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Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders

ELR Citation: 26 ELR 20721
Nos. Nos. 93-2669 (JEI), 94-3244 (JEI), 909 F. Supp. 229/(D.N.J., 11/28/1995) preliminary injunction granted

The court grants a preliminary injunction to restrain enforcement of New Jersey's flow control regulations for construction and demolition (C&D) debris and to require implementation of an alternative state regulatory plan. The regulations required some types of debris not separated into recyclable and nonrecyclable waste at the source to be delivered to in-state, district-designated transfer stations for sorting. The regulations then required the nonrecyclable portion to be disposed of at an in-state, district-designated disposal site. After plaintiff waste management companies challenged the regulations, the court ordered the state to submit an alternative plan. Under the alternative plan, a transporter of mixed C&D debris wishing to take a load out of state would first go to the designated district facility and weigh in. The facility would then have the option to inspect the load, and the hauler would have to submit forms with information about the waste and its destination. The court first notes that there is some dispute as to what type of mixed debris could be taken out of the state for processing of recyclables under the current regulations. The court holds, however, that regardless of how the current regulations are interpreted, the court will grant plaintiffs the right to take all mixed loads of C&D debris to any in-state or out-of-state recycling facility, and to dispose of the nonrecyclable residue without regard to existing flow-control regulations. Given that only a small portion of New Jersey's waste is at issue, the alternative plan can adequately address the harm to the public and defendant state and counties. Any revenue shortfall from decreased in-state disposal of C&D waste can be recovered through other means and does not constitute the type of harm that would preclude the court's enforcement of a preliminary injunction. Also, although traffic patterns for trucks hauling waste out of state may change in some parts of New Jersey, the existing degree of out-of-state traffic suggests that the plan's impact on traffic, and thus on the environment, will not be as significant as the state claims. Further, while the totally unrestrained interstate flow of waste might create significant enforcement problems, the plan's weighing and inspection provision should substantially alleviate this concern. In addition, there are other ways for New Jersey to achieve its goal of recycling 60 percent of its solid waste without discriminating against interstate commerce. And while there is the potential for significant public harm if a waste disposal crisis again develops, the likelihood of such harm resulting from the requested preliminary injunction is not significant.

The court next holds that the inspections required under the plan do not unconstitutionally discriminate against interstate commerce. Rather, the inspections may actually benefit interstate haulers because they will now have a document from a designated facility that confirms that they may take an entire load out of state. The court finds that the state has sufficient need for monitoring and accurate data collection to require inspection of all C&D waste haulers at designated district facilities before waste is delivered out of state. The court holds that while an inspection scheme that required dumping of all out-of-state loads for analysis would be burdensome, it is not unreasonable for the state to require a nondumping inspection of all loads. Further, the state may require the dumping of random loads for the purpose of spot-checks, or the dumping of a particular load if there is a reasonable suspicion about its contents. Relying on forms completed by out-of-state facilities, as plaintiffs suggest, is insufficient to meet the state's enforcement concerns, because the state has no control over these facilities and no right to inspect them. The court next refuses to decide in the abstract whether any fees that the state might assess to fund the plan would violate the Commerce Clause of the U.S. Constitution. The court next finds that this case does not fit within the Third Circuit's narrow exception to the requirement that a party seeking an injunction provide security for any damages that may be incurred by a party found to have been wrongly enjoined. The court, thus, requires plaintiffs to post a $50,000 bond. Finally, the court finds the alternative plan to be an acceptable nondiscriminatory means of monitoring the processing and disposal of C&D waste generated in New Jersey that will not cause the public or defendants irreparable harm.

[Prior opinions in this case are published at 25 ELR 20620 and 26 ELR 20256.]

Counsel for Plaintiffs
Mark R. Rosen
Mesirov, Gelman, Jaffe, Cramer & Jamieson
89 N. Haddon Ave., Haddonfield NJ 08033
(609) 795-4988

Counsel for Defendants
Gail M. Lambert, Ass't Attorney General
Attorney General's Office
R.J. Hughes Justice Complex, CN 093, Trenton NJ 08625
(609) 292-4919