Articles Posted in Solid Waste Law

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This past Spring, SWANA’s (Solid Waste Association of North America) New Jersey Chapter returned to their live Annual Conference following a two-year hiatus resulting from the Covid-19 pandemic.

The conference covered a wide range of topics related to the solid waste industry and New Jersey solid waste law, including safety in wastedump-truck-1396587__180 transportation, to the recent implementation of the plastic bag ban across the State, to fleet innovation and modernization. SWANA NJ panelists in fact noted that solid waste transporters are 10 times more likely to have fatalities than workers in other industries and that waste haulers have the 6th most dangerous job in the United States (more dangerous than firefighters).  Interestingly, statistics show that most accidents occur in March and June which – it is speculated – may be the result of an influx of pedestrians during these months.  It is therefore recommended that waste transporters increase their safety meetings, briefings, and/or reminders to drivers and workers around these time periods.

SWANA’s national organization emphasizes their 5 tips for safe work practices.  First, always wear Personal Protective Equipment.  This is not limited to Covid masks.  PPE for waste haulers may include high visibility vests and/or outerwear.  Second, never use your cell phone while driving or working.  Besides being illegal, distraction from cell phone use is a huge factor in accidents.  Third (and mostly for municipal waste transporters) don’t ride on the step if the truck is backing up or traveling at more than 10 mph or for more than 1/5th mile at a time. Fourth, always comply with safety belt rules. Fifth, never speed and never rush.

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On April 14, 2020, New Jersey Governor Murphy signed a food waste recycling bill (A2371)  aimed at requiring large producers of food waste in New Jersey to recycle their unused food.  This mandate is schedule to go into effect ondump-truck-1396587__340-300x215 approximately October 14, 2021.

The law applies to “large food waste generators” which are defined as “any commercial food wholesaler, distributor, industrial food processor, supermarket, resort, conference center, banquet hall, restaurant, educational or religious institution, military installation, prison, hospital, medical facility, or casino that produces at least 52 tons per year of food waste.”   Any large food waste generator that is located within 25 miles of a food recycling facility will be required to separate out food waste from other solid waste and send the food waste to the food recycling facility.  Alternatively, these generators can compost their food waste (or other authorized anaerobic or aerobic digestion) on-site, or use other recycling alternatives.

The New Jersey Department of Environmental Protection (known as the “DEP”) lists food waste recycling facilities to include Trenton Renewable Power, LLC (Trenton, NJ), and Waste Management Core (Elizabeth, NJ).  Therefore, a significant amount of generators in New Jersey will likely be considered to be within the 25 miles. Those outside the 25 miles range or with waste which is not accepted by the food recycling facility within their range may dispose of the waste as they normally would with other solid waste.

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Truck, Transportation, Vehicle
In 2016, the U.S. Department of Transportation’s Federal Motor Carrier Safety Administration (“FMCSA”) announced a new rule establishing a database for information regarding violations of drug and alcohol testing regulations by commercial motor vehicle drivers. While the rule went into effect in 2017, the requirement for FMCSA-regulated employers to begin searching and reporting on this database did not take effect until January 6, 2020.

Therefore, regulated employers are now required to report information regarding any violations of the DOT’s drug and alcohol regulations through the FMCSA’s database (called “Clearinghouse”).  This will allow employers to identify drivers who are prohibited from operating a vehicle because of prior violations.

“Regulated employers” include employers in the trucking or transportation industry who either hold a Commercial Driver’s License (“CDL”) themselves or whose employees hold a CDL, and who operate a commercial motor vehicle(s) in any state which has (1) a gross vehicle weight of 26,001 pounds or more, or (2) is designed to carry 16 or more passengers (including the driver), or (3) is involved in transporting hazardous materials.

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Hello, my name is Pauline Young, I am one of the partners here at the law firm of McLaughlin & Nardi and I am here today to discuss solid waste transportation also known as A-901 licensing.

Waste haulers are often surprised to learn of the extent of regulation in the industry in New Jersey.  This is because in most states, waste transporters are not required to obtain a license in order to operate their business. New York City is one of the exceptions to that as well as New Jersey, but in most states, including Pennsylvania and Connecticut there is little to no licensing or registration requirements at all for solid waste haulers.  However, because of New Jersey’s unfortunate history of illegal dumping and related criminal activity, the State has imposed a complex regulatory system to address these issues.

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site-2293451__340-300x200When a solid waste collection company enters into a contract to transfer ownership of assets, a petition for approval must be submitted the New Jersey Department of Environmental Protection.  Assets may not be transferred until this approval is obtained.  One area which the NJDEP evaluates prior to issuing such an approval is the impact of the transfer upon effective competition.  This is a very detailed analysis which can be time consuming.

The solid waste industry serves a dynamic market and the NJDEP must continually evaluate the market to ensure that there are multiple companies serving the customers in each market.  The controlling case law is found in United States v. Philadephia Nation Bank, 374 U.S. 321 (1963), in which the United States Supreme Court held that any sale which results in one company controlling thirty percent or more of the market and results in a significant increase in the concentration of companies in that market creates a lessening of effective competition.  When that is found it creates a presumption which is rebutted if it is shown that the sale is not likely to have such anti-competitive effects.

When the NJDEP performs an analysis of effective competition, it will only prohibit asset transfers if the transfer increases the company’s level of concentration in the market to an extent that could facilitate collusion among a small number of remaining competitors.  The NJDEP considers the following factors to determine effective competition: 1) the size of the company compared to the other companies providing the same service in the markets affected by the transfer; 2) the percentage of customers in the affected markets which will be served by the company after the transfer; and 3) this Herfindahl- Hirschman Index (HHI) of market concentration.

