DELAWARE SOLID WASTE AUTHORITY
O R D E R
Regulations of the Delaware Solid Waste Authority
On this 7th day of June, 2001, IT IS ORDERED that the Delaware Solid Waste Authority (DSWA) hereby adopts revisions to Regulations of the Delaware Solid Waste Authority, adopted March, 1999; the Differential Disposal Fee Program; and the Statewide Solid Waste Management Plan, in the form attached hereto.
In accordance with 29 Del.C. §10118(b)(1), a brief summary of the evidence and information submitted follows. Oral testimony was presented at a public hearing held on May 24, 2001. Such testimony included testimony from American Ref-Fuel Company which objected to the proposal to control the flow of municipality waste on the alleged grounds that such control was uneconomic, unnecessary and unconstitutional. Two attorneys testified on behalf of Eastern Shore Environmental, Inc. (ESE), which objected to the control of municipality waste on various grounds, including the process by which the regulations were proposed. The Director of Public Works for the City of Dover requested that the rebate program in its contract be modified so that it could receive the rebate earlier. An Environmental Program Manager with the Delaware Department of Natural Resources and Environmental Control (DNREC) asked a series of questions regarding the regulations, as did one of the attorneys for ESE.
Written submittals included the following. A letter from the Public Works Director for the City of Newark suggested that source separated recyclables should not be required to be taken to DSWA facilities. A letter from the Mayor of the Town of Selbyville requested that the provision related to the control of municipality waste be deleted. Letters from American Ref-Fuel Company stated the position related in the oral testimony. A letter on behalf of the Town of Millsboro objected to the requirements related to the control of municipality waste. It also objected to a provision that authorized a change in the rates of dry waste disposal on 30 days' notice. A letter from the Maryland-Delaware Solid Waste Association objected to the control of municipality waste. A letter from DNREC raised various issues regarding definitions, collection and licensing, recycling, and transfer stations. Finally, letters and a memorandum with exhibits were submitted on behalf of ESE. Those submittals contained argument objecting to the control of municipality waste, the proposed lower rate for the disposal of dry waste, and the procedure used for the notice of, consideration and adoption of the proposed changes.
In addition to the above materials submitted by members of the public, the Hearing Officer, an employee of DSWA's staff prepared a report that responds to the public input on the proposed changes and provides related information. Such report addresses the legality of the proposed changes, the basis for the proposed revisions, ESE's allegation that the proposed changes are intended to harm ESE, and the requests for modifications to the proposals. The report recommends that the proposals be adopted, with minor changes. Those recommendations have been adopted and the minor changes incorporated in the attachments to this order.
In accordance with 29 Del.C. §10118(b)(2), a brief summary of the Board's findings of fact with respect to the evidence and information follows. The Board finds that it has the legal authority to adopt the proposed revisions in the form attached and that the correct process for adoption of the revisions has been followed. The Board finds that there is a reasonable basis in the record for the proposed revisions and that they serve to implement the intent of the General Assembly as expressed in 7 Del.C. Chapter 64. The Board also finds that the intention of the attached revisions is unrelated to any of the allegations raised by ESE with respect to the dealings between DSWA and ESE. The Board finds that the revision to the price for the disposal of dry waste will facilitate the recycling of dry waste materials and otherwise serve the purposes of sound solid waste management. Likewise, the Board finds that the control of municipality waste is consistent with the General Assembly's intent and serves the public interest. The Board finds that the reporting requirements for waste not delivered to DSWA facilities are reasonable and necessary. The Board finds that there is a reasonable basis to make minor modifications to the proposed revisions, in accordance with the recommendations of the staff report. In all three cases, the recommendations are for revisions which reduce the level of regulatory control and are in accordance with requests made expressly or implicitly during the public input process. They are deemed nonsubstantive matter. One makes clear that source separated recyclables need not be delivered to DSWA facilities. Such clarification is consistent with how the regulations have been interpreted in the past. A second modification deletes authorization to modify the fee for dry waste disposal on 30 days' notice. The third modification reduces the level of control of municipality waste by removing from the proposed revisions language which would have swept into the requirement those persons who contract with municipalities. Finally, with respect to the Board's findings, the Board hereby incorporates by reference the analysis contained in the Hearing Officer's report which is part of the record.
HEARING OFFICER’S REPORT
JUNE 5, 2001
I. INTRODUCTION
On May 24, 2001, the undersigned conducted a public hearing to gather public comment and input on the Delaware Solid Waste Authority's (DSWA) proposal to amend its regulations, adopted in March 1999; to revise its Differential Disposal Fee Program (DDFP); and to revise the Statewide Solid Waste Management Plan (Statewide Plan). In addition, the record was kept open following the hearing to allow written comment up to and including June 1, 2001. This report organizes and summarizes the public input regarding the above proposals. It also provides additional information and makes recommendations in response to the public input. For the most part, the recommendations conclude that the proposal should be implemented. A few minor modifications to the proposal are recommended.
II. SUMMARY OF PUBLIC INPUT
The following written materials were presented by the public.
Exhibit 1: DSWA Proposal Package as published in the Delaware Register of Regulations.
Exhibit 2: DSWA letter to all Contract Customers providing a copy of the Proposal and informing them of the Public Hearing.
Exhibit 3: Typical notice of the Public Hearing as published in local newspapers.
Exhibit 4: Letter from Mr. Richard M. Lapointe, Public Works Director for the City of Newark, Delaware.
Exhibit 5: Letter from Clifton C. Murray, Mayor of the Town of Selbyville, Delaware.
Exhibit 6: Written testimony of Stephen W. Simmons, Business Manager of American Ref-Fuel, Chester Pennsylvania.
Exhibit 7: Letter from David Staats, P.A. on behalf of Eastern Shore Environmental, Inc.
Exhibit 8: Sign in Sheet from the Public Hearing.
Exhibit 9: May 31, 2001 Letter from Tempe Steen, Esquire, on behalf of the Town of Millsboro.
Exhibit 10: May 31, 2001 Letter from American Ref-Fuel.
Exhibit 11: May 31, 2001 Letter from Maryland-Delaware Solid Waste Association.
Exhibit 12: June 1, 2001 Letter from Prickett, Jones & Elliott.
Exhibit 13: June 1, 2001 Memorandum from Prickett, Jones & Elliott.
Exhibit 14: June 1, 2001 Appendix of Exhibits submitted by Prickett, Jones & Elliott.
Exhibit 15: June 1, 2001 Letter from Delaware Department of Natural Resources & Environmental Control (DNREC).
In addition to the above, Exhibit 16 IS A TRANSCRIPT OF THE PUBLIC HEARING.
ORAL TESTIMONY PRESENTED AT THE PUBLIC HEARING IS SUMMARIZED AS FOLLOWS:
Mr. Steven W. Simmons of American Ref-Fuel Company read from his prepared statement (see Exhibit 6). He objected to the DSWA proposal to reinstate regulatory flow control of municipally generated waste. He then discussed the safety and operational record of American Ref-Fuel.
Mr. David Staats, an attorney representing Eastern Shore Environmental, Inc. (ESE), stated that he objected to DSWA reinstating regulatory flow control over municipalities.
Mr. Scott Koenig, representing the Division of Public Works for the City of Dover, Delaware, stated that the City was opposed to the reinstating of regulatory flow control on municipalities. Mr. Koenig also stated that it was in the City of Dover's best interests to keep all options open and to find the lowest priced services. Mr. Koenig also requested that DSWA consider implementing a monthly rebate instead of an annual program.
Mr. Jim Short, representing DNREC, raised questions regarding DSWA definitions and reporting requirements.
Mr. John Paradee, an attorney representing ESE, reiterated the statements made by Mr. Staats.
The written materials are discussed in Section III.
III. A. DSWA AUTHORITY.
Some of the comments question DSWA's authority to adopt the proposed changes. The questions arise out of DSWA's enabling authority contained at 7 Del.C. Chapter 64, the so-called dormant Commerce Clause contained in the U.S. Constitution, and the Sherman Act which addresses monopolies. This report contains a brief summary of the contentions and a brief response to the contentions. However, the comments raise legal issues that have been considered more fully by DSWA's counsel in advance of the public notice of the proposed regulatory changes. DSWA stands ready to defend, if necessary, the legality of the proposal.
