A2197

ASSEMBLY, No. 2197

STATE OF NEW JERSEY

INTRODUCED JUNE 20, 1996

By Assemblyman KRAMER, Assemblywoman MURPHY and Assemblyman Gibson

An Act concerning solid waste management, amending P.L.1960, c.183, and amending and repealing parts of P.L.1973, c.330.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 2 of P.L.1960, c.183 (C.40:37A-45) is amended to read as follows:

2. As used in this act[, unless a different meaning clearly appears from the context]:

(a) "Authority" shall mean a public body created pursuant to [this act] the provisions of P.L.1960, c.183 (C.40:37A-44 et seq.);

(b) "Bond resolution" shall have the meaning ascribed thereto in section 17 of P.L.1960, c.183 (C.40:37A-60);

(c) "Bonds" shall mean bonds, notes or other obligations issued pursuant to [this act] the provisions of P.L.1960, c.183 (C.40:37A-44 et seq.);

(d) "Construct" and "construction" shall connote and include acts of clearance, demolition, construction, development or redevelopment, reconstruction, replacement, extension, improvement and betterment; (e) "Cost" shall mean, in addition to the usual connotations thereof, the cost of planning, acquisition or construction of all or any part of any public facility or facilities of an authority and of all or any property, rights, easements, privileges, agreements and franchises deemed by the authority to be necessary or useful and convenient therefor or in connection therewith, including interest or discount on bonds, cost of issuance of bonds, architectural, engineering and inspection costs and legal expenses, cost of financial, professional and other estimates and advice, organization, administrative, operating and other expenses of the authority prior to and during such acquisition or construction, and all such other expenses as may be necessary or incident to the financing, acquisition, construction and completion of such public facility or facilities or part thereof and the placing of the same fully in operation or the disposition of the same, and also such provision or reserves for working capital, operating, maintenance or replacement expenses or for payment or security of principal of or interest on bonds during or after such acquisition or construction as the authority may determine, and also reimbursements to the authority or any governmental unit or person of any moneys theretofore expended for the purposes of the authority;

(f) The term "county" shall mean any county of any class of the State and shall include, without limitation, the terms "the county" and "beneficiary county" defined in this [act] section, and the term "the county" shall mean the county which created an authority pursuant to [this act] the provisions of P.L.1960, c.183 (C.40:37A-44 et seq.);

(g) "Development project" shall mean any lands, structures, or property or facilities acquired or constructed or to be acquired or constructed by an authority for the purposes of the authority described in subsection (e) of section 11 of P.L.1960, c.183 (C.40:37A-54);

(h) "Facility charges" shall have the meaning ascribed to said term in section 14 of P.L.1960, c.183 (C.40:37A-57);

(i) "Facility revenues" shall have the meaning ascribed to said term in subsection (e) of section 20 of P.L.1960, c.183 (C.40:37A-63);

(j) "Governing body" shall mean, in the case of a county, the board of chosen freeholders, or in the case of a county operating under article 3 or 5 of the "Optional County Charter Law" (P.L.1972, c.154; C.40:41A-1 et seq.) as defined thereunder, and, in the case of a municipality, the commission, council, board or body, by whatever name it may be known, having charge of the finances of the municipality;

(k) "Governmental unit" shall mean the United States of America or the State or any county or municipality or any subdivision, department, agency, or instrumentality heretofore or hereafter created, designated or established by or for the United States of America or the State or any county or municipality;

(l) "Local bond law" shall mean chapter 2 of Title 40A, Municipalities and Counties, of the New Jersey Statutes (N.J.S.) as amended and supplemented;

(m) "Municipality" shall mean any city, borough, village, town, or township of the State but not a county or a school district;

(n) "Person" shall mean any person, partnership, association, corporation or entity other than a nation, state, county or municipality or any subdivision, department, agency or instrumentality thereof;

(o) "Project" shall have the meaning ascribed to said term in section 17 of P.L.1960, c.183 (C.40:37A-60);

(p) "Public facility" shall mean any lands, structures, franchises, equipment, or other property or facilities acquired, constructed, owned, financed, or leased by the authority or any other governmental unit or person to accomplish any of the purposes of an authority authorized by section 11 of P.L.1960, c.183 (C.40:37A-54);

