies created by Judge DeSimone were not

an effort to protect the economy of New Jersey. It was a

rational attempt to provide for an interim solution to a

pressing crisis in the Delaware Valley. Without his bold

stroke, a catastrophic crisis would have been the resuki.

The Founding Fathers believed such was at the core of

a State’s police power.

For the foregoing reasons, the petition for a writ of

certiorari in this case should be denied.

Respectfully submitted by

Bruce C. Hasbrouck

Counsel of Record

Attorney for Respondent

Gloucester County Board

of Chosen Freeholders

Lewis G. Adler

of Counsel

Dated November 11, 1985

APPENDIX

Stenographic Transcripts of Decision of the Supe-

rior Court of New Jersey, Law Division,

Gloucester County Dated October 26, 1984... A-1

Temporary Restraining Order of the Superior Court

of New Jersey, Law Division, Gloucester County

EUG SOCODEE WO, BUG ios ec cect e techn A-12

SUPERIOR COURT OF NEW JERSEY

GLOUCESTER COUNTY — LAW DIVISION

DOCKET NO. L-070476-84 PW

BOROUGH OF GLASSBORO, a

municipal corporation of the

State of New Jersey, et al.,

Plaintiffs,

STENOGRAPHIC

US. TRANSCRIPT

GLOUCESTER COUNTY BOARD OF of

CHOSEN FREEHOLDERS, THE

NEW JERSEY DEPARTMENT OF Decision

ENVIRONMENTAL PROTECTION

and ROBERT E. HUGHEY,

Commissioner of the New Jersey

Department of Environmental

Protection, KINSLEY LANDFILL,

INC., THE CITY OF PHILADELPHIA

and THE COUNTY OF CAMDEN,

Defendants.

Ne NO OO OS OS “0 “WWM. MH M/ MH H" _ "_ “J

PLACE: Gloucester County Courthouse

Woodbury, New Jersey

DATE: October 26, 1984

BEFORE:

HONORABLE SAMUEL G. DeSIMONE, AJSC

DOROTHY C. BOSS, CSR

Courthouse

Woodbury, New Jersey

A-1

A-2

THE COURT: Ladies and gentlemen, this is the de-

cision in the matter of Kinsley Landfill case, which was

tried before this court by way of an Order to Show Cause

brought on before the court by way of emergent relief as

we call it in the law, an Action in Lieu of Prerogative

Writ.

The plaintiffs seek restraints against the New Jersey

Department of Environmental Protection, Gloucester

County Board of Chosen Freeholders, Deptford Town-

ship as an intervening defendant and Kinsley; and in

counts nine and ten, restraints against the City of Phil-

adelphia and Camden County. The verified complaints

filed by the parties are on record and, therefore, this

court need not repeat the various counts alleged against

the defendants in this action.

This court on an emergent basis — and we have

cleared our calendar this week to cover this situation —

has heard testimony and has been presented with vari-

ous documents admitted in evidence in an effort to es-

tablish the basis of the allegation set forth and whether

temporary or interlocutory restraints should issue pur-

suant to court Rule 4:52-1.

In making this determination this court must be sat-

isfied that several criteria are met; one, that plaintiffs

have no adequate remedy at law; two, an immediate and

irreparable harm will result without the restraint re-

quested; three, that there is the reasonable probability of

eventual success on the merits of plaintiffs’ claim; and’

four, the balancing of the equities involved resulting in

the determination that the harm to the plaintiffs out-

weighs the harm that may result to the defendants if the

injunction is granted to the plaintiff or is denied as the

case may be.

The purpose of a preliminary restraint or injunction

is to allow the court to investigate, deliberate the merits

of a case while maintaining the status quo. This was suc-

cinctly stated in Peters vs. Public Service Corporation of

New Jersey, 132 New Jersey Equity Reports, 500 at page

A-3

511, a Chancery Division opinion, 1942. This was af-

firmed in 133 New Jersey Equity Reports, 283 by the

then Court of Errors and Appeals, 1943. As further stated

in the leading case of Suenram vs. The Society of the

Valley Hospital, 155 New Jersey Superior Court Re-

ports, 593 at page 596, which was a Law Division case

published in 1977, that injunction is a drastic remedy,

which is granted sparingly and when the issues pre-

sented are grave and difficult, it is to be administered by

the court with sound discretion and upon the consider-

ations of justice, equity and morality.

