SENATE, No. 677
STATE OF NEW JERSEY
INTRODUCED FEBRUARY 5, 1996
By Senator MARTIN
An Act concerning regulatory reform of the solid waste collection industry, and amending and repealing parts of the statutory law.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. Section 1 of P.L.1991, c.381 (C.48:13A-7.1) is amended to read as follows:
1. Sections 1 through 23 inclusive of [this amendatory and supplementary act] P.L.1991, c.381 (C.48:13A-7.1 et al.) shall be known and may be cited as the "Solid Waste Collection [Regulatory Reform] Consumer Protection Act."
(cf: P.L.1991, c.381, s.1)
2. Section 2 of P.L.1991, c.381 (C.48:13A-7.2) is amended to read as follows:
2. The Legislature finds and declares that the collection of solid waste is an activity thoroughly affected with the public interest; that the health, safety and welfare of the people of this State require efficient and reasonable solid waste collection services; and that efficient solid waste collection services at competitive rates will more likely be achieved if the solid waste collection industry is under the supervision of, but not subject to traditional public utility rate regulation [by, the Board of Public Utilities].
The Legislature further finds and declares that it is imperative that the State ensure the economic viability and competitiveness of the solid waste collection industry in order to safeguard the integrity of the State's long-term solid waste management strategy; that it is equally imperative to safeguard the interests of consumers as well as the interests of those providing solid waste collection services; that to provide for ratepayer and consumer protection it is necessary to foster competition within the industry and to establish a responsible State supervisory role to ensure safe, adequate and proper solid waste collection service at competitive rates[; and that to achieve these ends in the most efficient and reasonable manner, it is necessary to establish procedures for regulatory reform and the eventual termination of traditional public utility rate regulation of the solid waste collection industry].
The Legislature further finds and declares that complete termination of traditional public utility rate regulation will not discourage anti-competitive activity, support waste flow regulation or give the State the flexibility to set a standard of economic behavior; and that transitional regulation under the "Solid Waste Collection Regulatory Reform Act" did not adequately promote greater competition within the solid waste collection industry nor did it satisfactorily safeguard the interests of consumers and the collectors. Additionally, the Legislature finds and declares that further steps are necessary to assure compliance with the State's waste flow rules which serve as the foundation of the State's efforts to achieve self-sufficiency in solid waste disposal; and that economic regulation is a needed component to assuring compliance with the State's waste flow rules.
The Legislature further finds and declares that although the Legislature through enactment of P.L.1983, c.392 (C.13:1E-126 et seq.) has established a licensing system which is designed to prevent persons with criminal backgrounds from engaging in the solid waste collection business, thereby promoting free and open competition within the solid waste collection industry, approximately 50 percent of waste collectors have not yet been licensed[; and that terminating traditional public utility rate regulation of the solid waste collection industry can be achieved without compromising the State's role in protecting the public interest].
The Legislature therefore determines that to ensure the economic viability and competitiveness of the solid waste collection industry in order to safeguard the integrity of the State's long-term solid waste management strategy while safeguarding the interests of both consumers and those providing solid waste collection services, it is in the public interest to establish procedures for the [eventual termination of public utility] implementation of a more flexible form of rate regulation of solid waste collectors while at the same time maintaining [Board of Public Utilities] supervision over the solid waste collection industry by the Solid Waste Collection Review Rate Board in but not of the Department of Environmental Protection.
(cf: P.L.1991, c.381, s.2)
3. Section 3 of P.L.1991, c.381 (C.48:13A-7.3) is amended to read as follows:
3. As used in sections 1 through 23 of P.L.1991, c.381 (C.48:13A-7.1 et al.):
["Applicant" means any person seeking to obtain an initial certificate of public convenience and necessity pursuant to sections 7 and 10 of P.L.1970, c.40 (C.48:13A-6 and 48:13A-9) in order to provide solid waste collection services in this State.
"Board" means the Board of Public Utilities.]
"Department" means the Department of Environmental Protection.
"Materials recovery" means the processing and separation of solid waste utilizing manual or mechanical methods for the purposes of recovering recyclable materials for disposition and recycling prior to the disposal of the residual solid waste at an authorized solid waste facility.
"Materials recovery facility" means a transfer station or other authorized solid waste facility at which nonhazardous solid waste, which material is not source separated by the generator thereof prior to collection, is received for onsite processing and separation utilizing manual or mechanical methods for the purposes of recovering recyclable materials for disposition and recycling prior to the disposal of the residual solid waste at an authorized solid waste facility.
"Review board" means the Solid Waste Rate Review Board established pursuant to section 4 of P.L. ,c. (C. ) (now before the Legislature as this bill).
"Septic waste" means pumpings from septic tanks and cesspools, but shall not include wastes from a sewage treatment plant.
"Solid waste" means 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 liquids, 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.
"Solid waste collection" means the activity related to pickup and transportation of solid waste from its source or location to an authorized solid waste facility, but does not include activity related to the pickup, transportation or unloading of septic waste.
"Solid waste collection services" means the services provided by persons engaging in the business of solid waste collection.