The comments, particularly the comment submitted by ESE, contain analysis of DSWA's enabling authority, which apparently fails to read the enabling statute as a whole. In other words, ESE's comment latches on certain provisions of the enabling statute to find meanings that clearly were not intended. For example, ESE argues that the meaning of "municipality" should be gleaned from a clause in Section 6405(a)(27), which speaks to DSWA's authority to contract with various entities. ESE suggests from that section that the word "municipality" (a word not used in Section 6406(a)(7)) should be construed not to include counties, towns and other public bodies. However, the word "municipality" is defined in Section 6402 to include just such entities.
Moreover, although ESE's comment argues in a section titled "DSWA Lacks Authority for its Proposed Regulations," the text within ESE's argument admits that Section 6406(31) "would authorize DSWA's proposed flow control regulations." That section reads:
"[DSWA has the authority to] Control, through regulation or otherwise, the collection, transportation, storage and disposal of solid waste, including the diversion of solid waste within specified geographic areas to facilities owned, operated or controlled by the Authority…"
A detailed discussion of DSWA's enabling authority is beyond the scope of this report. However, it is obvious that the enabling statute contains broad authority for the implementation of the proposed changes. Numerous provisions speak to such authority, including Section 6401 (findings, policy, purpose); Section 6404 (functions of Authority); and Section 6406 (powers of Authority). One provision, Section 6404(5), states, in part:
"It is the intention of this chapter that the Authority shall be granted all powers necessary to fulfill these purposes and to carry out its assigned responsibilities and that this chapter, itself, is to be construed liberally in furtherance of this intention."
With respect to the Commerce Clause, the comments fail to provide any convincing argument to the effect that DSWA cannot require municipalities, which are created by the State, to utilize DSWA facilities. Although the Commerce Clause may impose some restrictions on the State's control of the interstate flow of waste, the proposed regulatory changes as they relate to flow control of municipal waste merely require that State created public bodies utilize the State's facilities as contemplated by the enabling statute. Such requirement implements the State's choice to participate in the waste disposal service market in the manner it sees fit, just as any other entity does. The Commerce Clause is not implicated.
With respect to the Sherman Act, the regulatory controls contained in the proposal are not monopolistic. Assuming for the sake of argument that they were, immunity from any Sherman Act cause of action exists where the State activity is the consequence of legislative authorization. Such is the case here because DSWA's enabling statute authorizes flow control of municipality waste.
III. B. THE PROCESS FOR ADOPTION OF THE REGULATIONS
ESE also questions whether DSWA has followed the right procedure for rule-making under the Delaware Administrative Procedures Act (APA), 29 Del.C. Chapter 101. Again, these matters are ones that have been considered by DSWA's legal counsel and this report contains only a brief discussion of the comments.
ESE first contends that the notice of the rule-making was deficient because it allegedly failed to identify relevant legal authority and did not provide "critical information" in the notice. The notice requirements appear in the APA at 29 Del.C. §10115. Among other things, they require publication in the Delaware Register of Regulations and a reference in the notice to the legal authority relied upon for the rule-making. DSWA duly noticed the rule-making in the Register. Included in the notice was this statement:
"The authority for the DSWA Regulations is contained in 7 Del.C. Ch. 64, most notably §6403."
Section 6403 contains three provisions (i, k, and l) that authorize rule-making for changes to the Statewide Solid Waste Management Plan, to fee schedules, and to regulations. These matters are precisely the subjects of the rule-making.
ESE's contention that the notice failed to contain critical information is unsupported by any requirement in the APA. The notice is required by the APA to provide a synopsis of the proposed changes (which was provided in the subject notice) but is not required to explain the reasons for the changes. Nonetheless, ESE claims that "The most glaring deficiency is DSWA's complete failure to provide any reason for the proposed changes." (emphasis in original) ESE cites no authority for that proposition and there is no such authority. ESE's position is based on what it thinks the law should require, not on what the General Assembly has determined is the law.
Similarly, ESE argues that the rule-making process should include another requirement not in the APA which would allow ESE to comment on other input about the proposed changes to the Board. The General Assembly did not see fit to adopt that procedure, which conceivably could result in a circular process that does not end.
ESE also contends that the APA dictates that rule-making be initiated pursuant to a section (Section 10114) which allows for (but not require) the process to be initiated by the motion of an "agency member" (it is unclear who a "member" is for purposes of DSWA) or petition of anyone else. This section identifies only one of the many means for initiating rule-making.
Finally, ESE contends that the record does not contain a reasonable basis for the proposed changes. In addition to this report and the attached exhibits, DSWA has a long history of dealing with the issues raised in the comments and proposed changes. Those changes are refinements to existing programs and are based on DSWA's experience and expertise developed over the last few decades.
III. C. ESE'S THEORY RE DSWA'S MOTIVATION
ESE owns and operates a transfer station located at 836 Postles Corner Road, Little Creek, Delaware. ESE's written comment contends that the proposed regulatory changes are part of a campaign calculated to harm ESE's business. Exhibit 13. The comment references various "steps" that DSWA allegedly has taken to block ESE's entry into the MSW disposal market. Most of those steps are described in the form of bald allegations with no documentation to support them. For example, ESE claims that DSWA threatened to remove recycling centers from the City of Milford in order to persuade Milford to stop doing business with ESE. Similarly, ESE contends that "DSWA tortiously interfered with ESE's expected disposal contract with Dover." However, there is no basis in fact for such contentions. DSWA has entered into contracts with the cities of Milford and Dover, under which those cities are required to deliver municipal solid waste (MSW) to DSWA's landfills. Exhibits A and B. ESE's efforts to encourage those cities to break their contracts have been frustrated, but not by the means suggested in ESE's comment (e.g., DSWA has not threatened to remove recycling centers from Milford, but merely reminded the City, after documenting that contracted waste was not going to DSWA's facilities, that the contract requires the waste to be delivered to DSWA. Exhibit C).
ESE also claims, without documentation, that DSWA has initiated "sham litigation" to appeal ESE's DNREC permit for the transfer station. In fact, the appeal is well-founded in that the permit was issued without due consideration of requisite planning and zoning approvals and possible environmental impacts. Attached as Exhibit D is a copy of DSWA's pleading, which, among other things, points out the many deficiencies in ESE's proposal.
ESE also suggests that DSWA brought a frivolous lawsuit in Chancery Court that challenges ESE's authority to operate its transfer station because ESE did not obtain the required zoning approval. Initially ESE engaged in discussions with Kent County about obtaining a conditional use approval, it then proceeded to file a civil rights suit against the County and its Levy Court Commissioners claiming that conditional use approval was unnecessary, only then to recognize that proper zoning approval had not been obtained by filing an application for conditional use approval which is currently pending before Kent County.
In sum, DSWA and ESE unfortunately have had an adversarial relationship in some respects. That relationship has evolved because DSWA has sought to fulfill its statutory responsibilities regarding (1) the proper handling of waste in the State; and (2) the enforcement of contractual commitments that enable DSWA to meet its obligations to the public.
The proposed regulatory changes do not unduly interfere with ESE's business opportunities. Under the proposed system, ESE has a right to compete for private hauler business. In addition, the proposed regulatory system allows ESE to continue to do what DSWA cannot by law do, namely bring municipal waste and dry waste from out of state for processing. ESE's principal complaints appear to be that (1) DSWA's proposed rate for the disposal of dry waste is too low for ESE to compete; and (2) the requirement that municipalities bring waste to DSWA facilities allegedly violates the Commerce Clause. Those arguments are addressed below and above.
