N.J. Admin. Code § 7:26A-3.4

Current through Register Vol. 56, No. 9, May 6, 2024

Section 7:26A-3.4 - Supplemental requirements for a general approval

(a) Prior to the issuance of a general approval to operate a recycling center for the receipt, storage, processing or transfer of Class B, Class C or Class D recyclable materials, and where the Department determines that additional information is needed to adequately address public or environmental health, safety or welfare, the applicant shall submit the additional information requested by the Department.

(b) Prior to the receipt of Class B, Class C or Class D recyclable materials and commencement of operations at the recycling center, the applicant must receive all other applicable local, State, or Federal permits or approvals.

(c) Prior to issuance of approval to operate a recycling center, the Department may require an applicant to obtain and submit to the Department evidence of financial assurance in an amount determined by the Department as necessary to effectuate the proper removal, transportation and disposition of all materials which may be abandoned on a recycling center site. For privately-owned facilities, the financial assurance shall be a performance bond or letter of credit. The wording of the performance bond or letter of credit must be identical to the wording specified in (d) or (e) below, respectively. For publicly-owned facilities, the financial assurance may be an identification of specific funds which are to be wholly dedicated to ensure payment of the financial obligation. The criteria to be evaluated by the Department to determine if financial assurance is needed, and to be used in establishing the financial assurance amount, are the following:

1. The history of enforcement actions taken by the Department against the applicant involving violations of any environmental statutes of the State, of the Department's solid waste management rules, N.J.A.C. 7:26, of this chapter, and of all other rules contained in Title 7 of the New Jersey Administrative Code, and the history of enforcement actions taken by the State, county or local government or any political subdivision of the State, county or local government;

2. The current cost of disposal, including site preparation and transportation costs, at a permitted solid waste facility which would receive the materials which may be abandoned on a site based on the maximum storage capacity of the recycling center;

3. The amount of material to be received, stored, processed or transferred at the recycling center over the duration of the general approval;

4. The types of materials to be received, stored, processed or transferred at the recycling center;

5. Whether the lease agreements related to property or equipment are less than three years in duration;

6. Whether the lease agreements related to property or equipment restrict the operation of the proposed recycling center; and

7. An analysis of the stability of end-markets for the Class B, Class C or Class D recyclable material received, stored, processed or transferred at the recycling center, which analysis shall consider the following:

i. The length of time the end-market has been in business;

ii. The length of time the end-market has been accepting the Class B, Class C, or Class D recyclable material and using it as a raw material in a manufacturing process, or for Class D recyclable material only, the length of time the end-market has been using the Class D recyclable material for further processing, reuse or burning for energy recovery; and

iii. The number of end-markets in New Jersey, nationally and internationally which accept the Class B, Class C, or Class D recyclable material in question.

(d) A surety bond guaranteeing performance of closure as specified in N.J.A.C. 7:26A-3.4(c)above must be worded as follows, except that the instructions in brackets are to be replaced with the relevant information and the brackets deleted:

Performance bond

Date bond executed:

Effective date:

Principal: [legal name and business address of owner or operator]

Type of organization: [insert "individual," "joint venture," "partnership" or "corporation"]

State of incorporation:

Surety(ies): [name(s) and business address(es)]

New Jersey facility registration number, name, address, and closure amount(s) for each recycling center guaranteed by this bond:

Total penal sum of bond: $

Surety's bond number:

Know All Persons by These Presents, That we, the Principal and Surety(ies) hereto are firmly bound to the New Jersey Department of Environmental Protection (hereinafter called NJDEP), in the above penal sum for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns jointly and severally; provided that, where the Surety(ies) are corporations acting as co-sureties, we, the Sureties, bind ourselves in such sum "jointly and severally" only for the purpose of allowing a joint action or actions against any or all of us, and for all other purposes each Surety binds itself, jointly and severally with the Principal, for the payment of such sum only as is set forth opposite the name of such Surety, but if no limit of liability is indicated, the limit of liability shall be the full amount of the penal sum.

Whereas said Principal is required, under the recycling rules of the State of New Jersey at N.J.A.C. 7:26A, issued under the authority of N.J.S.A. 13:1E-1 et seq., to have a recycling center approval in order to own or operate each recycling center identified above, and

Whereas said Principal is required to provide financial assurance for closure as a condition of the recycling center approval;

Now, Therefore, the conditions of this obligation are such that if the Principal shall faithfully perform closure, whenever required to do so, of each facility for which this bond guarantees closure, in accordance with the closure plan and other requirements of the recycling center approval as such plan and approval may be amended, pursuant to all applicable laws, statutes, rules, and regulations, as such laws, statutes, rules, and regulations may be amended;

Or, if the Principal shall provide alternate financial assurance as specified in N.J.A.C. 7:26A-3.4(c), and obtain NJDEP's written approval of such assurance, within 90 days after the date notice of cancellation is received by both the Principal and the NJDEP from the Surety(ies), then this obligation shall be null and void, otherwise it is to remain in full force and effect.

