IN THE MATTER OF THE PETITION OF WASTE MANAGEMENT OF NEW JERSEY INC.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1441-11T1

IN THE MATTER OF THE PETITION

OF WASTE MANAGEMENT OF NEW JERSEY,

INC. FOR APPROVAL TO PURCHASE

CERTAIN ASSETS OF CIFALOGLIO, INC.

AND FOR CIFALOGLIO, INC. TO

SURRENDER ITS CERTIFICATE OF

PUBLIC CONVENIENCE AND NECESSITY.

___________________________________

November 29, 2012

Argued November 14, 2012 - Decided

Before Judges Fisher and Waugh.

On appeal from the Department of Environmental Protection, Bureau of Solid Waste Compliance and Enforcement, Docket No. MA-2011-014.

Paul J. Gallagher, General Counsel argued the cause for appellant Atlantic County Utilities Authority.

Cheryl R. Clarke, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Jeffrey S. Chiesa, Attorney General, attorney; Lewis Scheindlin, Assistant Attorney General, of counsel; Ms. Clarke, on the briefs).

Sandra T. Ayres argued the cause for respondent Waste Management of New Jersey, Inc. (Scarinci & Hollenbeck, LLC, attorneys; Ms. Ayres, of counsel and on the briefs).

Ryan M. Bornstein argued the cause for respondent Cifaloglio, Inc. (Harvey Ballard & Bornstein, LLC, attorneys; Mr. Bornstein, on the brief).

PER CURIAM

Appellant Atlantic County Utilities Authority (Authority) appeals from a final order of the Department of Environmental Protection (Department), approving respondent Waste Management of New Jersey's (Waste Management) purchase of a solid waste transfer station and related assets owned by respondent Cifaloglio, Inc. (Cifaloglio). We affirm.

In March 2011, Waste Management and Cifaloglio entered into an asset purchase agreement in which Waste Management agreed to purchase the assets of Cifaloglio, including a transfer station/materials recovery facility (facility) located in Buena Vista. The facility is a "solid waste facility which receives incoming waste from collection vehicles and, after removal of any recyclables, transfers the waste residue to haulage vehicles for delivery to an off-site final disposal facility." At the time of the agreement, the facility received waste from the following counties: Atlantic, Burlington, Camden, Gloucester, Ocean, Salem, Cumberland and Cape May. Waste originating in Atlantic County was subsequently delivered by Cifaloglio to the Authority's landfill in Egg Harbor Township for final disposal.

In April, Waste Management and Cifaloglio filed a joint petition requesting the Department's approval of the purchase. Waste Management subsequently submitted a revised operations and maintenance manual for the facility. The manual stated that "[m]arket conditions will dictate which disposal facility is utilized, unless the origin of the waste is from a county that has flow regulations; in which case the county waste flow regulations will be followed," and that solid waste would be "delivered to disposal facilities in accordance with the applicable solid waste management plans of the service area." Attached to the manual was a list of disposal facilities, all located in New Jersey.

The Authority sent an email to the Department on April 20, asking to be "advise[d] . . . about any public comment format and schedule for interested parties to provide input" during the approval process. The Department replied that it would be sending the transfer request documents to the Authority for comments and that in addition, "[o]nce a decision has been made to approve the transfer of ownership, a 30 day public comment period will be opened to accept comments from anyone." The Authority sent the Department a follow up email asking for the transfer request documents in May. The Department replied that it would send the documents after it had issued a determination of administrative completeness to Waste Management, and that the Authority would then have thirty days "to provide any comments regarding the transfer."

In June, the Department sent the Authority and the municipalities served by the Cifaloglio facility copies of the Waste Management application and a cover letter summarizing the proposed transfer of ownership. The letter stated, "If you wish to provide comments, it would be appreciated if your comments were submitted to the Bureau within thirty (30) days from the date of this letter." The Department received no comments.