(q) "Real property" shall mean lands within or without the State, above or below water, and improvements thereof or thereon, or any riparian or other rights or interests therein;

(r) "[Garbage and solid waste disposal] Solid waste management system" shall mean the plants, structures and other real and personal property acquired, constructed or operated or to be acquired, constructed or operated by a county improvement authority for the benefit or use by any governmental unit or person, including transfer stations, incinerators, resource recovery facilities, sanitary landfill facilities or other plants for the [treatment and] disposal of [garbage,] solid waste [and refuse matter] and all other real and personal property and rights therein and appurtenances necessary or useful and convenient for the collection [and treatment], recycling or disposal of solid waste in a sanitary manner [of garbage, solid waste and refuse matter (but not including sewage)];

(s) "[Garbage, solid] Solid waste [or refuse matter]" shall mean garbage, refuse and other discarded materials resulting from industrial, commercial and agricultural operations, and from domestic and community activities, and shall include all other waste materials including [sludge, chemical waste, hazardous wastes and] liquids, [except for liquids which are treated in public sewage treatment plants and] except for solid animal and vegetable wastes collected by swine producers licensed by the State Department of Agriculture to collect, prepare and feed such wastes to swine on their own farms;

(t) "Blighted, deteriorated or deteriorating area" may include an area determined heretofore by the municipality to be blighted in accordance with the provisions of P.L.1949, c.187, repealed by P.L.1992, c.79 (C.40:55-21.1 et seq.) and, in addition, areas which are determined by the municipality, pursuant to the same procedures as provided in said law, to be blighted, deteriorated or deteriorating because of structures or improvements which are dilapidated or characterized by disrepair, lack of ventilation or light or sanitary facilities, faulty arrangement, location, or design, or other unhealthful or unsafe conditions;

(u) "Redevelopment" may include planning, replanning, conservation, rehabilitation, clearance, development and redevelopment; and the construction and rehabilitation and provision for construction and rehabilitation of residential, commercial, industrial, public or other structures and the grant or dedication or rededication of spaces as may be appropriate or necessary in the interest of the general welfare for streets, parks, playgrounds, or other public purposes including recreational and other facilities incidental or appurtenant thereto, in accordance with a redevelopment plan approved by the governing body of a municipality;

(v) "Redevelopment plan" shall mean a plan as it exists from time to time for the redevelopment of all or any part of a redevelopment area, which plan shall be sufficiently complete to indicate such land acquisition, demolition and removal of structures, redevelopment, improvements, conservation or rehabilitation as may be proposed to be carried out in the area of the project, zoning and planning changes, if any, land uses, maximum densities, building requirements, the plan's relationship to definite local objectives respecting appropriate land uses, improved traffic, public transportation, public utilities, recreational and community facilities, and other public improvements and provision for relocation of any residents and occupants to be displaced in a manner which has been or is likely to be approved by the Department of Community Affairs pursuant to the "Relocation Assistance Law of 1967," P.L.1967, c.79 (C.52:31B-1 et seq.) and the "Relocation Assistance Act," P.L.1971, c.362 (C.20:4-1 et seq.) and rules and regulations pursuant thereto;

(w) "Redevelopment project" shall mean any undertakings and activities for the elimination, and for the prevention of the development or spread, of blighted, deteriorated, or deteriorating areas and may involve any work or undertaking pursuant to a redevelopment plan; such undertaking may include: (1) acquisition of real property and demolition, removal or rehabilitation of buildings and improvements thereon; (2) carrying out plans for a program of voluntary repair and rehabilitation of buildings or other improvements; and (3) installation, construction or reconstruction of streets, utilities, parks, playgrounds or other improvements necessary for carrying out the objectives of the redevelopment project;

(x) "Redeveloper" shall mean any person or governmental unit that shall enter into or propose to enter into a contract with an authority for the redevelopment of an area or any part thereof under the provisions of [this act] P.L.1960, c.183 (C.40:37A-44 et seq.);

(y) "Redevelopment area" shall mean an area of a municipality which the governing body thereof finds is a blighted area or an area in need of rehabilitation whose redevelopment is necessary to effectuate the public purposes declared in [this act] the provisions of P.L.1960, c.183 (C.40:37A-44 et seq.). A redevelopment area may include lands, buildings, or improvements which of themselves are not detrimental to the public health, safety or welfare, but whose inclusion is found necessary, with or without change in their condition, for the effective redevelopment of the area of which they are a part;