"Solid waste collector" means a person engaged in the collection of solid waste and holding a certificate of public convenience and necessity pursuant to sections 7 and 10 of P.L.1970, c.40 (C.48:13A-6 and 48:13A-9).
"Solid waste container" means a receptacle, container or bag suitable for the depositing of solid waste.
"Solid waste disposal" means the storage, treatment, utilization, processing, or final disposal of solid waste.
"Solid waste disposal services" means the services provided by persons engaging in the business of solid waste disposal.
"Solid waste facilities" mean and include the plants, structures and other real and personal property acquired, constructed or operated or to be acquired, constructed or operated by any person pursuant to the provisions of P.L.1970 c.39 (C.13:1E-1 et seq.) and P.L.1970, c.40 (C.48:13A-1 et seq.) or any other act, including transfer stations, incinerators, resource recovery facilities, sanitary landfill facilities or other plants for the disposal of solid waste, and all vehicles, equipment and other real and personal property and rights therein and appurtenances necessary or useful and convenient for the collection or disposal of solid waste in a sanitary manner.
["Transition year" means any of the four successive 12-month periods commencing on the effective date of P.L.1991, c.381 (C.48:13A-7.1 et al.).]
(cf: P.L.1991, c.381, s.3)
4. Section 4 of P.L.1991, c.381 (C.48:13A-7.4) is amended to read as follows:
4. a. There is established, in but not of the Department of Environmental Protection, the Solid Waste Rate Review Board, hereinafter designated as the review board.
(1) The review board shall consist of five members as follows: the Commissioner of Environmental Protection, or his designee, who shall serve ex officio; two members, appointed by the Governor, with the advice and consent of the Senate, one of whom shall be employed by county or municipal government and one of whom shall be at-large; two members, of whom one each shall be appointed by the President of the Senate and Speaker of the General Assembly each of whom shall be employed in the solid waste collection industry. Commission members shall be appointed within 60 days of the effective date of P.L. , c. (C. ) (now before the Legislature as this bill) and Commission members, with the exception of the ex officio member, shall be appointed for terms of four years, except that of the members first appointed, two shall be appointed for terms of four years and two shall be appointed for terms of three years. The terms of office of the members of the review board shall continue until their successors are appointed and qualified. Not more than three of the members of the review board shall be members of the same political party. All vacancies, except through the expiration of term, shall be filled for the unexpired term only. The review board shall organize as soon as practicable after the appointment of all of its members.
(2) The Governor shall designate one of the members of the review board as chairperson. Any member of the review board so designated shall serve as such chairperson at the pleasure of the Governor designating him until a successor has been designated. The chairperson of the review board shall be its presiding officer. The chairperson shall devote his entire time to the duties of the review board and shall not engage in any occupation, profession or other gainful employment. The chairperson shall receive a salary in an amount as specified for officers in section 1 of P.L.1974, c.55 (C.52:14-15.107). The members, other than the chairperson and the ex officio member, shall serve without compensation, but shall be entitled to reimbursement for expenses in attendance at meetings of the review board and in their performance of their duties as members thereof.
(3) The review board may adopt, pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.) adopt rules and regulations necessary for its operation.
(4) All of the functions, powers and duties heretofore exercised by the Board of Public Utilities or the Department of Environmental Protection for the regulation of rates and public utility aspects of solid waste collection and solid waste disposal operations and facilities pursuant to P.L.1968, c.173 (C.48:2-59 et seq.), P.L.1970, c.40 (C.48:13A-1 et seq.), P.L.1991, c.381 (C.48:13A-7.1 et seq.), Title 48 of the Revised Statutes, or any other law, and the responsibility and authority to review and approve proposed contracts pursuant to the provisions of P.L.1985, c.38 (C.13:1E-136 et seq.), are hereby continued and transferred to and vested in the review board.
(5) Whenever in any law, rule, regulation, order, contract, tariff, document, judicial or administrative proceeding or otherwise relating to recycling, solid waste collection or solid waste disposal, reference is made to the Board of Public Utilities, the same shall mean and refer to the review board.
b. Every solid waste collector shall pay to the review board an annual fee of $100.00 to cover the costs of supervising the solid waste collection industry. The fee imposed pursuant to this section shall be in addition to the annual assessment made by the review board pursuant to P.L.1968, c.173 (C.48:2-59 et seq.).
[b.]c. The provisions of section 1 of P.L.1959, c.43 (C.48:2-56) or any rules or regulations adopted pursuant thereto to the contrary notwithstanding, the review board may charge and collect a filing fee of up to $500.00 per applicant from persons seeking to obtain a certificate of public convenience and necessity pursuant to sections 7 and 10 of P.L.1970, c.40 (C.48:13A-6 and 48:13A-9).
