18 ELR 21302 -- Old Bridge Chemicals, Inc. v. Commissioner

Old Bridge Chemicals, Inc. v. Commissioner

No. A-1874-87T5 (N.J. Super. Ct. App. Div. June 7, 1988)

The court holds that the New Jersey Department of Environmental Protection's amendment of the definition of solid waste to include waste material to be recycled does not contravene the state's Solid Waste Management Act. The broad definition actually advances the purposes of the statute by serving to protect the public in the storage and collection of solid waste. Nothing in the statute excludes its applicability to waste materials because they are reusable. The court also holds that the state's definition is not preempted by the Federal Resource Conservation and Recovery Act, since New Jersey's requirements are not less stringent than the federal requirements.

Counsel for Appellant
Richard M. Hluchan, Melinda R. Martinson
Sterns, Herbert, Weinroth & Petrino
186 W. State St., P.O. Box 1298, Trenton NJ 08607
(609) 392-2100

Counsel for Respondent
Marty M. Judge, Deputy Attorney General
Richard J. Hughes Justice Complex, Trenton NJ 08625
(609) 292-4925

Counsel for Intervenor
George J. Tyler, Robert M. Wolf
Giordano, Halleran & Ciesla
270 Highway 35, Box 190, Middletown NJ 07748
(201) 741-3900

Before Furman, Brody & Long, JJ.

[18 ELR 21302]

Per Curiam (before Furman, Brody & Long, JJ.):

By amendment to N.J.A.C. 7:26-1.6(b) effective December 21, 1987, the Department of Environmental Protection (DEP) redefined solid waste to encompass any "waste material . . . including . . . spent material . . . resulting from industrial . . . operations . . . which is recycled." The prior definition by DEP regulation did not extend to waste material to be recycled. Appellant attacks the amended regulation as ultra vires DEP's statutory authority under the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.

Factually, appellant is subject to DEP monitoring under the amended regulation. It purchases spent etchants, copper chloride and copper ammonium chloride, from circuit board manufacturers. In the circuit board manufacturing process, the etchants become spent and unusable when too heavily saturated with copper. After shipment to appellant's plant in Old Bridge, the spent etchants are reused, reacting with other chemicals in the manufacture of chemical compounds such as copper sulfate and ammonium chloride solutions. The spent etchants, thus, are raw materials in another manufacturing process at another plant site.

We view this appeal as clearly without merit. Appellant would limit waste material subject to DEP regulation to waste material not to be reused and of no value for reuse. That limitation is unsupported in the statutory language. The challenged amendment bringing waste material to be recycled under DEP supervision and regulation in no way infringes or conflicts with the governing legislation; rather, it advances the legislative purpose of protecting the public in the storage and collection, i.e., pick-up and transportation, or solid waste. N.J.S.A. 13:1E-2(a), 3(b), 4(a), 6(a)(2).

N.J.S.A. 13:1E-3(a) defines solid waste to include "garbage, refuse, and other discarded materials resulting from industrial . . . operations." Nothing in the legislative scheme or in the dictionary definition of "discarded" precludes its applicability to materials left over and of no further use in one manufacturing process solely because they are reusable and not destined for disposal at a waste disposal site. The hazards of spillage in the transportation of such materials for reuse in another manufacturing process at another plant site, and during their storage there, are legitimate matters of legislative concern now safeguarded against by N.J.A.C. 7:26-1.6(b). That regulation implements sections of the Solid Waste Management Act we have cited supra. As waste materials, the spent etchants are classified as hazardous waste under N.J.A.C. 7:26-8.1.

Moreover, the inclusion of the spent etchants as a raw material or ingredient in appellant's process fits the DEP regulatory definition of recycling in N.J.A.C. 7:26-1.4: "the procedure whereby a residual is employed as an ingredient in an industrial process to make a product."

Appellant also urges that N.J.A.C. 7:26-1.6(b) is invalid because it conflicts with and is more stringent than Federal law, contrary to N.J.S.A. 13:1E-6(a)(3), which provides:

In the development and formulation of the Statewide solid waste management plan the department shall consult with relevant agencies and instrumentalities of the Federal Government, and the aforesaid objectives, criteria and standards provided by said Statewide solid waste management plan shall conform, to the extent practicable, or as may be required, to the provisions of any Federal law concerning such objectives, criteria and standards.

That argument is untenable. There is no Federal preemption. Rather, 42 U.S.C.A. § 6929 provides for the retention of State legislative jurisdiction over hazardous waste management, with authority in each State to "impose any requirements . . . which are more stringent than those imposed" by Federal implementing regulations. The only limitation is that State law may not impose less stringent requirements "respecting the same matter." N.J.A.C. 7:26-1.6(b) thus is in conformity and not in conflict with Federal law regulating hazardous waste.

Finally, appellant relies upon American Mining Congress v. U.S. E.P.A., 824 F.2d 1177 [17 ELR 21064] (D.C. Cir. 1987), which held invalid a Federal regulation including within the definition of "solid waste" materials left over after one manufacturing process but "destined for beneficial reuse or recycling in a continuous process by the generating industry itself." That is not the factual circumstance on the appeal before us. Nor would material so recycled in a continuous process by the generating industry fit within the DEP regulatory definition of "solid waste." N.J.A.C. 7:26-1.1(a)(5) exempts from the regulations implementing the Solid Waste Management Act: "The intra-plant transport, temporary storage or other handing of plant generated waste materials."

We note DEP's additional argument before us that under Bergen Pines Hosp. v. Dept. of Human Serv., 96 N.J. 456 (1984), the appeal should be dismissed because of appellant's nonparticipation in DEP's rulemaking procedure. But DEP neither cross-appealed nor moved for a dismissal. Because of our disposition of the appeal in favor of DEP, we need not decide the Bergen Pines issue. We point out that appellant before us, unlike appellant in Bergen Pines, is not attacking the reasonableness of a State agency regulation but, rather, the legislative authority to promulgate it.

We affirm.