Mass. Gen. Laws ch. 44 § 28C

Current through Chapters 1 to 249 and Chapters 253 to 255 of the 2024 Legislative Session

Section 44:28C - Management of solid waste; project costs; debt obligations

(a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:

"Chief executive officer", the manager in any city having a manager and in any town having a city form of government, the mayor in any other city, and the board of selectmen in any other town unless some other officer or body is designated to perform the functions of a chief executive officer under the provisions of a local charter or laws having the force of a charter.

"Costs", when used in reference to any work or purpose for which a city or town is authorized to issue debt obligations under this section, means all or any part of the cost of planning, designing, acquiring, constructing, reconstructing, altering, remodeling and otherwise carrying out such work or purpose including, without limitation, costs of labor, materials, machinery and equipment, lands, structures and all rights of any kind in real and personal property, costs of demolitions and relocations, cost of issuance and other financing charges and expenses, reserves for debt service and other capital and current expenses, costs of architectural, engineering, financial, legal and consulting services, costs of plans, specifications, appraisals, surveys, inspections, financial and feasibility studies, and any other costs or expenses authorized herein or necessary or incidental to the planning, acquisition, construction, financing or placing in operation of such work or purpose; the word "cost" shall also include interest prior to, during and for a reasonable period of time after completion of such work or purpose.

"Cost of issuance", any items of expense payable or reimbursable directly or indirectly by a city or town and related to the sale and issuance of debt obligations under this section and the investment of the proceeds therefor and of revenues securing the same, including without limitation printing costs, filing and recording fees, fees and charges of trustees, depositories, authenticating agents and paying agents, legal and auditing fees and charges, financial consultant fees, costs of credit ratings, premiums for insurance of the payment of debt obligations and fees payable for letters or lines of credit or other credit facilities securing debt obligations, discount payable upon the sale of debt obligations, fees and charges for execution, transportation and safekeeping of debt obligations, costs and expenses of refunding and other costs, fees and charges in connection with the foregoing.

"Debt obligation", a bond, a note, a certificate of indebtedness, and any other instrument or evidence of indebtedness, including a debt obligation issued to refund any of the foregoing.

(b) Any city or town is hereby authorized pursuant to a two-thirds vote, from time to time to issue its debt obligations pursuant to this section to pay project costs of (1) cleaning up or preventing pollution caused by existing or closed landfills or other solid waste disposal facilities including clean up or prevention activities taken pursuant to chapter twenty-one E or chapter twenty-one H; (2) constructing incinerators, refuse transfer facilities, recycling facilities, composting facilities, resource recovery facilities or other solid waste disposal facilities, for the purpose of disposing of waste, refuse and garbage; (3) remodeling, reconstructing or making extraordinary repairs to incinerators, refuse transfer facilities, recycling facilities, resource recovery facilities or other solid waste disposal facilities, owned by the city or town and used for the purpose of disposing of waste, refuse and garbage; and (4) closing out a landfill area, opening a new landfill area, or making improvements to an existing landfill area. No indebtedness shall be incurred hereunder until plans relating to the project shall have been submitted to the department of environmental protection and the approval of said department has been granted therefor.

If a city or town has authorized the issuance of debt obligations in accordance with this section, the treasurer, with the approval of the chief executive officer, may without further authority issue notes in anticipation of such debt obligations, which notes may be paid with the proceeds of such debt obligations. The maturity date of any such notes shall not exceed three years from the date of issue of such notes or six months after the date of completion of the project being financed with such debt obligations, as determined by the chief executive officer, whichever date is later; provided, however, that notes issued to mature earlier than such date may be refunded on other notes maturing no later than three years from the date of issue of the original loan or six months after the completion date of the facility, whichever date is later. Subject to the limitations set forth in this paragraph, the provisions of this section applicable to debt obligations shall also apply to notes issued in anticipation thereof.