(z) ["Sludge" shall mean any solid, semisolid, or liquid waste generated from a municipal, industrial or other sewage treatment plant, water supply treatment plant, or air pollution control facility, or any other such waste having similar characteristics and effects, but shall not include effluent; and] (Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

(aa) "Beneficiary county" shall mean any county that has not created an authority pursuant to [this act]the provisions of P.L.1960, c.183 (C.40:37A-44 et seq.);

(bb) "Stranded investments" means any: (1) facilities, equipment or materials utilized or consumed by an authority in the implementation of a solid waste management system; (2) contracts executed by an authority for, or with respect to, the provision of services relating to the collection, disposal or recycling of solid waste; or (3) programs undertaken and implemented by an authority for, or with respect to, the provision of services relating to the collection, disposal or recycling of solid waste, if the facilities, equipment or materials utilized or consumed, contracts executed or programs undertaken and implemented were: (i) commenced prior to May 1994; (ii) the obligations of the authority relating thereto, including, without limitation, the obligation to make payments with respect thereto, continue beyond the date that the facilities, equipment or materials, contracts or programs are no longer utilized by, or on behalf of, the authority in the manner contemplated at the time the facilities, equipment or materials were acquired or constructed, the contracts were executed or the programs were implemented; and (iii) a determination has been made by the authority, by a resolution adopted by the authority therefor, that the facilities, equipment or materials, contracts or programs will no longer be utilized by, or on behalf of, the authority in the manner contemplated at the time the facilities, equipment or materials were acquired or constructed, the contracts were executed or the programs were implemented; and

(cc) "Stranded investment costs" means any cost incurred by an authority for, or with respect to, stranded investments, regardless of whether the costs have actually been paid by the authority prior to the date the authority makes the determination, by a resolution adopted by the authority therefor, that the facilities, equipment or materials, contracts or programs will no longer be utilized by, or on behalf of, the authority in the manner contemplated at the time the facilities, equipment or materials were acquired or constructed, the contracts were executed or the programs were implemented.

(cf: P.L.1994, c.76, s.1)

