S816

SENATE, No. 816

STATE OF NEW JERSEY

INTRODUCED FEBRUARY 22, 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] 11 inclusive of [this amendatory and supplementary act] P.L.1991, c.381 (C.48:13A-7.1 through 48:13A-7.11), section 13 of P.L.1981, c.381 (C.48:13A-7.13) and sections 16 through 23 inclusive of P.L.1981, c.381 (C.48:13A-7.16 through 48:13A-7.23) 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 promote greater competition within the solid waste collection industry nor did it safeguard the interests of consumers or solid waste collectors.

The Legislature further finds and declares that additional steps are necessary to assure compliance with New Jersey'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 New Jersey'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, not all solid waste collectors have 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.

(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] 11 inclusive of P.L.1991, c.381[(C.48:13A-7.1 et al.)](C.48:13A-7.1 through 48:13A-7.11), section 13 of P.L.1981, c.381 (C.48:13A-7.13) and sections 16 through 23 inclusive of P.L.1981, c.381 (C.48:13A-7.16 through 48:13A-7.23):

"Advisory council" means the Solid Waste Regulation Advisory Council established pursuant to section 6 of P.L.1991, c.381 (C.48:13A-7.6).

"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.

"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.

"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. (1) All of the functions, powers and duties heretofore exercised by 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.), all as transferred to the department pursuant to Reorganization Plan No. 002-1991, effective on August 19, 1991, and continued pursuant to Reorganization Plan No. 001-1994, effective on July 4, 1994, are hereby continued and transferred to and vested in the Board of Public Utilities.

(2) 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 Department of Environmental Protection, the same shall mean and refer to the Board of Public Utilities.

(3) All transfers directed by this section shall be made in accordance with the "State Agency Transfer Act," P.L.1971, c.375 (C.52:14D-1 et seq.).

(4) All provisions of Reorganization Plan No. 002-1991 or Reorganization Plan No. 001-1994 inconsistent with the provisions of P.L. , c. (pending in the Legislature as this bill) are hereby null and void.

b. Every solid waste collector shall pay to the 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 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 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 solid waste collectors shall charge rates or charges for solid waste collection services set forth in a schedule of services conforming to the maximum and minimum rates established by the board pursuant to section 9 of P.L.1991, c.381, (C.48:13A-7.9).

(cf: P.L.1991, c.381, s.5)

6. Section 6 of P.L.1991, c.381 (C.48:13A-7.6) is amended to read as follows:

6. a. [The board, upon the adoption of the rules and regulations required pursuant to section 19 of P.L.1991, c.381 (C.48:13A-7.19), may review the rates or charges of any solid waste collector pursuant to the provisions of section 20 of P.L.1991, c.381 (C.48:13A-7.20) in accordance with the criteria and procedures established pursuant to section 19 of P.L.1991, c.381 (C.48:13A-7.19) to determine whether the rates or charges received for solid waste collection services exceed those rates or charges which would result from effective competition.]

There is established, in but not of the Board of Public Utilities, the Solid Waste Regulation Advisory Council (hereinafter designated as the "advisory council").

The advisory council shall consist of five members as follows: three 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 two 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.

Advisory council members shall be appointed within 60 days of the effective date of P.L. , c. (pending in the Legislature as this bill).

Advisory council members 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 advisory council members shall continue until their successors are appointed and qualified. Not more than three of the members of the advisory council 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 advisory council shall organize as soon as practicable after the appointment of all of its members.

b. [Should the board find, pursuant to the provisions of section 20 of P.L.1991, c.381 (C.48:13A-7.20), 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 competitive rates or charges. In issuing this order, the board may 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.]The Governor shall designate one of the members of the advisory council as chairperson. The chairperson of the advisory council shall be its presiding officer. The members of the advisory council shall serve without compensation, but shall be entitled to reimbursement for expenses in attendance at meetings of the advisory council and in the performance of their duties as members thereof.

c. [Nothing contained in sections 9 or 10 of P.L.1991, c.381 (C.48:13A-7.9 or 48:13A-7.10) shall be construed to interfere with the implementation of this section by the board.]The advisory council is empowered to:

(1) Request from the board such information concerning solid waste collection or solid waste disposal as it may deem necessary to exercise its powers;

(2) Submit to the board, within 90 days of its organization, recommendations concerning the division of the State into two or more regions to be established by the board pursuant to section 9 of P.L.1991, c.381 (C.48:13A-7.9);

(3) Submit to the board, within 90 days of its organization and by November 15 of every year thereafter, recommendations concerning the minimum and maximum rates or charges for solid waste collection services for each region of the State to be established by the board pursuant to section 9 of P.L.1991, c.381, (C.48:13A-7.9);