In the present case, the plaintiffs have invoked the

inherent equitable jurisdiction of this court due to the

immediacy of the situation at hand and the inability of

the parties, according to the applicable law to eradicate

themselves from their unfortunate predicament. A pa-

ralysis has occurred. This court must intervene for the

public good. This court does not like to be in this position

of, in effect, entering the area of legislation. However,

the court will be here to protect the health, morals and

citizens of the State of New Jersey.

This case, ladies and gentlemen, if I might describe

it, is like a ship on alien seas with no pilot. At this junc-

ture it is up to this court today to intervene and to get the

ship in a wild sea on the proper course. Once that’s done

and everyone does their job, then this court can step

back. My purpose today, and I want the record to be

clear, is solely to intervene, to get this case on its proper

track and to protect the health, welfare and citizens of

the State of New Jersey and specifically, Deptford Town-

ship and the County of Gloucester. That is why this court

is taking jurisdiction today. Someone must do it. The

buck stops here, because the issues were presented here.

They shouldn’t be here. They are here and I will attempt

to solve them temporarily until reason prevails and the

proper authorities can then take over pursuant to law.

The case at bar presents a scenario that the legisla-

ture specifically attempted to invoke by the enactment of

A-4

the Solid Waste Management Act, New Jersey Statutes

Annotated 13:1E and others, hereinafter called the Act.

According to the legislature, the collection, disposal and

utilization of solid waste was a matter of great concern to

all citizens. Thus the act attempts to create a statewide

management of solid waste disposal through the solid

waste districts. Each district, in this case Gloucester

County, is empowered to enact a solid waste manage-

ment plan subject to certification and approval by the

Commissioner of the Department of Environmental Pro-

tection. Subsequent modifications are likewise within

the district’s power subject to certain procedures, public

hearing and likewise DEP approval.

In the case at bar, the Gloucester County Plan is

modified as recently as 1982 was, according to its term,

to be a ten-year plan for the uninterrupted disposal of

solid waste. However, in actuality, the only landfil! des-

ignated for dumping waste is the Kinsley Landfill, which

will reach its designed capacity in a matter of days.

The plaintiffs seek relief before this court are gov-

erned by reason of the Act by their County Solid Waste

Management Plan in the collection and disposal of solid

waste. The county plan as certified is to be monitored by

the Department of Environmental Protection to insure a

coordinated statewide system for the disposal of waste.

The DEP has taken no action with regard to the immi-

nent closing of the only landfill in this district and the

county, through its Board of Freeholders, has denied an

application by Kinsley to expand. Therefore, this court is

requested to step into this vacuum created by the De-

partment of Environmental Protection and the County

Board of Freeholders and attempt to protect the plaintiffs

and the defendants and their residence, the industries

affected, personnel and, of course, an overriding concern

always before this court and, that is, the environmental

situation; an awesome burden that’s been thrust upon

this court, one court, a trial court, to solve a dilemma

which is facing the citizens of the State of New Jersey.

A-5

The uncontroverted evidence ladies and gentlemen,

presented to this court and I so find and it reveals to me

that the Gloucester County Waste Management Plan in

its present state will not provide for the uninterrupted

disposal of waste until 1988. Kinsley Landfill’s permitted

design capacity will be reached in a matter of days and if

I recall from the maze of testimony that I heard, that’s

October the 28th, this Sunday. Mr. Burshtin, an engi-

neer employed by the Department of Environmental Pro-

tection testified before this very court a few days ago as

to the estimated time left in the Kinsley Landfill. The

court having found this witness extremely credibie for

the purpose of this hearing and accepts his estimation

that Kinsley will reach capacity not on October 23, but

November — somewhere between November 10 and

November 24. I further find that Gloucester County

Board of Chosen Freeholders, the political arm respon-

sible for the formulation of the County Solid Waste Man-

agement Program, which is responsible for the plan and

implementation pursuant to the Solid Waste Act, New

Jersey Department of Environmental Protection repre-

sented to this court by their testimony and evidence that

they will close Kinsley when it reaches its designated or

designed capacity, as I heard the term in these proceed-

ings, a permitted capacity. An affidavit was submitted by

Richard Feluso, a principal in the firm of Waring Engi-

neering, which firm prepared the design, drawings for

the Kinsley Landfill. And these affidavits indicated to the

court that a temporary lift to the landfill is possible. Mr.