III. D. DRY WASTE PRICING
The proposed regulatory changes include provision for a new price for dry waste at the Southern Solid Waste Management Center and the Central Solid Waste Management Center in Sussex and Kent Counties, respectively. The new price will be $40.00 per ton, as opposed to the old price of $58.50 per ton (before rebate which reduces the price to $48.50 per ton). ESE asserts that such pricing is predatory (i.e., designed to harm ESE) because allegedly (1) it costs more than $40.00 per ton to process dry waste; (2) the pricing would encourage the delivery of more dry waste to DSWA landfills and thereby utilize more landfill space, a result contrary to claimed DSWA policy; and (3) the pricing is not implemented in New Castle County because ESE's facility is not located there.
All of the allegations are groundless. First, DSWA did not know at the time of its new pricing proposal what it costs ESE to process dry waste. In fact, although ESE's written comment received by DSWA on June 1, 2001, states that it costs $45.00 per ton, no documentation supports that number and it may be that the real cost for ESE is less. In any event, ESE's cost was not a consideration in the price proposal.
As discussed below, DSWA's principal motivation to lower the price for dry waste is to facilitate its recycling efforts, as mandated by statute. The lower price will encourage users of disposal services to separate dry waste from MSW and thereby obtain the lower dry waste disposal fee. Due to various uncertainties such as quantities of dry waste that will be delivered to DSWA’s facilities, DSWA is not now in a position to calculate the exact costs of processing dry waste. However, DSWA has an adequate basis to believe based on its experience and expertise that the program will be cost effective. DSWA has an agreement in place with a company located in Baltimore, Maryland, Recovermat, under which Recovermat will haul dry waste delivered to DSWA's facilities in Sussex County and Kent County for a cost significantly less than $40.00 per ton. Under the agreement Recovermat will process the dry waste so collected and return recovered product, named "Recovermat," at no cost to DSWA for use as cover at DSWA's landfills. Recovermat will also be utilized to build roads. The benefits of the recycling program include the conservation of landfill space and the preservation of virgin materials for other uses that would otherwise be used for landfill cover and road construction.
Although ESE maintains that the regulatory changes are motivated by DSWA's recent conflicts with ESE, in fact the recycling of dry waste for such purpose has been in the works for several years. As early as 1996, DSWA explored the possibility. Exhibit E. Correspondence in 1998 reflects that DSWA received DNREC's approval for testing Recovermat at DSWA's facilities. Exhibit F. In the year 2000, DNREC finally approved the use of Recovermat. Exhibit G. It should also be pointed out that DSWA has had in place a program for the recycling of dry waste in New Castle County on a limited basis for a period of a few years. That program has been implemented by Burns and Company and the trade name of its product is "Barrier." Exhibit H.
ESE has also contended that the proposal varies from its "normal and customary practice… to give approximately 18 months advance notice of price changes." The proposed changes do not alter the base rate for the disposal of solid waste, $58.50/ton, which has been in place for several years. If DSWA were to increase its rates, it might be desirable to provide lengthy notice to enable affected parties to budget for the change. In this case the proposal is to reduce the price it charges for dry waste. Shorter notice is thus appropriate and also consistent with the relatively short time period in which the existing DDFP was implemented.
Recycling is an important part of DSWA's Waste Management Program. As you know, there are currently three significant programs underway which promote recycling. Recycling Centers, for the separation of source waste such as newspapers, aluminum cans, etc., are operated around the State at a cost of approximately $3,500,000.00 annually (less approximately $800,000.00 for the sale of the materials recycled). Exhibit I. In addition, DSWA operates a program for recycling hazardous household products, and has recently undertaken steps to recycle electronic goods. Exhibits I and J. These recycling programs are subsidized by DSWA's overall fee structure and illustrate the fact that DSWA is concerned not merely with the profitability of its individual waste management programs, but also with sound management practices which are consistent with its legislative mandate. DSWA must establish a budget which covers all of its operations, including those which are subsidized, since DSWA receives no operating or capital funds from the State.
Finally, with respect to the price of dry waste processing, such pricing was considered in DSWA's last budget plan, notwithstanding ESE's contentions to the contrary. Exhibit K.
As indicated above, ESE claims that the proposed pricing for dry waste will result in more dry waste being delivered to DSWA landfill facilities, and thereby use more landfill space. The opposite is true. Much of the dry waste that is brought to the landfills now is commingled with MSW. As you know, DSWA has operated the landfills for many years and has processed a great quantity of waste. See Exhibit I for the total tonnage of waste processed in year 2000. Based on its experience and expertise, DSWA is convinced that considerable quantities of dry waste that are now commingled with MSW can be separated and that such separation will result in less waste received as MSW (commingled waste is treated as MSW). Moreover, although more dry waste is expected to be delivered to the landfill, it will not take up more landfill space because it will be recycled.
Finally, ESE argues that DSWA's intention to harm ESE is reflected in the fact that the differential pricing for dry waste applies to the Kent and Sussex County landfills, but not to Cherry Island, the New Castle County landfill, with which ESE's transfer station is less likely to compete. Although there is a possibility that the lower price eventually could be implemented at the Cherry Island facility, DSWA would prefer to first see how the program works in Kent and Sussex Counties. DSWA has some concerns regarding its ability in New Castle County to insure that out of state dry waste is not being brought to Cherry Island (prohibited by Delaware law). The proximity of Cherry Island to Pennsylvania and New Jersey, with its large population centers, makes it more difficult to control the entry of out-of-state waste in New Castle County.
III. E. MUNICIPAL WASTE CONTROL.
ESE and others have submitted comments that question DSWA’s legal right to require “municipalities” to deliver waste to DSWA facilities. That issue, as it relates to DSWA’s enabling authority and the Commerce Clause is addressed above (Section III. A). This section of the report responds to comments that the proposed control of municipality waste would not benefit citizens of the State. Specifically, it has been contended that such control would stifle competition and result in the payment of higher rates.
As explained above, DSWA’s proposed changes are consistent with its enabling legislation and it can be fairly stated that the General Assembly has determined that it is in the best interest of Delaware’s citizens to allow for the control of municipality waste. Thus the statute defines “municipality” to include counties, cities, towns, and “other public bodies.” The statute also finds that local governments need help to provide adequate waste disposal services and that State governmental powers should be used to assist local governments. Section 6401. Further, the statute requires that DSWA provide essential waste disposal services without resort to State funds or use of the State’s credit to obtain financing. Instead, the statute contemplates that DSWA shall pay for debt service, capital improvements and its operating costs out of user fees that it can collect from private entities or impose on “municipalities.” It was the General Assembly’s judgment that such a system would be in the public interest and of benefit to the citizens of the State. Accordingly, DSWA has financed at great costs a number of waste disposal facilities and implemented a variety of recycling programs consistent with the General Assembly’s objectives. To fund those programs, DSWA has instituted a system through its regulations and differential disposal fee program to assure on a long-range basis that funds will be available to pay for the programs.
The proposed regulatory and management plan changes would benefit Delaware citizens in various ways. First, the proposal includes plans for new transfer stations to be located in the Dover area, Milford area and Rehoboth/Lewes area, which will reduce the cost to municipalities for transporting waste to DSWA facilities. See Exhibit L, which relates to the new transfer stations.
Second, under DSWA’s fee program, municipalities may access DSWA’s services under the same competitive price arrangement that is available to private entities, including the rebate provisions. That DSWA’s prices are competitive with private industry disposal services is clear – approximately 97% of solid waste generated in Delaware is brought voluntarily to DSWA’s facilities pursuant to contracts voluntarily entered into by the users, including the municipalities. Exhibit I. The regulatory proposal merely requires municipalities to do what they are already voluntarily doing because it is in their interest to do so. The advantage to DSWA is that it assures long-range stability with respect to the funding for the programs which benefit Delaware citizens. Moreover, the proposal will provide the same or cheaper rates for MSW and dry waste, which will generate new savings for the municipalities. ESE incongruously complains on the one hand that Delaware’s citizens will be adversely affected by the program and, on the other, that it cannot effectively compete with DSWA’s low rate.
Having duly considered the comments on the proposed changes, there are two minor modifications to the proposal that are hereby recommended.