(4) Submit to the board recommendations concerning the criteria and procedures the board should utilize in making a determination of effective competition pursuant to section 19 of P.L.1991, c.381 (C.48:13A-7.19);

(5) From time to time submit to the board any recommendations it deems necessary to promote compliance with the rules, regulations or administrative orders adopted by the board governing the rate regulation of solid waste collection or solid waste disposal or the rules, regulations or administrative orders providing for the interdistrict, intradistrict and interstate flow of solid waste adopted by the board, in conjunction with the Department of Environmental Protection, pursuant to section 5 of P.L.1970, c.40 (C.48:13A-4) (hereinafter designated as the "waste flow rules");

(6) Study and investigate the need for additional safeguards to ensure effective competition in the solid waste collection industry and report its findings and recommendations thereon to the board;

(7) Hold public hearings annually and as it deems necessary regarding solid waste collection or solid waste disposal statutes, rules, regulations or policies and report its findings and recommendations thereon to the board.

(cf: P.L.1991, c.381,s.6)

7. 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 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 board, shall file with the 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] Any rates or charges set forth in a schedule of services by a solid waste collector in conjunction with a proposed extension or expansion of solid waste collection services

pursuant to this section shall be established pursuant to section 9 of P.L.1991, c.381, (C.48:13A-7.9).

(cf: P.L.1991, c.381, s.7)

8. Section 8 of P.L.1991, c.381 (C.48:13A-7.8) is amended to read as follows:

8. a. [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.)]Every solid waste collector shall file with the board a schedule of services setting forth the specific geographic area served; standard terms and conditions; types of solid waste collection services provided; and any other information required by the board.

(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] Every schedule of services shall set forth the rates or charges for solid waste collection services and solid waste disposal rates or charges as individual components of a customer's bill.

(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] Every solid waste collector shall charge and collect from each customer a solid waste disposal rate or charge which reflects the disposal fee or charge in effect at the authorized solid waste facility designated under the waste flow rules as the disposal site for solid waste generated within the county or municipality wherein the solid waste collector is providing solid waste collection services.

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] Any solid waste collector who fails to collect the proper disposal fee or charge shall, upon conviction, be guilty of a crime of the fourth degree and shall be punished by imprisonment of not more than 18 months or, notwithstanding the provisions of N.J.S.2C:43-3, by a fine of not more than $50,000, or both, if an individual, or $100,000, if a corporation.

(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] who violates the provisions of this section shall be liable to a penalty of not more than $10,000 for a first offense, not more than $25,000 for a second offense and not more than $50,000 for a third and every subsequent offense. Each day during which the violation continues constitutes an additional, separate and distinct offense. The penalties herein provided shall be enforced by summary proceedings instituted by the 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 section.

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] All solid waste collection services furnished by a solid waste collector shall be provided in accordance with the schedule of services filed with and accepted by the board.

(cf: P.L.1991, c.381, s.8)

9. Section 9 of P.L.1991, c.381 (C.48:13A-7.9) is amended to read as follows:

9. 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], by order in writing and within 30 days of receipt and consideration of recommendations from the advisory council, shall divide the State into two or more regions according to generally accepted economic and demographic data.

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] The Board of Public Utilities, by order in writing, within 30 days of receipt and consideration of recommendations from the advisory council and by December 15 of every year thereafter, shall establish minimum and maximum rates or charges for solid waste collection services for each region of the State, which shall govern the rates or charges that solid waste collectors may impose on customers as solid waste service charges in those regions during the next calendar year.

Within five business days of issuing the order, the board shall notify all solid waste collectors, by mail, of the allowable minimum and maximum rates or charges for solid waste collection services for each region.

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] The rates or charges that solid waste collectors may impose on customers as solid waste service charges shall conform to the [schedule] requirements established pursuant to subsection b. of this section for the pricing of solid waste collection services.

(cf: P.L.1991, c.381, s.9)

10. Section 10 of P.L.1991, c.381 (C.48:13A-7.10) is amended to read as follows:

10. a. [Upon filing with the] 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)]shall receive complaints regarding solid waste collection services, solid waste service charges, alleged violation of waste flow rules or other matters pertaining to the board's jurisdiction with respect to solid waste collection or solid waste disposal.

The board shall investigate and review complaints and take appropriate action, in writing, within 90 days of receipt thereof.

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] At least once every twelve months, the board shall compile a report utilizing State, county or local waste flow information and solid waste collector records pertaining to solid waste disposal. The report shall analyze this information and these records for the purpose of determining and identifying solid waste collectors that may be violating the State's waste flow rules.

