Court: New Jersey Superior Court Appellate Division; January 9, 1997; New Jersey; State Appellate Court
Fred McDowell, Inc. (McDowell) has operated a hot asphalt mix plant in Howell Township since the 1940s. In March 1990, McDowell sought approval from the Department of Environmental Protection (DEP) to operate a Class B recycling center on its property, processing concrete, asphalt, and petroleum-contaminated soil. Simultaneously, McDowell requested an amendment to the Monmouth County Solid Waste Management Plan to designate its site for this purpose. In May 1993, Monmouth County included McDowell's site in a proposed amendment to the County Plan, which was published for public hearing, but the Township of Howell did not participate or comment.
Following the public hearing, the Monmouth County Board of Freeholders approved the amendment, and on December 2, 1993, the DEP certified the amended County Plan, clarifying that inconsistent municipal ordinances were preempted by DEP regulations. The County's requirement for compliance with municipal approvals was modified to exclude those preempted by DEP’s solid waste and recycling regulations.
Howell did not seek reconsideration or appeal the DEP’s decision. After being included in the County Plan, McDowell resubmitted its application to the DEP to blend nonhazardous petroleum-contaminated soil with asphalt, complying with regulations requiring municipal notification for comments. Howell then filed a lawsuit in the Superior Court, seeking to prevent McDowell from operating as a Class B recycling center, arguing that McDowell needed a use variance. Both Howell and McDowell, along with the DEP, filed motions for summary judgment. The court ruled in favor of McDowell and the DEP, stating that local zoning ordinances are preempted by the Solid Waste Management Act (SWMA).
Following this decision, the DEP issued a recycling permit for McDowell to recycle asphalt and concrete, while the soil mixing aspect of the application remains under review pending an air pollution control permit. Howell appealed the summary judgment in favor of McDowell and the DEP, but the court affirmed the decision, noting the relevance of the Statewide Mandatory Source Separation and Recycling Act as a complement to the SWMA.
A county's recycling plan must be an amendment to its solid waste management plan under the Solid Waste Management Act (SWMA) and must align with the State Recycling Plan goals set by the Department of Environmental Protection (DEP) as part of the statewide solid waste management framework established under N.J.S.A. 13:1E-6a(3) and N.J.S.A. 13:1E-99.13(a). The analysis indicates that the Legislature intended for the DEP to exercise extensive supervisory authority under the Recycling Act, similar to its authority under the SWMA. Although DEP regulations for recycling centers differ from those for solid waste facilities, the statewide policy promoting uniform solid waste planning and regulation prevents municipalities from enforcing land use regulations that could obstruct the operation of recycling facilities within an approved solid waste management plan. Allowing Howell to use its land use regulations to block a recycling facility would hinder the DEP's efforts to support the growth of the private recycling industry. The conclusion is affirmed, noting that a portion of McDowell's property extends into Wall Township.