The useful life of a project to clean up or prevent pollution caused by existing or closed landfills or other solid waste facilities shall be deemed to be thirty years. The debt obligations may be made redeemable before maturity at the option of the city or town, acting by and through its chief executive officer, or when authorized by a two-thirds vote prior to issuance at the option of the holder of such debt obligations, at such price or prices, with or without premium, and under such terms and conditions as such officer may determine prior to the issue of such debt obligations. Debt obligations may be issued as serial debt obligations or as term debt obligations or as a combination of both, and in coupon or registered form, or both. Provision may be made for the registration of any coupon debt obligations as to principal alone, and also as to both principal and interest, and for the reconversion into coupon debt obligations of any debt obligations registered as to both principal and interest and for the interchange of registered and coupon debt obligations. The treasurer, with the approval of the chief executive officer, shall determine the form of the debt obligations, including any interest coupons to be attached thereto, and shall fix the denomination or denominations of the debt obligations and the place or places of payment of principal, premium, if any, and interest, which may be at any bank or trust company within or without the commonwealth.

Debt obligations issued hereunder shall be signed by the manual or facsimile signature of the treasurer and countersigned by the manual or facsimile signature of the treasurer and countersigned by the manual or facsimile signature of the chief executive officer and coupons, if any, appertaining to debt obligations shall bear the facsimile signature of the treasurer. Unless provision is made for the authentication of the debt obligations of an issue by the manual signature of trustee or other authenticating agent, each debt obligation shall bear at least one manual signature of the aforementioned officers. Debt obligations, other than notes, shall bear thereon the seal of the city or town or a facsimile thereof. In case any officer whose signature or a facsimile of whose signature shall appear on any debt obligations or coupons shall cease to be such officer before the delivery thereof, such signature or such facsimile shall nevertheless be valid and sufficient for all purposes the same as if he had remained in office until after such delivery.

Debt obligations issued by a city or town pursuant to this section may be sold in such manner, either at public or private sale, and for such price or prices, whether at par, premium or discount, as the treasurer, with the approval of the chief executive officer, may determine.

Any debt obligations issued under authority of this section shall not be included in the debt of a city or town for the purpose of ascertaining its legal borrowing capacity.

(c) The chief executive officer of any city or town is hereby authorized and empowered in connection with any borrowing under this section to enter into one or more trust or security agreements between such city or town and a corporate trustee, which may be any trust company or bank having the powers of a trust company within or without the commonwealth, or directly between such city or town and the lenders on the debt obligations, necessary to effectuate and to secure such borrowing. Such agreements may pledge or assign, and create a security interest in, in whole or in part, the revenues and other money held or to be received by the city or town from any project being financed or from any fees or charges imposed by such city or town relating to solid waste disposal and any contract or other rights to receive the same, whether then existing or thereafter coming into existence and whether then held or thereafter acquired by the city or town and the proceeds thereof. Such agreements may contain such provisions for protecting and enforcing the rights, security and remedies of the holders of such debt obligations as may be reasonable and not in violation of law, including without limiting the generality of the foregoing, provisions defining defaults and providing for remedies in the event thereof, which may include the acceleration of maturities and covenants setting forth the duties of, and limitations on, the city or town in relation to the acquisition, construction, improvement, enlargement, alteration, equipping, furnishing, maintenance, use, operation, repair, insurance and disposition of the project being financed by such debt obligations, the custody, safeguarding, investment and application of money, the issuance of additional debt obligations, the fixing, revision and collection of fees or other charges relating to solid waste disposal, the use of any surplus proceeds of the borrowing, including any investment earnings thereon, the establishment of special funds and reserves and the making and amending of contracts relating to such project.

The pledge of any such agreement shall be valid and binding and shall be deemed continuously perfected for the purposes of chapter one hundred and six and any other law from the time when the pledge is made; the revenues, money, rights and proceeds so pledged and then held or thereafter acquired or received by a city or town shall immediately be subject to the lien of such pledge without any physical delivery or segregation thereof or further act; and the lien of any such pledge shall be valid and binding against all parties having claims of any kind in tort, contract or otherwise against the city or town, irrespective of whether such parties have notice thereof. No document by which a pledge is created need be filed or recorded except in the records of a city or town and no filing need be made under the provisions of said chapter one hundred and six.

Any such trust agreement may provide that any money received thereunder may be deposited or invested, pending the disbursement thereof, in any deposits or investments which are lawful for the funds of cities or towns pursuant to section fifty-five of chapter forty-four, and shall provide that any officer with whom or any bank or trust company with which such money shall be deposited shall act as trustee of such money and shall hold and apply the same for the purposes hereof and thereof, subject to such regulation or limitation as this section or such agreement may provide.