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.](Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

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.](Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

(cf: P.L.1991, c.381, s.10)

11. 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 effective date of P.L. , c. (pending in the Legislature as this bill), the Board of Public Utilities shall establish, in rules and regulations adopted pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), a Solid Waste Collection Customer Bill of Rights.

a. The Solid Waste Collection Customer Bill of Rights shall include, but need not be limited to, advisory information notifying the public that:

(1) the customer may direct any complaints pertaining to the adequacy of existing solid waste collection services, or any difficulties in securing solid waste collection services, to the board;

(2) the customer is entitled to know the maximum and minimum rates or charges for solid waste collection services established by the board for the current calendar year;

(3) a copy of every solid waste collector's schedule of services is on file with, and available for public inspection at the offices of, the board; and

(4) the customer has a choice of solid waste collection services, which are available on a competitive basis in this State.

b. 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], provide every customer with a copy of the Solid Waste Collection 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] requirements of this section.

(cf: P.L.1991, c.381, s.11)

12. 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 shall, within 12 months of the effective date of [this amendatory and supplementary act] P.L. , c. (pending in the Legislature as this bill) 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 rates or charges that solid waste collectors may impose on customers as solid waste 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 board. The notice shall be published in newspapers of statewide circulation.

b. Every solid waste collector shall notify each of its customers at least once every year of the minimum and maximum rates or charges that solid waste collectors may impose on customers as solid waste service charges during the next calendar year.

(cf: P.L.1991, c.381, s.13)

13. Section 16 of P.L.1991, c.381 (C.48:13A-7.16) is amended to read as follows:

16. a. The 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 board a consolidated annual report or other documents as may be necessary to enable the board or the advisory council to administer [its] their respective 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 board may

revoke or suspend the certificate of public convenience and necessity issued to that person.

(cf: P.L.1991, c.381, s.16)

14. Section 17 of P.L.1991, c.381 (C.48:13A-7.17) is amended to read as follows:

17. a. The board may compel any solid waste collector to furnish and file with the 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] P.L.1991, c.381 (C.48:13A-7.1 et al.) 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 board or the advisory council to administer [its] their respective 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 board may revoke or suspend the certificate of public convenience and necessity issued to that person.

(cf: P.L.1991, c.381, s.17)

15. 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 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 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 board has received complaints pertaining to the adequacy of existing solid waste collection services, the 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 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)] section 9 of P.L.1991, c.381 (C.48:13A-7.9).

[(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.]

d. Should any solid waste collector fail or refuse to comply with any provision of this section, the board may revoke or suspend the certificate of public convenience and necessity issued to that person.

(cf: P.L.1991, c.381, s.18)

16. 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] P.L. , c. (pending in the Legislature as this bill) and receipt and consideration of recommendations from the advisory council, the Board of Public Utilities 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 board in making a determination of effective competition.

a. The board shall utilize the criteria in making a determination as to whether a lack of effective competition is likely to occur if the 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 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 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 20 of P.L.1991, c.381 (C.[48:13A-7.6 and] 48:13A-7.20).

(cf: P.L.1991, c.381, s.19)

17. 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 board has reasonable grounds for belief [in the existence of facts warranting further investigation] that a solid waste collector is charging unreasonable rates or charges for solid waste collection services [which exceed rates or charges that would have resulted from effective competition], has gained excessive market share within the solid waste collection industry, is otherwise operating in an anti-competitive manner, or is violating the rules and regulations of the board, the board [shall transmit a notice to the], upon complaint or its own initiative, after hearing, may direct any solid waste collector [stating that the board intends to review] to furnish proof that the rates or charges received by that solid waste collector for solid waste collection services are reasonable, or that the solid waste collector is operating in a manner consistent with effective competition. [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.](Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

(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.](Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

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] Should the board find that: (1) the solid waste collector has gained excessive market share within the solid waste collection industry; (2) the rates or charges received by the solid waste collector for solid waste collection services are not reasonable; (3) the solid waste collector is otherwise operating in a manner inconsistent with effective competition; or (4) the solid waste collector is violating the rules and regulations of the board, the board shall, by order in writing, issue an order establishing competitive rates or charges for solid waste collection services, which shall be utilized by the solid waste collector for a period of two years from the date of the order.

In issuing this order, the board shall direct the solid waste collector to refund, at an interest rate to be determined by the board, the difference between the unreasonable rates or charges and the competitive rates or charges ordered by the board.

