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Pre-emption of solid waste regulation in NJ can be a real problem for local officials

The Superior Court of New Jersey in Gary Walker d/b/a Omega Material Recovery v. Board of Chosen Freeholders of the County of Burlington, (2015) considered an appeal to amend the Burlington County District Solid Waste Management Plan (the District Plan) in order to approve a site for a solid waste transfer station and material recovery facility.

Plaintiff Gary Walker proposed to operate the Omega Material Recovery Facility (the Omega Facility) as a transfer station for certain solid waste. It was to be built on an Eastampton Township site, owned by his wife, where it would receive a reduced daily “throughput” of 500 tons per day. During the “pre-application” period, Plaintiff worked with his engineering experts and attorneys to anticipate and address local and regional concerns.

When this period was over, Plaintiff filed an application for an amendment to the District Plan with the Freeholder Board in order to approve the Omega Facility. Following this, a hearing took place, whereby the County’s Solid Waste Advisory Council (SWAC) requested further information, which the staff of the County’s Department of Solid Waste (Department Staff) prepared a forty-seven page report (Department Report) for the Freeholder Board. A second hearing took place after this, with the Freeholder Board rejecting the Plaintiff’s application based on the concerns and recommendations of the Department Staff’s report.

Plaintiff filed an Amended Complaint in Lieu of Prerogative Writs, which challenged the Freeholder Board’s rejection of his application, but the trial court issued an opinion upholding the Freeholder Board’s decision. Consequently. This is the standard manner for appealing these kinds of government decisions.

In this appeal, Plaintiff sought to address the concerns of the Freeholder Board, which stemmed from the Department Staff’s report. One oof these concerns, was whether eighteen Omega Facility employees working a “one-shift operation” could process five hundred tons of solid waste daily, to which the Department Report questioned the Omega Facility’s ability because of insufficient detailed information from Plaintiff’s engineer. Along with this, there were major traffic, dust, odor, noise, and site lighting concerns in the Department Report, and its impact on property values gave rise to the Freeholder Board’s rejection of the application.

Plaintiff asserted that the Freeholder Board overstepped its authority of “planning phase” and usurped the New Jersey Department of Environmental Protection’s “technical phase.” However, the arguments on appeal were no successful. Under review, the trial court found the Freeholder Board was within its jurisdiction, and did not overstep into the New Jersey Department of Environmental Protection’s privileges. Plaintiff’s arguments addressing the Department Staff’s concerns were also found to be without sufficient merit, leading the trial court to uphold the Freeholder Board’s decision.

Waste flow decisions are based on an intricate web of governance at the county and state level. Municipalities have nothing to say about this issue based on this theory of preemption. Only county and state governments weigh into these often significant issues.

So what happens when the state fails to regulate leaving the local residents and government officials with a smelly, non regulated often contaminated mess? While uncommon, this is regrettably no unheard of in the solid waste and recycling industry. Then local officials need to insist that the State DEP get involved and stop the active nuisance. That can be easier said than done!!

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