P.L. 1996, c.124 (S294 1R)

§§ 1-7

C. 13:1E-116.1

13:1E-116.7

P.L. 1996, CHAPTER 124, approved November 6, 1996

Senate No. 294 (First Reprint)

An Act concerning the ¹closure,¹ remediation and redevelopment of municipal landfill sites, and revising parts of the statutory law.

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

1. (New section) This act shall be known and may be cited as the "Municipal Landfill Site ¹Closure,¹ Remediation and Redevelopment Act."

2. (New section) As used in this act:

¹["Closing costs" or "closure"] "Closure"¹ means all activities ¹[ and costs]¹ associated with the design, purchase, construction or maintenance of all measures required by the department, pursuant to law, in order to ¹[remediate,]¹ prevent, minimize or monitor pollution or health hazards resulting from municipal solid waste landfills subsequent to the termination of operations at any portion thereof, including, but not necessarily limited to, the ¹[costs of the]¹ placement of final earthen or vegetative cover, ¹[groundwater remediation,]¹ the installation of methane gas vents or monitors and leachate monitoring wells or collection systems, and long-term operations and maintenance, at the site of any municipal solid waste landfill ¹[that ceased operations prior to January 1, 1982 and]¹ that is not listed on the National Priorities List pursuant to the "Comprehensive Environmental Response, Compensation, and Liability Act of 1980," at 42 U.S.C. §9605. ¹[Any activity necessary to remediate ground or surface water contamination caused by a municipal solid waste landfill shall be considered a closure activity. As appropriate, closure activities shall be conducted in accordance with the remediation standards developed by the department pursuant to section 35 of P.L.1993, c.139 (C.58:10B-12).]

"Closure and remediation costs" means all reasonable costs associated with the closure and remediation of a municipal solid waste landfill except that "closure and remediation costs" shall not include any costs incurred in financing the closure or remediation.¹

"Commercial solid waste" means any nonhazardous solid waste derived from wholesale, retail or service establishments, including stores, markets, theaters, offices, restaurants, warehouses, or from other non-manufacturing commercial activities.

"Developer" means any person that enters or proposes to enter into a redevelopment agreement with the State pursuant to the provisions of section 3 of P.L. , c. (C. )(pending in the Legislature as this bill).

"Director" means the Director of the Division of Taxation in the Department of the Treasury.

"Household solid waste" means any solid waste derived from households, including but not limited to single and multiple residences, hotels and motels, bunkhouses, ranger stations, crew quarters, campgrounds, picnic grounds and day use recreation areas, except that "household solid waste" shall not include septic waste as defined in section 3 of P.L.1970, c.40 (C.48:13A-3).

"Industrial solid waste" means any solid waste derived from manufacturing, industrial and research and development processes and operations that is not a hazardous waste as defined in section 1 of P.L.1976, c.99 (C.13:1E-38), except that "industrial solid waste" shall not include mining waste, oil waste, gas waste, or cement kiln dust waste.

"Municipal solid waste landfill" means a landfill that ¹ceased operations prior to January 1, 1982 and¹ received for disposal household solid waste and at least one of the following: (1) commercial solid waste; (2) industrial solid waste; or (3) waste material that was received for disposal prior to October 21, 1976 and that is included within the definition of hazardous waste adopted by the federal government pursuant to the "Resource Conservation and Recovery Act," at 42 U.S.C. §6921; except that "municipal solid waste landfill" shall not include any landfill that is approved for disposal of hazardous waste and regulated pursuant to Subchapter III of the "Resource Conservation and Recovery Act," 42 U.S.C. §6921 et seq.

"Project" or "redevelopment project" means a specific work or improvement, including lands, buildings, improvements, real and personal property or any interest therein, including lands under water, riparian rights, space rights and air rights, acquired, owned, developed or redeveloped, constructed, reconstructed, rehabilitated or improved, undertaken by a developer within an area of land whereon a municipal solid waste landfill is or has been located ¹,¹ under a redevelopment agreement with the State pursuant to section 3 of P.L. , c. (C. ) (pending in the Legislature as this bill).