Burshtin, although not familiar with the specifics of the

lift, attested and so testified that this lift is a possibility in

order to temporarily extend the life of the landfill. I fur-

ther find that Gloucester County Board of Freeholders

denied an application for the lateral extension of the

Kinsley Landfill to adjoin virgin ground that the various

plaintiff municipalities are currently required to dispose

of their solid waste at the Kinsley Landfill pursuant to the

county plan and the DEP regulations. In addition, the

glemeaeaiinens eee

A-6

City of Philadelphia, numerous Camden County munic-

ipalities, Salem County, the Camden County Municipal

Utilities Authority, are currently directed by the DEP,

that is, the Department of Environmental Protection to

dispose of their solid waste in Kinsley.

There is testimony before this court, and I seo find,

that the county is currently negotiating for an alternate

site, a place called Colinville-Brookdale in Pennsylvania

and I so find that it was approximately 75 miles from

Gloucester County. I further find the verified allegation

of the plaintiff municipalities state their existing bud-

gets, equipment and manpower at this time are not ca-

pable of effectively disposing waste to these suggested

alternate sites. I heard Mr. Perna. I was impressed with

his testimony. He testified under oath on the stand that

without the sludge out of Camden’s MUA or Municipal

Utilities Authority being dumped, it would have to be

stored; that there was great danger that the Delaware

River, the Delaware River that flows approximately two

miles from this courthouse would be polluted. I heard

testimony that trash would accumulate throughout this

county. This concerns me. I heard and saw evidence in

part of the record of municipalities in this county, mu-

nicipalities such as Glassboro, Woodbury, National Park,

Pitman, to name a few, that interjected, and even

Deptford, hundreds of thousands of dollars would be ef-

fectively spent to go to alternate sites.

This has created in this court’s mind, if I could sim-

ply state it and it is not simple, a doomsday of trash dis-

posal being placed upon us today, an environmental and

economical nightmare; and that’s the best way to de-

scribe it. I also find that the Kinsley Landfill located in

Deptford Township, its size, safety and environmental

impact is of great concern to the residents of Deptford

Township. I heard a housewife on the stand today testify

very vividly how here eyes burn; she follows trash trucks,

trash falls on the streets. I heard numbers of trucks being

trucked into the Kinsley Landfill. All of this I heard —

A-7

that concerns me — of course, vestimony in evidence is

presented to the court concerning much more than that

which I related today. But for the purpose of this hearing,

the issue presented before this court today is of sufficient

basis upon which I can make a determination as to the

issuance of injunctive relief.

This court, although sitting in law today and hearing

this matter by virtue of Prerogative Writ, there is a

merger of law and equity and there is an equitable

maxim that this court has employed, many, many times

when I sat in the Chancery Divisic . in this particular

county and, that is, that equity ne er suffers a wrong

without a remedy and this court today aims to mold such

a remedy. I’ve got to. Someone has to do it today. There’s

a paralysis in this county that must be broken. It is be-

yond question that the imminent closing of the Kinsley

Landfill will work an immediate and irreparable harm on

the plaintiffs, trash haulers and the citizens relying on

their service; budgets may be broken, necessary services

will be severely impaired, utter chaos in the waste man-

agement of this county; waste may accumulate

uncollected and cause a severe environmental hazard;

businessmen and citizens will suffer. On the other hand

Kinsley itself is of environmental concern. I can’t ignore

it. It’s there. It won’t go away. It’s of concern to the cit-

izens who live and work in Deptford Township. If it is to

continue operation beyond its permitted design and ca-

pacity, the citizens of Deptford will be seriously and del-

eteriously affected since vertical or lateral extensions or

lifts have not been approved and safety requirements

have not been adequately assured by the required state

agency.

The court is satisfied today in a temporary nature

that the plaintiffs have properly invoked its equitable ju-

risdiction, there being no adequate remedy at law; the

reasonable likelihood that the plaintiffs are entitled to re-

lief has been met by them for the purpose of this hearing.

The court recognizes that if Kinsley were permitted to

A-8

close this Sunday there would be in actuality no county

plan for solid waste disposal in this district. All the pos-

sible alternatives, which may be suggested or modifica-

tions of the County Solid Waste Plan and under the Act

would be required to undergo certain procedures before

their acceptance and subsequent submission for ap-

proval by the DEP. This court is not going to wait until

the 11th hour. The imminent crisis is upon us today and

before this Court and it appears to be taking place in

many districts all through this state due to the

all-decreasing landfill areas and the ever-increasing pub-

lic concerns of the environment.

