Legal Lode: Bitter Late Than Never

Some organizations seem to think that a smart way to influence government decisions is to sit idle and then pounce. That may be a generous interpretation. It may just be that they are distracted or remiss. Can’t be they actually relish being annoying, right?

In 2011, Waste Management of New Jersey (WM) agreed to purchase the assets of Cifaloglio Inc., including a transfer station/materials recovery facility located in Atlantic County. The companies filed a joint petition asking the New Jersey Department of Environmental Protection (DEP) to approve the purchase. The submis- sion included an proposed facility operations manual, which 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.” Atlantic County Waste Authority (ACWA) asked DEP to send word on opportunities for comment and input. Several months later, DEP sent ACWA and other jurisdictions served by the facility copies of the WM application along with a cover letter summarizing the proposed sale and soliciting written comments. After receiving no comments, DEP sent ACWA and other interested parties copies of the draft permit authorizing the sale. No public hearing was requested or scheduled. Notably, ACWA’s comments on the draft permit contained no objection to WM’s purchase or to DEP’s approval process, nor did it raise any concerns related to market share or competitive pricing.

DEP subsequently approved WM’s asset purchase and issued the facility permit, which required WM to comply with the solid waste plan for the county where the waste originated. The Atlantic County plan designated the ACWA landfill as the sole disposal facility for locally generated non-hazardous solid waste, but allowed solid waste to be hauled to out-of-state facilities.

Shortly thereafter, ACWA, by e-mail to DEP, complained about a sharp decrease in the tonnage normally accepted at the ACWA landfill. According to ACWA, WM was hauling solid waste to a Pennsylvania disposal site owned by a related entity, and not to ACWA. Several weeks later, ACWA sent a letter to DEP, objecting to the approval, seeking an investigation of alleged discriminatory pricing and anti-competitive practices, and asking that DEP order the outbound waste to be hauled to the ACWA landfill.

After DEP declined to reconsider its approval, ACWA filed an appeal. While the appeal was pending, Atlantic County amended its solid waste management plan to designate the ACWA landfill as the only permissible site for disposal of non-hazardous solid waste generated within Atlantic County. Upon DEP approval of the amended plan, WM ceased out-of-state disposal.

What obviously sparked ACWA’s “belated” opposition to the asset purchase was WM’s “explicitly permitted” diversion of waste from the ACWA site to an out-of-state landfill, the appeals court noted. “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 ... objection to the sale of assets has become moot,” said the court. Affirming the DEP approval, the court said that ACWA’s other issues on appeal had no merit.

“[T]he Authority did not object to the sale of Cifaloglio’s assets to Waste Management at any time prior to its approval by [DEP]. In addition, it never raised issues with respect to market share and competitive pricing or the manner in which [DEP] 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 [DEP] during the public comment period.”

[Petition of Waste Management of New Jersey, No. A-1441-11T1, N.J.Super. App.Div., Nov. 29, 2012]

Barry Shanoff is a Rockville, Md., attorney and general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail:[email protected].