IMO GAETA RECYCLING CO. INC.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2470-04T22470-04T2

A-2520-04T2

IN THE MATTER OF

GAETA RECYCLING CO., INC.

 
________________________________

Argued December 13, 2006 - Decided

Before Judges Lefelt, Parrillo and Sapp-Peterson.

On appeal from the Department of Environmental

Protection.

Paul J. Forsman argued the cause for appellant

City of Paterson (Susan E. Champion, attorney;

Gary Gordon, on the brief).

Steven T. Singer argued the cause for appellant

Islamic Center of Passaic County, Inc.

James V. Segreto argued the cause for respondent

Gaeta Recycling Co., Inc. (Segreto Law Offices,

attorneys; Mr. Segreto, of counsel and on the brief).

Jane F. Engel, Deputy Attorney General, argued the

cause for respondent Department of Environmental

Protection (Stuart Rabner, Attorney General of New

Jersey, attorney; Patrick DeAlmeida, Assistant

Attorney General, of counsel; Ms. Engel, on

the brief).

PER CURIAM

These are consolidated appeals by the City of Paterson (Paterson) and the Islamic Center of Passaic County, Inc. (Islamic Center) from a December 14, 2004 decision of the New Jersey Department of Environmental Protection (DEP) issuing to respondent Gaeta Recycling Co., Inc. (Gaeta) a solid waste facility permit renewal with a major modification. Appellants claim that DEP's decision is arbitrary and capricious due to DEP's failure to follow its own regulations in waiving the setback requirement, in accepting as sufficient Gaeta's supporting documentation, which they assert fell short of regulatory requirements as to specificity and content, and in ratifying Gaeta's traffic flow plan. Appellants also argue that the issuance of the permit violates our State's principles of environmental justice in that it places the burden of the management of waste from suburban counties upon the comparatively disadvantaged residents of the inner City of Paterson. For the following reasons, we affirm.

Some background is in order. Since 1985, Gaeta has operated a solid waste transfer station/materials recovery facility (facility) in Paterson, in what was, at all relevant times, an I-2 heavy industrial zone. The surrounding neighborhood is of mixed use, comprised of residences, commercial and industrial buildings. The facility adjoins railroad tracks. The Islamic Center owns undeveloped property directly across the street from Gaeta's facility upon which it intends to build a community center to serve its congregation and the surrounding community.

Pursuant to its role in the regulatory regime of the Solid Waste Management Act (Act), N.J.S.A. 13:1E-1 to -48, to develop a district solid waste management plan (SWMP) which contains an effective strategy to dispose or recycle all solid waste generated in the county, N.J.S.A. 13:1E-21, Passaic County incorporated Gaeta's facility into its SWMP on February 21, 1985. N.J.S.A. 13:1E-21b(3). In accordance with its statutory obligation to review each district SWMP pursuant to statewide solid waste management objectives, N.J.S.A. 13:1E-24a(1), the DEP certified Gaeta's inclusion into Passaic County's SWMP on July 15, 1985. N.J.S.A. 13:1E-24. In the following years, Gaeta received approval from the County and the DEP to expand operations, adding a weighing scale in 1993, a Class A recycling center which increased daily capacity from 95 to 117 tons in 1995, and a second scale and scale house in 2002.

Under the permit in effect just prior to the one now under appeal, Gaeta was authorized to accept a maximum of 117 tons of solid waste and/or recyclables per day to a maximum of 570 tons a week, and operated six days a week beginning at 7:00 a.m. In January 1998, Gaeta applied to Passaic County to increase capacity of its facility to 3600 tons per week with a daily maximum of 720 tons, and to add an adjoining lot to its facility. After providing for notice and public comment on the proposed expansion, Passaic County adopted Amendment 2-1999 on March 9, 1999, which incorporated Gaeta's proposed expansion into the County's SWMP. Neither appellant voiced any objection to the proposal at that time. In accordance with its responsibility to review such plan amendments for compliance with statewide solid waste management objectives, criteria and standards, N.J.S.A. 13:1E-24a(1), DEP certified Amendment 2-1999 on September 13, 1999. No party challenged this certification.