"Redevelopment agreement" means ¹[a contract] an agreement¹ between the State and a developer ¹[for] under which the developer agrees to perform¹ any work or undertaking ¹necessary¹ for the ¹[remediation or]¹ environmentally sound ¹and proper¹ closure ¹[,] and remediation of the municipal solid waste landfill located at the site of the redevelopment project, and for the¹ clearance, development or redevelopment, construction or rehabilitation of any structure or improvement of commercial, industrial or public structures or improvements ¹[that provide a public benefit]¹ within an area of land whereon a municipal solid waste landfill is or has been located pursuant to section 3 of P.L. , c. (C. ) (pending in the Legislature as this bill)¹, and the State agrees that the developer shall be eligible for the reimbursement of 75% of the costs of closure and remediation of the municipal solid waste landfill from the fund established pursuant to section 6 of P.L. c. (C. ) (pending in the Legislature as this bill) as authorized pursuant to section 4 of P.L. , c. (C. )(pending in the Legislature as this bill).

"Remediation" or "remediate" means all necessary actions to investigate and clean up any known, suspected, or threatened discharge of contaminants, including, as necessary, the preliminary assessment, site investigation, remedial investigation, and remedial action, as those terms are defined in section 23 of P.L.1993, c.139 (C.58:10B-1).¹

3. (New section) a. The provisions of any other law, or rule or regulation adopted pursuant thereto, to the contrary notwithstanding, any developer may enter into a redevelopment agreement with the State pursuant to the provisions of this section.

The Commissioner of the Department of Commerce and Economic Development ¹in consultation with the State Treasurer¹ shall negotiate the terms and conditions of any redevelopment agreement on behalf of the State.

b. In negotiating a redevelopment agreement with a developer, the commissioner shall consider the following factors:

(1) the economic feasibility of the redevelopment project;

¹[(2) the funding source or sources for the closure element of the redevelopment project;

(3) the projected closing costs of the closure element of the redevelopment project, as certified by the Commissioner of Environmental Protection pursuant to section 4 of P.L. , c. (C. ) (pending in the Legislature as this bill);

(4)] (2)¹ the extent of economic and related social distress in the municipality and the area to be affected by the redevelopment project;

¹[(5)] (3)¹ the degree to which the redevelopment project will advance State, regional and local development strategies;

¹[(6)] (4)¹ the likelihood that the redevelopment project shall upon completion be capable of repaying ¹[all or part of any financing] the closure and remediation¹ costs incurred;

¹[(7)] (5)¹ the relationship of the redevelopment project to a comprehensive local development strategy, including other major projects undertaken within the municipality; and

¹[(8)] (6)¹ the degree to which the redevelopment project enhances and promotes job creation and economic development.

4. (New section) a. The provisions of any other law, or rule or regulation adopted pursuant thereto, to the contrary notwithstanding, any developer that ¹[commences] enters into a redevelopment agreement pursuant to section 3 of P.L. , c. (C. ) (pending in the Legislature as this bill), may be eligible for reimbursement of 75% of the costs of the closure and remediation of the municipal solid waste landfill pursuant to the provisions of this section upon the commencement of ¹ a business operation within a redevelopment project, the sales receipts of which are subject to the tax imposed under the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.)¹[, may be eligible for a reduction in the tax otherwise due and payable under P.L.1966, c.30 pursuant to the provisions of this section]¹.

b. To be eligible for ¹[a reduction in the tax otherwise due and payable under P.L.1966, c.30] reimbursement of 75% of the costs of closure and remediation¹ , a developer shall submit an application, in writing, to the director for review and certification of the ¹[reduction] reimbursement¹. The director shall review the request for the ¹[reduction] reimbursement¹ upon receipt of an application therefor, and shall approve or deny the application for certification on a timely basis.

