BFI Sues NJ Over Linden Project Delay Suit: NJ Regulators 'Illegally and Unconstitutionally' Blocked the Plan.

Business and Legal Editors

LINDEN, N.J.--(BUSINESS WIRE)--March 13, 2002

The following is an announcement by BFI Transfer Systems of New Jersey, Inc.:

BFI Transfer Systems of New Jersey today filed a lawsuit in United States Federal District Court in Trenton, charging that current and former New Jersey regulators have "illegally and unconstitutionally" blocked Union County's efforts to have a site in Linden incorporated into the county's Solid Waste Management Plan.

The lawsuit exposes the state to hundreds of millions of dollars in damage claims.

Although obstructed by state regulators for well over a year, the BFI plan has received broad public support, including newspaper editorial endorsements and the support of business, environmental and transportation advocacy groups. It will eliminate more than 1,000 trucks currently hauling New York City garbage over already congested streets and highways both in New York and New Jersey to landfills in Pennsylvania and Virginia. Defendants in the five-count lawsuit are: Robert C. Shinn, Jr., the former Commissioner of the New Jersey Department of Environmental Protection (DEP) (in his individual capacity); Bradley M. Campbell, the current Commissioner of DEP, in his official capacity; and numerous as yet unnamed current and former officials, in either their official or individual capacities. In its action, BFI is seeking preliminary and permanent injunctive relief compelling Campbell "to approve the Plan Amendment and accept, review and process in an expeditious manner applications for a solid waste facility permit and other permits required for the Project."

BFI has proposed developing a $60 million state-of-the-art marine solid waste transfer facility on an 18-acre tract the company leases at the Linden location. The project has been approved by the Linden City Council, the Union County Board of Chosen Freeholders and the New York City Council, which has included the Linden site in its Solid Waste Master Plan (SWMP). Overall capital expenditures for the project are estimated at $350 million. The proposed BFI facility would receive New York City household solid waste by barge, transfer the waste into steel containers and load the containers onto rail cars, which would then be shipped by rail to landfills in South Carolina and Georgia. This project has been selected as a cornerstone of New York City's long-term solid waste plan, which was developed with the closing of the city's Fresh Kills Landfill on Staten Island. An affirmative ruling by the Federal court could clear the way for the mandatory, comprehensive review by DEP of permit applications for the facility. This review could take from 12 to 18 months. If the court grants the injunction, there is no guarantee that the project would be approved -- only that it would be fairly reviewed. If approved, it would take an additional 12 to 18 months to complete construction.

The suit contends that had Shinn acted legally, constitutionally and responsibly when Union County first submitted its Solid Waste Management Plan amendment to him in November, 2000, the facility could now be under construction.

Currently, New York City is shipping most of its waste to landfills in Pennsylvania and Virginia by truck, adding to the congestion on New Jersey roads and highways and impacting local air quality.

"Nevertheless," the lawsuit charges, "defendant (Shinn) spearheaded an effort by defendants to hinder and delay the project, thus placing its future in jeopardy."

The lawsuit continues: "Shinn ignored numerous well-established limitations governing his review of amendments to county solid waste management plans. For over a quarter of a century, Commissioners of the NJDEP have consistently and properly recognized that their review of a county's solid waste management plan amendment designating a facility site is limited to a determination of the suitability of the proposed site from a land use perspective."

The lawsuit notes that the Union County Freeholders have approved the plan amendment three times (dating back to November, 2000), and that on each occasion, Shinn has returned or remanded it without approval:

-- First, Shinn sent the matter back to Union County to address operational and
engineering issues that are properly the subject of the DEP's technical review
during the permitting process. (It is this permitting process that BFI is
asking the court to initiate.)

-- Union County complied with Shinn's unprecedented directive and provided him
with a complete response to all of his inquires. Shinn once again refused to
honor his statutory role, preferring to ignore the County's substantive
responses. Instead, he made reference to a so-called "referral" by the Attorney
General's Office to the Local Finance Board in the Department of Community
Affairs concerning allegations of an ethics breach by the Mayor of the City of
Linden, and remanded the plan amendment back to Union County a second time.

-- Rather than leave those issues for resolution by the proper authorities, at
the proper time, and at the proper place, Shinn once again acted outside his
jurisdictional limits.

-- When the City of Linden responded to this second remand by re-examining its
relationship to the proposed facility with no involvement or participation
whatsoever by the Mayor, and Union County subsequently resubmitted the plan
amendment to the DEP, Shinn still refused to review the merits of the Plan
Amendment and made clear that the Plan Amendment would not be considered until
and after the Local Finance Board concluded its proceedings, thereby
indefinitely delaying the progress of the project and placing its future in
serious jeopardy.

Nothing BFI is requesting in its lawsuit would impact, impair or obstruct the Local Finance Board proceedings or any other review or investigation being conducted by any other government agency.

The lawsuit notes that Shinn and the administration he served in, headed by former Governor Christine Todd Whitman, "demonstrated a strong hostility to the project from its inception," despite the many benefits the project would bring to New Jersey, including reducing truck traffic that is congesting and polluting the state's highways, numerous construction and full-time jobs and significant incentives for the host community. In spite of this, when New York City first proposed using two other New Jersey sites (prior to the Linden proposal) then-Governor Whitman declared the proposals "dead on arrival."

Shinn's first remand had evidence of this interstate animus by requiring Union County to determine the effect on New Jersey's air quality, not of the project (which Shinn conceded had a positive effect on air quality) but of New York City's entire solid waste export program. Shinn's second and third remands fulfill the State's apparent objective of creating additional delay and uncertainty for a project designed to exclusively service New York City.

These delays have been a contributing factor in the New York City's decision to explore possible alternatives. This despite the many millions of dollars BFI has already invested in developing the engineering and other technical materials needed for permit applications, leasing costs, etc. Coupled with the loss of potential profits, the state's illegal and unconstitutional actions expose taxpayers to hundreds of millions of dollars in damages. Although the illegal and unconstitutional behavior of former Commissioner Shinn is principally noted in the lawsuit, the suit also cites the failure of the current commissioner, Bradley Campbell, "to disavow Shinn's actions." BFI Transfer Systems of New Jersey and co-plaintiff Browning Ferris Industries of New York, Inc., are both subsidiaries of Allied Waste Industries (NYSE: AW), a leading waste services company, providing collection, recycling and disposal services to residential, commercial and industrial customers in the United States. As of December 31, 2001, the Company operated 355 collection companies, 181 transfer stations, 166 active landfills and 65 recycling facilities in 39 states.

Note to editors:

For additional information, please visit the project website at www.stopthetrucks.com.