Pursuant to N.J.S.A. 13:1E-26, on August 26, 1999, before DEP had certified Amendment 2-1999, Gaeta applied to DEP for major modifications to its existing solid waste transfer facility consistent with Amendment 2-1999, and in addition, requested authorization to also accept type 10 (putrescible) and type 23 (vegetative) waste and to enlarge the facility. In accordance with N.J.A.C. 7:26-2.4, the application included an Environmental and Health Impact Statement (EHIS), an engineering report, and an operations and maintenance (O&M) manual, as well as a traffic study, a noise study, and a set of maps and engineering design drawings. However, because the latter part of its expansion proposal was never considered and certified by Passaic County as part of the County's SWMP pursuant to N.J.A.C. 7:26-2.4(a)7, on September 28, 1999, DEP determined that the application was administratively incomplete, citing N.J.A.C. 7:26-2.4(g).

Consequently, Gaeta amended its application to DEP and also applied to the County for a second amendment to the SWMP, consistent with its application for major modification, requesting authorization to accept putrescible and vegetative waste and to enlarge the facility. After holding a public hearing during which there was no opposition, Passaic County adopted Amendment 3-1999 granting Gaeta's request. Again, no party challenged this certification.

On June 9, 2000, DEP determined that Gaeta's amended application for major modification was administratively complete, combined it with Gaeta's application for renewal of its existing solid waste facility permit filed on September 22, 2000, and commenced its technical review. DEP supplied copies of Gaeta's application to various local, state, and federal agencies and other interested parties as required by N.J.A.C. 7:26-2.4(g)(6) and (7). In response to this notice, various parties, including neighborhood residents, the City of Paterson, Paterson's health officer, and the Passaic County Health Department, submitted comments opposing the expansion of Gaeta's operations, voicing concerns that an increase in capacity would cause odors from the putrescible waste and idling trucks, add to the amount of truck traffic and resultant noise and fumes, attract rodents and insects, impede traffic, limit on-street parking, and compromise the safety of pedestrians. Paterson's Planning Board submitted a July 25, 2000 resolution opposing the expansion. The Passaic County Office of Health Services detailed six complaints of odor emanating from Gaeta during the years 1999 and 2000, two of which were verified and resulted in summonses issued.

In response to notices of deficiencies issued by DEP on February 6, 2001 and May 28, 2001, Gaeta submitted a new application on December 3, 2002, reducing its expansion request to 350 tons daily average, with a daily maximum of 400 tons and a weekly average of 2100 tons. Throughout 2003, Gaeta also provided additional information in response to DEP's third notice of deficiency, and also was issued a permit by the City of Paterson for the construction of the additional building.

Upon considering Gaeta's submissions, the DEP determined that the revised application was technically complete pursuant to N.J.A.C. 7:26-2.4(g)11, and consequently provided notice of the new application to Paterson, Passaic County, and other interested parties pursuant to N.J.A.C. 7:26-2.4(b), (f), and (g), while requiring Gaeta to notify residents directly. In response to DEP's solicitation of comments, Paterson's attorney expressed concern for the lack of any buffer zone between Gaeta's expanded facility and the neighboring residential homes, complaining that, among other things, Gaeta was already accepting putrescible waste in violation of its existing permit. Residents also voiced similar objections to those aired on the original application.

Gaeta responded to these complaints, denying that vegetative waste had been accepted at the facility. In addition, Gaeta asserted that it had installed a "state of the art odor control" system in 2000 and no odor citations had issued since then; that a Paterson Planning Board resolution in 2001 had approved use of the adjacent railroad property for parking trucks; that a noise consultant had determined that the noise levels complied with DEP standards; that the expansion and addition of a second truck scale would avoid queuing of trucks in the street; that under its proposal, trucks are to be routed primarily on streets that are completely or mostly industrial; and that traffic in the neighborhood has actually decreased since Gaeta began operations due to the closing of several factories located nearby.

On June 9, 2004, DEP tentatively approved Gaeta's application and forwarded a draft permit with a fact sheet "setting forth the principal facts and the significant factual, legal, methodological, and policy questions considered in granting tentative approval." N.J.S.A. 13:1E-5.1c. The draft permit proposed: (1) authorizing Gaeta to accept vegetative and putrescible waste in addition to the types of waste already authorized, and limiting Gaeta to 400 tons of waste daily not to exceed 2100 tons a week, having determined that the second truck scale and a space-maximizing storage plan would permit this increase in capacity; (2) allowing Gaeta to begin operations an hour earlier in the morning, at 6:00 a.m.; (3) prohibiting any solid waste from remaining at the facility for more than 24 hours; and (4) further imposing fifty-nine conditions on Gaeta's expanded operations.