The director ¹[may] shall¹ certify a developer to be eligible for the ¹[reduction] reimbursement¹ if the director shall find that:

(1) ¹[the developer owns or operates]¹ a place of business ¹is¹ located in the area subject to the redevelopment agreement for the purpose of making retail sales;

(2) non-exempt items are regularly exhibited and offered for retail sale at that location;

(3) the place of business is not utilized primarily for the purpose of catalogue or mail order sales; and

(4) the developer has ¹[obtained the approval from] entered into a memorandum of agreement with¹ the Commissioner of Environmental Protection ¹[of a financial plan]¹ for the ¹environmentally sound and proper¹ closure ¹and remediation¹ of the municipal solid waste landfill located on the site of the redevelopment project pursuant to section 5 of P.L. , c. (C. ) (pending in the Legislature as this bill) ¹and is in compliance with the memorandum of agreement¹.

¹c. When filing an application for certification for a reimbursement pursuant to this section, the developer shall submit to the director a certification of the total closure and remediation costs incurred by the developer for the closure and remediation of the municipal solid waste landfill located at the site of the redevelopment project as provided in the redevelopment agreement.¹

5. (New section) a. To qualify for the ¹[reduction in the tax otherwise due and payable under P.L.1966, c.30] certification of reimbursement of 75% of the closure and remediation costs¹ authorized pursuant to section ¹[6] 4¹ of P.L. , c. (C. ) (pending in the Legislature as this bill), a developer shall ¹[submit to and receive the approval of ] enter into a memorandum of agreement with¹ the Commissioner of Environmental Protection ¹[of a financial plan]¹ for the ¹environmentally sound and proper¹ closure ¹or remediation¹ of the municipal solid waste landfill located on the site of the redevelopment project.

b. ¹[The financial plan for closure required to be submitted pursuant to this section shall include an inventory of all specific closure activities or closing costs associated with environmental or health measures required by the Department of Environmental Protection, pursuant to law, to be undertaken by the developer or the governing body of the municipality within which the municipal solid waste landfill is or has been located, in the case of delegated closure responsibilities pursuant to section 7 of P.L. , c. (C. )(pending in the Legislature as this bill), at the landfill site and an estimate of the total closing costs likely to be incurred by the developer in undertaking these activities.] Under the memorandum of agreement, the developer shall agree to perform and complete any closure activity or remediation as may be required by the Department of Environmental Protection, pursuant to law, to ensure the environmentally sound and proper closure and remediation of the municipal solid waste landfill located at the site of the redevelopment project.¹ Any activity necessary to remediate ground or surface water contamination caused by a municipal solid waste landfill shall be ¹[considered a closure activity] undertaken in compliance with the remediation standards adopted by the Department of Environmental Protection pursuant to P.L.1993, c.139 (C.58:10B-1 et al.)¹.

c. ¹[The] After the developer has entered into a memorandum of agreement with the¹ Commissioner of Environmental Protection ¹[shall have 30 days from the date of receipt to approve or reject a financial plan for closure submitted by a developer pursuant to this section. Upon approval]¹, the commissioner shall submit a copy thereof ¹[, including a statement of the projected closing costs of the municipal solid waste landfill located at the site of the redevelopment project,]¹ to the developer, ¹the clerk of the municipality in which the municipal solid waste landfill is located,¹ the Commissioner of the Department of Commerce and Economic Development, and the director.