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truck-3503831__340-300x200Selling a business can be an involved process.  However, selling an A901 licensed waste transportation business in New Jersey can be even more complex.

Waste hauling is a strictly monitored and regulated industry in New Jersey under the umbrella of the New Jersey Department of Environmental Protection (“DEP”).  In fact, while the waste transportation company may be owned by limited liability members or corporate shareholders, no owner may sell an A-901 licensed business without DEP approval and oversight.

Indeed New Jersey’s Administrative Code (“NJAC”)  contains the DEP’s regulations which provide that no solid waste transporter can sell, lease, or otherwise dispose of its property (including customer lists) without obtaining prior authorization from the DEP.   Therefore, anyone seeking to sell their waste collection business or the assets thereof, must file the appropriate notices with the DEP and obtain approval from the DEP before any closing or consummation of the sale or transfer may take place.

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New Jersey solid waste transportation is highly regulated by the New Jersey Department of Environmental Protection (“DEP”). While most businesses in New Jersey require some level of truck-3503831__340-300x200regulation, licensing, and/or registration, garbage hauling is a particularly scrutinized industry.

Part of the authorization process (and ongoing regulation) of solid waste transporters includes obtaining a Certificate of Public Convenience and Necessity (“CPCN”). A CPCN provides the State with specific information regarding a hauler’s operations including hours of operations, owner information, exact fees and rates charged by that hauler to customers, territories (counties) served, and the financial condition of the company. Once a CPCN is obtained, the transporter must file annual reports (also known as utility reports) to update all of that information.

The requirement’s for a CPCN are set forth in the Solid Waste Utility Regulations.  These rules and regulations are quite specific and far-reaching into many of the operations of the transportation company.

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toy-2883494__340-300x200There is a large and complex body of laws which restrict and regulate the of waste transportation businesses in New Jersey.  Indeed, New Jersey has arguably the most stringent requirements and restrictions on the solid waste industry in the country.

The New Jersey Department of Environmental Protection (“NJDEP”) has broad authority and power to control and supervise waste transportation and disposal through multiple statutes.  Indeed, the NJDEP has authority under New Jersey’s Solid Waste Management Act as well as the Solid Waste Utility Control Act (“SWUCA”).  The SWUCA took effect in 1970 as a result of a 1969 report published by the New Jersey Commission of Investigation which found that the solid waste business was heavily influenced and effected by organized crime.  As a result, initially the Board of Public Utilities, and later the NJDEP, was empowered to monitor rates being charged and services being provided by waste transportation companies.

There are also a number of regulations which have been created to effectuate the intent and goals of the Acts.   As a result, New Jersey solid waste collectors and haulers are subject to close regulation.  However, this regulation has actually lessened somewhat over time.  Indeed, while initially the Board of Public Utilities was actually permitted to set rates for waste transporters to charge, whereas, currently, now they only evaluate and monitor the rates being charged to ensure effective competition in the marketplace.

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eighteen-wheeler-614201__340-300x225The New Jersey Department of Environmental Protection (“NJDEP”) regulates, monitors, and enforces a wide range of environmental laws throughout the State, including things such as the transport and disposal of solid waste.

The State Legislature and the NJDEP have enacted numerous laws, rules, regulations, and reporting requirements for waste transporters in an effort to ensure the safe, clean transportation of waste throughout the State.

The process for becoming a licensed waste transporter generally begins with the formation and registration of a business entity such as corporation or limited liability company with the State of New Jersey and obtaining a federal Employer Identification Number (FEIN or EIN) with the Internal Revenue Service.  Next the company would need to obtain an A-901 license.  Obtaining that license from the NJDEP can be a long and invasive process requiring a significant amount of information to be provided to the NJDEP in addition to fingerprinting and background checks for all owners and key employees.  It is not uncommon for this process alone to take approximately one year.

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recycling-1341372__340-300x300New Jersey heavily regulates the transportation and disposal of solid waste (garbage) and recycling.  These activities are governed by New Jersey’s Solid Waste Management Act.  It is also governed by regulations promulgated by New Jersey’s Department of Environmental Protection (known as the DEP).  The Appellate Division of the Superior Court of New Jersey had the opportunity recently to review these matters in connection with the actions of a recycling company in Newark.

In the unpublished case of State, Department of Environmental Protection vs. T. Fiore Demolition Company, two companies (T. Fiore Recycling Corporation and T. Fiore Demolition Company, collectively referred to as “Fiore,” both corporations) obtained approval from the DEP to operate a class B recycling center and receive up to 1865 tons of Class B recyclables, and to store up to 30,314 cubic yards of it.  Class B recyclables, also known as “construction and demolition” or “C&D” recyclables, include concrete, asphalt, cinder block, brick, wood, street sweepings, creosote wood and roofing shingles at a location in Newark which the court called Site A. Fiore’s business model was to be paid to take the recycling, and then to process and sell it for use in road and other construction projects.   Next door to Site A was Site B, 26 acres Fiore leased form the Newark Housing Authority.  Fiore did not have approval from the DEP for operations or storage on Site B, even though it was next door to Site A.   As time went on, Fiore used Site B to store recyclables.  At one point the pile of recyclables at Site B reached one hundred feet high.

This use prompted the DEP to visit the site, at which point it discovered the violations.  The DEP issued a notice of violation, and litigation ensued.  The DEP entered an administrative cease and desist order requiring Fiore to immediately cease accepting any materials on Site B, and to only accept one truckload at Site A for every three it removed from the combined sites.  It was after this order that it was discovered that the stockpile had doubled in size to 100 feet.

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