This court notes that just recently in the matter of

Filcrest Realty Corporation vs. New Jersey Department

of Environmental Protection vs. Industrial Land Re-

claiming Company, Incorporated and County of

Middlesex vs. State of New Jersey Department of Envi-

ronmental Protection, I/M/O Petition of Edgeboro Dis-

posal, that this matter was before the Appellate Division

of New Jersey, heard by the Panel of Judges McElroy,

Drier and Judge Shebell. This was the Appellate Court of

the Superior Court. And this particular case, although it

is not published, it was brought to my attention and I did

secure a copy and it does give this court guidance. In that

particular case, and I want the record to be clear that I

have reviewed a transcript of the trial judge’s decision,

the trial judge in that particular case immediately closed

the landfill. Our Appellate Division stated in effect,’

Judge Shebell’s order of October the 5th, 1984 and I read

the important portions because, although this is not a

published opinion, it does give me guidance, gives me

guidance to know what a section of our Appellate Court

does, which is a court in which appeals from this court,

this court sitting in a trial court has taken. Judge Shebeil

stated, we grant a stay of trial judge’s order of October 4

requiring immediate closing of the ILR Landfill. We

deem it is within the jurisdiction of the Chancery Court

A-9

to provide for an orderly closure of the ILR Landfill giv-

ing consideration to its effect on all parties and the pub-

lic. We remand to the trial judge to hold a hearing

forthwith to establish a timetable under which a gradual

phase-out of solid waste from ILR to the Edgeboro Land-

fill can be accomplished. All proceedings in regard to this

appeal are stayed; and this order shall have no right or

effect upon Edgeboro to pursue its right to a hearing be-

fore any State agency concerning the redirection orders.

This court is inclined to effectuate the closure of the

Kinsley Landfill. But in considering the equities in-

volved, the balancing of the hardships and most impor-

tantly considering the public interest, this court will

intervene in the closure of the Kinsley Landfill, but it will

intervene so that this closure is orderly.

I will grant today a preliminary restraining order bar-

ring any action by the defendants to close Kinsley Land-

fill. I issue this injunction within the rules as |

understand them. This court has the authority to issue a

temporary restraining order 20 days from the time I

make my decision. I issue it for a period of 18 days. In the

interim, this court orders that the Gloucester County

Board of Chosen Freeholders and its Solid Waste Advi-

sory Committee to formulate a reasonable alternative site

to Kinsley and a modification of its Solid Waste Manage-

ment Plan and to take all steps necessary to effectuate its

formal approval by the Board and to submit the same to

this court. Furthermore, I order that the Department of

Environmental Protection to provide to this court a time-

table for the orderly closure of the Kinsley Landfill and to

take steps under their law and under their body of ad-

ministrative regulations to direct the trash in an orderly

fashion. Lastly, | order that Kinsley partake in this rem-

edy, which I have molded and I want them to provide to

me engineering plans for a temporary vertical expansion

of the portion of the landfill not in use, not any virgin

ground, no expansion. I want to know what Mr. Burshtin

— and everyone was in court and heard his testimony —

A-10

is it safe to go up a little bit? Said plan is to be delivered

to the DEP care of Mr. Burshtin, who tesitified right in

this court that he could review the proposed temporary

lift in a matter of three or four days. Upon completion of

the review of Mr. Burshtin of the DEP or those qualified

in that department, said proposal shall be submitted to

this court.

It is further ordered that upon good cause shown,

this order which is a temporary order, may be modified,

enlarged or dissolved on a one-day notice. Now, I am

intervening again. I am relaxing the court rules. The

court rules provide for a two-day notice on a modifica-

tion. Because of the urgency of this matter, because it

concerns this court, I, who have the power to do it under

the court rules are relaxing. I will hear this matter day or

night on a one-day notice, personally, and I have so or-

dered. Because of my orders, certain parties have to do

certain things. It is unnecessary at this particular time,

because again, I rely on Mr. Burshtin’s testimony who I

heard under cath, to restrain the City of Philadelphia and

Camden from disposing waste at the Kinsley Landfill.

However, so that everyone knows where I am coming, I

reserve that decision, that decision with regard to Phil-

adelphia, Camden for another day and pending further

hearing.