¹[6. (New section) a. Upon approval of certification of the reduction by the director pursuant to section 4 of P.L. , c. (C. ) (pending in the Legislature as this bill), the taxpayer shall impose and collect the full amount of the tax due under section 3 of P.L.1966, c.30 (C.54:32B-3), but shall be entitled to a reduction in the tax otherwise due and payable to the State with each return filed pursuant to section 18 of P.L.1966, c.30 (C.54:32B-18) in an amount equal to $0.03 of the amount of tax collected on each $1.00 of non-exempt sales.

b. The reduction authorized pursuant to this section shall remain in effect until such time as the aggregate dollar amount of the reductions indicated on the tax returns equal the dollar amount of the closing costs incurred by the developer, as certified by the Commissioner of the Department of Environmental Protection, pursuant to the redevelopment agreement.

c. When filing a tax return that includes an initial claim for a reduction pursuant to this section, the developer shall include a copy of the certification and a statement that the claim is based on a redevelopment agreement entered into with the State pursuant to the provisions of section 3 of P.L. , c. (C. ) (pending in the Legislature as this bill).]¹

¹[7. (New section) Upon application by the governing body of a municipality within which a municipal solid waste landfill is or has been located, or as a predicate to a developer entering into a redevelopment agreement with the State pursuant to the provisions of section 3 of P.L. , c. (C. )(pending in the Legislature as this bill), the Commissioner of Environmental Protection may delegate to the municipal governing body the closure responsibilities that would otherwise be required of the developer pursuant to the provisions of section 5 of P.L. , c. (C. )(pending in the Legislature as this bill), upon a finding that the municipality is capable of administering those responsibilities. This delegation shall be in accordance with rules and regulations adopted by the department pursuant to law.]¹

¹[8. (New section) a. Any municipality proposing to undertake the environmentally sound closure of a municipal solid waste landfill pursuant to section 7 of P.L. , c. (C. )(pending in the Legislature as this bill) shall submit to and receive the approval of the Commissioner of Environmental Protection of a financial plan for the closure of the municipal solid waste landfill located on the site of the proposed redevelopment project.

b. The department shall make available moneys from the Sanitary Landfill Facility Contingency Fund established pursuant to section 6 of P.L.1981, c.306 (C.13:1E-105) for loans to municipalities within which municipal solid waste landfills are or have been located to undertake municipal solid waste landfill closure projects.

c. The department may make a loan from the Sanitary Landfill Facility Contingency Fund to a municipality to which closure responsibility has been delegated sufficient to cover the closing costs of the delegated closure responsibilities.

d. Any loan made by the department to a municipality pursuant to this section shall be repaid to the Sanitary Landfill Facility Contingency Fund out of moneys received by the municipality from the developer pursuant to section 9 of P.L. , c. (C. )(pending in the Legislature as this bill).]¹

¹[9. (New section) In the case of delegated closure responsibilities pursuant to section 7 of P.L. , c. (C. ) (pending in the Legislature as this bill), the developer shall make payments to the chief fiscal officer of the municipality to which closure responsibility has been delegated utilizing moneys derived from the reduction authorized pursuant to section 6 of P.L. , c. (C. )(pending in the Legislature as this bill) until such time as the aggregate dollar amount of the payments equal the dollar amount of the closing costs incurred by the municipality.]¹

¹[10. Section 9 of P.L.1981, c.306 (C.13:1E-108) is amended to read as follows:

9. Moneys in the fund shall be disbursed by the department for the following purposes and no others:

a. Administrative costs incurred by the department pursuant to section 6 of P.L.1981, c.306 (C.13:1E-105)[;].

b. Damages as provided in section 7 of P.L.1981, c.306 (C.13:1E-106)[;].

c. Grants for landfill mining demonstration projects as provided in section 1 of P.L.1994, c.99 (C.13:1E-34.1)[; and].

d. Loans for municipal solid waste landfill closure projects as provided in section 8 of P.L. , c. (C. )(pending in the Legislature as this bill).

e. Administrative costs incurred by the Attorney General, the department or any other State agency to implement the provisions of P.L.1983, c.392 (C.13:1E-126 et seq.), as amended and supplemented by P.L.1991, c.269 (C.13:1E-128.1 et al.), on a timely basis, except that the amounts used for this purpose shall not exceed $5,000,000.00. Any moneys disbursed by the department from the fund for this purpose shall be repaid to the fund in equal amounts from the fees collected by the department pursuant to section 3 of P.L.1971, c.461 (C.13:1E-18), in annual installments beginning July 1, 1990 and annually thereafter until the full amount is repaid according to a schedule of repayments determined by the State Treasurer. For the purposes of this subsection, "State agency" means any State department, division, agency, commission or authority.