(cf: P.L.1991, c.381, s.4)
5. Section 5 of P.L.1991, c.381 (C.48:13A-7.5) is amended to read as follows:
5. [The board may direct any applicant to furnish proof that the rates or charges to be received for solid waste collection services do not exceed just and reasonable rates or charges. Should the board find, subsequent to the issuance of a certificate of public convenience and necessity, that the rates or charges received for solid waste collection services are excessive, then it may order the solid waste collector charging such excessive rates or charges to make an adjustment in the tariff or contract to a sum which shall result in just and reasonable rates or charges] All collectors shall charge rates conforming to the maximum and minimum rates set by the review board pursuant to Section 8 of P.L. , c. , (C. ) (now before the Legislature as this bill).
(cf: P.L.1991, c.381, s.5)
6. Section 7 of P.L.1991, c.381 (C.48:13A-7.7) is amended to read as follows:
7. a. Any solid waste collector proposing to extend solid waste collection services into any area where that person is not actively engaged in solid waste collection, and the proposed extension of services is not set forth in a [tariff] schedule of services previously filed with and accepted by the review board, shall file with the board appropriate revised [tariff] schedule of services sheets which reflect the proposed changes in areas to be served.
b. Any solid waste collector proposing to expand his solid waste collection business for the purpose of providing new solid waste collection services, and the proposed expansion of services is not set forth in a [tariff] schedule of services previously filed with and accepted by the review board, shall file with the review board appropriate revised [tariff] schedule of services sheets which reflect the proposed changes in services to be provided.
c. [Should the board find, subsequent to its review of a revised tariff, that the rates or charges set forth therein are excessive, then it may order the solid waste collector charging such excessive rates or charges to make an adjustment in the tariff or contract to a sum which shall result in just and reasonable rates or charges] Any rates set by a solid waste collector in conjunction with any extension or expansion of solid waste collection services in accordance with this section shall be set in accordance with Section 11 of P.L. , c. , (C. ) (now before the Legislature as this bill).
(cf: P.L.1991, c.381, s.7)
7. Section 8 of P.L.1991, c.381 (C.48:13A-7.8) is amended to read as follows:
8. a. Every collector must file with the review board a schedule of services setting forth territory served, standard terms and conditions, types of service provided and other information required by the review board.
b. Every collector must separately set forth the service charge and disposal charge components of the total rate in its bills to customers. Every collector must collect from its customers a disposal charge which reflects the disposal fee in effect at the county disposal site designated by the Commissioner of the Department pursuant to the waste flow orders for the disposal of waste based upon its origin. Any solid waste collector who fails to collect the proper disposal fee is guilty of a crime of the fourth degree and shall be punished by imprisonment of not more than 18 months or by a fine of not more than $50,000 or both, if an individual, or $100,000 if a corporation. In addition, any collector who fails to collect the disposal fee of the specified county disposal site shall be liable to pay a penalty of not more than $10,000 for the first offense, not more than $25,000 for the second offense and not more than $50,000 for a third and every subsequent offense. If the violation is of a continuing nature, each during which it continues shall constitute an additional, separate and distinct offense. The penalties herein provided shall be enforced by summary proceedings instituted by the review board under "the penalty enforcement law" (N.J.S.2A:58-1 et seq.). The Superior Court and the municipal courts shall all have jurisdiction to enforce "the penalty enforcement law" in connection with this act.
c. All services provided by a collector shall be in accord with its schedule of services approved by the review board.
d. Any increase or decrease in the disposal rates or charges received at authorized solid waste facilities in this State shall be automatically adjusted for in the [uniform tariff for solid waste collection established by the Board of Public Utilities in rules and regulations adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.).
(1) Any solid waste collector seeking an adjustment to the rates or charges set forth in the uniform tariff solid waste disposal charges shall file with the board appropriate revised tariff sheets which reflect changes in the disposal rates or charges received at an authorized solid waste facility.
(2) No adjustment in the disposal rate shall be implemented until such time as revised tariff sheets and verification forms have been filed with the board. Every solid waste collector shall file these documents with the board within five days of any decrease in the disposal rates or charges received at an authorized solid waste facility.
b. (1) Any net savings in the payment of disposal rates or charges at authorized solid waste facilities realized by a solid waste collector due to decreased waste flows resulting from materials recovery, or the revenues generated thereby, may be adjusted for in the rates or charges set forth in the uniform tariff solid waste disposal charges.
(2) Any solid waste collector seeking an adjustment to the rates or charges set forth in the uniform tariff solid waste disposal charges shall file with the board appropriate revised tariff sheets which reflect net savings in the payment of disposal rates or charges at an authorized solid waste facility. No adjustment in the disposal rate shall be implemented until such time as revised tariff sheets and verification forms have been filed with the board.
c. Every solid waste collector shall file with the board rates or charges for solid waste collection services conforming to the uniform tariff for solid waste collection established by the board. Every person engaged in the business of solid waste collection in this State shall be subject to the provisions of this subsection and shall file with the board a uniform tariff] fees charged to customers by solid waste collectors.
