Office of the Commissioner
P.O. Box 402
Trenton, NJ 08625-0402
Tel. # 609-292-2885
Fax. # 609-292-7695

IN THE MATTER OF CERTAIN AMENDMENTS
TO THE ADOPTED AND APPROVED SOLID
WASTE MANAGEMENT PLAN OF THE
HUDSON COUNTY SOLID WASTE
MANAGEMENT DISTRICT

CERTIFICATION
OF THE FEBRUARY 11, 1998
AMENDMENT TO THE HUDSON COUNTY
DISTRICT SOLID WASTE MANAGEMENT PLAN

BY ORDER OF THE COMMISSIONER:

A. Introduction

The New Jersey Solid Waste Management Act (N.J.S.A. 13:1E-1 et seq.) established a comprehensive system for the management of solid waste in New Jersey. The Act designated all twenty-one (21) of the state's counties, and the Hackensack Meadowlands District, as Solid Waste Management Districts, and mandated that the Boards of Chosen Freeholders and the Hackensack Meadowlands Development Commission develop comprehensive plans for waste management in their respective districts. On January 27, 1982, the Department of Environmental Protection (Department or DEP) approved, with modifications, the Hudson County District Solid Waste Management Plan (County Plan).

The Act requires that all district plans be based on and accompanied by a report detailing the existing waste disposal situation in the district, and a plan which includes the strategy to be followed by the district in meeting the solid waste management needs of the district for a ten-year planning period. The report must detail the current and projected waste generation for the district, inventory and appraise all facilities in the district, and analyze the waste collection and transportation systems which serve the district. The disposal strategy must include the maximum practicable use of resource recovery techniques. In addition to this strategy, the plan must designate sufficient available suitable sites for the disposal of the district's waste for a ten-year period.

The Act further provides that a district may review its County Plan at any time and, if found inadequate, a new County Plan must be adopted. The Hudson County Board of Chosen Freeholders (County Freeholders) completed such a review and on February 11, 1998, adopted an amendment to its approved County Plan.

The amendment represents the County's response to the May 1, 1997 decision of the United States Court of Appeals for the Third Circuit which declared unconstitutional New Jersey's historic system of solid waste flow control. [See Atlantic Coast Demolition and Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County et al. 112 F.3d 652 3d Cir. 1997, cert. den. November 10, 1997]. Specifically, each solid waste management district must reevaluate its solid waste disposal strategy in light of this recent court decision and, if necessary, initiate appropriate amendments thereto.

In general, the Department refers the County to the solid waste regulations at N.J.A.C. 7:26-1 et seq. to the extent they relate to specific procedural and substantive issues addressed in this and subsequent plan amendments. In addition, this certification is in no way intended by the DEP to represent a legal determination regarding the effect of the Atlantic Coast decision on any specific contract between public and/or private parties.

The February 11, 1998 amendment proposes a strategy of implementing regulatory flow control based upon nondiscriminatorily reprocured solid waste disposal services. Specifically, directing the flow of all solid waste generated within Hudson County to the SWT&R Transfer Station located in Newark, Essex County.

The amendment was circulated to various administrative review agencies for review and comment, as required by law, on February 27, 1998. The Department has reviewed this amendment on an expedited basis and has determined that the amendment adopted by the County Freeholders on February 11, 1998 is approved as provided in N.J.S.A. 13:1E-24.

B. Findings and Conclusions with Respect to the Hudson County District Solid Waste Management Plan Amendment

Pursuant to N.J.S.A. 13:1E-24a(1), I have studied and reviewed the February 11, 1998 amendment to the County Plan according to the objectives, criteria, and standards developed in the Statewide Solid Waste Management Plan and I find and conclude that the approved plan amendment is consistent with the Statewide Solid Waste Management Plan. In this regard, the County Freeholders are notified of the issues of concern relative to the amendment which are included in Section B.2. below.

In conjunction with the review of the amendment, the Department circulated copies to sixteen federal and state administrative review agencies and solicited their review and comment. Pursuant to N.J.S.A. 13:1E-24a(2) and (3), these agencies included various bureaus, divisions, and agencies within the Department. All agencies contacted are as follows:

Division of Parks and Forestry, DEP
Division of Fish, Game and Wildlife, DEP
Division of Compliance and Enforcement, DEP
Division of Solid and Hazardous Waste, DEP
Division of Water Quality, DEP
Office of Air Quality Management, DEP
Green Acres Program, DEP
Land Use Regulation Element, DEP
New Jersey Turnpike Authority
New Jersey Advisory Council on Solid Waste Management
Department of Agriculture
Department of Health
Department of Treasury
Department of Transportation
Department of Community Affairs
U.S. Environmental Protection Agency

1. Agency Participation in the Review of the February 11, 1998 Amendment

The following agencies did not object to the proposed amendment:

Division of Parks and Forestry, DEP
Division of Water Quality, DEP
Division of Compliance and Enforcement, DEP
Department of Community Affairs
Department of Transportation
Department of Agriculture
New Jersey Turnpike Authority

The following agencies did not respond to our requests for comment:

Office of Air Quality Management, DEP
Green Acres Program, DEP
Division of Fish, Game and Wildlife, DEP
Land Use Regulation Element, DEP
Department of Health
Department of Treasury
New Jersey Advisory Council on Solid Waste Management
U.S. Environmental Protection Agency

The following agency provided substantive comments as shown in Section B. of the certification document:

Division of Solid and Hazardous Waste, DEP

2. Issues of Concern Regarding the February 11, 1998 Amendment

Issue: Previously Adopted Atlantic Coast Amendment

On November 13, 1997, the County Freeholders adopted an amendment
proposing their initial response to the Atlantic Coast decision which had seven components:

*Regulatory Flow Control Based Upon Nondiscriminatory Procurement
*Hackensack Meadowlands Development Commission (HMDC) Disposal Agreement
*Transfer Station Services
*Empire Landfill Disposal Agreement
*Transportation Services Agreement
*Contingency Imposition of an Environmental Investment Charge (EIC)
*Enforcement

Within a December 30, 1997 certification, the DEP approved regulatory flow control based upon a nondiscriminatory procurement strategy, the Empire Landfill disposal contract, the transportation services agreement, and the enforcement strategy; took no action relative to the validity of the HMDC disposal agreement; remanded for further consideration and evaluation the imposition of an EIC; and approved with modification the transfer station services agreement contingent upon receipt by the DEP of documents awarding a nondiscriminatorily bid contract to provide same.

Issue: Transfer Station Services

Pursuant to the HMDC Settlement Agreement, the Hudson County Improvement Authority (HCIA) and the HMDC entered into an agreement for use of the HMDC Transfer Station for waste transported out-of-state for disposal. In conjunction with the closing of the 1E Landfill, the HMDC Transfer Station agreement was to terminate. In anticipation of this event, on August 14, 1997 the HCIA issued nondiscriminatory bid specifications to procure transfer station services for the processing and transferring of about 500,000 tons annually of Hudson County waste. Bids were advertised locally through The Star Ledger and The Jersey Journal and nationally through Waste News, and were received on October 14, 1997. However, on November 5, 1997 the HCIA readvertised for bids after having rejected all previously received bids for material deficiencies. The readvertised bids were received on November 25, 1997 and the HCIA awarded the transfer station services bid to SWT&R of Newark, Essex County on December 9, 1997.

Since this procurement process had not been completed as of the adoption of the November 13, 1997 amendment but the County was in need of a transfer station to replace the use of the HMDC transfer Station effective January 1, 1998, the December 30, 1997 certification approved with modification this component of the amendment contingent upon receipt by the DEP of documents awarding a nondiscriminatorily bid contract to provide transfer station services. Within 90 days of the date of the December 30, 1997 certification the results of this nondiscriminatory procurement process were to be submitted to the DEP in plan amendment form pursuant to N.J.A.C. 7:26-6.10. In the interim, the County could commence the delivery of waste to the SWT&R Transfer Station located in Newark, Essex County.

In response to the December 30, 1997 certification, the HCIA has submitted the required documentation. Specifically, on November 5, 1997 the HCIA issued nondiscriminatory bids soliciting replacement transfer station services. These bids were advertised throughout New Jersey utilizing The Star Ledger and The Jersey Journal, and nationally through The New York Times. The procurement process was open to all bidders regardless of geographic location. On November 25, 1997 the HCIA received five proposals. The bidders included: RSI of Jersey City, New Jersey; Allegro Sanitation of Secaucus, New Jersey; Eastern (Robros) of Jersey City, New Jersey; SWT&R of Newark, New Jersey; and Ellesor (USA Waste) of Elizabeth, New Jersey. The first three respondents failed to comply with HCIA's technical specifications (i.e., insufficient permitted capacity, no DEP solid waste facility permit). Although Ellesor technically complied, its bid was higher than that submitted by SWT&R. Consequently, on December 9, 1997 SWT&R was awarded the bid to provide replacement transfer station services. Therefore, since the HCIA has sufficiently demonstrated that the procurement of transfer services was consistent with the criteria set forth in the Atlantic Coast decision, the DEP approves within Section C. of the certification the HCIA nondiscriminatory procurement process.