The Surety(ies) shall become liable on this bond obligation only when the Principal has failed to fulfill the conditions described above. Upon notification by the NJDEP that the Principal has been found in violation of the closure plan and recycling center approval requirements regarding closure, for a facility for which this bond guarantees performance of closure, the Surety(ies) shall either perform closure in accordance with the closure plan and other requirements of the recycling center approval or place the closure amount guaranteed for the facility into an account as directed by NJDEP.

Upon notification by NJDEP that the Principal has failed to provide alternate financial assurance as specified in N.J.A.C. 7:26A-3.4(c), and obtain written approval of such assurance from NJDEP during the 90 days following receipt by both the Principal and NJDEP of a notice of cancellation of the bond, the Surety(ies) shall place funds in the amount guaranteed for the facility(ies) into an account as directed by NJDEP.

The Surety(ies) hereby waive(s) notification of amendments to closure plans, permits, applicable laws, statutes, rules, and regulations and agrees that no such amendment shall in any way alleviate its (their) obligation on this bond.

The liability of the Surety(ies) shall not be discharged by any payment or succession of payments hereunder, unless and until such payment or payments shall amount in the aggregate to the penal sum of the bond, but in no event shall the obligation of the Surety(ies) hereunder exceed the amount of said penal sum.

The Surety(ies) may cancel the bond by sending notice of cancellation by certified mail to the owner or operator and to NJDEP, provided however, that cancellation shall not occur during the 120 days beginning on the date of receipt of the notice of cancellation by both the Principal and NJDEP, as evidenced by the return receipts.

The principal may terminate this bond by sending written notice to the Surety(ies), provided, however, that no such notice shall become effective until the Surety(ies) receive(s) written authorization for termination of the bond by NJDEP.

Principal and Surety(ies) hereby agree to adjust the penal sum of the bond yearly so that it guarantees a new closure amount, provided that the penal sum does not increase by more than 20 percent in any one year, and no decrease in the penal sum takes place without the written permission of NJDEP.

In Witness Whereof, The Principal and Surety(ies) have executed this Performance bond and have affixed their seals on the date set forth above.

The persons whose signatures appear below hereby certify that they are authorized to execute this surety bond on behalf of the Principal and Surety(ies) and that the wording of this surety bond is identical to the wording specified in N.J.A.C. 7:26A-3.4(d)as such regulation was constituted on the date this bond was executed.

Principal

[Signature(s)]

[Name(s)]

[Title(s)]

[Corporate Seal]

Corporate Surety(ies)

[Name and address]

State of incorporation:

Liability limit: $

[Signature(s)]

[Name(s) and title(s)]

[Corporate seal]

[For every co-surety, provide signature(s), corporate seal, and other information in the same manner as for Surety above.]

Bond premium: $

(e) A letter of credit, as specified at (c) above must be worded as follows, except that instructions in brackets are to be replaced with the relevant information and the brackets deleted:

Irrevocable Standby Letter of Credit

Commissioner, New Jersey Department of

Environmental Protection

c/o Division of Sustainable Waste Management

401 E. State Street, PO Box 0420

Mail Code 401-02C

Trenton NJ 08625-0420

Dear Sir or Madam:

We hereby establish our Irrevocable Standby Letter of Credit No. ______ in your favor, at the request and for the account of [owner's or operator's name and address] up to the aggregate amount of [in words] U.S. dollars $______, available upon presentation, by you or your duly authorized representative, of:

(1) our sight draft, bearing reference to this letter of credit No. ______, and

(2) your signed statement reading as follows: "I certify that the amount of the draft is payable pursuant to the recycling rules of the State of New Jersey at N.J.A.C. 7:26A, issued under the authority of N.J.S.A. 13:1E-1 et. seq."

This letter of credit is effective as of [date] and shall expire on, but such expiration date shall be automatically extended for a period of [at least one year] on [date] and on each successive expiration date, unless, at least 120 days before the current expiration date, we notify both you and [owner's or operator's name] by certified mail that we have decided not to extend this letter of credit beyond the current expiration date. In the event you are so notified, any unused portion of the credit shall be available upon presentation of your sight draft for 120 days after the date of receipt by both you and [owner's or operator's name], as shown on the signed return receipts.

Whenever this letter of credit is drawn on under and in compliance with the terms of this credit, we shall duly honor such draft upon presentation to us, and we shall deposit the amount of the draft directly into an account in accordance with your instructions.

We certify that the wording of this letter of credit is identical to the wording specified in N.J.A.C. 7:26A-3.4(e)as such regulations were constituted on the date shown immediately below.

[Signature(s) and title(s) of official(s) of issuing institution] [Date]

This credit is subject to [insert "the most recent edition of the Uniform Customs and Practice for Documentary Credits, published and copyrighted by the International Chamber of Commerce," or "the Uniform Commercial Code"].

N.J. Admin. Code § 7:26A-3.4

Amended by R.1996 d.577, effective 12/16/1996.
See: 28 N.J.R. 2240(a), 28 N.J.R. 5360(a).
Inserted references to Classes C and D throughout.
Amended by R.2002 d.182, effective 6/17/2002 (operative December 17, 2002).
See: 33 N.J.R. 4273(a), 34 N.J.R. 2088(a).
Added (d) and (e).
Notice of readoption with technical change.
See: 48 N.J.R. 76(a).

Amended by 54 N.J.R. 1912(a), effective 10/3/2022