2. Section 11 of P.L.1960, c.183 (C.40:37A-54) is amended to read as follows:

11. The purposes of every authority shall be (a) provision within the county or any beneficiary county of public facilities for use by the State, the county or any beneficiary county, or any municipality in any such county, or any two or more or any subdivisions, departments, agencies or instrumentalities of any of the foregoing for any of their respective governmental purposes, including the establishment and implementation of a system to calculate, charge and collect moneys for payment of stranded investment costs and establishment and implementation of a program for the inspection of solid waste and a program to enforce or prosecute violations or violators for the purposes described in (1) and (2) of subsection (u) of section 12 of P.L.1960, c.183 (C.40:37A-55), (b) provision within the county or any beneficiary county of public facilities for use as convention halls, or the rehabilitation, improvement or enlargement of any convention hall, including appropriate and desirable appurtenances located within the convention hall or near, adjacent to or over it within boundaries determined at the discretion of the authority, including but not limited to office facilities, commercial facilities, community service facilities, parking facilities, hotel facilities and other facilities for the accommodation and entertainment of tourists and visitors, (c) provision within the county or any beneficiary county of structures, franchises, equipment and facilities for operation of public transportation or for terminal purposes, including development and improvement of port terminal structures, facilities and equipment for public use in counties in, along or through which a navigable river flows, (d) provision within the county or any beneficiary county of structures or other facilities used or operated by the authority or any governmental unit in connection with, or relative to development and improvement of, aviation for military or civilian purposes, including research in connection therewith, and including structures or other facilities for the accommodation of passengers, (e) provision within the county or any beneficiary county of a public facility for a combination of governmental and nongovernmental uses; provided that not more than 50% of the usable space in any such facility shall be made available for nongovernmental use under a lease or other agreement by or with the authority, (f) acquisition of any real property within the county or any beneficiary county, with or without the improvements thereof or thereon or personal property appurtenant or incidental thereto, from the United States of America or any department, agency or instrumentality heretofore or hereafter created, designated or established by or for it, and the clearance, development or redevelopment, improvement, use or disposition of the acquired lands and premises in accordance with the provisions and for the purposes stated in this act, including the construction, reconstruction, demolition, rehabilitation, conversion, repair or alteration of improvements on or to said lands and premises, and structures and facilities incidental to the foregoing as may be necessary, convenient or desirable, (g) acquisition, construction, maintenance and operation of [garbage and solid waste disposal] solid waste management systems for the purpose of collecting [and], disposing or recycling of [garbage,]solid waste [or refuse matter], whether owned or operated by any person, the authority or any other governmental unit, within or without the county or any beneficiary county, including the establishment and implementation of a system to calculate, charge and collect moneys for payment of stranded investment costs and establishment and implementation of a program for the inspection of solid waste and a program to enforce or prosecute violations or violators for the purposes described in (1) and (2) of subsection (u) of section 12 of P.L.1960, c.183 (C.40:37A-55), (h) the improvement, furtherance and promotion of the tourist industries and recreational attractiveness of the county or any beneficiary county through the planning, acquisition, construction, improvement, maintenance and operation of facilities for the recreation and entertainment of the public, which facilities may include, without being limited to, a center for the performing and visual arts, (i) provision of loans and other financial assistance and technical assistance for the construction, reconstruction, demolition, rehabilitation, conversion, repair or alteration of buildings or facilities designed to provide decent, safe and sanitary dwelling units for persons of low and moderate income in need of housing, including the acquisition of land, equipment or other real or personal properties which the authority determines to be necessary, convenient or desirable appurtenances, all in accordance with the provisions of this act, as amended and supplemented, (j) planning, initiating and carrying out redevelopment projects for the elimination, and for the prevention of the development or spread of blighted, deteriorated or deteriorating areas and the disposition, for uses in accordance with the objectives of the redevelopment project, of any property or part thereof acquired in the area of such project, (k) any combination or combinations of the foregoing or following, and (l) subject to the prior approval of the Local Finance Board, the planning, design, acquisition, construction, improvement, renovation, installation, maintenance and operation of facilities or any other type of real or personal property within the county or any beneficiary county for a corporation or other person organized for any one or more of the purposes described in subsection a. of N.J.S.15A:2-1 except those facilities or any other type of real or personal property which can be financed pursuant to the provisions of P.L.1972, c.29 (C.26:2I-1 et seq.) as amended.

(cf: P.L.1994, c.110, s.1)

3. Section 12 of P.L.1960, c.183 (C.40:37A-55) is amended to read as follows:

12. Every authority shall be a public body politic and corporate constituting a political subdivision of the State established as an instrumentality exercising public and essential governmental functions to provide for the public convenience, benefit and welfare and shall have perpetual succession and, for the effectuation of its purposes, have the following additional powers:

(a) To adopt and have a common seal and to alter the same at pleasure;

(b) To sue and be sued;

(d) To acquire, rent, hold, use and dispose of other personal property for the purposes of the authority;

(e) Subject to the provisions of section 26 of [this act] P.L.1960, c.183 (C.40:37A-69), to acquire by purchase, gift, condemnation or otherwise, or lease as lessee, real property and easements or interests therein necessary or useful and convenient for the purposes of the authority, whether subject to mortgages, deeds of trust or other liens or otherwise, and to hold and to use the same, and to dispose of property so acquired no longer necessary for the purposes of the authority; provided that the authority may dispose of such property at any time to any governmental unit or person if the authority shall receive a leasehold interest in the property for such term as the authority deems appropriate to fulfill its purposes;

(f) Subject to the provisions of section 13 of [this act] P.L.1960, c.183 (C.40:37A-56), to lease to any governmental unit or person, all or any part of any public facility for such consideration and for such period or periods of time and upon such other terms and conditions as it may fix and agree upon;

(g) To enter into agreements to lease, as lessee, public facilities for such term and under such conditions as the authority may deem necessary and desirable to fulfill its purposes, and to agree, pursuant thereto, to be unconditionally obligated to make payments for the term of the lease, without set-off or counterclaim, whether or not the public facility is completed, operating or operable, and notwithstanding the destruction of, damage to, or suspension, interruption, interference, reduction or curtailment of the availability or output of the public facility to which the agreement applies;