One, the City of Millsboro objected to the provision in the proposal that would allow DSWA to modify prices for dry waste disposal services on thirty days’ notice. If the other proposed changes to the existing program are adopted, the stability of DSWA’s source of funds would be assured and there would be little anticipated need to modify the price on any short-term basis. Thus, it is recommended that the clause in the DDFP that authorizes such price adjustments on 30 days' notice be deleted.
Two, again if the other elements of the proposed changes are adopted, it would not be necessary to require private haulers who contract with municipalities to bring the waste to DSWA facilities (thus it is recommended that the applicable clauses in Section 4.01(b) of the regulations be deleted so as not to require private haulers who contract with municipalities to bring the waste to DSWA facilities). That conclusion is based on the assumption that most of the municipality waste will continue to go to DSWA facilities because of the convenience of the new transfer stations and the competitive price offered by DSWA. The recommendation does not go so far as to suggest that municipalities that do not utilize private haulers should be allowed to take their waste wherever they want because such an arrangement could result in instabilities to the source of funds needed to implement the waste-management programs. The General Assembly in adopting the DSWA enabling legislation envisioned that the State entity which it created (DSWA), should be entitled to require other State entities (municipalities) it created, to use the facilities which were created for the benefit and use of such entities.
III. F. CITY OF NEWARK COMMENTS
In a letter dated May 23, 2001, Mr. Richard M. Laponite, Public Works Director for the City of Newark, provided comments which focused on distinctions involving dry waste and recyclables. Exhibit 4. The emphasis of the comments was that source separated recyclables should not be subject to DSWA's proposed delivery requirements. DSWA has not required source separated materials to be delivered to its facilities under the current Differential Disposal Fee Program and it is recommended that such practice be formalized by including under the Section 4.03 exemptions a new subparagraph h. to read "Source separated recyclables." Such addition would simply codify practice under the existing regulations and would not result in any change.
III. G. DNREC COMMENTS.
By letter dated June 1, 2001, DNREC's Division of Air and Waste Management submitted comments and questions on the DSWA's proposed revisions. Exhibit 15.
The first comment questioned DSWA's proposed modification to the definition of dry waste to include "…construction and demolition waste not mixed with waste that is other than dry waste…" The proposed change makes clear that the industry term for dry waste, which is "C&D" (Construction and Demolition) waste, is included in the DSWA definition. The focus of the proposed change is commercial rather than regulatory and DSWA has had long term experience in handling such materials at its facilities. DSWA would review its proposed dry waste activities with DNREC to assure satisfaction of regulatory requirements.
The second comment questions the consistency of requiring under Section 3.24 reporting of waste collected in Delaware and disposed in Delaware at non-DSWA facilities and the requirement under Section 4.01(a) for reporting all waste collected in Delaware which is disposed at any non-DSWA facility. The requirements are consistent in that the Section 4.01(a) requirement is broader and requires the identification of the generator of the waste. Such information is important to DSWA to support DSWA's planning and waste management efforts.
The third comment questions DSWA's intentions regarding source separated recyclables and requirements for disposal of municipality waste. As stated above, DSWA has always considered source separated recyclables as exempt from delivery requirements and it is recommended that Section 4.03 be worded to formally recognize the exemption.
The fourth comment addresses the deletion of the requirement of recycling centers to submit reports to DSWA, and the substitution of the provision with a requirement to file with DSWA information provided to DNREC. It is anticipated that DNREC, with input from the Recycling Public Advisory Council, will assume responsibility for obtaining the subject information, and if such should not be the case, DSWA would consider further amendment to the provision in the future.
The fifth comment is in the form of a question regarding future transfer station/material recovery projects and the applicability of permit requirements. DSWA would review such matters with DNREC prior to project implementation.
III. H. OUT OF STATE REPORTING REQUIREMENTS
ESE argues that the proposed regulations impose reporting requirements for out of state waste disposal which are not imposed on in-state waste disposal, and therefore impose an impermissible burden on interstate commerce and violate the Commerce Clause. ESE recites no facts to support this argument and it is unclear why the reporting requirement would be burdensome.
The requirement is necessary because DSWA is charged with a number of responsibilities that require it to have a knowledge regarding the source and disposal destination of solid waste generated in-state. To the extent that waste is not delivered to its facilities, the mechanism for obtaining the necessary information that is least burdensome to the regulated entity is the simple reporting requirement contained in the proposed rule-making.
Finally, DSWA has posed similar requirements in the past. See Exhibit M. Such requirement has not resulted in any difficulty that has been reported to DSWA.
IV. CONCLUSION
In addition to the above reasons for implementing the proposed changes to the Regulations, the DDFP and the Statewide Plan, the undersigned has reviewed the enabling statute and the Statewide Solid Waste Management Plan (Exhibit N), and has concluded that the proposed changes are consistent with and serve the purposes set forth therein. Thus, it is recommended that the proposed changes be adopted with the minor modifications suggested above. Attached is an Order that, if adopted, would implement these recommendations.
Regulations of Delaware Solid Waste Authority
(adopted March, 1999)
I. PURPOSE AND AUTHORIZATION
These Regulations * are adopted pursuant to the Act to achieve the goals set forth therein.
II. DEFINITIONS
"Act" means the Delaware Solid Waste Authority Act, 7 Del.C. Ch. 64.
"CEO" means Chief Executive Officer and Manager of DSWA.
"Chairman" means the Director designated by the Governor as chairman of DSWA in accordance with 7 Del.C. Section 6403(a).
"Department" means the Department of Natural Resources and Environmental Control of the State of Delaware.
"Directors" means the directors of DSWA holding office in accordance with 7 Del.C. Section 6403.
"Dry Waste" means wastes including, but not limited to construction and demolition waste not mixed with waste that is other than dry waste, plastics, rubber, lumber, trees, stumps, vegetative matter, asphalt pavement, asphaltic products incidental to construction/demolition debris, or other materials which have reduced potential for environmental degradation and leachate production.
"DSWA" means the Delaware Solid Waste Authority, an instrumentality of the State of Delaware, existing pursuant to the Act.
"Hazardous Waste" means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, or chemical or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating irreversible illness, or poses a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported or disposed of, or otherwise managed. Without limitation, included within this definition are those hazardous wastes listed described in Sections 261.31, 261.32 and 261.33 of the Delaware Regulations Governing Hazardous Waste. and those solid wastes which otherwise exhibit the characteristics of a hazardous waste as defined in Part 261 of the Delaware Regulations Governing Hazardous Waste.
"Industrial Process Solid Waste" means solid waste produced by or resulting from industrial applications, processes or operations and includes, by way of example and not by way of limitation, sludges of chemical processes, waste treatment plants, water supply treatment plants, and air pollution control facilities and incinerator residues, but does not include the solid waste generated at an industrial facility which is comparable to municipal solid waste, such as cafeteria waste, cardboard, paper and pallets, crates or other containers constructed of and containing non-hazardous combustible material.
* The Department also has promulgated regulations pertaining to solid waste disposal.
"Junkyard" means an establishment or place of business which is maintained, operated or used for storing, keeping, buying or selling junk or wrecked, scrapped, ruined or dismantled motor vehicles or motor vehicle parts.
"Licensee" means a person holding a license issued by DSWA pursuant to Article III of these Regulations.
"Municipality" means a county, city, town or other public body of the State of Delaware.
"Permit" means the stickers which DSWA issues under the License identifying the Licensee's account number and a vehicle number, which shall be affixed to both sides of the vehicle.
"Person" means any individual, partnership, corporation, association, institution, cooperative enterprise, municipality, commission, political subdivision, or other duly established legal entity.
"Solid Waste" means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or water air pollution control facility and other discarded material, including solid, liquid, semi-solid or contained gaseous material, resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under Section 402 of the Federa1 Water Pollution Control Act, 7 Del. Code, Chapter 60 as amended, or source, special nuclear, or by-product materials defined by the Atomic Energy Act of 1954, as amended, or materials separated on-site by the generator thereof for further use, service or value.