(cf: P.L.1991, c.381, s.8)
8. Section 9 of P.L.1991, c.381 (C.48:13A-7.9) is amended to read as follows:
9. a. The provisions of any other law, or of any rule, regulation or administrative order adopted or issued pursuant thereto, to the contrary notwithstanding, [during the 48-month transition from economic regulation to the termination of Board of Public Utilities rate regulation of the solid waste collection industry,]the rates or charges that may be imposed by solid waste collectors for solid waste collection services in this State shall be determined in accordance with the provisions of [P.L.1991, c.381 (C.48:13A-7.1 et al.)]this section.
[a. The Board of Public Utilities shall establish, in rules and regulations adopted pursuant to the "Administrative Procedure Act," solid waste collection rate bands governing the rates or charges that may be imposed by solid waste collectors for solid waste collection services in this State during each transition year.
The solid waste collection rate bands shall provide for the maximum adjustment that any solid waste collector may make to the rates or charges set forth as solid waste collection service charges in the uniform tariff filed with and accepted by the board after the effective date of this amendatory and supplementary act for any residential, commercial, industrial or institutional customer during a specified transition year.
b. The solid waste collection rate bands shall conform to the following schedule:
(1) During the first transition year, the rates or charges set forth as solid waste collection service charges in the uniform tariff may be adjusted by an amount within a rate band the upper and lower limits of which shall not exceed the sum of 5% plus the annual percentage change in the Consumer Price Index, multiplied by the rates or charges;
(2) During the second transition year, the rates or charges set forth as solid waste collection service charges in the uniform tariff may be adjusted by an amount within a rate band the upper and lower limits of which shall not exceed the sum of 5% plus the annual percentage change in the Consumer Price Index, plus the sum authorized pursuant to paragraph (1), multiplied by the rates or charges;
(3) During the third transition year, the rates or charges set forth as solid waste collection service charges in the uniform tariff may be adjusted by an amount within a rate band the upper and lower limits of which shall not exceed the sum of 10% plus the annual percentage change in the Consumer Price Index, plus the sum authorized pursuant to paragraph (2), multiplied by the rates or charges; and
(4) During the fourth transition year, the rates or charges set forth as solid waste collection service charges in the uniform tariff may be adjusted by an amount within a rate band the upper and lower limits of which shall not exceed the sum of the annual percentage change in the Consumer Price Index plus the sum authorized pursuant to paragraph (3), multiplied by the rates or charges.
Any adjustments to the uniform tariff authorized pursuant to this subsection may be made on an individual customer basis.
For the purposes of this subsection, "Consumer Price Index" means the consumer price index for all urban consumers in the New York City and the Philadelphia areas as reported by the United States Department of Labor.
c. Prior to the close of each transition year, the board shall, by order in writing, revise the solid waste collection rate bands for the forthcoming transition year to conform to the schedule established pursuant to subsection b. of this section for the pricing of solid waste collection services.]
b. The review board shall, by order in writing within 90 days of their organizational meeting, divide the State into two or more regions according to generally accepted economic and demographic data including, but not limited to, cost of living and population density.
c. Within 90 days of the organizational meeting of the review board and by December 15 of each year thereafter, the review board shall after hearing by order in writing establish a minimum and maximum solid waste collection service charge for each region of the State as established pursuant to subsection b. of this section within which solid waste collectors shall charge their customers in those regions as service charges during the next calendar year. Within five business days of the date of the order, the review board shall notify by mail all collectors having a schedule of services on file with the review board of the allowable minimum and maximum service charges for each region.
d. The rates charged by all collectors within 90 days of the organizational meeting of the review board shall conform to the requirements of subsection c. of this section.
(cf: P.L.1991, c.381, s.9)
9. Section 10 of P.L.1991, c.381 (C.48:13A-7.10) is amended to read as follows:
10. a. The review board shall receive complaints regarding service, fees, waste flow or other matters pertaining to the review board's authority. The review board shall investigate and review complaints and take appropriate action, in writing, within 90 days of receipt.
b. The review board shall at least once annually, compile a report utilizing county disposal records and collector disposal records. This report shall analyze said records for the purpose of determining and identifying collectors that may be violating the State's waste flow rules.
[Upon filing with the Board of Public Utilities a uniform tariff, any solid waste collector may adjust the rates or charges set forth as solid waste collection service charges in the uniform tariff as provided in the solid waste collection rate bands established pursuant to section 9 of P.L.1991, c.381 (C.48:13A-7.9).
b. (1) Any solid waste collector may adjust the rates or charges set forth in the uniform tariff filed with the board as provided in the solid waste collection rate bands unless those rates or charges have been expressly rejected by the board.
(2) Should the board find, subsequent to its review of a uniform tariff filed by a solid waste collector and the adjusted rates or charges imposed by that solid waste collector, that the rates or charges imposed by that solid waste collector are excessive, then it may order the solid waste collector to refund, at an interest rate to be determined by the board, any difference between the adjusted rates or charges imposed by the solid waste collector and the rates or charges accepted by the board following readjustment of the uniform tariff and the solid waste collection rate bands governing the rates or charges that may be imposed by the solid waste collector.
c. (1) During the first and second transition years, every solid waste collector shall, at least once every six months, file with the board a report describing the amount and frequency of variation from the rates or charges set forth in the uniform tariff for each class of residential, commercial, industrial or institutional customers. The report shall include the percentage of each class of solid waste collection services for which adjustments have been made, and the specified percentage increase or decrease to the rates or charges made to that customer class.
