N.J. Admin. Code § 7:26H-5.11

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:26H-5.11 - Procedures for Department review; supervision of solid waste collection industry

(a) The following pertain to transactions requiring Department approval pursuant to the provisions at N.J.S.A. 48:3-7:

1. All notices of intent to enter into a transaction listed at N.J.S.A. 48:3-7 shall be in the form prescribed by N.J.A.C. 7:26H-2, to the extent applicable.

2. The solid waste collector shall file a notice of intent no later than 30 days prior to the anticipated date of closing of the transaction.

3. Upon receipt of a notice of intent, the Department shall review the notice to determine whether the notice and the supporting documentation are complete. After reviewing the notice of intent, the Department shall, within 30 days of receipt of the notice, notify the applicant, in writing, whether the notice is complete or incomplete. For the purposes of this section, receipt means arrival at and date stamped by the Bureau of Planning and Licensing, Division of Sustainable Waste Management.

i. A determination of incompleteness shall stop any review and shall stay the time limitations set forth in (a)4 below.

ii. Within 14 days after receiving a notification of deficiency, the collector shall inform the Department, in writing, of its intent to either withdraw the notice of intent or supply the information requested to make the notice of intent complete.

iii. The collector shall supply all requested information within 30 days of receipt of notification of deficiency. This time limitation may be waived through agreement with the Department.

4. The Department may require a collector to provide additional information where such information is necessary, as determined by the Department, to make the notice of intent complete prior to the decision to approve the transaction. The Department shall not make a final determination on any transaction until such time as the applicant supplies all of the requested information. Any failure to submit such information shall constitute cause for dismissal of the petition without prejudice. In the event the Department requests no additional information within 30 days of receipt of the notice, the transaction shall be deemed to have been approved.

5. In the event the Department requests additional information, the timeframe for the review of a complete notice shall be in accordance with the following:

i. The Department shall perform its review of a complete notice and make a decision within 60 days from the receipt of all requested information;

ii. The Department will approve a transaction within 60 days of receipt of a complete notice of intent unless it makes a determination pursuant to (b) below that the proposed sale, lease, mortgage, disposition, encumbrance, merger or consolidation would result in a lack of effective competition; and

iii. In the event the Department fails to take action on a transaction within the 60-day period, then the transaction shall be deemed to have been approved.

(b) The following pertain to Department investigation of rates and charges received by solid waste collectors:

1. On its own initiative, or upon receipt of information that a solid waste collector may be receiving rates or charges different than those that would result from effective competition, the Department may initiate an investigation of those rates and charges. The Department shall notify the solid waste collector, in writing (certified mail, return receipt requested), that it is the subject of an investigation. The notice shall include, but not be limited to, the following information.

i. The reason(s) for the investigation;

ii. A description of the geographic area, type or service or class of customer which is subject to investigation;

iii. A list of the criteria relied upon to determine that a lack of effective competition may exist; and

iv. The name and address of the individual to whom a response can be directed.

2. The Department 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. The request for additional information shall be made in writing (certified mail, return receipt requested) and shall set forth the reasons supporting the Department's request for additional information.

i. The solid waste collector shall submit responses to all requests for information within 30 days of receipt of the request for information.

ii. Should the solid waste collector fail or refuse to submit information requested pursuant to this subsection, the Department may take action to revoke or suspend the collector's certificate of public convenience and necessity.

3. The Department shall complete its review of the collector's rates and charges within 60 days following the date of notice; unless the Department requests additional information pursuant to (b)2 above, in which case the Department shall complete its review within 60 days of receipt of all requested information.

4. If necessary to pursue an investigation pursuant to (b)1 above, the Department may require any other solid waste collector within a comparable geographic area, serving a comparable class of customers or providing a similar type of service to submit specific information concerning its rates and charges for the purposes of performing a comparison of rates.

5. Upon the determination by the Department that a lack of effective competition exists and that the lack of competition has resulted in rates and charges greater than or less than those which would result from effective competition, the Department may, after hearing by order in writing:

i. Order the solid waste collector to adjust rates or charges to a sum consistent with the market price for such collection services in the applicable geographic area;

ii. Order the solid waste collector to establish an escrow account during the pendency of any adjudicated case, into which the solid waste collector shall deposit the excessive rates and charges which the Department has determined should be refunded to the collector's customers;

iii. Order the solid waste collector to refund, at an interest rate calculated in accordance with N.J.A.C. 7:26H-5.14, the difference between the excessive rates or charges and the competitive rates or charges ordered by the Department as of the date of the notice of the Department's intention to review the rates or charges received by that solid waste collector; and

iv. Direct the solid waste collector to take action to restore or promote effective competition within the affected geographic area, class of customers or type of service.

