This is a copy of the Certification of the November 13, 1997 Admendment to the Hudson County District Solid Waste Management Plan signed by Commissioner Robert C. Shinn Jr. on December 30, 1997.
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
CERTIFICATION
TO THE ADOPTED AND APPROVED SOLID OF THE
NOVEMBER 13, 1997
WASTE MANAGEMENT PLAN OF THE AMENDMENT
TO THE HUDSON COUNTY
HUDSON COUNTY SOLID WASTE DISTRICT
SOLID WASTE MANAGEMENT PLAN
MANAGEMENT DISTRICT
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 November 13, 1997, 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 November 13, 1997 amendment has 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
The amendment was received by the Department on December 2, 1997, and copies
were distributed to various administrative review agencies for review and
comment, as required by law. The Department has reviewed this amendment on
an expedited basis and has determined that the amendment adopted by the County
Freeholders on November 13, 1997 is approved in part, modified in part, and
remanded in part 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
November 13, 1997 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 plan amendment, as modified, 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 November
13, 1997 amendment which are included in Section B.2. below.
In conjunction with the review of the amendment, the Department circulated
copies to seventeen 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 Transportation
Department of Community Affairs
Department of Treasury
U.S. Environmental Protection Agency
Hackensack Meadowlands Development Commission
1. Agency Participation in the Review of the November 13, 1997
Amendment
The following agencies did not object to the proposed amendment:
Green Acres Program, DEP
Department of Agriculture
New Jersey Turnpike Authority
The following agencies did not respond to our requests for comment:
Office of Air Quality Management, DEP
Division of Water Quality, DEP
Division of Parks and Forestry, DEP
Division of Fish, Game and Wildlife, DEP
Land Use Regulation Element, DEP
Department of Health
Department of Transportation
Department of Community Affairs
Department of Treasury
New Jersey Advisory Council on Solid Waste Management
U.S. Environmental Protection Agency
The following agencies provided substantive comments as shown in
Section B. of the certification document.
Division of Solid and Hazardous Waste, DEP
Division of Compliance and Enforcement, DEP
Hackensack Meadowlands Development Commission
2. Issues of Concern Regarding the November 13, 1997
Amendment
Issue: Regulatory Flow Control Based Upon Nondiscriminatory
Procurement
The November 13, 1997 amendment describes the County's primary disposal strategy
of implementing regulatory flow control of solid waste based upon
constitutionally procured solid waste facilities and services. The services
procured through nondiscriminatory procurement processes included transfer
station services, out-of-state disposal and transportation services (collectively
"the County System"). The amendment also describes a secondary disposal strategy
in the event the primary strategy is legally challenged. This alternative
strategy entails implementing economic flow control with the Hudson County
Improvement Authority (HCIA) offering contracts to all 12 County municipalities
on a voluntary basis. Concurrent with this secondary strategy is the imposition
of an EIC which is further described below. The County is unable to determine
at the present time what the disposal tipping fee, the length of contract,
and other terms will be. However, the County intends that the tipping fee
will cover the cost of providing disposal services through the County System
and debt associated with development of this system. In order to offer contracts
for disposal at a competitively priced rate, the County will utilize Resource
Recovery Investment Tax (RRIT) Funds and any other available moneys to offset
solid waste disposal costs. It is noted that pursuant to the Department's
November 11, 1997 Order Approving Settlement Agreement (Agency Docket Number
RP12950012, OAL Docket Number ESW 5992-96), the HCIA may only utilize RRIT
Fund moneys for debt service payments which reduce disposal costs. As noted
in Section C., the certification approves the County's primary strategy to
institute regulatory flow control. However, the secondary disposal strategy
of economic flow control comprising voluntary contracts with the imposition
of an EIC is remanded for additional evaluation and consideration by the
County as further described in Section B.2. below.
Issue: HMDC Landfill Disposal Agreement
The County has historically utilized landfills within the HMDC for disposal
of its waste. A June 14, 1990 Settlement Agreement was signed by the County,
HCIA, HMDC, DEP, and the Board of Public Utilities. This Agreement states
"In no event shall HMDC provide landfill disposal capacity for Hudson County
waste within the HMDC beyond the remaining safe capacity of the junkyards
as determined by the DEP pursuant to this agreement...however, nothing contained
in this Agreement shall derogate from the authority of the DEP...to authorize
landfilling in the HMDC for solid waste types 10, 13, 23, 25, and 27 generated
in Hudson County or elsewhere should the DEP determine that it is in the
public interest to do so..." On December 31, 1997, disposal operations at
the HMDC 1E "Junkyards" Landfill shall terminate. Concurrently, on January
2, 1998 disposal operations will commence at the HMDC 1E-North Landfill for
construction and demolition waste.