(2) During the third and fourth transition years, every solid waste collector shall, at least once every 12 months, file with the board a report describing the amount and frequency of variation from the rates or charges set forth in the uniform tariff for each class of residential, commercial, industrial or institutional customers. The report shall include the percentage of each class of solid waste collection services for which adjustments have been made, and the specified percentage increase or decrease to the rates or charges made to that customer class.
d. Whenever a solid waste collector makes an adjustment to the uniform tariff pursuant to this section, the solid waste collector shall notify every customer to be affected thereby at least 10 days prior to the implementation of that adjustment. The solid waste collector shall attach a copy of the applicable rate schedule to the notice.]
(cf: P.L.1991, c.381, s.10)
10. Section 11 of P.L.1991, c.381 (C.48:13A-7.11) is amended to read as follows:
11. Within 180 days of the organizational meeting of the review board, the review board shall adopt, pursuant to the "Administrative Procedure Act", rules and regulations establishing a Solid Waste Collection Customer Bill of Rights. The Solid Waste Collection Customer Bill of Rights shall include, but not be limited to, notification of the following:
a. That the customer may direct any complaints pertaining to the adequacy of existing solid waste collection services or any difficulties in securing solid waste services to the review board;
b. That the customer is entitled to know the maximum and minimum service charges set by the review board for that calendar year;
c. That each solid waste collector's schedule of services is available for public review in the office of the review board.
d. That customers have a choice of solid waste collection services on a competitive basis.
Every solid waste collector shall [notify customers at least once every year that solid waste collection services in this State are available on a competitive basis, as provided in the customer bill of rights established by the board in rules and regulations adopted pursuant to the "Administrative Procedure Act," and] provide every customer with a copy [thereof] of the Solid Waste Collection Customer Bill of Rights at least once each year.
(cf: P.L.1991, c.381, s.11)
11. Section 13 of P.L.1991, c.381 (C.48:13A-7.13) is amended to read as follows:
13. a. The [Board of Public Utilities] review board shall, within 12 months of [the effective date of this amendatory and supplementary act] their organizational meeting and at least once every six months thereafter, publish a notice containing the [rate schedule set forth in the uniform tariff of every solid waste collector serving a particular region of the State in at least one newspaper of general circulation within that region and at least one newspaper of statewide circulation. The rate schedule shall be accompanied by a notice advising the public of the current solid waste collection rate band] maximum and minimum service charges in effect on that date and stating that any difficulties in securing solid waste collection services, or any complaints pertaining to the adequacy of existing solid waste collection services, may be referred to the review board. This notice shall be published in newspapers of statewide circulation.
b. Each collector shall provide notice to each of its customers of the minimum and maximum rates for the customer at least annually.
(cf: P.L.1991, c.381, s.13)
12. Section 16 of P.L.1991, c.381 (C.48:13A-7.16) is amended to read as follows:
16. a. The review board may compel any person engaged in the business of solid waste collection or otherwise providing solid waste collection services to furnish and file with the review board a consolidated annual report or other documents as may be necessary to enable the review board to administer its duties as prescribed by law and this act.
b. Should any person engaged in the business of solid waste collection or otherwise providing solid waste collection services fail or refuse to comply with any provision of this section, the review board may revoke or suspend the certificate of public convenience and necessity issued to that person.
(cf: P.L.1991, c.381, s.16)
13. Section 17 of P.L.1991, c.381 (C.48:13A-7.17) is amended to read as follows:
17. a. The review board may compel any solid waste collector to furnish and file with the review board any records, including, but not limited to, manifests, origin and destination forms, customer lists, financial or operational information, contracts, books, accounts and records of affiliated business concerns, including any affiliated or parent corporation or organization, or any wholly or partially owned subsidiary thereof, directly or indirectly involved therewith, or having a direct or indirect financial interest in the solid waste collection services provided by the solid waste collector, and all financial transactions between these parties related to the solid waste collection services provided by the solid waste collector, and any other documents related to solid waste collection or solid waste disposal activities, at any time or place in order to determine compliance with the provisions of this act or P.L.1970, c.40 (C.48:13A-1 et seq.) or any rule, regulation or administrative order adopted or issued pursuant thereto, and to enable the review board to administer its duties as prescribed by law and this act.
b. Should any solid waste collector fail or refuse to comply with any provision of this section, the review board may revoke or suspend the certificate of public convenience and necessity issued to that person.