DEP then conducted a public hearing, N.J.S.A. 13:1E-5.1d, after extending the comment period to August 3, 2004. During this time, DEP received comments from appellants as well as residents who opposed the expansion, raising concerns, earlier voiced, over potential odor problems, peak daily capacity, hours of operation and noise control, truck traffic and truck safety, and degradation of quality of life and environmental justice. DEP also received comments from area businesses in support of the major modification and expanded hours.

After reviewing the extensive record, on December 14, 2004, DEP issued Gaeta a final major modification/renewal of its solid waste permit, with fifty-nine conditions, having concluded that the facility: (1) meets the design specifications for transfer stations and materials recovery facilities under N.J.A.C. 7:26-2B.5; and (2) would operate in compliance with DEP operating requirements at N.J.A.C. 7:26-2.11, and N.J.A.C. 7:26-2B.9. In its Response to Public Comments Report, N.J.A.C. 7:26-2.4(g)19iv, DEP concluded that the facility was: (1) designed with sufficient internal storage areas to ensure an environmentally sound operation, N.J.A.C. 7:26-2B.5(b)5; (2) designed, positioned and buffered in such a manner that the sound levels generated by the operation do not exceed the limits established in the Noise Control Rules, N.J.A.C. 7:26-2B.5(b)6; and (3) designed in such a manner that will prevent the migration of odors and dust outside the confines of the building, N.J.A.C. 7:26-2B.5(b)7. DEP further found, among other things, that Gaeta's traffic control plan directing the flow of trucks through the neighborhood was safe and efficient considering the new property acquired for queuing and staging, and that the New Jersey Department of Transportation (DOT) had analyzed the projected increase in traffic due to expansion and had approved Gaeta's traffic control plan.

On appeal, appellants argue that in issuing the renewal permit, DEP violated principles of environmental justice and failed to follow its own regulations in three areas: the building setback requirement was not enforced, four aspects of the EHIS were not sufficiently detailed; and the traffic flow plan was inadequate to minimize negative impact on the neighborhood.

As a threshold matter, we state the standard of review. The actions of the DEP or any administrative agency are presumed valid and reasonable, and the burden is on the challenger to overcome these presumptions. Bergen Pines Cty. Hosp. v. Dept. of Human Servs., 96 N.J. 456, 477 (1984). A decision of an administrative agency may only be overturned on appeal if it is arbitrary, capricious, or unreasonable, or if it is not supported by substantial credible evidence in the record. In Re Taylor, 158 N.J. 644, 656 (1999). In a "complex area where the Legislature has delegated a great amount of discretion to the administrative experts, deference must be accorded to the administrative agency's expertise and experience in its domain." Riverside Gen. Hosp. v. New Jersey Hosp. Rate Setting Comm., 98 N.J. 458, 469 (1985); see also Holgate Property Assoc. v. Tp. of Howell, 145 N.J. 590, 600 (1996) ("Consistent with the legislative scheme of the SWMA, there should be substantial deference afforded to the DEP as the administrative agency charged with the regulation of the operations disposing of [solid waste]."). Therefore, on appeal the court's inquiry is limited to determining whether the agency decision violated the enabling act's legislative policies or the state or federal constitution, whether the record supports that decision, and whether the decision could not have been made upon a showing of the relevant factors. Taylor, supra, 158 N.J. at 656; Matter of Stream Encroachment Permit No. 12400, 231 N.J. Super. 443, 454 (App. Div.), certif. denied, 115 N.J. 70 (1989).

An agency must adhere to its duly promulgated rules and regulations and may not ignore them. In re Crown Vista Energy Project, 279 N.J. Super. 74, 79 (App. Div.), certif. denied, 140 N.J. 277 (1995). An agency action violating its regulations is per se arbitrary and capricious. County of Monmouth v. Dept. of Corrections, 236 N.J. Super. 523, 525 (App. Div. 1989). However, an agency's interpretation of the operative law is entitled to prevail, so long as it is not plainly unreasonable. L.M. v. Div. of Medical Assistance & Health Servs., 140 N.J. 480, 489 (1995). Furthermore, the court is required to uphold an agency's factual determinations if they could reasonably have been reached on the evidence in the record, considering the proof as a whole, with regard to the opportunity of the one who heard the witnesses to judge their credibility, and with due regard also to the agency's expertise. Chou v. Rutgers, 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996). Thus, this Court will not substitute its judgment for that of an administrative agency. In re Crown Vista Energy Project, supra, 279 N.J. Super. at 79; see also First S&L Assn. of East Paterson v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967) (the court will not substitute its judgment for DEP's where there may exist a difference of opinion over whether a permit should issue).