(h) To extend credit or make loans to any governmental unit or person for the planning, design, acquisition, construction, equipping and furnishing of a public facility, upon the terms and conditions that the loans be secured by loan and security agreements, mortgages, leases and other instruments, the payments on which shall be sufficient to pay the principal of and interest on any bonds issued for the purpose by the authority, and upon such other terms and conditions as the authority shall deem reasonable;

(i) Subject to the provisions of section 13 of [this act] P.L.1960, c.183 (C.40:37A-56), to make agreements of any kind with any governmental unit or person for the use or operation of all or any part of any public facility for such consideration and for such period or periods of time and upon such other terms and conditions as it may fix and agree upon;

(j) To borrow money and issue negotiable bonds or notes or other obligations and provide for and secure the payment of any bonds and the rights of the holders thereof, and to purchase, hold and dispose of any bonds;

(k) To apply for and to accept gifts or grants of real or personal property, money, material, labor or supplies for the purposes of the authority from any governmental unit or person, and to make and perform agreements and contracts and to do any and all things necessary or useful and convenient in connection with the procuring, acceptance or disposition of such gifts or grants;

(l) To determine the location, type and character of any public facility and all other matters in connection with all or any part of any public facility which it is authorized to own, construct, establish, effectuate or control;

(m) To make and enforce bylaws or rules and regulations for the management and regulation of its business and affairs and for the use, maintenance and operation of any public facility, and to amend the same;

(n) To do and perform any acts and things authorized by [this act] the provisions of P.L.1960, c.183 (C.40:37A-44 et seq.) under, through or by means of its own officers, agents and employees, or by contract with any governmental unit or person;

(o) To acquire, purchase, construct, lease, operate, maintain and undertake any project and to fix and collect facility charges for the use thereof;

(p) To mortgage, pledge or assign or otherwise encumber all or any portion of its revenues and other income, real and personal property, projects and facilities for the purpose of securing its bonds, notes and other obligations or otherwise in furtherance of the purpose of [this act] P.L.1960, c.183 (C.40:37A-44 et seq.);

(q) To extend credit or make loans to redevelopers for the planning, designing, acquiring, constructing, reconstructing, improving, equipping and furnishing any redevelopment project or redevelopment work;

(r) To conduct examinations and investigations, hear testimony and take proof, under oath at public or private hearings of any material matter, require the attendance of witnesses and the production of books and papers and issue commissions for the examination of witnesses who are out of the State, unable to attend, or excused from attendance;

(s) To authorize a committee designated by it consisting of one or more members, or counsel, or any officer or employee to conduct any such investigation or examination, in which case such committee, counsel, officer or employee shall have power to administer oaths, take affidavits and issue [subpenas] subpoenas or commissions; [and]

(t) To establish and implement a system to calculate, charge and collect moneys for payment of stranded investment costs;

(u) To establish and implement a program for the inspection of solid waste and a program to enforce or prosecute violations or violators of (1) the system established pursuant to subsection (t) hereinabove for payment of stranded investment costs; or (2) the provisions of any agreements, contracts or instruments executed in connection with the implementation of a solid waste management system or use of any public facility acquired, constructed or contracted for by an authority for such purpose; and

(v) To enter into any and all agreements or contracts, execute any and all instruments, and do and perform any and all acts or things necessary, convenient or desirable for the purposes of the authority or to carry out any power expressly given in [this act] the provisions of P.L.1960, c.183 (C.40:37A-44 et seq.) subject to P.L.1971, c.198, "Local Public Contracts Law" (C.40A:11-1 et seq.).

(cf: P.L.1982, c.113, s. 8)

4. Section 13 of P.L.1960, c.183 (C.40:37A-56) is amended to read as follows:

13. (1) Whenever an authority after investigation and study shall plan to undertake any public facility or facilities (other than a development project or redevelopment project) for the purposes of the authority, the authority shall make to the governing body of the county and if the public facility or facilities (including a development project or redevelopment project) benefit any beneficiary county, to the governing body of any such beneficiary county a detailed report dealing with the proposed public facility or facilities. Notwithstanding any other provision of [this act] P.L.1960, c.183 (C.40:37A-44 et seq.), the authority shall not construct or acquire such public facility or facilities (other than a development project or redevelopment project within the county which created the authority), or make any lease or other agreement relating to use by any governmental unit or person of all or any part of any such public facility or facilities for a term in excess of five years, until there has been filed with the authority a copy of a resolution adopted by the governing body of the county and, if applicable, by any beneficiary county, certified by its clerk, describing such public facility or facilities in terms sufficient for reasonable identification and consenting to the construction or acquisition thereof by the authority or the making of such leases or other agreements.