(cf: P.L.1991, c.381, s.17)
14. Section 18 of P.L.1991, c.381 (C.48:13A-7.18) is amended to read as follows:
18. a. Should any person engaged in the solid waste collection business fail or refuse to complete, execute or perform any contract or agreement obligating such person to provide solid waste collection services, the review board may order any solid waste collector to extend solid waste collection services into any area where the collection of solid waste has been discontinued.
b. Should the review board find that any class of customers within a specific geographic area is unable to secure solid waste collection services, or that any person seeking a specific type of solid waste collection service is unable to secure solid waste collection services, or that the review board has received complaints pertaining to the adequacy of existing solid waste collection services, the review board may order any solid waste collector to extend solid waste collection services to that geographic area, class of customers or person.
c. [(1) Prior to the effective date of section 15 of P.L.1991, c.381 (C.48:13A-7.15), should] Should the review board order any solid waste collector to extend solid waste collection services to any area, class of customers or person, the rates and charges for the extended solid waste collection services shall be determined in accordance with the provisions of [sections 7, 9 and 10 of P.L.1991, c.381 (C.48:13A-7.7, 48:13A-7.9 and 48:13A-7.10).
(2) After the effective date of section 15 of P.L.1991, c.381 (C.48:13A-7.15), should the board order any solid waste collector to extend solid waste collection services to any area, class of customers or person, the rates and charges for the extended solid waste collection services shall be determined by the person ordered by the board to extend those services] section 8 of P.L. , c. , (C. ) (now before the Legislature as this bill.).
d. Should any solid waste collector fail or refuse to comply with any provision of this section, the review board may revoke or suspend the certificate of public convenience and necessity issued to that person.
(cf: P.L.1991, c.381, s.18)
15. Section 19 of P.L.1991, c.381 (C.48:13A-7.19) is amended to read as follows:
19. Within 180 days of [the effective date of this amendatory and supplementary act] their organizational meeting, the [Board of Public Utilities] review board shall establish, in rules and regulations adopted pursuant to the provisions of the "Administrative Procedure Act," the criteria and procedures to be utilized by the review board in making a determination of effective competition.
a. The review board shall utilize the criteria in making a determination as to whether a lack of effective competition is likely to occur if the review board approves a transaction pursuant to the provisions of R.S.48:3-7, or in making a determination as to whether a lack of effective competition exists within a specific geographic area, class of customers or type of solid waste collection services.
b. The criteria shall include, but need not be limited to, the following:
(1) the existence of barriers to entry of persons seeking to provide solid waste collection services within a specific geographic area, class of customers or type of service;
(2) the structure of the solid waste collection industry within a specific geographic area, class of customers or type of service, including the number of participating solid waste collectors, the intensity of competition, or the concentration in ownership of collection or haulage vehicles or other equipment; and
(3) the existence of patterns of anti-competitive behavior by persons providing solid waste collection services within a specific geographic area, class of customers or type of service.
c. The review board shall utilize the criteria in conjunction with generally accepted economic indicators which shall be identified in rules and regulations adopted pursuant to the provisions of the "Administrative Procedure Act." These indicators may include an evaluation of capital investment costs, economies of scale, differentiation of service, technological barriers facing entrants, financial requirements, including capital entry or exit costs, regulatory barriers, and business characteristics, including number of customers, customer turnover, annual gross revenues, class or type of service provided, and annual net income.
d. The review board shall establish procedures to be utilized in reviewing the rates or charges received by a solid waste collector pursuant to [sections 6 and 20] section 16 of [P.L.1991, c.381 (C.48:13A-7.6 and 48:13A-7.20)]P.L. , c. (C. ) (now before the Legislature as this bill).
(cf: P.L.1991, c.381, s.19)
16. Section 20 of P.L.1991, c.381 (C.48:13A-7.20) is amended to read as follows:
20. a. [(1)]Whenever, on the basis of available information, the review board has reasonable grounds for belief [in the existence of facts warranting further investigation that a solid waste collector is charging rates or charges for solid waste collection services which exceed rates or charges that would have resulted from effective competition, the board shall transmit a notice to the solid waste collector stating that the board intends to review the rates or charges received by that solid waste collector. The notice shall enumerate the reasons for the review and the criteria utilized by the board in making a determination that a lack of effective competition exists.
(2) The board may, within 30 days following the date of notice, request that the solid waste collector submit any additional information needed to assist in its review. In the event that additional information is requested, the board shall outline, in writing, why it deems such information necessary to make an informed determination on whether the collector is charging rates or charges for solid waste collection services which exceed rates or charges that would have resulted from effective competition. The board shall complete its review of the rates or charges received by the solid waste collector no later than 60 days following the date of the notice, except if the board requests additional information from the solid waste collector, the board shall complete its review within 60 days of receipt of all requested information.
(3) Upon completing its review, the board may, after hearing, by order in writing, issue an order to the solid waste collector charging such excessive rates or charges to reduce the rates or charges received for solid waste collection services to a sum which would result from effective competition.
b. The board may issue an order to any person engaged in the business of solid waste collection to reduce the rates or charges received for solid waste collection services to a sum which would result from effective competition if the following conditions are met:
(1) the board has determined that a lack of effective competition exists within a specific geographic area, or within a specific class of customers or type of solid waste collection services; and
(2) the board has determined that the lack of effective competition has resulted in rates or charges received for solid waste collection services which exceed rates or charges that would have resulted from effective competition.