Governed by these standards, we are satisfied that issuance of the permit complies with regulatory and statutory criteria, is well-supported by the record, and does not offend principles of environmental justice.

(i)

Gaeta is subject to the setback requirement of N.J.A.C. 7:26-2B.5(b)(10), which provides in pertinent part:

[a] setback area shall be provided to allow for adequate buffering of the site. All main building enclosures shall be designed with a minimum setback of 50 feet from the facility property line. The Department shall allow a reduction in the setback limit if the applicant satisfactorily demonstrates that such a reduction will not pose an adverse impact on the adjacent land use activities.

[N.J.A.C. 7:26-2B.5(b)(10).]

In granting Gaeta's request for a waiver of the setback requirement to build out to its property line, DEP found, based on Gaeta's application as a whole, that there is an adequate buffer created by the air pollutant control system, the noise retardant building material, and the restrictions DEP placed on door openings and on activities permitted before 7:00 a.m. DEP also noted that Gaeta already had two buildings on its property located less than fifty feet from the property line.

This decision was neither arbitrary nor capricious. Where a site's use is one permitted within the zone, "intensification of a permitted use . . . is more appropriately addressed by imposing appropriate conditions and restrictions in connection with site plan approval, rather than by completely barring the proposed use." ERG Container Servs., Inc. v. Bd. of Chosen Freeholders, 352 N.J. Super. 166, 176-77 (App. Div.) certif. denied, 174 N.J. 546 (2002). Here a solid waste management facility is clearly permitted in the zone and the record indicates that other Gaeta buildings were at some point in the past allowed to be built closer than fifty feet from the property line. More importantly, DEP imposed numerous conditions on use of the new building to create an adequate noise and odor buffer, and during the public hearing informed the public as to what to do and whom to contact should a violation occur. We conclude that DEP's decision to grant the setback waiver was based on substantial credible evidence on record.

(ii)

An Environmental and Health Impact Statement (EHIS) is an assessment of technical, economic, environmental, and social parameters affected by the proposed facility. N.J.A.C. 7:26-2.9(a). The purpose of an EHIS is to "force[] the permit applicant and the DEP to consider the impact of the proposed activity on all aspects of the 'environment' . . . ." Matter of the Issuance of Hazardous Waste Permit No. 0901D21HP01, 258 N.J. Super. 483, 490 (App. Div. 1992). The specific requirements for an EHIS are set forth at N.J.A.C. 7:26-2.9(c). The DEP has flexibility in imposing these requirements; it may

allow variances to the requirements of [an EHIS] for any category, or [ ] reduce the size of the general area to be described in the inventory relative to site specific impacts, if the applicant demonstrates during the pre-application conference that specific categories are not applicable or the area is not appropriately subject to the EHIS based on the type, size and location of the proposed solid waste facility.

[N.J.A.C. 7:26-2.9(b).]

Appellants claim that Gaeta's EHIS is deficient in four respects in that it: (1) fails to adequately describe the municipal and neighborhood setting of the proposed facility, as required by N.J.A.C. 7:26-2.9(c); (2) fails to describe the impact the expansion of operations would have on ambient air quality and whether the air quality would comply with the New Jersey State Implementation Plan (SIP), as required by N.J.A.C. 7:26-2.9(c)3i(10); (3) fails to describe in sufficient detail the impact the expansion will have on residential property values as required by N.J.A.C. 7:26-2.9(c)3iv(7); and (4) contains no analysis of alternative sites or "no-action" as required by N.J.A.C. 7:26-2.9(c)11. We find no merit to any of these arguments.

Gaeta's description states that the neighborhood is a "mixed use area of commercial, residential, and industrial uses", is zoned "light industrial", and its facility is bordered by railroad tracks and commercial, industrial, and residential structures. We find this description sufficient especially in light of the fact that DEP was already familiar with the neighborhood and that DEP is expressly authorized to allow variances in the requirements of the EHIS. N.J.A.C. 7:26-2.9(b). Given that the purpose of requiring a description of the surrounding environs is to alert DEP to possible impacts the facility would have on the neighborhood, it is clear in this case that Gaeta has been in operation and has been known to DEP for over twenty years, having had its permit renewed regularly and having been granted permission to expand operations several times in the years between 1985 and 2002. Under these circumstances, we find no further detail need have been provided.