In order to effectuate this very emergent situation

and to put this matter into effect, because doomsday is

upon us, 9:00 a.m. November 13, 1984 I will clear my-

calendar at 9 o’clock and I will meet all the attorneys in

this courtroom to hear further arguments in regard to

whether my restraints should be dissolved, continued,

extended or modified and that is the date which I want

all people to come back, 9 o'clock in this courtroom or

you can check with Mrs. Dodson, my secretary and she

will tell you where I will be sitting. In addition thereto,

and this is very important so that this court is not caught

and so that I can be prepared and not caught at the last

minute, because as you are aware I have had to study a

ee eS —Z_ ee ee eee ee ee ee

A-11

voluminous amount of evidence and excellent briefs in

regard to this matter in a short period of time, I order that

all of these reports that I am calling for, the engineering

report, the DEP report, the Solid Waste Management

Gloucester County Report be submitted to my chambers

by 4 o’clock Friday, November 9, 1984.

Now ladies and gentlemen, this has been a most dif-

ficult case. This court now I feel has done its job today.

Now I direct the county, DEP and Kinsley Landfill to do

theirs. And I find and determine that all the parties be-

fore this court are reasonable people. This country was

founded upon laws promulgated by the people and our

people live by law and order. And if everyone does their

job we are all going to solve this crisis so that we won't

have to be back before a court such as myself asking to

intervene.

Thank you for your courtesies. That is the order of

the court today. Mr. Lisa, you will prepare the order un-

der the five-day rule.

(Whereupon the hearing was concluded. )

A-12

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION

GLOUCESTER COUNTY

DOCKET NO. L-070476-84 PW

BOROUGH OF GLASSBORO, a CIVIL ACTION

municipal corporation of the State

_ of New Jersey

Plaintiff

TEMPORARY

v. RESTRAINING ORDER

GLOUCESTER COUNTY BOARD OF

CHOSEN FREEHOLDERS, et al

This matter having been opened to the Court by

Joseph F. Lisa, Esq., attorney for Plaintiff Borough of

Glassboro, and in the presence of counsel for the various

parties to this cause as indicated on the list and annexed

hereto, and this matter having been heard by the Hon-

orable Samuel G. DeSimone on October 19, 23, 24, 25

and 26, 1984 and the Court having heard the testimony

of the various witnesses, having reviewed the various ex-

hibits, affidavits and briefs submitted by counsel and

having heard the arguments of counsel, and it appearing

to the Court that there is an immediate threat of irrep-

arable injury if temporary restraints are not granted, and

for the reasons set forth by the Court in its oral Opinion

on October 26, 1984, and for good cause shown:

It is on this 26th day of October, 1984, ORDERED

that defendants are restrained from taking any action

which would prevent the continued uninterrupted use of

Kinsley Landfill until and including November 13, 1984;

And it is further ORDERED that not later than No-

vember 9, 1984, the County of Gloucester shall formu-

late a reasonable alternate site for solid waste disposal

and to modify its Solid Waste Management Plan accord-

ingly, and take all steps necessary to effectuate same,

A-13

and shall submit a written report to the Court by 4:00

P.M. on November 9, 1984;

And it is further ORDERED that not later than No-

vember 9, 1984, the DEP shall submit a timetable for the

orderly closure of the Kinsley Landfill and take steps to

redirect waste flow in an orderly fashion and submit a

report to the Court by 4:00 P.M. on November 9, 1984;

And it is further ORDERED that not later than No-

vember 5, 1984, Defendant Kinsley Landfill, Inc. shall

submit to Walter Burshtin of the DEP and to the Court,

a complete engineering design for the vertical expansion

of the Kinsley Landfill for one additional lift of com-

pacted solid waste;

And it is further ORDERED that not later than No-

vember 9, 1984, the DEP shali review the Engineering

design and submit a written report to the Court by 4:00

P.M. on that date;

And it is further ORDERED that all reports and sub-

missions required by this Order shall be made available

to all counsel on November 9, 1984 by 4:00 P.M. at the

Gloucester County Court House;

It is further ORDERED that the Court shall reserve

decision on the application for restraints against the

County of Camden and the City of Philadelphia;

And it is further ORDERED that all counsel shall

appear before the Court on November 13, 1984 at 9:00

A.M. for argument regarding the continuation, dissolu-

tion or modification of this Order and the restraints con-

tained therein;

And it is further ORDERED that any provision of

this Order may be modified or dissolved by application of

any party on one-day notice to all other parties.

SAMUEL G. DE SIMONE, A.J.S.C.