In making a determination pursuant to paragraph (1) of this subsection, the board shall not consider technical or economic factors that are not directly related to the provision of solid waste collection services.
In making a determination pursuant to paragraph (2) of this subsection, the board shall compare the rates or charges received by the solid waste collector charging such excessive rates or charges with those received by other solid waste collectors for solid waste collection services within a comparable geographic area, class of customers or type of service. The board, if it deems that such information is necessary, may review the revenues, income or expenditures of the solid waste collector charging such excessive rates or charges, except that the board shall not consider any revenues, income or expenditures derived from recycling activities.
Any order issued by the board pursuant to this subsection shall expire no later than the first day of the seventh month following the effective date of the order, except that an order may remain in effect pending the adjudication of a contested case.
c. In issuing an order pursuant to subsection b. of this section, the board may:
(1) direct the solid waste collector to refund, at an interest rate to be determined by the board, the difference between the excessive rates or charges and the competitive rates or charges ordered by the board as of the date of the notice of the board's intention to review the rates or charges received by that solid waste collector;
(2) take other actions pursuant to law as may be needed to restore or promote effective competition within the affected geographic area, class of customers or type of service; or
(3) make recommendations as to the steps needed to restore or promote effective competition within the affected geographic area, class of customers or type of service.
d. (1) No later than 6 months after issuing an order pursuant to subsection b. of this section, the board shall review the actions taken pursuant thereto and make a determination as to whether a lack of effective competition still exists within the affected geographic area, class of customers or type of service, or whether the continued lack of effective competition has resulted in rates or charges received for solid waste collection services which exceed rates or charges that would have resulted from effective competition.
(2) The board shall, upon a determination that effective competition exists within the affected geographic area, class of customers or type of service, rescind any such order and cease any further rate setting activity with respect to the solid waste collector subject to that order.
(3) The board may, upon a written determination that a lack of effective competition still exists within the affected geographic area, class of customers or type of service, and that the continued lack of effective competition has resulted in rates or charges received for solid waste collection services which exceed rates or charges that would have resulted from effective competition, issue a new order pursuant to subsection b. of this section and continue rate setting activity with respect to the solid waste collector subject to that order as provided in subsection c. of this section] that a solid waste collector has gained excessive market share within the solid waste collection industry, is otherwise operating in an anti-competitive manner, or is violating the rules of the review board or the department, the review board, upon complaint or its own initiative may direct any solid waste collector to furnish proof that its rates are reasonable or that it is operating in a manner consistent with effective competition.
b. Should the review board find, after hearing, that the solid waste collector has gained excessive market share, is charging unreasonable rates, or is otherwise operating in a manner inconsistent with effective competition, the review board shall issue an order setting all service charges to be charged and collected by the solid waste collector for a period of two years from the date of the order. The review board also shall direct the solid waste collector to refund, at an interest rate to be determined by the review board, the difference between the excessive rates and the reasonable rates ordered by the review board. The review board shall also take other actions pursuant to law it deems necessary to restore or promote effective competition within the affected region, class of customers or type of service.
c. No later than two years after issuing an order pursuant to subsection b. of this section, the review board shall review the actions taken pursuant thereto and determine whether effective competition has been restored and whether anti-competitive activities have ceased. The review board, upon a written determination that a lack of effective competition still exists, may extend the order.
(cf: P.L.1991, c.381, s.20)
17. Section 21 of P.L.1991, c.381 (C.48:13A-7.21) is amended to read as follows:
21. a. There is created in the [Board of Public Utilities] review board a special nonlapsing fund to be known as the "Solid Waste Enforcement Fund." All monies from penalties collected by the review board pursuant to section 13 of P.L.1970, c.40 (C.48:13A-12) shall be deposited in the fund.
b. Unless otherwise expressly provided by the specific appropriation thereof by the Legislature, monies in the fund shall be utilized exclusively by the [Division of Solid Waste in the Board of Public Utilities] review board for enforcement and implementation of the provisions of P.L.1970, c.40 (C.48:13A-1 et seq.) [and] P.L.1991, c.381 (C.48:13A-7.1 et al.) and P.L. , c. (C. ) (now before the Legislature as this bill).
(cf: P.L.1991, c.381, s.21)
18. Section 22 of P.L.1991, c.381 (C.48:13A-7.22) is amended to read as follows:
22. The [Board of Public Utilities] review board shall establish, in rules and regulations adopted pursuant to the provisions of the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), uniform bid specifications for municipal solid waste collection contracts.
(cf: P.L.1991, c.381, s.22)
19. Section 23 of P.L.1991, c.381 (C.48:13A-7.23) is amended to read as follows:
23. a. (1) Whenever the governing body of a municipality adopts an ordinance to provide for the collection or disposal of solid waste within its municipal boundaries by imposing solid waste charges based on the number of solid waste containers processed per household pursuant to subsection b. of R.S.40:66-5, the governing body shall transmit to the [Board of Public Utilities] review board, by certified mail and within 90 days of the effective date of the ordinance, a copy of the proposed rate schedule and the contract awarded pursuant to subsection a. of R.S.40:66-4. The review board, within 60 days of receipt of the proposed rate schedule and contract and if requested to do so by the municipality or the relevant solid waste collector, as the case may be, may review these documents to determine whether the solid waste charges are equitable and to accept, reject or modify the rate schedule. If the review board finds the solid waste charges to be equitable, the review board shall accept the rate schedule and contract and issue an appropriate order therefor. In issuing this order, the board shall be exempt from the provisions of R.S.48:2-21.