"DSWA Solid Waste Facility" means any landfill, recycling project, including waste to energy projects, collection station, transfer station, or other solid waste processing or disposal facility of project operated by, on behalf of, or under contract with DSWA. means any solid waste disposal site, system or process and the operation thereof, including but not limited to personnel, equipment and buildings. Such facility includes any landfill, recycling project, including waste to energy projects, collection station, transfer station, or other solid waste processing or disposal facility for projects operated by, on behalf of, or under contract with DSWA.
"Special Solid Wastes" means those waste that require extraordinary management. They include but are not limited to abandoned automobiles, white goods, used tires, waste oil, sludges, dead animals, agricultural and industrial wastes, infectious waste, municipal ash, septic tank pumpings, and sewage residues.
“Toxic Substance” means any chemical substance or mixture that may present an unreasonable risk of injury to health or the environment.
"Transfer Station" means any facility where quantities of solid waste delivered by vehicle are consolidated or aggregated for subsequent transfer by vehicle for processing, recycling or disposal.
III. COLLECTION AND LICENSING
3.01 No person shall collect, transport, and/or deliver solid waste in the State of Delaware without first having obtained a license from DSWA, provided, however, that:
a. persons transporting and delivering solid waste that they created on their premises resulting from their activities shall not be required to obtain a license therefore; and
b. persons collecting, transporting and/or delivering solid waste in the course of their employment by a person holding a license from DSWA shall not be required to
obtain a license therefore; and
c. a license shall not be required for the collection, transportation, or delivery exclusively of dry waste, leaves, street and storm sewer cleaning materials, agricultural wastes or those materials identified in paragraph 4.02 (a) - (e) of these Regulations.
3.02 With respect to solid waste delivered to a DSWA Solid Waste Facility, the CEO, based upon a determination of threat to public health or welfare or other emergency, may designate a specific Solid Waste Facility for use disposal of such waste.
3.03
a. Each Licensee shall clearly display on both sides of the vehicle:
i. the license permit stickers provided by DSWA which is the property of DSWA and subject to cancellation, suspension and/or revocation. The license permit stickers shall be legible at all times and shall be placed in an area of high visibility to allow immediate identification by DSWA Weighmasters and Compliance Officers. License permit stickers shall be not be placed on fuel or hydraulic tanks or reservoirs, or areas where the operation of mechanical parts would impair the visibility of the permit stickers;
ii. the Licensee's business name with letters at least three (3) inches high and of a color that contrasts with the color of the vehicle. No name other than the Licensee's business name shall be displayed. A regularly used business logo may also be displayed.
b. Licensees shall maintain business offices and phone numbers as follows:
i. Licensees who collect on a yearly average 100 tons per month or more:
(a) each Licensee shall maintain a manned business office location or locations and designate a representative in responsible charge thereof;
(b) each Licensee shall provide his business office street address in addition to a Post Office Box;
(c) telephone coverage with a Delaware telephone number listed in the appropriate Delaware Telephone Directory in the business name of the Licensee shall be maintained by a responsible and authorized person at the main office during normal business hours. Licensees with main offices located outside of the State of Delaware may utilize a call forwarding service so that a Delaware telephone number may be dialed to reach an out-of-state office. An answering machine shall not satisfy this; and
(d) notification regarding any change of business location or telephone number shall be provided to DSWA in writing at least fifteen (15) days prior to such change.
ii. Licensees who collect on a yearly average less than 100 tons per month:
(a) each Licensee shall provide a street address in addition to a Post Office Box for the business office or dwelling that is able to receive correspondence. A Post Office Box shall not satisfy this requirement;
(b) telephone coverage with a Delaware telephone number listed in the appropriate Delaware Telephone Directory in the business name of the Licensee shall be maintained by the Licensee during normal business hours. Licensees with main offices located outside of the State of Delaware may utilize a call forwarding service so that a Delaware telephone number may be dialed to reach an out-of-state office. An answering service may be utilized. An answering machine shall not satisfy this requirement; and
(c) notification regarding any change of business location or telephone number shall be provided to DSWA in writing at least fifteen (15) days prior to such change.
3.04
a. Each Licensee shall maintain insurance at the following minimum amounts:
i. Automobile liability: $350,000 combined bodily injury and property damage per occurrence;
ii. General liability: bodily injury $300,000 per occurrence; property damage: $100,000 per occurrence; and
iii. Workman's Compensation as required by law.
b. Each Licensee shall provide to DSWA new certification of the coverages specified in subsection 3.04(a) including a certification within ten (10) days of renewal. Each such certification of insurance shall provide that DSWA receive at least thirty (30) days advance notice of any canceled, discontinued, or diminished coverage.
3.05 Each Licensee shall maintain collection vehicles to comply with the following minimum requirements:
a. Each collection vehicle body shall be maintained to prevent fluids from discharging onto the surface of the ground.
b. Each collection vehicle body shall be capable of being readily emptied.
c. Each collection vehicle shall be kept in as much of a sanitary condition as to control the presence of vectors.
d. Containers, boxes, and other devices, excluding open top trailers, referred to as roll-offs, used by Licensees for collection of solid waste in excess of thirty (30) gallon capacity shall be enclosed or covered to reduce fluid leakage or collection of water.
e. Each collection vehicle shall be equipped so that it can be readily towed, and maintained in good operational condition for safe and stable operation and/or navigation in or about a Solid Waste Facility.
f. Each collection vehicle used or proposed for use by an applicant or Licensee and the contents of any collection vehicle shall be subject at all times to inspection by DSWA.
g. All roll-off containers used for collecting, transporting and delivering of solid waste generated within the State of Delaware shall display stickers issued by DSWA near the bottom and front of both sides of each roll-off. Solid waste described in Section 4.03 shall be exempt from this requirement.
3.06 Each Licensee shall comply with the following requirements while collecting, transporting and/or delivering solid waste.
a. Solid waste shall not be processed, scavenged, modified, or altered unless in compliance with applicable laws and regulations.
b. Solid waste in collection vehicles and/or containers shall be suitably enclosed or covered to prevent littering or spillage of solid waste or fluids.
c. Solid waste shall not be stored in a collection vehicle for more than twenty-four (24) hours unless the solid waste is being delivered to a Solid Waste Facility and the facility is closed for the entire day when the twenty four hour period expires, in which case the collection vehicle may discharge the solid waste at the facility on the next day that the facility is open.
d. Any spillage of solid waste shall be immediately cleaned up and removed.
e. No undue disturbance shall be caused in residential areas as a result of collection operations.
3.07 All collection vehicles shall be owned in the name of the Licensee or leased in the name of the Licensee. Upon submission of an application for a first time license, each applicant shall provide a copy of a valid motor vehicle registration card for each collection vehicle. If the collection vehicle is not owned by the applicant, a copy of a written motor vehicle lease agreement shall also be submitted with the application.
3.08 Each Licensee shall provide and continuously maintain backup capability to allow for continued collection, transportation, and/or delivery of solid waste in the event of equipment breakdown. As a minimum each Licensee, except for municipalities with a written agreement with a licensed collector another municipality for such backup, shall own and/or lease, in the name of the licensee, at least two fully and continuously operational collection vehicles of like service, except for down time for routine maintenance
3.09 Only enclosed vehicles or vehicles capable of being enclosed or covered to prevent any compactor type vehicles or “roll-offs” with a cover sufficient to prevent any spillage of, loss or littering of solid waste shall be used by Licensees for collection, transportation, or delivery of solid waste, except for vehicles utilized only to collect, transport or deliver the solid wastes referenced in Section 4.02 (a-e) and Section 4.03, infra, or oversized bulky waste, such as couches and refrigerators. Such vehicles used for oversized bulky waste shall not satisfy part or all of the Section 3.08 requirement that each Licensee own and/or lease at least two fully and continuously operational vehicles. An exception to the requirements of the first sentence of this section may be authorized by the CEO or his designee in circumstances where it is physically impossible to provide solid waste
collection services with such vehicles.