Issue: Transfer Station Services
Also pursuant to the HMDC Settlement Agreement, the 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 current HMDC Transfer Station agreement will 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 materials deficiencies. The readvertised bids were received on November
25, 1997 and the HCIA has awarded the transfer station services bid to
SWT&R of Newark, Essex County.
Since this procurement process had not been completed as of the adoption
of the November 13, 1997 amendment but the County is in need of a transfer
station to replace the use of the HMDC transfer Station effective January
1, 1998, within Section C. of the certification this component of the amendment
is approved with modification 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 this certification the results of this
nondiscriminatory procurement process must be submitted to the DEP in plan
amendment form pursuant to N.J.A.C. 7:26-6.10. Also, the Department
reserves the right to review the transfer station contract under its economic
regulatory authority found at N.J.S.A. 48:13A-7. In the interim, the
County may commence the delivery of waste to the SWT&R Transfer Station
located in Newark, Essex County.
Finally, 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 must amend the County Plan within 45 days of the date
of this certification to provide 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. Such action may be initiated
as an Administrative Action pursuant to N.J.A.C. 7:26-6.11(b)6.
Issue: Empire Landfill Disposal Agreement
The HCIA and Empire Landfill, Inc. entered into a disposal agreement on October
1, 1990 (Landfill Agreement). This agreement provides for a total disposal
capacity of 3,500,000 tons for a ten year period. This initial agreement
was followed with a subsequent option agreement (Option Agreement) dated
December 22, 1992 between HCIA and Empire Landfill to acquire additional
disposal capacity. Both these agreements, in the opinion of the County, comply
with the dictates of Atlantic Coast in that the selection process
was open to disposal facilities without regard to geographic location.
The County has adequately demonstrated that it secured a disposal contract
with an out-of-state landfill in a nondiscriminatory manner. However, since
the HCIA and USA Waste (formerly Empire Landfill, Inc.) are in the process
of amending the terms of the Landfill and Option Agreements, and the DEP
has not approved this amended agreement, Section C. of the certification
approves with modification this component of the amendment contingent upon
receipt by the DEP of the amended USA Waste disposal agreement. Within 90
days of the date of this certification the HCIA must submit this amended
agreement to the DEP in plan amendment form. Such action may be initiated
as an Administrative Action pursuant to N.J.A.C. 7:26-6.11. Also, the Department
reserves the right to review the agreement under its economic regulatory
authority found at N.J.S.A. 48:13A-7. In the interim, the County may
continue to dispose of waste at the Empire Landfill.
Issue: Transportation Services Agreement
On August 5, 1995, the HCIA solicited bids in accordance with the Local Public
Contracts Law (N.J.S.A. 40A:11-1 et seq.) for transportation services
for solid waste designated for disposal at the Empire Landfill. The bids
were open to transporters without regard to geographic location and the bid
was awarded to Hudson J-V. This transportation services agreement will terminate
on December 31, 2000.
Since the County has adequately demonstrated that it secured a transportation
services agreement in a nondiscriminatory manner, Section C. of the certification
approves this component of the amendment and the County may continue to utilize
Hudson J-V to transport waste to the Empire Landfill.
Issue: Imposition of an EIC
Since the County System, encompassing those components described above, has
been procured in a nondiscriminatory manner in accordance with Atlantic
Coast, the County intends to continue to direct the flow of waste pursuant
to Atlantic Coast. However, the County has also outlined a secondary
disposal strategy involving economic flow control with the imposition of
an EIC. This EIC would be imposed upon all generators of solid waste within
the County who do not deliver waste to the County System through the execution
of voluntary contracts. The EIC would provide the HCIA with the ability to
recover costs incurred in the development and implementation of the County
System, and certain costs that it will continue to incur in maintaining the
County System. Specifically, the EIC will allow the HCIA:
i) the ability to charge and collect amounts sufficient to pay the existing
debt service obligations as the same becomes due and payable and to meet
its financial covenants in the manner required by the terms of its contracts;
and
ii) payments of operation and maintenance expenses, including administrative,
billing, and collection expenses and the maintenance of an enforcement program
to ensure the proper monitoring, weighing, and delivery of solid waste, and
compliance with State and local laws, including recycling laws, policies,
and procedures.
The EIC as presently determined will be calculated on a 425,000 ton annual
basis (although as noted above the transfer station procurement process solicited
bids from facilities capable of processing 500,000 tons annually) and is
$20.23 per ton, of which $14.30 per ton is attributable to debt service as
described in (i) above and $5.93 is attributable to operation and maintenance
expenses as described in (ii) above. Since a further breakdown of the $5.93
comprising operation and maintenance expenses was not provided within the
amendment, the DEP contacted the HCIA and obtained the requested itemization
for these expenses. A review of these expenses reveals a preponderance of
charges classified as administrative expenses as well as a substantial portion
of the ongoing operation and maintenance expenses of the HCIA. Within the
DEP's August 1, 1997 "Guidance Document in Response to the May 1, 1997 Court
Decision on Solid Waste Flow Control," the Department identified acceptable
components of an EIC. Since these charges may not constitute acceptable EIC
expenses, Section C. of the certification remands for further consideration
and evaluation the specific components of the proposed EIC.