As for air quality data, N.J.A.C. 7:26-2.9(c)3i(10) addresses emissions from the "facility", not emissions from mobile sources such as trucks. On this score, DEP properly assessed whether Gaeta's new building would cause or significantly contribute to pollution in violation of the SIP and National Ambient Air Quality Standards (NAAQS), 42 U.S.C. 7409(a), and found that it would not. See Matter of the Issuance of Hazardous Waste Permit No. 0901D21HP01, supra, 258 N.J. Super. at 491 (the EPA may interpret "facility" to refer to an individual unit or to the waste management complex as a whole, because an expert agency is given broad discretion to construe the word "facility" as it believes will serve legislative purposes) (citing Mobil Oil Corp. v. EPA, 871 F.2d 149, 153 (D.C. Cir. 1989)).

As to the third objection to the EHIS, Gaeta's facility is not new and any impact of its expansion on property values would be speculative. Accordingly, it was reasonable for the DEP not to require any more details or a more well-developed analysis given the flexibility reposed in the agency under N.J.A.C. 7:26-2.9(b).

As to the last challenge to the EHIS, DEP determined that a full impact analysis and alternatives analysis were not necessary because the "type" of facility proposed was pre-existing, already part of the County's SWMP, and seeking only authorization to modify its existing facility which modification had been approved by the County. Given these facts, DEP's decision to relax the EHIS requirement in this instance is reasonable.

(iii)

Appellants next fault Gaeta's traffic flow plan for failing "to minimize impacts on surrounding residential development or other similar receptor" as required by N.J.A.C. 7:26-2B.5(b)9. They point to the fact that Gaeta's expanded operations call for ninety-one trucks making 182 trips daily, often at times when seniors and children will likely be traveling to and from school and the proposed Islamic Center community center on foot and by car. DOT analyzed and approved Gaeta's traffic flow plan when it contemplated a proposed 720 ton daily capacity rather than the 400 ton daily limit that DEP ultimately authorized. Moreover, DEP modified the traffic flow plan by prohibiting use of a residential street as a truck route, and by imposing additional restrictions on traffic flow. The fact that DEP may not have considered any increased traffic impact on the proposed Islamic Center is not fatal to DEP's approval since the project was only in its nascent stage at the time and the available information was simply insufficient to warrant DEP consideration. In any event, we are satisfied that DEP analyzed traffic flow according to the needs of the neighborhood and conditioned its approval of Gaeta's application to minimize any adverse impact.

(iv)

Lastly, appellants argue that DEP's issuance of the permit contravened New Jersey's principles of environmental justice. We disagree.

New Jersey's principles of environmental justice are set forth in Executive Order #96, issued February 19, 2004. The Order directs DEP and other state agencies to review programs and policies to ensure that "program implementation and dissemination of information meet the needs of low income and communities of color, and [to] seek to address disproportionate exposure to environmental hazards". It also directs DEP to address the environmental impact existing facilities have on communities of color and low-income communities with "compliance, enforcement, remediation, siting, and permitting strategies". The Order creates an Environmental Justice Task Force that communities may petition to address environmental justice concerns. Importantly, for present purposes, the Order specifies that it creates no private right of action and that "the actions mandated as a result of this Executive Order shall be accomplished within the bounds of, and consistent with, the legislative purpose supporting the relevant agency's existing statutory and regulatory authority".

We are aware of no petition filed by appellants with the Environmental Justice Task Force seeking enforcement of any provision of the Executive Order in this matter. As noted, there is no private enforcement right although appellants retain the option of petitioning the Environmental Task Force in the future should enforcement of permit conditions and regulatory compliance prove insufficient to ameliorate the problems giving rise to their objections to Gaeta's expansion. In this regard, in keeping with the

principles of environmental justice, DEP employed a "permitting strategy" for protecting the interests of Gaeta's residential neighbors, which was to incorporate residents' concerns into Gaeta's permit as conditions on expanded operations. Moreover, throughout the entire process, the public was made aware of the substance of Gaeta's expansion proposal, participated through a public hearing and comment period, and was apprised of DEP's rationale for issuing the permit through dissemination of its "Response to Public Comment," wherein Comment 4 specifically addresses the issue of environmental justice. In short, we are satisfied that DEP acted in accordance with the statutory and regulatory framework of the Solid Waste Management Act and the principles of environmental justice embodied in Executive Order 19.

Affirmed.

 

Gaeta had actually commenced construction of the new building during Summer 2003 without a permit or DEP authorization, erecting large steel I-beams directly upon the property line and tearing down a neighbor's fence to do so.

(continued)

(continued)

19

A-2470-04T2

March 1, 2007