In August, the Department sent the Authority and other potentially interested parties copies of the draft permit authorizing the sale. The cover letter included information about the upcoming public notice to be published in two newspapers on August 29, and stated

that should this notice result in the scheduling of a hearing, a subsequent notice of the hearing will be provided . . . . If the action does not result in a public hearing, the public comment period will close 30 days after the publication of this notice and a final decision on the permit application will be taken in accordance with N.J.A.C. 7:26-2.4(g)(19).

No public hearing was requested or scheduled.

In September, the Authority sent its comments on the transfer of ownership to the Department. Those comments are not directly relevant to this appeal. Significantly for the purposes of this appeal, however, the comments did not include (1) any objection to Waste Management's purchase of Cifaloglio's assets, (2) any concerns related to market share or competitive pricing resulting from the purchase, or (3) any objection to the manner in which the Department had conducted the approval process up to that point.

On October 12, 2011, the Department's Bureau of Solid Waste Compliance and Enforcement issued a solid waste order approving Waste Management's purchase of Cifaloglio's assets and issued the solid waste facility permit.

The order and permit required Waste Management to comply with the approved district solid waste plan for the district in which waste delivered to its facility originated. The district plan then in effect for Atlantic County designated the Authority's landfill as the sole in-state disposal facility for non-hazardous solid waste generated within Atlantic County, but allowed delivery of solid waste to a licensed out-of-state disposal facility.

In email correspondence to the Department on October 18, the Authority raised questions regarding Waste Management's operation of the former Cifaloglio facility, noting that "the tonnage normally accepted at [the Authority's landfill] [had] decreased by 50%." According to the Authority, Waste Management was disposing of non-hazardous solid waste at a site in Pennsylvania, which was owned by a related entity, rather than at the Authority's site.

On November 14, the Authority sent the Department a letter objecting to the October order, requesting an "investigation into the issues of artificial and discriminatory pricing and associated anti-competitive practices," and "asking that [the] subject waste be delivered to [the Authority] immediately" for the purpose of "mitigating anti-competitive results" of the order. The Authority claimed that the facility's waste deliveries to its disposal site had dropped by seventy percent and estimated "an annual loss of . . . $3,653,659 in gross receipts, including $319,651 in host community benefits lost to Egg Harbor Township," and an additional loss of $1,900,000 because "Atlantic County waste that was previously serviced by [Cifaloglio] and now serviced by [Waste Management] is being delivered out of state."

The present appeal was filed shortly thereafter.1 In February 2012, while this appeal was pending, Atlantic County amended its solid waste management plan to designate the Authority's landfill as the only permissible site for disposal of non-hazardous solid waste generated within Atlantic County. The Department approved the amended plan in August. Waste Management has complied with the amended plan since its approval.

The driving force behind the Authority's belated opposition to the sale of Cifaloglio's assets to Waste Management was clearly Waste Management's subsequent diversion of non-hazardous solid waste from the Authority's site to an out-of-state site. At the time that action was taken by Waste Management, delivery of solid waste to a licensed out-of-state disposal site was explicitly permitted by Atlantic County's solid waste management plan.2 In other words, the document governing the issue would have permitted Cifaloglio to take the same action had the sale of assets not taken place.

Because the Atlantic County plan has now been amended to prohibit usage of an out-of-state site, the issue that prompted the Authority's belated objection to the sale of assets has become moot. Generally, "courts should not decide cases where a judgment cannot grant relief." Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App. Div. 2000).

As previously noted, the Authority did not object to the sale of Cifaloglio's assets to Waste Management at any time prior to its approval by the Department. In addition, it never raised issues with respect to market share and competitive pricing or the manner in which the Department was conducting the approval process until after the approval was issued. In essence, the Authority seeks to raise on appeal issues that it could have, but did not, raise before the Department during the public comment period.

In any event, having reviewed the issues raised on appeal, we find them to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The Authority filed motions with the Department to intervene and for reconsideration in November 2011. Those motions were denied in April 2012 due to procedural deficiencies.

2 It appears that Waste Management sent waste to the out-of-state disposal site at a time when that site was not listed in its operations manual. Any regulatory violation resulting from that conduct is not appropriately the subject of this appeal.