3.10
a. With the exception of any municipality, each applicant for a license and each Licensee shall provide to DSWA and maintain a bond under which the Licensee shall be jointly and severally bound with a corporate surety qualified to act in the Courts of Delaware to DSWA for amounts due to DSWA for fees or charges for services. A Bond or Surety is not required if the licensee pays at the time of solid waste delivery.
b. In lieu of corporate surety, the applicant or Licensee may provide security for its bond by depositing with DSWA, one of the following in an amount at least equal to the amount of the bond:
i. United States Treasury bonds, United States Treasury notes, United States Treasury certificates of indebtedness, or United States Treasury bills; or
ii. bonds or notes of the State of Delaware; or
iii. bonds of any political subdivision of the State of Delaware; or
iv. certificates of deposit or irrevocable letters of credit from any state or national bank located within the United States; or
v. United States currency, or check for certified funds from any state or national bank located within the United States.
c. The amount of the bond specified in paragraph 3.10 (a) shall be based upon the total solid waste tonnage charged by the Licensee at a DSWA Solid Waste Facility during for the month of November immediately preceding the license year for which the license is issued in accordance with the following schedule:
"TONNAGE CHARGED FOR PRIOR NOVEMBER" |
AMOUNT OF BOND |
Less than or equal to 750 tons |
(minimum) $5,000 |
Greater than 750 tons but less than or equal to 1,500 tons |
$25,000 |
Greater than 1,500 tons |
$50,000 |
Each additional 1000 tons over 1,500 tons |
$5,000 |
If the Licensee has expanded or acquired its business since the preceding November, then the total tonnage for November and Bond amount will be adjusted to account for such increase. By reference to the accounts, business, or assets acquired, an estimate will be made of what the charges in November would have been if the Licensee had been operating the newly acquired accounts, business, or assets at that time.
3.11 Any person desiring to collect, transport, and/or deliver solid waste in the State of Delaware shall submit a completed application for license to DSWA on forms provided by DSWA substantially in the form set forth in Appendix Attachment "A" of these Regulations. DSWA shall approve or deny license applications within thirty (30) days of receipt of a completed application.
3.12 DSWA may require information to supplement that requested in Appendix Attachment "A" in reviewing license applications.
3.13 The license period shall be July 1 to June 30 annually. Applications for license renewal shall be submitted to DSWA at least thirty (30) days prior to the expiration date.
3.14 Before any additional collection vehicle or substitute collection vehicle is utilized for the collection, transportation, and/or delivery of solid waste, the Licensee shall submit to DSWA the following:
a. The name, address and telephone number of the owner of the vehicle.
b. The state motor vehicle registration number.
c. A description of chassis by year and manufacturer.
d. A description of the body by year and manufacturer.
e. The legal weight limit of the vehicle.
f. The volume of the body of the vehicle in cubic yards.
g. Evidence of the insurance coverage required by this Article.
3.15 Each license shall contain the following:
a. Owners Name and/or trading name.
b. Physical and/or mailing addresses.
b. A listing of all collection vehicles under the license.
c. License period.
c. The location or locations for delivery of solid waste for each collection vehicle.
d. Authorized signature.
e. d. Special license conditions regarding collection, transportation, and/or delivery of solid waste, as specified by DSWA.
3.16 Each license and/or collection vehicle may be transferred subject to prior approval of DSWA. Except for a municipality with a written agreement with a licensed collector another municipality for backup capacity, no person shall be entitled to collect, transport and/or deliver solid waste under another person's license.
3.17 Notwithstanding anything to the contrary contained in these Regulations, a Licensee may operate a replacement vehicle on a temporary basis for a period of fifteen (15) days; provided further, that the licensee shall provide DSWA an original signed letter on company letterhead providing the information listed in Section 3.14 of these Regulations. An original letter must be submitted for each day of operation until DSWA license permits stickers are properly displayed on the vehicle or the vehicle is removed from temporary service. Letters must be taken to the weighstation of the DSWA Solid Waste Facility.
3.18 No license shall be issued to any person who:
a. has an account with DSWA that is past due in accordance with DSWA policies or
b. is obligated to file a report in accordance with Section 8.02 of these Regulations and has not done so for the immediately preceding calendar year.
3.19 Any person who first collects, transports, and/or delivers solid waste within the State of Delaware, without leaving first obtained a license under this Article, shall not be issued a license under this Article, until the expiration of one hundred twenty (120) days after the last day on which such collection, transportation and delivery without a license occurred, as determined by the CEO, or his designee.
3.20 Any Licensee who does not maintain his principal place of business in Delaware shall designate an agent, by name and street address (box number not acceptable), for service of process within Delaware. The agent shall be either an individual resident in Delaware or a corporation authorized under Title 8 of the Delaware Code to transact business in Delaware.
3.21 Before a license application is approved or denied, DSWA shall determine whether the applicant is able and reasonably certain to comply with these Regulations. Such determination may take into account any relevant factors including, but not limited to, the prior conduct of the applicant or any person, as defined herein, who is employed by or is otherwise associated with the applicant and may significantly affect the applicant's performance as it is related to the licensed activities. If the application is denied, the determination shall be reduced to writing and include the rationale for denial. Any person denied a license shall be entitled to request a hearing on such determination before the Directors of DSWA in accordance with paragraph 11.01(b) hereof.
3.22 No license shall be issued to any person who:
a. holds or has held a license from DSWA which has been revoked;
b. holds or has held a license from DSWA which has been suspended, for such period as the license is suspended.
c. holds or has held an interest in any Licensee whose license from DSWA has been revoked;
d. holds or has held an interest in any Licensee whose license from DSWA has been suspended, for such period as the license is suspended.
e. owns, in whole or in part, solid waste operating assets, including vehicles and routes, which were acquired from a Licensee whose license from DSWA was revoked or suspended and who acquired such assets from such Licensee for less than fair market value. Applicants for a license may be required to produce records and other information to demonstrate that they comply with this paragraph before a license will be issued.
3.23 A Licensee shall give written notice to DSWA at least seven (7) days in advance of any of the following:
a. sale or conveyance of a significant portion of its assets;
b. sale or conveyance of a significant portion of the equity interest (e.g. stock) held in it;
c. purchase or other acquisition of a significant portion of the assets of another Licensee;
d. purchase or other acquisition of a significant portion of the equity interest in another Licensee. For purposes of this paragraph, a significant portion shall mean one-half. Fragmentation of a transfer into smaller portions shall not be used to avoid the requirements of this paragraph.
3.24 Each Licensee shall submit a report for the preceding calendar year on February 1 of each year to DSWA stating, with respect to any waste collected in the State of Delaware and disposed of in the State of Delaware at a location other than a DSWA Solid Waste Facility, the quantities and types of waste disposed of, the names and address of the facility where it was disposed of, and any other information required on a form to be supplied by DSWA (See Attachment C).
IV. USE OF DSWA SOLID WASTE FACILITIES
4.01
a.
i. All solid waste generated within the State of Delaware shall be delivered to and disposed of at a Solid Waste Facility or some other duly licensed or permitted facility.
ii. The owners and occupants of all lands, buildings, and premises located within the State of Delaware, and all of those acting for them or under contract with them, shall use only Solid Waste Facilities or other duly licensed or permitted facilities for the disposal of solid waste generated within the State of Delaware.
b. Subject to the provisions of Section 3.02 and 3.18 of these Regulations, solid waste generated within the State of Delaware shall be delivered to a Solid Waste Facility or other duly licensed or permitted facility.
b. Persons delivering solid waste to a Solid Waste Facility shall pay to DSWA the applicable fees and user charges.
a. Except as provided in Section 4.0l,b, Section 4.02, Section 4.03, or as provided by contract, all solid waste generated within the State of Delaware shall be delivered to and disposed of at a DSWA Solid Waste Facility or some other duly licensed or permitted facility. Whoever disposes of such waste at a facility which is not a DSWA Solid Waste Facility shall submit a report for the preceding calendar year on February 1 of each year to DSWA stating the generators) of the waste, type and quantity of material disposed and the name of the facility and its address at which the waste was disposed.
b. Except as provided in Section 4.02, all solid waste and dry waste that is generated by a municipality (defined to include any county, city, town or other public body of the State of Delaware, such as State agencies, instrumentalities, school boards, and publicly supported institutions of higher learning) shall be disposed of at a DSWA Solid Waste Facility. All solid waste and dry waste that is collected or transported by a municipality [or pursuant to a contract or other agreement with a municipality] shall be disposed of at a DSWA Solid Waste Facility. [Any such contract or other agreement between a municipality and any person shall so provide, and indicate that DSWA is an intended third party beneficiary of such contract or agreement.]
c. Persons delivering solid waste to a DSWA Solid Waste Facility shall pay to DSWA the applicable fees, user fees, or contract fees. If different types of waste are commingled, the applicable fee shall be based on the type of waste in the commingled waste which has the highest fee.