(2) Unless otherwise required by any agreement of the authority with holders of its bonds, no authority shall sell any part of a development project or make any lease or other agreement relating to use by any governmental unit or person of said part for a term in excess of five years (A) Until the Commissioner of Community Affairs (hereinafter called the "commissioner") has approved a plan (hereinafter called, with respect to such part, the "development plan") prepared by the authority which provides an outline for the development of said part sufficient, in the opinion of the commissioner: (i) to indicate its relationship to appropriate land uses in the area and proper traffic, public transportation, public utility, recreational and community facilities, and other public improvements, (ii) to indicate proposed land uses and building requirements and restrictions in said part, and (iii) to provide reasonable assurance that said part will not be in danger of becoming a blighted area and will be developed in a manner reasonably designed in the public interest to encourage industrial, commercial, residential or other proper uses thereof or restore or increase employment opportunities for residents of the State; or (B) Unless such sale, lease or other agreement, in the opinion of the authority, is necessary or desirable in order to effectuate and carry out the said development plan.

(3) Every authority shall have power, subject to the provisions of subsection (2) of this section, to sell or otherwise dispose of all or any part of any development project or to lease the same to any governmental unit or person or make agreement of any kind with any governmental unit or person for the use or operation thereof, for such consideration and for such period or periods of time and upon such other terms and conditions as it may fix and agree upon. In the exercise of such power, the authority may make any land or structure in the development project available for use by private enterprise or governmental units in accordance with the development plan at its use value, being the value (whether expressed in terms of rental or capital price) at which the authority determines such land or structure should be made available in order that it may be developed or used for the purpose or purposes specified in such plan. In order to assure that land or other property included in the development project is developed or used in accordance with the development plan, the authority, upon the sale, lease or other disposition of such land or property, shall obligate purchasers, lessees or other users: (A) to use the land or property for the purpose designated in such plan, (B) to begin the building or installation of their improvements or other property (if any), and to complete the same, within such periods of time as the authority may fix as reasonable, and (C) to comply with such other conditions as are necessary or desirable to carry out the purposes stated in this act. Any such obligations imposed on a purchaser of land shall be covenants and conditions running with the land where the authority so stipulates.

(4) Notwithstanding the foregoing, the provisions of this section shall not apply to the establishment and implementation of a system to calculate, charge and collect moneys for payment of stranded

investment costs as authorized pursuant to (a) and (g) of section 11 of P.L1960, c.183 (C.40:37A-54).

(cf: P.L.1994, c.76, s.5)

5. Section 14 of P.L.1960, c.183 (C.40:37A-57) is amended to read as follows:

14. a. Every authority is hereby authorized to charge and collect tolls, rents, rates, fares, fees or other charges (in this act sometimes referred to as "facility charges") in connection with, or for the use or services of, or otherwise relating to, any public facility or other property owned, leased or controlled by the authority. If the public facility is a solid waste management system [of solid waste disposal], including, but not limited to, a resource recovery facility, recycling [plant] center or transfer station owned, leased or controlled by the authority, the authority may charge and collect in connection with that solid waste management system from any governmental unit included within the jurisdiction of the authority or any governmental unit which contracts for service with that authority, or from any person utilizing the solid waste management system, or from any owner or occupant of any real property situated in a constituent municipality or in a municipality which contracts for service with that authority. [Such] The facility charges may be charged to and collected from any governmental unit or person and [such] the governmental unit or person shall be liable for and shall pay [such] the facility charges to the authority at the time when and place where [such] the facility charges are due and payable.

In the event that the facility charges of an authority with regard to any parcel of real property owned by any person, other than the State or an agency or subdivision thereof, shall not be paid as and when due, the unpaid balance thereof, and all interest accruing thereon, shall be a lien on the parcel. The lien shall be superior and paramount to the interest in the parcel of any owner, lessee, tenant, mortgagee or other person except the lien of municipal taxes and shall be on a parity with and deemed equal to the lien on the parcel of the municipality wherein the parcel is situated for taxes thereon due in the same year and not paid as and when due. Whenever the facility charges, and any interest accrued thereon, shall have been fully paid to the authority, the lien shall be promptly withdrawn or canceled by the authority.