It shall be lawful for any bank or trust company to act as depository or trustee of the proceeds of debt obligations, revenues or other money pledged under any such agreement and to furnish such indemnifying bonds or to pledge such security and issue such letters or lines of credit or other credit facilities as may be required by the city or town. Any agreement entered into pursuant to this section may set forth the rights and remedies of the holders of any debt obligations and of the trustee and may restrict the individual right of action by any such holders. In addition to the foregoing, any such agreement may contain such other provisions as the city or town may deem reasonable and proper. All expenses incurred in carrying out the provisions of such agreement may be treated as a cost of issuance hereunder. In addition to other security provided herein or otherwise by law, debt obligations issued under this section by a city or town, may be secured, in whole or in part, by insurance or by letters or lines of credit or other credit facilities issued to the city or town by any bank, trust company or other financial institution, within or without the commonwealth, and the city or town may pledge or assign any of its revenues and other money held or to be received by the city or town from the project being financed or from any fees or charges imposed by such city or town relating to solid waste disposal as security for the reimbursement by the city or town to the issuers of such letters or lines of credit, insurance or credit facilities of any payments made thereunder.

Any holder of a debt obligation issued by a city or town under the provisions of this section or of any of the coupons appertaining thereto and any trustee under an agreement securing the same, except to the extent the rights herein given may be restricted by such agreement, may bring suit upon the debt obligations or coupons and may, either at law or in equity, by suit, action, mandamus, or other proceeding for legal or equitable relief, including proceedings for the appointment of a receiver to take possession and control of the facilities financed by such debt obligations to operate and maintain the same, to make any necessary repairs, renewals and replacements in respect thereof and to fix, revise and collect fees and charges, protect and enforce any and all rights under the laws of the commonwealth or granted hereunder or under such agreement or other agreement, and may enforce and compel the performance of all duties required by this section or by such agreements to be preformed by the city or town or by any officer thereof.

A pledge of revenue in accordance with this section shall constitute a sufficient appropriation thereof for the purposes of any provision for appropriation for so long as such pledge shall be in effect and, notwithstanding any other general or special law to the contrary, such revenues may be applied as required by the pledge and the agreement evidencing the same without further appropriation.

(d) In addition to authority otherwise granted by law, a city or town may, when authorized by a two-thirds vote, issue refunding debt obligations for the purpose of paying any of its debt obligations issued under this section prior to maturity or upon acceleration of redemption. Refunding debt obligations may be issued at such times prior to the maturity or redemption of the refunded debt obligations as the treasurer and chief executive officer deem to be in the best interest of the city or town. The refunding debt obligations may be issued in sufficient amounts to pay or provide for the principal of the debt obligations being refunded, together with any redemption premium thereon, any interest accrued or to accrue to the date of payment of such debt obligations, the costs of issuance of the refunding debt obligations, the costs of redeeming the debt obligations being refunded and such reserves as may be required by any agreement securing the refunding debt obligations. The issue of refunding debt obligations, the maturity or maturities and other details thereof, the security therefor, and the rights of the holders thereof, and the rights, duties and obligations of the city or town in respect of the same shall be governed by the provisions of this section relating to the issue of debt obligations other than refunding debt obligations insofar as the same may be applicable; provided, however, that the refunding debt obligations shall be payable no later than the last date on which any portion of the debt obligations being refunded are payable or within the remaining useful life of the work or purpose financed by the refunded debt obligations, as determined by the chief executive officer, whichever is later. The provisions of section twenty-one A of chapter forty-four shall not apply to any such refunding debt obligations.

(e) Debt obligations issued under authority of this section are hereby made securities in which all insurance companies, trust companies, banking associations, savings banks, cooperative banks, investment companies, executors, trustees and other fiduciaries, and all other persons whatsoever who are now or may hereafter be authorized to invest in bonds or notes or other obligations of a similar nature may properly and legally invest funds, including capital deposits or other funds in their control or belonging to them. Such debt obligations are hereby made securities which may properly and legally be deposited with and received by any state or municipal office or any agency or political subdivision of the commonwealth for any purpose for which the deposit of bonds or other obligations of the commonwealth now or may hereafter be authorized by law.

Debt obligations issued under authority of this section, their transfer and the income therefrom, including any profit made on the sale thereof, shall be at all times free from taxation within the commonwealth whether or not any such debt obligation shall so provide on its face.