(cf: P.L.1994, c.99, s.2)]¹

¹6. (New section) a. There is created in the Department of Treasury a special fund to be known as the Municipal Landfill Closure and Remediation Fund. Moneys in the fund shall be dedicated to the purpose of reimbursing a developer who enters into a redevelopment agreement pursuant to section 3 of P.L. c. (C. ) (pending in the Legislature as this bill) and is certified for reimbursement pursuant to section 4 of P.L. c. (C. ) (pending in the Legislature as this bill) in an amount equal to 75% of the closure and remediation costs of the municipal solid waste landfill. A special account within the fund shall be created for each developer upon approval of a certification pursuant to section 4 of P.L. , c. (C. ) (pending in the Legislature as this bill). The Legislature shall annually appropriate the entire balance of the fund for the purposes of reimbursement of closure and remediation costs as provided in section 7 of P.L. , c. (C. ) (pending in the Legislature as this bill).

b. The fund shall be credited with one half of all taxes due and payable pursuant to the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.) by any person required to collect the tax at the site of a redevelopment project which is the subject of a redevelopment agreement with the State pursuant to section 3 of P.L. , c. (C. ) (pending in the Legislature as this bill) until the amount credited equals 75% of the dollar amount of the closure and remediation costs actually and reasonably incurred by the developer, as certified to the director by the developer.¹

¹7. (New section) a. The State Treasurer shall reimburse the developer for 75% of the closure and remediation costs of the municipal solid waste landfill from the Municipal Landfill Closure and Remediation Fund upon approval of certification of the reimbursement pursuant to section 4 of P.L. , c. (C. ) (pending in the Legislature as this bill). The developer shall be entitled to periodic payments from the fund in an amount equal to one half of the taxes due and payable pursuant to the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.) from any person required to collect the tax at the site of a redevelopment project which is subject to a redevelopment agreement between the developer and the State pursuant to section 3 of P.L. c. (C. ) (pending in the Legislature as this bill). Payments from the fund shall be made to a developer at the same frequency in which the payments are made to the State from the persons required to collect the tax. Payments to the developer shall be made within 15 days of receipt by the State of the taxes.

b. A developer shall submit to the director updated closure and remediation costs actually incurred by the developer for the closure or remediation of the municipal solid waste landfill located at the site of the redevelopment project as provided in the redevelopment agreement. The reimbursement authorized pursuant to this section shall continue until such time as the aggregate dollar amount of the reimbursement equals 75% of the dollar amount of the closure and remediation costs actually incurred by the developer, as certified to the director by the developer. To remain entitled to the reimbursement authorized pursuant to this section, the developer shall perform and complete all closure and remediation activities during the closure and post-closure periods as may be required pursuant to the memorandum of agreement entered into with the Commissioner of Environmental Protection pursuant to section 5 of P.L. , c. (C. )(pending in the Legislature as this bill). The Department of Environmental Protection may review the closure and remediation costs incurred by the developer to determine if they are reasonable.¹

¹8. Section 21 of P.L.1983, c.303 (C.52:27H-80) is amended to read as follows:

21. Receipts of retail sales, except retail sales of motor vehicles, of alcoholic beverages as defined in the "Alcoholic Beverage Tax Law," R.S.54:41-1 et seq., cigarettes as defined in the "Cigarette Tax Act," P.L.1948, c.65 (C.54:40A-1 et seq.) and of manufacturing machinery, equipment or apparatus, made by a certified vendor from a place of business owned or leased and regularly operated by the vendor for the purpose of making retail sales, and located in a designated enterprise zone established pursuant to the "New Jersey Urban Enterprise Zones Act," P.L.1983, c.303 (C.52:27H-60 et al.), are exempt to the extent of 50% of the tax imposed under the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.).