6. An order issued pursuant to (b)5 above shall be sent by certified mail to the solid waste collector (return receipt requested) and become effective upon issuance, unless an adjudicatory hearing request is made by the solid waste collector pursuant to N.J.A.C. 7:26H-5.17. In the event that the order is heard as a contested case pursuant to N.J.A.C. 7:26H-5.17, the order shall be effective after hearing and final action by the agency approving the order.

7. A Department order issued pursuant to (b)5 above shall expire no later than six months after the effective date of the order as such effective date is defined in (b)6 above.

8. Within six months following the issuance of an order pursuant to (b) above, the Department will review the actions taken pursuant to such order and will determine whether a lack of effective competition still exists within the affected geographic area, class of customers or type of service and whether the continued lack of effective competition has resulted in rates or charges which exceed rates or charges that would have resulted from effective competition. Following its review and determination, the Department may:

i. Rescind its order and cease any further rate setting activity; or

ii. Issue a new order pursuant to (b)5 above and continue rate setting activity with respect to the solid waste collector subject to the original order.

(1) The Department shall notify the solid waste collector no fewer than 30 days prior to the expiration date of the original order that it intends to issue a new order continuing rate setting activities.

(2) The notice must provide the reasons for the new order and the criteria utilized by the Department in making its determination that a lack of effective competition still exists within the affected geographic area, class of customers or type of service, and the continued lack of effective competition has resulted in rates or charges which exceed rates or charges that would have resulted from effective competition.

(c) The following pertain to failures or refusals to provide collection services:

1. The Department may order any solid waste collector into any geographic area for any class of customers or any type of collection service, where there is reasonable cause to believe the collection of solid waste has been discontinued and public health and safety may be affected. Circumstances constituting cause include, but are not limited to:

i. The collection of solid waste is discontinued as a result of a solid waste collector's failure or refusal to complete, execute or perform any contract or agreement for the provision of solid waste collection services;

ii. Any class of customers within a specific geographic area is unable to secure collections services;

iii. Any person seeking a specific type of solid waste collection service is unable to secure solid waste collection services; or

iv. The Department has received complaints pertaining to the adequacy of existing solid waste collection services.

2. Should the Department order any solid waste collector to provide collection services pursuant to (c) above, the solid waste collector shall file tariff adjustments in accordance with the provisions of N.J.A.C. 7:26H-3.10. After the transition period, the rates and charges for the extended solid waste collection services shall be determined by the collector ordered to extend the services.

3. Within five business days of any order requiring a solid waste collector to extend its services to a customer or class of customer pursuant to (c)1 above, the Department shall provide notice to the former collector, if known, and an opportunity to be heard at a date to be set on the issues of the duration of the order extending services, additional conditions that should be imposed, penalties, and any other issues as the Department deems are warranted under the circumstances. Hearings shall be conducted in the manner provided for contested cases pursuant to the Administrative Procedure Act, N.J.S.A. 52:14B-1.1et seq.

N.J. Admin. Code § 7:26H-5.11

Administrative change.
See: 30 N.J.R. 3948(a).
Amended by R.2002 d.356, effective 11/4/2002.
See: 34 N.J.R. 1792(a), 34 N.J.R. 3819(a).
In (b)1, substituted "On its own initiative, or upon" for "Upon"; in (b)6, rewrote the first sentence and amended the N.J.A.C. reference throughout.
Amended by R.2008 d.117, effective 5/5/2008.
See: 39 N.J.R. 4477(a), 40 N.J.R. 2243(a).
In (a)3, inserted "and Hazardous" following "Bureau of Solid", and substituted "County Environmental and Waste Enforcement" for "Solid and Hazardous Waste"; and in (c)2, substituted "tariff" for "Uniform Tariff", updated the N.J.A.C. reference and inserted a comma following "period".
Notice of readoption with technical change.
See: 47 N.J.R. 721(a).

Administrative Change, 55 N.J.R. 2003(a), effective 8/23/2023