Debt obligations may be issued under this section as herein provided without the consent of any department, division, commission or agency of the commonwealth and without any other proceedings or the happening of any other conditions or things other than those consents, proceedings, conditions or things expressly required therefor herein and the validity of and security for any such debt obligations shall not be affected by the existence or nonexistence of any such consent or other proceedings, conditions or things.

(f) Any city or town acting by and through the officer or officers, board, committee or other body authorized by law, if any, to fix, revise, charge and collect such fees and other charges, otherwise, acting by and through its chief executive officer, is hereby authorized to fix, revise, charge and collect fees and other charges for any facilities or services provided by such city or town as relate to the collection or disposal of solid waste. If a city or town has issued debt obligations under this section, the fees and other charges established as aforesaid shall be fixed and adjusted during any period when such debt obligations are outstanding so as to provide revenues at least sufficient (i) to pay the current expenses of operating and maintaining such facilities and services, (ii) to pay the principal or, premium, if any, and interest on all debt obligations issued by the city or town under this section as the same become due and payable, (iii) to create and maintain such reserves as may be required by a resolution or agreement relating to the issuance of debt obligations hereunder, (iv) to provide funds for paying project costs and maintenance, repair, replacement and renewal costs related to any project financed with debt obligations issued hereunder and (v) to pay or provide for any and all amounts which the city or town may be obligated to pay by law or contract relating to such project. In addition such fees and charges shall be fixed and adjusted so as to provide revenues sufficient to pay any costs incurred by the city or town to clean up or prevent pollution caused by existing active or inactive landfills or other solid waste disposal facilities, including the operation and maintenance of such facilities, or to provide solid waste disposal facilities, including but not limited to the principal of, premium, if any, and interest on debt of the city or town issued pursuant to section seven or eight, and to provide funds for the estimated cost of closing any existing operating solid waste facility, which revenue and funds shall be held by the city or town in a separate fund or funds for subsequent appropriation for such purpose. Except as otherwise provided above, such fees and charges may be fixed and adjusted by each city or town to cover all or any part of the costs specified above. Cities and towns may collect and enforce by legal proceedings such fees and charges from persons liable therefor and in connection with such collection and enforcement cities and towns may employ all the powers and privileges granted to them by law with respect to any similar fee or other charge including but not limited to the powers and privileges granted cities and towns under the provisions of sections forty-two A to forty-two F, inclusive, of chapter forty and sections sixteen to sixteen F, inclusive, of chapter eighty-three.

(g) In addition to any other power conferred by law, a city or town may from time to time contract for the operation by others of any solid waste facility or facilities financed or to be financed by such city or town in whole or in part under this section or any other general or special law or may from time to time lease the same to others for operation by them and may contract with any such operator for the disposal of refuse, garbage and waste, or for any of the foregoing, or for the purchase or use of by-products or residue resulting from the operation of such facilities. All other cities, towns and other public agencies and private parties are also authorized from time to time to contract with such city or town or with any such operator for the disposal of refuse, garbage and waste, or for any of the foregoing, or from the purchase or use of by-products or residue resulting from the operation of such facilities. Such contracts may be for such periods as agreed upon by the parties and, without limiting the generality of the foregoing, may include provisions for the delivery of minimum amounts of refuse, garbage and waste and payments for the use of the facilities to be based thereon; provided, however, that such provisions do not result in the imposition of a contract penalty for municipal participation in a commonwealth approved program of residential source separation of recyclable materials, for unit prices, which may be graduated, and for adjustments thereof. Such contracts may also include provisions for the payment or performance of obligations imposed on cities, towns or other public agencies notwithstanding the interruption, curtailment or abandonment of construction or operation of the facilities; provided, however, that it shall be contrary to public policy to enforce such obligations against a city, town or other public agency unless notice of an operating permit granted by the department of environmental protection for the facility shall have been recorded as provided in section one hundred and fifty A of chapter one hundred and eleven, and the interruption, curtailment or abandonment is attributable to circumstances which are beyond the control of the contractor or operator of the facilities and which render it physically or commercially impracticable or legally impermissible to operate the facilities even if the facilities conformed to the operating plans and specifications for which said operating permit was recorded. Such payments, unit prices or adjustments need not be specifically stated in said contract but may be determined by formulae if set forth therein. In addition, supplementary charges, or adjustments, may be imposed by the facility upon cities and towns in payment for increases in costs or decreases in revenues, incurred, or projected to be incurred, by the facility as the result of changes in state or federal laws and regulations directly affecting the operations of the facility. Any such supplementary charge or adjustment shall include documentation which provides a detailed statement accounting for the causes of any increases in costs, or losses of revenues, for which by the terms of the contract a supplementary charge or adjustment may be made, documents prepared by qualified accountants which set forth the assumptions, formulas and calculations used in computing the amount of the supplementary charge or adjustment, and an accounting of the supplementary charge or adjustment being imposed and an evaluation as to whether they are allowable under the terms of the contract and as to whether they have been correctly calculated. At the end of each fiscal year, the facility shall document the actual increases in cost, or decreases in revenues, and the actual amount of additional fees received by the facility during the past year, and determine if the actual increased costs or decreased revenues are at variance with the revenues and expenditures estimated and used to establish the amount of any approved supplementary charge or adjustment. The supplementary charge or adjustment shall be recalculated using the actual figures and the fees for the succeeding year shall reflect the appropriate amounts to be either refunded to or recouped from the cities and towns. Any dispute between a city or town and a facility regarding the imposition of such supplementary charge or adjustment shall be resolved by arbitration at the request of either party. Both parties shall provide all necessary data to assist the arbitrator or arbitration panel in its determination. The findings of the arbitrator or the arbitration panel shall be binding upon the facility and the city or town.