The collector or other officer of every municipality charged by law with the duty of enforcing municipal liens on real property shall enforce, in the same manner as with any other municipal lien on real property in the municipality, all facility charges and the lien thereof shown in any statement filed with the collector or officer by an authority pursuant to the provisions of this subsection, and shall pay over to the authority the sums or a pro rata share of the sums realized upon the enforcement or liquidation of any property acquired by the municipality by virtue of the enforcement action.

In the event that the facility charges of an authority shall not be paid as and when due, notwithstanding any other remedies available to the authority, the unpaid balance thereof, and any interest accrued thereon, together with attorney's fees and costs, may be recovered by the authority in a civil action, and any lien on real property for the facility charges, and any interest accrued thereon, may be foreclosed or otherwise enforced by the authority by action or suit in equity as for the foreclosure of a mortgage on the real property.

All rights and remedies provided in this subsection for the collection and enforcement of facility charges shall be cumulative and concurrent.

b. Notwithstanding the provisions of any other law to the contrary and in addition to the powers provided in subsection a. of this section, every authority is hereby authorized to establish and implement a system to calculate, charge and collect rates, fees or other charges for payment of stranded investment costs.

These rates, fees or other charges shall constitute "facility charges" as defined in subsection a. of this section and may be collected by an authority in any manner reasonably established by the authority, including without limitation, the collection of facility charges from:

(1) every solid waste generator included within the jurisdiction of the authority, regardless of whether the solid waste is to be delivered to the solid waste mangement system owned, leased or controlled by the authority for disposal or recycling, through the implementation of a unit charge based upon the amount of solid waste generated;

(2) every constituent municipality which has previously utilized the authority's solid waste management system and has thereby received the benefit of the stranded investments, through the implementation of an assessment against the municipality based upon the aggregate amount of solid waste generated within the boundaries of the municipality from all sources of generation; or

(3) the county wherein the solid waste management system is located or from any other governmental unit which has contracted with the authority for the utilization of the solid waste management system, through the implementation of an assessment against the county based upon the aggregate amount of solid waste generated within the boundaries of the county from all sources of generation.

Upon the establishment of a system to calculate, charge and collect rates, fees or other charges for payment of stranded investment costs, but prior to the implementation thereof, the authority shall hold a public hearing thereon at least 20 days after notice of the proposed implementation has been mailed to the clerk of each municipality located within the boundaries of the county wherein the solid waste management system is located, and after publication of the notice of the proposed implementation and the time and place of the public

hearing in at least 2 newspapers of general circulation within the county.

(cf: P.L.1988, c.140, s.1)

6. Section 15 of P.L.1960, c.183 (C.40:37A-58) is amended to read as follows:

15. a. The facility charges fixed, charged and collected by an authority with respect to any public facility shall comply with the terms of any lease or other agreement of the authority with regard to [such] the public facility, and the facility charges fixed, charged and collected by an authority may be so adjusted that the revenues of the authority will at all times be adequate to pay all expenses of the authority, including the expenses of operation and maintenance of any public facility or other property owned or controlled by the authority, including insurance, improvements, replacements, reconstruction and any other required payments, and to pay the principal of and interest on any bonds, and to maintain such reserves or sinking funds for any of the foregoing purposes as may be required by the terms of any lease or other agreement of the authority or as may be deemed necessary or convenient and desirable by the authority.

b. Notwithstanding the foregoing, the provisions of this section shall not apply to the facility charges established and collected pursuant to subsection b. of section 14 of P.L.1960, c.183 (C.40:37A-57). The facility charges established and collected pursuant to subsection b. of section 14 of P.L.1960, c.183 (C.40:37A-57) shall, to the extent applicable, comply with the terms and conditions of any agreement, contract or instrument executed by the authority with any county, municipality, other governmental unit or person responsible for the payment of stranded investment costs, as determined by the authority pursuant to subsection b. of section 14 of P.L.1960, c.183 (C.40:37A-57).