4.02 The following solid wastes shall not be delivered to a DSWA Solid Waste Facility:
a. Hazardous wastes
b. Explosives
c. Toxic substances
[c. d.] Pathological and infectious wastes
[d. e.] Radioactive wastes
[e f.] Solid wastes, as determined by the CEO or his designee, which will, because of their quantity, physical properties, or chemical composition, have an adverse effect on the DSWA Solid Waste Facility, or the operation of the DSWA Solid Waste Facility, or if an effective means of risk and cost allocation cannot be achieved.
[f g.] Wastes which are prohibited by the DSWA Solid Waste Facility(s) DNREC permit.
4.03 The following solid waste may but is not required to be delivered to a DSWA Solid Waste Facility for disposal, but need not be, upon payment of the appropriate fee or user charge, provided that delivery of such solid waste is not otherwise proscribed by Section 4.02:
a. Agricultural waste generated on a farm.
b. Dry waste, unless such delivery is required by contract in which case it must be delivered to a DSWA Solid Waste Facility.
c. Tires.
d. Non-hazardous waste resulting from emergency clean-up actions of the Department.
e. Industrial process solid waste exempted by Section 5.03 (b).
f. Asbestos.
g. White goods.
[h. Source-separated recyclables]
4.04 In the event that an invoice generated from the charging of fees or user charges at a DSWA Solid Waste Facility is not paid in accordance with DSWA credit policies the license may be revoked and/or the right to use DSWA Solid Waste Facilities may be denied to the user. Before the license revocation and/or denial of use, the user shall may have a hearing before the Directors of DSWA, and the user shall be given at least ten (10) days notice of the hearing. Otherwise, the procedure for the hearing shall be as set forth in paragraph 11 10.01 (b) (ii)-(v) of these Regulations.
V. INDUSTRIAL PROCESS SPECIAL SOLID WASTE
5.01
a. Any person causing or allowing industrial process special solid waste to be delivered to any DSWA Solid Waste Facility for disposal shall obtain the approval of DSWA prior to commencement of such disposal; provided however, that where more than one person is involved in the generation and delivery of a particular industrial process special solid waste, approval of DSWA obtained by one person shall be sufficient.
b. In the event that there are any risks or additional costs involved in accepting any industrial process special solid wastes, the CEO may impose [a an] industrial process special solid waste disposal surcharge to compensate DSWA for such risks and additional costs, including administrative expenses and overhead. The following factors shall be considered in determining the amount of such industrial process special solid waste surcharge:
i. Quantity of waste to be disposed of;
ii. Degree of risk associated with such disposal;
iii. Additional handling, processing and disposal costs;
iv. Additional administrative expenses and overhead;
v. Additional environmental protection controls including monitoring.
c. The industrial process special solid waste surcharge shall be set by the CEO, without notice and public hearing thereon, and may be done on a case by case basis.
5.02 Any person causing or allowing industrial process special solid waste to be delivered to a DSWA Solid Waste Facility operated by or on behalf of DSWA shall be deemed to have agreed to indemnify and hold harmless DSWA from any liability arising from disposal of such industrial process special solid waste and to have agreed to reimburse DSWA for any costs reasonably incurred to protect against or reduce any risk resulting therefrom; provided, however, such person, if such person has not caused or allowed the delivery of a hazardous substance within the meaning of the Comprehensive Environmental Response Compensation Liability Act (CERCLA), as amended, 42 USC Section 9601, et.seq., shall not be liable under this subsection to DSWA for harm or damage caused by the negligence of DSWA.
5.03 It shall be the responsibility of each generator of industrial process special solid waste, in addition to the person collecting, transporting and delivering it, to obtain the approval of DSWA for disposal of industrial process special solid waste at the DSWA Solid Waste Facility and to assure that such waste is delivered to the DSWA Solid Waste Facility of DSWA for disposal. Such solid waste shall be exempted from the requirement of disposal not be disposed in a DSWA Solid Waste Facility if:
a. DSWA refuses to approve the disposal of such waste at a DSWA Solid Waste Facility; or
b. the generator of such waste determines or agrees to have such waste disposed of at another properly licensed or permitted facility;
c. the solid waste is described in Section 4.02 of Article IV.
5.04 Any person aggrieved by a determination of the CEO or his designee, under this Article or subsection 4.02(f) of Article IV, may seek review thereof by the Directors of DSWA in accordance with Section 6427 (f) of the Act, and Section 10.01 of these Regulations.
VI. OTHER SOLID WASTE PROJECTS RESERVED
6.01 No person shall finance, acquire, license, construct, maintain, operate, or use a solid waste disposal, processing, or recycling project in the State of Delaware that is neither owned nor operated by, on behalf of, or at the request of DSWA.
6.02 No person shall cause or assist in the financing, acquiring, licensing, constructing, maintaining, or operating of a solid waste disposal, processing or recycling facility in the State of Delaware, that is neither owned nor operated by, on behalf of, at the request of DSWA.
6.03 This Article VI shall not apply to:
a. Projects dedicated exclusively to the disposal of dry waste, hazardous waste, agricultural waste, explosive, toxic substances, radioactive waste, or tires;
b. Projects used exclusively as transfer stations;
c. Recycle centers for source separated materials, such as aluminum cans;
d. Junkyards;
e. Projects dedicated exclusively to the disposal of industrial process solid waste that are lawfully permitted for the disposal of such industrial solid waste.
f. Projects dedicated exclusively to the disposal of solid waste generated outside the State of Delaware.
VII. OPERATING IN A DSWA SOLID WASTE FACILITY
7.01 All vehicles entering a DSWA Solid Waste Facility to dispose of solid waste shall proceed to the appropriate scale. Each vehicle shall come to a full stop before driving onto the scale, for weighing in or for weighing out. Quick stopping or starting on the scales will not be permitted. All personnel must remain in the vehicle unless directed by the Weighmaster to come to the scale bouse window. After weighing, the vehicle must not leave the scales until authorized to do so by the Weighmaster and must proceed to the area designated for disposal of the quantity and type of waste that is carried in the vehicle.
7.02 After weighing and at the direction of the Weighmaster, each vehicle shall proceed to the area designated. Spotters at the landfill face or on the tipping floor shall direct the vehicles to a dumping location. At small load facilities, waste shall be disposed only in the containers that have been provided. The contents of each vehicle shall be discharged as quickly as possible and the vehicle shall leave as directed by the operating contractor. Clean-up is allowed only at designated locations. No roll-off boxes will be dropped anywhere in a DSWA Solid Waste Facility without the express approval from a DSWA representative.
7.03 Each vehicle operator shall exercise caution, due care, and safe procedures in all operations at the DSWA Solid Waste Facility. The speed limit on the facility roads is 25 miles per hour except where a lower speed limit is indicated. Vehicle drivers who disregard the posted speed limits on a DSWA Solid Waste Facility may be denied access to any DSWA Solid Waste Facility. Vehicle operators shall follow directions from the DSWA or its representative. Or the operating contractor in all cases of emergency.
7.04 No hand sorting, picking over, or scavenging of solid waste will be permitted at any time, without specific DSWA approval.
7.05 All vehicle operators and other personnel proceed onto the landfill at their own risk. DSWA shall not be liable for acts or omissions of its contractors, persons using a DSWA Solid Waste Facility, or other third persons in or about a DSWA Solid Waste Facility.
7.06 Persons under the age of 18 are not allowed to enter any Solid Waste Facility in waste collection and disposal vehicles.