(2) Should the review board find, subsequent to the issuance of any order pursuant to this subsection, that the rates or charges received for the collection of solid waste contained within a contract entered into prior to the effective date of that order require adjustment, then it may order the person charging these rates or charges to make an adjustment in the contract to a sum which shall result in equitable rates or charges. In issuing this order, the review board shall be exempt from the provisions of R.S.48:2-21.
b. (1) The board may issue an appropriate order establishing an equitable rate schedule based on the number of solid waste containers processed per household for the solid waste collection tariffs of persons engaging in private solid waste collection services in any municipality in which solid waste collection services are contracted for and provided on an individual household basis. In issuing this order, the board shall be exempt from the provisions of R.S.48:2-21.
(2) Any person engaged in private solid waste collection services in this State and utilizing a rate schedule based on the number of solid waste containers processed per household as provided in this subsection may provide customers with the opportunity to purchase, on a prepaid basis, one or more solid waste containers, or a voucher or sticker therefor, to facilitate the provision of solid waste collection services on a per container basis.
(cf: P.L.1991, c.381, s.23)
20. Section 52 of P.L.1991, c.381 is amended to read as follows:
52. This act shall take effect on the 90th day after enactment, except that section 15 shall take effect 48 months thereafter. [Sections 5 through 10 and sections 12, 13 and 23 of this act shall expire on the effective date of section 15.]
(cf: P.L.1991, c.381,c.52)
21. The following are repealed:
Section 6 of P.L.1991, c.381 (C.48:13A-7.6)
Section 12 of P.L.1991, c.381 (C.48:13A-7.12)
Section 14 of P.L.1991, c.381 (C.48:13A-7.14)
Section 15 of P.L.1991, c.381 (C.48:13A-7.15)
22. This act shall take effect immediately.
STATEMENT
This bill amends and repeals sections of the Solid Waste Collection Regulatory Reform Act" that provides for the eventual termination of traditional public utility rate regulation of the solid waste collection industry. The Legislature finds that the solid waste collection industry requires a form of continuing economic regulation to assure that consumers do not pay exorbitant fees, and it is necessary to provide for the continued development of a competitive solid waste collection industry. The Legislature further finds that a return to traditional rate regulation will not permit an appropriate level of flexibility to collectors.
A continuing form of economic regulation and oversight is necessary to assure compliance with New Jersey's waste flow rules. New Jersey's waste flow rules are a foundation to the state's efforts to achieving self-sufficiency in solid waste disposal. The economic regulation provided for in this bill will promote greater compliance with these rules and enhanced enforcement of the waste flow rules.
Specifically, this bill provides for the implementation of a more flexible form of rate regulation of the solid waste collection industry. The bill mandates the creation of a five-member Solid Waste Rate Review Board in but not of the Department of Environmental Protection to which would be transferred all powers and authority over the economic regulation of solid waste collection and disposal. The review board must, within 90 days of their organizational meeting, divide the State into regions according to generally accepted economic and demographic data. Also within 90 days of their organizational meeting, the review board must after hearing by order in writing establish minimum and maximum solid waste collection service charges for each region within which collectors must charge their customers.
The bill provides the review board with additional authority over solid waste collectors who gain excessive market share, operate in a manner inconsistent with effective competition or violate rules of the review board or the Department. The bill empowers the review board to direct the collector to furnish proof that its rates are reasonable or that it is operating in a manner consistent with effective competition. Should the review board find that the collector has gained excessive market share, is charging unreasonable rates or is otherwise operating in an anti-competitive manner, the review board shall issue an order setting all charges to be charged and collected by the collector under its uniform tariff for two years; directing a refund with interest of the difference between the excessive rates and the ordered rates; and taking other actions permitted by law that are necessary to restore or promote effective competition. The review board shall review the order no later than two years after its issuance to determine whether effective competition has been restored; if the review board determines that it has not been restored, the review board may extend the order.
Other major provisions of this bill include a requirement that all collectors change the disposal fee of the county where the waste originated and the institution of penalties for solid waste collectors who fail to collect from their customers the disposal fee in effect at the county disposal site designated by Departmental waste flow orders. Any collector who fails to collect the proper disposal fee is guilty of a crime of the fourth degree and will be punished by imprisonment for not more than 18 months or by a fine of not more than $50,000 or both, if an individual, or $100,000 if a corporation. Additionally, the collectors will be liable to pay a penalty of not more than $10,000 for the first offense, not more than $25,000 for the second offense and not more than $50,000 for the third offense.
Revises the "Solid Waste Collection Regulatory Reform Act."