(cf: P.L.1960, c.183, s.15)

7. Section 3 of P.L.1973, c.330 (C.40:37A-100) is amended to read as follows:

3. a. Any solid waste [disposal] management system operated by a county improvement authority shall be subject to the provisions of the "Solid Waste Management Act [(1970)]" (P.L.1970, c.39, C.13:1E-1 et seq.), and to any rules and regulations adopted [thereunder] pursuant thereto by the State Department of Environmental Protection, solely with respect to the environmental aspects of the authority's solid waste collection, disposal or recycling operations.

b. Notwithstanding the provisions of P.L.1970, c.39 (C.13:1E-1 et seq.), as amended and supplemented by P.L.1975, c.326, or P.L.1977, c.443 (C.26:3A2-21 et seq.) to the contrary, any county improvement authority is authorized to establish and implement a program for the inspection of solid waste and a program to enforce or prosecute violations or violators of (1) any system established pursuant to subsection (t) of section 12 of P.L.1960, c.183 (C.40:37A-55) for payment of stranded investment costs; or (2) the provisions of any agreements, contracts or instruments executed in connection with the implementation of a solid waste management system or use of any public facility acquired, constructed or contracted for by a county improvement authority for such purpose.

c. In furtherance of the provisions of this section, any county improvement authority is authorized to exercise the enforcement powers conferred on local boards of health or county health departments pursuant to the provisions of the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-21 et seq.) and section 9 of P.L.1970, c.39 (C.13:1E-9), and may exercise these powers directly in the manner provided by the aforementioned acts to local boards of health or county health departments.

(cf: P.L.1973, c.330, s.3)

8. The following are repealed:

Section 4 of P.L.1973 c.330 (C.40:37A-101);

Section 5 of P.L.1973 c.330 (C.40:37A-102);

Section 6 of P.L.1973 c.330 (C.40:37A-103);

Section 7 of P.L.1973 c.330 (C.40:37A-104);

Section 8 of P.L.1973 c.330 (C.40:37A-105).

9. This act shall take effect immediately.

STATEMENT

This bill would authorize county improvement authorities to consider the costs incurred in developing and operating designated solid waste facilities, which have been devalued as a result of the Carbone decision, as "stranded investment costs," and empower these authorities to charge and collect fees from the facility's users to recover these costs.

On May 16, 1994, the U.S. Supreme Court, in its first-ever waste flow control case, Carbone v. Town of Clarkstown, held that, without unambiguous congressional authorization, a state or local government's regulation of where haulers must transport solid waste for processing or disposal is a violation of the Commerce Clause of the U.S. Constitution. If Carbone is reaffirmed by a New Jersey-related case, the legal authority of counties and public authorities to control the flow of solid waste to their State-designated solid waste facilities would be invalidated. Consequently, all operating solid waste incinerators, landfills and transfer stations in New Jersey would lose the guaranteed waste flows that ensure the economic viability of these facilities, and the counties and public authorities that financed them through bonded indebtedness would face financial disaster. Collectively, these local governments have invested more than $1 billion underwritten by 20 - 40 year revenue bonds.

In response to this potential invalidation of waste flow control, this bill would authorize county improvement authorities that have previously developed and implemented solid waste management systems (through the acquisition, construction and operation of solid waste facilities or through execution of contracts and implementation of solid waste collection, disposal or recycling programs) to establish and implement a system for the collection of fees or charges from all public and private users of these systems to recover the stranded investment costs incurred by the authority.

In addition, the bill would authorize county improvement authorities to exercise sole jurisdiction to undertake enforcement actions to assure compliance with the system established to recover the stranded investment costs, and to assure that all solid waste generated by the public and private users of an authority's solid waste management system is delivered to the authority's solid waste facilities. The bill would also remove county improvement authorities from the rate regulation of the Department of Environmental Protection as public utilities with respect to the fees or charges received at the authority's solid waste facilities.

To these ends, the bill would exempt county improvement authorities from any contrary provisions of the "County Environmental Health Act," P.L.1977, c.443 (C.26:3A2-21 et seq.) or the "Solid Waste Management Act," P.L.1970, c.39 (C.13:1E-1 et seq.), and exclude the tipping fees charged at an authority's solid waste facilities from the rate regulation of, or public utility treatment by, the Department of Environmental Protection under the "Solid Waste Utility Control Act," P.L.1970, c.40 (C.48:13A-1 et seq.).

Allows certain solid waste facilities to be treated as stranded investments.