7.0[7 6] No loitering will be permitted in any DSWA Solid Waste Facility.
7.0[8 7] DSWA reserves the right to redirect vehicles to alternate locations within the DSWA Solid Waste Facility, if for any reason in the opinion of DSWA's representative, the original location cannot handle the load or type of material.
7.0[9 8] There shall be no smoking in any DSWA Solid Waste Facility except in areas where smoking is expressly permitted.
7.0[10 9] The Directors of DSWA from time to time may adopt and post other rules for DSWA Solid Waste Disposal Facilities. It is the responsibility of Licensees and other persons using DSWA Solid Waste Facilities to familiarize themselves with and to obey such rules.
7.0[11 10] Any vehicle that is immobile and obstructing facility operations shall be moved to a nonconflicting area by DSWA representatives after notifying the Licensee's driver. The Licensee's driver will be given reasonable time to contact his office either through radio or telephone. If the blocking vehicle poses a safety or fire hazard, it will be removed immediately after giving notice to the driver. Licensee shall also give written instructions to drivers on proper procedures for towing.
7.0[12 11] To prevent material from falling off vehicles and to minimize litter, all open vehicles, including but not limited to pick-up trucks, entering a DSWA Solid Waste Facility to dispose solid waste shall be sufficiently secured through the use of tarpaulins or ropes or netting or enclosures sufficient to prevent the material from falling off the vehicles.
7.0[13 12]
a. DSWA shall have the right to require unloading of the contents of the vehicle hauling solid waste to any area on a DSWA Solid Waste Facility for the purpose of inspection.
b. If any prohibited wastes, hazardous wastes, explosives, toxic substance, pathological and infectious wastes, radioactive wastes are found, then the person delivering such waste to a DSWA Solid Waste Facility shall be subject to the sanctions that may be imposed under Section 10.02 11.02 for violation of Section 4.02 and sanctions for violation of other applicable laws and regulations and that person shall be notified and given an opportunity to remove properly all of the waste emptied from the solid waste collection vehicle at his expense. If that is not accomplished within four (4) hours of such notice, which shall be either in person or by telephone, or, if the person cannot be reached immediately, either in person or by telephone, DSWA may proceed to arrange for removal and proper disposal of the entire load and the person bringing such material to the DSWA Solid Waste Facility shall be liable to DSWA for all costs incurred by DSWA in arranging for proper disposal, including, without limitation, DSWA's out-of-pocket expenses, contractor's fees, disposal costs, overhead supervisory costs, legal fees, testing costs, and transportation costs.
VIII. RECYCLING
8.01 The following definitions shall apply to this subarticle:
"Recycling Center" means a facility, established pursuant to 7 Del.C. S6450 et seq., to receive recyclable materials. The Recycling Center includes the recycling containers marked for the specific recyclable materials which are to be deposited therein and the area immediately surrounding them necessary for the purposes of such recycling centers. Recycling Centers shall be known as 'RECYCLE DELAWARE' Centers.
"Recyclable Materials" mean those materials which have been source-separated by the generator thereof for recycling. Source separated materials must remain separate throughout the journey and are not to be re-combined for transport.
"Recycling" means the process by which solid waste is transformed or converted into usable material(s) or product(s).
"Recycler" means a person in the business of collecting, transporting, and delivering recyclable materials.
8.02 All persons operating facilities within Delaware for the purpose of recycling solid waste or recyclable materials other than ‘RECYCLE DELAWARE’ Recycling Centers shall file annually with DSWA, on forms prescribed by DSWA, a report on the nature of the recycling activities conducted, the quantity and type of materials recycled , and the disposition of the materials recycled. Such reports will be due on April 30 of each year and shall br for the immediately preceding calendar year.
All persons operating facilities within Delaware for the purpose of recycling solid waste or recyclable materials other than `RECYCLE DELAWARE' and "Recycling Centers" shall file with DSWA copies of any reports or other written information related to the recycling facilities or recycling activities that are filed with DNREC. Such reports or written information shall be filed with DSWA when they are filed or otherwise submitted to DNREC.
8.03 At a Recycling Center, no person shall:
a. dispose of solid waste or litter;
b. leave materials outside of recycling containers;
c. deposit into a recycling container any material other than the specific recyclable material for which the recycling container is marked to receive;
d. damage, deface, or abuse a recycling container;
e. block or obstruct vehicles using or serving the Recycling Center;
f. loiter;
g. scavenge any Recyclable Material; or
h. deposit Recyclable Material that has been collected from or by a Recycler.
8.04 Each container used for the collection of Recyclable Material must be clearly marked to prevent normal trash from being placed into the container, i.e. “RECYCLABLE MATERIAL ONLY” - “NO TRASH”.
IX. TRANSFER STATION REQUIREMENTS
9.01 Any person operating a transfer station for solid waste within the State of Delaware shall;
a. prepare daily and maintain (for minimum period of three years after preparation) records of the solid waste handled at the transfer station showing the source and final disposition of such waste after removal from transfer station, including address of such final disposition. The records to be maintained shall be adequate to provide all information required by the Transfer Station Monthly Solid Waste Report, annexed hereto as Exhibit shown in Attachment B;
b. submit the report required by paragraph 9.01 (a) of these Regulations and verify the accuracy thereof to DS WA on or before the twentieth (20th) day of the month following the month for which the report is compiled. The report shall be in the form of the Transfer Station Monthly Solid Waste Report, annexed hereto as Exhibit shown in Attachment B;
c. make the records required to be maintained and preserved by paragraph 9.01 (a) of these Regulations available for inspection by representatives of DSWA during normal business hours.
9.02 DSWA through its designated representatives shall have the right to inspect the transfer station and solid waste hauling vehicles entering and leaving the transfer station.
X. REVIEW, ENFORCEMENT AND SANCTIONS
10.01
a. Any person seeking a license or to have solid waste disposed of at a DSWA Solid Waste Facility who has been aggrieved by a determination of the CEO or his designee under Section 3.19, 3.21, 4.02, 4.04, 5.01 (b) or 5.04 of these Regulations may seek review thereof by the Directors of DSWA by filing a request for review with the CEO within fifteen (15) days of receipt of notice of such determination. The hearing shall be held in accordance with the paragraph of Section 10.01 (b) of these Regulations.
b.
i. The person filing the request for review under paragraph 10.01 (a) of these Regulations shall be provided notice by registered mail at least fifteen (15) days before the time set for the hearing. The person filing the request for the hearing shall bear the burden of proof.
ii. The person requesting the hearing may appear personally and/or by counsel and may produce competent evidence in his behalf. Upon the request of the person requesting the hearing or the CEO, the Chairman of DSWA shall issue subpoenas requiring the testimony of witnesses and the production of books, records, or other documents relevant to the material involved in such hearing.
iii. All testimony at the hearing shall be given under oath and the Chairman shall administer oaths and all Directors shall be entitled to examine witnesses.
iv. The hearing may be held as part of a regular meeting or a special meeting of the Directors of DSWA. Deliberation shall be held in executive session.
v. The decision of the Directors of DSWA shall be announced at a public meeting and shall be forwarded to the person requesting the hearing in written form by registered mail.
10.02 Any person who violates a provision of these Regulations shall be subject to the following sanctions:
a. If the violation has been committed, a civil penalty of not less than One Hundred ($100) Dollars and not more than Five Thousand ($5000) Dollars shall be assessed;
b. If a violation continues for a number of days, each day of such violation shall be considered a separate violation;
c. If the violation is continuous, or there is substantial likelihood that it will reoccur, DSWA may seek a temporary restraining order, a preliminary injunction or permanent injunction;
d. Any person holding a license issued by DSWA who violates these Regulations shall be subject to revocation of such license, or suspension of such license for such period as determined by DSWA.
e. DSWA personnel are empowered to issue written notices of violations of these Regulations, without the need to employ the sanctions set forth above.
10.03 Any person who violates a provision of these Regulations may be prevented from entering a DSWA Solid Waste Facility, as determined by the CEO or his designee, until that person is in compliance with these Regulations.