Articles Posted in Solid Waste Law

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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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supreme-court-building-1209701__340-300x200Our employment attorneys represent New Jersey Civil Service employees in appeals of disciplinary action.  Recently, New Jersey’s Supreme Court had the opportunity to clarify some of the circumstances in which a government employee can obtain a waiver of the rule that he forfeit his job when convicted of a criminal offense.

In the case of Flagg v. Essex County Prosecutor, the New Jersey Supreme Court had the opportunity to review the effect of a public employee’s conviction for a disorderly persons offense (the equivalent of a misdemeanor) on their government job.  New Jersey’s forfeiture law requires that employees forfeit their public employment if the conviction is for a crime (the equivalent of felony)  of dishonesty, is required by the New Jersey Constitution, or is a disorderly persons offense “involving or touching such office, position or employment.”  However, a subsection of this law provides an exception.  This provides that “forfeiture or disqualification… which is based upon a conviction of a disorderly persons or petty disorderly persons offense [misdemeanors] may be waived by the court upon application of the county prosecutor or the Attorney General and for good cause shown.” The law is silent about what standard a prosecutor should use to review such applications.

Flagg was a maintenance worker for the City of Newark.  He was convicted in municipal court of illegal disposition of solid waste, a disorderly persons offense.  He did this in the course of his job at the direction and in the presence of his supervisor.  He was sentenced to a six month loss of his drivers license, a $5,000 fine, and five days of community service.  He was not sentenced to jail, nor did the statute provide for jail for this solid waste violation.

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haulerBusinesses wishing to transport solid waste in New Jersey are required to strictly comply with the registration process governed by the New Jersey Department of Environmental Protection.  Our attorneys help solid waste haulers in complying with these requirements, and obtaining approval to haul solid waste in New Jersey.

This is a brief overview of the solid waste registration and application process with the NJDEP.

Is it “Solid Waste?”

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eighteen-wheeler-614201__340The transportation and disposal of solid waste in New Jersey is a heavily regulated industry.  The statutory and regulatory framework of New Jersey sold waste law is complex.  Attorneys from our firm have significant experience counseling and representing solid waste companies in all aspects of their businesses.

This regulatory complexity starts at the beginning of a solid waste hauler’s lifecycle.  A business or person who wants to get into the business of hauling solid waste must make an A-901 application to the New Jersey Department of Environmental Protections, undergo a rigorous background investigation, and obtain a certificate of public convenience & necessity (CPCN).  The operation of the business is also governed by a complex regulatory scheme, including the registration of vehicles, the types of waste which can be handled, and what can be done with it.

And, of course, a solid waste hauler is a business just like any other business.  It will have the multitude of issues any business has.  It will have disputes with its customers.  It will have labor and employment problems.  Competitors will try to take its business.  The owners will have disputes between themselves.  It will need to collect delinquent bills.

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dump-truck-1396587__180
The New Jersey Department of Environmental Protection (“NJDEP”) regulates, monitors, and enforces a wide range of environmental protection and conservation laws throughout the State of New Jersey.  The NJDEP is a cohesive government organization which is involved in various programs and areas of environmental protection including recycling, clean water, air quality and pollution, open spaces, wildlife protection, business regulations, waste transportation and disposal, and other environmental areas.

Waste transportation and disposal is one of the major areas which the NJDEP monitors with  the important goals of: eliminating illegal dumping (and thus land and water pollution), eradicating criminal activity from the waste removal industry due to a historic connection between the industry and illegal conduct, and educating waste handlers of relevant rules and environmental impacts.

To achieve these goals, the New Jersey State Legislature and the NJDEP have enacted numerous laws, rules, regulations, and reporting requirements for waste transporters.  To start, most waste transporters are required to obtain a New Jersey A-901 license.  The process for obtaining an A-901 license is not a quick or easy one.  Before ever engaging in any waste transportation, the business must provide a great deal of information to the NJDEP, including the source of funding for the business, business locations, lease and lessor information, identification of owners and key employees, etc.  On top of that each key employee, owner, partner, officer, director, and managing member must complete a disclosure form which requires a great deal of specific and detailed information such as information regarding family members, employment history, and other personal details.  Moreover, each of these people need to be fingerprinted and have background checks conducted.