Any contract or lease under this section by a city or town may be entered into by the appropriate officers acting under general authorization of the city council, town council or town meeting and may run for a period not exceeding forty years from the date of the contract or lease or from the date of commencing regular operation of the facility or facilities, as determined or estimated in such contract or lease, whichever date is later. Any contract or lease hereunder may include provisions for arbitration and reasonable restrictions against other disposal by cities, towns or other public agencies of the substances covered thereby while the contract is in force and disposal under the contract is practicable. A contract by a city or town hereunder shall not be subject to section four of chapter forty and shall not be precluded by the acceptance of section nine A of chapter ninety-two. The obligations represented by payments by a city or town under such a contract shall not be included in any determination of the borrowing capacity of such city or town under any limitation on its indebtedness.

In the event that any such solid waste disposal facility includes or is to include facilities for the production of steam as a by-product, any corporation, operating or leasing such solid waste disposal facility, whether domestic or foreign, or other person owning, occupying or operating the facility shall have the powers granted by section twelve of chapter one hundred and fifty-eight but the production and sale of such steam and the foregoing grant powers shall not cause the corporation or person to be otherwise subject to chapter one hundred and fifty-eight or excluded from chapter one hundred and fifty-six or one hundred and fifty-six B or cause the corporation to be deemed a heat or power company for the purposes of the corporation laws of the commonwealth.

Any contract with a city or town for the operation by others of any solid waste facility or facilities under this section, or any lease of the same to others for operation by them, shall contain such provisions as may be deemed necessary to protect the public interest, including but not limited to provisions as to the rates to be charged or for the approval of such rates by the city or town and provisions requiring approval by the city or town of contracts with third parties for the disposal of refuse, garbage and waste. In entering into contracts or leases for the operation of the facility or facilities, the city or town is directed insofar as practicable, to provide for just and equitable rates and a fair but not excessive return to the operator and to provide for meeting public disposal needs in preference to private needs.

The city or town or any person operating a facility or facilities, including but not limited to recycling facilities, under a contract or lease pursuant to this section shall not be required to pay any property taxes or assessments on any real or personal property included in such facility or facilities or any sales, use or similar tax on the sale, use, storage or consumption of any personal property in such operation. A contract or lease hereunder may provide, however, for payments to the city or town in lieu of taxes and assessments.

(h) The provisions of subsection (c) may be used by a city or town as appropriate in connection with general debt obligations of the city or town issued pursuant to other general or special laws for solid waste disposal purposes as well as in connection with debt obligations issued under this section. The provisions of subsections (f) and (g) are applicable to any city or town whether or not any such city or town has issued debt obligations under this section or under any other provision of law for solid waste disposal purposes.

(i) The provisions of this section shall be deemed to provide an additional and alternative means for the effectuation of the purposes authorized hereby and shall be regarded as supplemental and additional to, and not in derogation of, powers conferred upon cities or towns by other laws; provided, however, that if any provision of this section shall be contrary to or conflict with any provision of any other general or special law in any circumstances, the provision of this section shall control in such circumstances.

Mass. Gen. Laws ch. 44, § 28C