Any vendor, which is a qualified business having a place of business located in a designated enterprise zone, may apply to the Director of the Division of Taxation in the Department of the Treasury for certification pursuant to this section. The director shall certify a vendor if he shall find that the vendor owns or leases and regularly operates a place of business located in the designated enterprise zone for the purpose of making retail sales, that items are regularly exhibited and offered for retail sale at that location, and that the place of business is not utilized primarily for the purpose of catalogue or mail order sales. The certification under this section shall remain in effect during the time the business retains its status as a qualified business meeting the eligibility criteria of section 27 of P.L.1983, c.303 (C.52:27H-86). However, the director may at any time revoke a certification granted pursuant to this section if he shall determine that the vendor no longer complies with the provisions of this section. Notwithstanding the provisions of this act to the contrary, except as may otherwise be provided by section 7 of P.L.1983, c.303 (C.52:27H-66), the authority may, in its discretion, determine whether or not the provisions of this section shall apply to any enterprise zone designated after the effective date of P.L.1985, c.142 (C.52:27H-66 et al.); provided, however, that the authority may make such a determination only where the authority finds that the award of an exemption of 50 percent of the tax imposed under the "Sales and Use Tax Act," P.L.1966, c.30 (C.54:32B-1 et seq.) will not have any adverse economic impact upon any other urban enterprise zone.

Notwithstanding any other provisions of law to the contrary, except as provided in subsection b. of section 6 of P.L. , c. (C. ) (pending in the Legislature as this bill), after first depositing 10 percent of the gross amount of all revenues received from the taxation of retail sales made by certified vendors from business locations in designated enterprise zones to which this exemption shall apply into the account created in the name of the authority in the enterprise zone assistance fund pursuant to section 29 of P.L.1983, c.303 (C.52:27H-88), the remaining 90 percent shall be deposited immediately upon collection by the Department of the Treasury, as follows:

a. In the first five year period during which the State shall have collected reduced rate revenues within an enterprise zone, all such revenues shall be deposited in the enterprise zone assistance fund created pursuant to section 29 of P.L.1983, c.303 (C.52:27H-88);

b. In the second five year period during which the State shall have collected reduced rate revenues within an enterprise zone, 66 2/3% of all those revenues shall be deposited in the enterprise zone assistance fund, and 33 1/3% shall be deposited in the General Fund;

c. In the third five year period during which the State shall have collected reduced rate revenues within an enterprise zone, 33 1/3% of all those revenues shall be deposited in the enterprise zone assistance fund, and 66 2/3% shall be deposited in the General Fund;

d. In the final five year period during which the State shall have collected reduced rate revenues within an enterprise zone, but not to exceed the life of the enterprise zone, all those revenues shall be deposited in the General Fund.

Commencing on the effective date of P.L.1993, c.144, all revenues in any enterprise zone to which the provisions of this section have been extended prior to the enactment of P.L.1993, c.144 shall be deposited into the enterprise zone assistance fund until there shall have been deposited all revenues into that fund for a total of five full years, as set forth in subsection a. of this section. The State Treasurer then shall proceed to deposit funds into the enterprise zone assistance fund according to the schedule set forth in subsections b. through d. of this section, beginning at the point where the enterprise zone was located on that schedule on the effective date of P.L.1993, c.144. No enterprise zone shall receive the deposit benefit granted by any one subsection of this section for more than five cumulative years.

The revenues required to be deposited in the enterprise zone assistance fund under this section shall be used for the purposes of that fund and for the uses prescribed in section 29 of P.L.1983, c.303 (C.52:27H-88), subject to annual appropriations being made for those purposes and uses.¹

(cf: P.L.1993, c.367, s.6)

¹[11.] 9.¹ This act shall take effect immediately.

"Municipal Landfill Site Closure, Remediation and Redevelopment Act."