Any future amendment adopted by the County Freeholders which assesses an
EIC should include detailed methodology as to the calculation of the EIC,
including but not limited to, the following:
i. Analysis of current tip fee to determine various EIC components;
ii. Analysis of how costs of various EIC components could be
reduced;
iii. Determination of means of calculating an EIC;
iv. Determination of billing agency and mechanism for collecting an EIC;
v. Analysis to demonstrate justness and reasonableness of the final EIC and
the ability to meet debt obligations.
Issue: Enforcement
The HCIA will continue to be responsible for the enforcement of the County
Plan. Specifically, this enforcement action will include, but not be limited
to, the weighing and/or monitoring of hauler vehicles, and any other lawful
duties reasonably required to assist the HCIA in the calculation, assessment,
billing, and collection of an EIC. The County is hereby advised that only
health agencies identified under the County Environmental Health Act (CEHA)
or an agency identified as a subcontractor under CEHA may enforce solid waste
matters. The designated CEHA agency in Hudson County is the Hudson Regional
Health Commission. To verify the CEHA arrangement within the County, DEP
contacted the HCIA and was informed that the HCIA has an agreement to act
as a subcontractor to the Hudson Regional Health Commission. Therefore, within
Section C. of the certification, the enforcement component of the amendment
is approved.
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 November 13, 1997 amendment to the approved County Plan and certify to
the County Freeholders that the November 13, 1997 amendment is approved in
part, modified in part, and remanded in part as further specified below.
Regulatory Flow Control
The County Plan inclusion of the primary disposal strategy of regulatory flow control based upon constitutionally procured solid waste facilities and services is approved. However, the secondary disposal strategy of economic flow control comprising voluntary contracts with the imposition of an EIC is remanded for additional evaluation and consideration by the County as further described in Section C. below.
Empire Landfill Disposal Agreement
The County Plan inclusion of the Empire Landfill disposal agreements of October 1, 1990 and December 22, 1992 is approved with modification contingent upon receipt by the DEP of the amended USA Waste disposal agreement. Within 90 days of the date of this certification the HCIA must submit this amended agreement to the DEP in plan amendment form. Such action may be initiated as an pursuant to N.J.A.C. 7:26-6.11. As noted in Section B., since the County has adequately demonstrated that it secured a disposal contract in a nondiscriminatory manner with an out-of-state landfill, the County may continue to dispose of its solid waste at the Empire Landfill.
Transfer Station Services
The County Plan inclusion of a nondiscriminatory procurement process to solicit bids for the provision of transfer services for solid waste to the Empire Landfill is approved with modification contingent upon receipt by the DEP of documents awarding a nondiscriminatorily bid contract to provide same. Within 90 days of the date of this certification the results of this nondiscriminatory procurement process must be submitted to the DEP in plan amendment form pursuant to N.J.A.C. 7:26-6.10. In the interim, the County may commence the delivery of waste to the SWT&R Transfer Station located in Newark, Essex County.
Transportation Services Agreement
The County Plan inclusion of the Hudson J-V transportation services agreement for solid waste disposal is approved. Specifically, since the County has adequately demonstrated that it secured a transportation services agreement in a nondiscriminatory manner, the County may continue to transport solid waste to the Empire Landfill via Hudson J-V.
Environmental Investment Charge
The County Plan inclusion of the establishment and collection of an EIC, as a secondary disposal strategy, to recover debt obligations and to pay for operation and maintenance expenses is remanded for further consideration and evaluation by the County. Specifically, as noted within Section B., the EIC as proposed within the amendment contains administrative charges which may not constitute acceptable EIC expenses as well as operation and maintenance charges which may exceed the amount permissible. Also, should the County reconsider the imposition of an EIC comprising acceptable expenses, Section B. outlines the specific data to be contained within a subsequent plan amendment which is needed for the Department to review and act upon the imposition of an EIC.
Enforcement
The County Plan inclusion of an enforcement program administered by
the HCIA acting as a subcontractor to the Hudson Regional Health Commission
(the designated CEHA agency) is approved.
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 Solid Waste
Management 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 and shall not apply
to liquid waste, sewage sludge, septage, and hazardous waste. All nonhazardous
materials separated at the point of generation for sale or reuse are subject
to regulation in accordance with N.J.A.C. 7:26A-1 et
seq.
4. Certification to Proceed with the Implementation of the Plan
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
portions of the 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 portions of the 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, Modification, and Remand 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 in part, modify in part, and remand in part 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 November 13, 1997.
_____________________
_____________________________________
Date
Robert C. Shinn, Jr.,
Commissioner
Department
of Environmental Protection