Issue: Materials Recovery Operations

The November 30, 1997 certification also noted that the Department is concerned that since the SWT&R contract awarded for transfer station services does not provide for materials recovery, it may have an adverse impact upon the recycling rates achieved by the County and may conflict with the allowance for procurement of recycling services afforded to commercial waste generators [see N.J.S.A. 13:1E-99.16(d)]. Therefore, the County was directed to provide within 45 days of the date of the December 30, 1997 certification a narrative description of how it will meet or surpass the State's mandated recycling goals and provide for materials recovery, particularly for Type 13C solid waste. In response to this directive, the HCIA informed the DEP by letter dated January 23, 1998 of the following materials recovery policy now in effect. The HCIA has informed all transporters of Type 13C solid waste generated from within the County and all transporters serving commercial premises within the County that they have the option of delivering such waste to a DEP approved materials recovery facility provided that the residue therefrom is delivered to the HCIA designated transfer station (SWT&R). This policy shall remain in effect until such time as the HCIA has designated a materials recovery facility(ies) through a nondiscriminatory procurement process. Therefore, since this interim policy adequately provides for materials recovery, the Department hereby approves the materials recovery policy proposed by the HCIA.

C. Certification of the Hudson County District Solid Waste Management Plan Amendment

In accordance with N.J.S.A. 13:1E-1 et seq., specifically N.J.S.A. 13:1E-21, which establishes specific requirements regarding the contents of the district solid waste management plans, I have reviewed the February 11, 1998 amendment to the approved County Plan and certify to the County Freeholders that the February 11, 1998 amendment is approved as further specified below.

The County Plan inclusion of the nondiscriminatory reprocurement process to solicit bids for the provision of transfer station services is approved. Specifically, since the County has adequately demonstrated that it secured a transfer contract with Solid Waste Transfer & Recycling, Inc. (SWT&R) located at 442 Frelinghuysen Avenue (Lot 24, Block 3516) in Newark, Essex County in a nondiscriminatory manner, the HCIA may continue to direct its solid waste to this facility prior to disposal.

D. Other Provisions Affecting the Plan Amendment

1. Contracts

Any contract renewal or new contract for solid waste collection or disposal which is inconsistent with this amendment to the County Plan and which was executed prior to the approval of this amendment and subsequent to the effective date of the Solid Waste Management Act (July 29, 1977), and which shall further be for a term in excess of one year, shall immediately be renegotiated in order to bring same into conformance with the terms and provisions herein set forth. Any solid waste collection operation or disposal facility registered by the Department and operating pursuant to a contract as herein described, shall be deemed to be in violation of this amendment and of the County Plan if such renegotiation is not completed within ninety (90) days of the effective date of this amendment provided, however, that any such registrant may, upon application to the Department, and for good cause shown, obtain an extension of time to complete such renegotiation.

2. Compliance

All solid waste facility operators and transporters registered with the Department and operating within the County and affected by the amendment contained herein shall operate in compliance with this amendment and all other approved provisions of the County Plan. Any facility operator or transporter who fails to comply with the provisions contained herein shall be deemed to be in violation of N.J.S.A. 13:1E-1 et seq., in violation of N.J.A.C. 7:26-1 et seq., and in violation of their registration to operate a solid waste facility or a collection system issued thereunder by the Department and shall be subject to the provisions and penalties of N.J.S.A. 13:1E-9 and 12 and all other applicable laws.

3. Types of Solid Wastes Covered by the District Plan

The provisions of the District Plan shall apply to all solid wastes defined in N.J.S.A. 13:1E-3 and N.J.A.C. 7:26-2.13 including waste types 10, 13, 23, 25, and 27 and all applicable subcategories and shall not apply to liquid and hazardous waste. All nonhazardous materials separated at the point of generation for sale or reuse are subject to regulation pursuant to N.J.A.C. 7:26A-1 et seq.

4. Certification to Proceed with Implementation of the Amendment

This document shall serve as the certification of the Commissioner of the Department to the County Freeholders and pursuant to N.J.S.A. 13:1E-24c. and f., the County shall proceed with the implementation of the approved amendment certified herein.

5. Definitions

For the purpose of this amendment and unless the context clearly requires a different meaning, the definitions of terms shall be the same as those found at N.J.S.A. 13:1E-3 and -99.12, N.J.A.C. 7:26-1.4, -2.13, and N.J.A.C. 7:26A-1.3.

6. Effective Date of the Amendment

The approved amendment to the County Plan contained herein shall take effect immediately.

7. Reservation of Authority

Nothing contained herein shall be construed as a limitation on any other action taken by the Department pursuant to its authority under the law. The County Plan, including any amendment made thereto, shall conform with the Statewide Solid Waste Management Plan, with appendices, which includes the Department's planning guidelines, rules, regulations, orders of the Department, and also includes the compilation of individual district plans and amendments as they are approved.

E. Certification of Approval of the Amendment by the Commissioner of the Department of Environmental Protection

In accordance with the requirements of N.J.S.A. 13:1E-1 et seq., I hereby approve the amendment, as outlined in Section C. of this certification, to the Hudson County District Solid Waste Management Plan which was adopted by the Hudson County Board of Chosen Freeholders on February 11, 1998.  

May 27, 1998                                                ________________________________
     Date                                                       Robert C. Shinn, Jr., Commissioner
                                                                   Department of Environmental Protection