dissenting.
I dissent from that portion of the opinion of the majority which affirms the determination of the NJDEP that only waste produced by the incineration process, i.e., ash residue, falls within the purview of the exemptions provided by N.J.S.A. 13:1E-138 a, b and c. The exemption portion of those tax provisions explicitly provides that none of the three taxes in question “shall be levied on the owner or operator of a sanitary landfill facility for the acceptance for disposal of the waste products resulting from the operation of a resource recovery facility.” (Emphasis supplied). The plural, “waste products,” was used by the Legislature, which specifically included waste products from the “operation of a resource recovery facility.” (Emphasis supplied).
While the statute does not contain a definition of waste products, it does clearly define “resource recovery facility” stating the term “means a solid waste facility constructed and operated for the incineration of solid waste for energy production and recovery of metals and other materials for reuse; or a mechanized composting facility, or any other solid waste facility constructed or operated for the collection, separation, recycling, and recovery of metals, glass, paper, and other materials *175for reuse or for energy production[.]” N.J.S.A. 13:1E1-137v (emphasis supplied). If the Legislature had meant to only exempt incineration ash, it surely would have so stated. Further, under the Legislature’s definition of “resource recovery facility,” an incinerator need not even be part of the operation.
As noted by the majority, the purpose of the tax is “ ‘designed to provide counties with funds with which to make the transition toward resource recovery,’ ” and to establish “ ‘incentives’ for that purpose.” Majority opinion at 167-168. Warren and Hunterdon Counties have apparently done what the Legislature wanted, and its citizens should not be saddled with taxes which the Legislature specifically intended to exempt them from by reason of their having made the transition.
I would reverse the decision of the NJDEP and exempt all waste products resulting from the operation of Hunterdon County’s resource recovery facility exactly as the Legislature provided.