The board shall take other actions pursuant to law as it deems necessary to restore or promote effective competition within the affected region, class of customers or type of solid waste collection service.

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.] (Deleted by amendment, P.L. , c. )(pending in the Legislature as this bill)

d. (1) No later than [6] 24 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] has been restored within the affected [geographic area] region, class of customers or type of solid waste collection 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] and whether anti-competitive activities have ceased.

(2) The board shall, upon a determination that effective competition [exists] has been restored within the affected [geographic area] region, class of customers or type of solid waste collection 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] region, class of customers or type of solid waste collection 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].

(cf: P.L.1991, c.381, s.20)

18. 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 a special nonlapsing fund to be known as the "Solid Waste Enforcement Fund." All monies from penalties collected by the board pursuant to section 13 of P.L.1970, c.40 (C.48:13A-12) or section 8 of P.L.1991, c.381 (C.48:13A-7.8) 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 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.).

(cf: P.L.1991, c.381, s.21)

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, 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 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 board finds the solid waste charges to be equitable, the 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 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 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] schedule of services 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] April 14, 1992. [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 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); and

Section 15 of P.L.1991, c.381 (C.48:13A-7.15).

22. This act shall take effect immediately.

STATEMENT

This bill revises and repeals various provisions of law pertaining to the termination of traditional public utility rate regulation of the solid waste collection industry.

It is the sponsor's view 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. Further, a return to traditional rate regulation will not permit an appropriate level of flexibility to solid waste collectors.

Moreover, a continuing form of economic regulation and oversight is necessary to assure compliance with New Jersey's waste flow rules. The waste flow rules jointly issued and enforced by the Department of Environmental Protection and the Board of Public Utilities are the foundation of the State's efforts to achieve self-sufficiency in solid waste disposal. Thus, the economic regulation provided for in this bill will promote greater compliance with the law 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 transfers all jurisdiction over the economic regulation of solid waste collection and disposal back to the Board of Public Utilities. The Board exercised sole authority over the economic aspects of solid waste collection and disposal prior to the adoption of Reorganization Plan No. 002-1991, effective on August 19, 1991, and Reorganization Plan No. 001-1994, effective on July 4, 1994, which transferred the Board's duties, powers and responsibilities with respect to solid waste management to the Department of Environmental Protection. Thus, this bill nullifies all contrary provisions of the aforementioned executive orders.

Under the bill, the Board must, within 120 days of the bill's effective date, divide the State into solid waste collection regions according to generally accepted economic and demographic data. Within 120 days the Board must also, after hearing by order in writing, establish for each region minimum and maximum solid waste collection service charges that solid waste collectors may charge their customers.

The bill provides the 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 Board. The bill empowers the Board to direct any collector to furnish proof that its rates are reasonable or that it is operating in a manner consistent with effective competition. Should the Board find that the collector has gained excessive market share, is charging unreasonable rates or is otherwise operating in an anti-competitive manner, the Board would issue an order: setting all charges to be charged and collected by that solid waste collector for the next two years; directing a refund with interest of the difference between the unreasonable rates and the ordered rates; and taking other actions permitted by law that are necessary to restore or promote effective competition.

The Board would review the order no later than two years after its issuance to determine whether effective competition has been restored; if the Board determines that it has not been restored, the Board may extend the order.

The bill creates a five-member Solid Waste Regulation Advisory Council, in but not of the Board of Public Utilities, which is empowered to: (1) submit recommendations to the Board concerning the division of the State into two or more regions and the minimum and maximum rates or charges for solid waste collection services for each region of the State to be established by the Board; (2) submit recommendations to the Board concerning the criteria and procedures the Board should utilize in making a determination of effective competition; (3) periodically submit to the Board any recommendations it deems necessary to promote compliance with the rules, regulations or administrative orders adopted by the Board governing the rate regulation of solid waste collection or solid waste disposal or the waste flow rules; and (4) study and investigate the need for additional safeguards to ensure effective competition in the solid waste collection industry; hold public hearings annually and as it deems necessary regarding solid waste collection or solid waste disposal statutes, rules, regulations or policies; and report its findings and recommendations to the Board.

Other major provisions of this bill include a requirement that all solid waste collectors charge their customers the exact disposal fee of the solid waste facility designated as the disposal site for the county wherein the solid waste originated, and the institution of penalties for solid waste collectors who fail to collect from their customers the proper disposal fee in effect at the disposal site designated under the waste flow orders.

Accordingly, any solid waste collector who fails to collect the proper disposal fee is guilty of a crime of the fourth degree and would 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 solid waste collector, upon conviction, would be liable to pay a civil administrative 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."