By Martin Milita, Esq.
Solid Waste Transfer and Recycling Facilities and Executive Order 122:
On April 8th, Governor Murphy issued Executive Order 122 (EO-122), which became effective on Friday, April 10th at 8:00 p.m. Among other things, Executive Order 122 requires non-essential construction projects to cease. The Executive Order lists several types of projects that are considered “essential construction projects,” including “utility projects” under Section 2(c).
Waste transfer stations:
The applicability of Executive Order 122 regarding construction activity occurring at solid waste transfer facilities is straight forward. Because of the modern cycle of waste management, the New Jersey Department of Environmental Protection (NJDEP) has broad authority to supervise and control solid waste hauling and disposal, both environmentally through New Jersey’s Solid Waste Management legislation (SWMA), N.J.S.A. 13:1E-1–225, and as a public utility through the Solid Waste Utility Control Act (SWUCA), N.J.S.A. 48:13A-1–13.
Waste transfer stations play a key role in a community’s total waste management system, serving as the link between a community’s solid waste collection program and a final waste disposal facility.
Several distinct types of waste are commonly handled at transfer stations. Specific definitions of these wastes vary locally. Municipal solid waste (MSW) is generated by households, businesses, institutions, and industries. MSW typically contain a wide variety of materials, including discarded containers, packaging, food wastes, and paper products. MSW includes a mixture of putrescible (easily degradable) and non-putrescible (inert) materials.
While facility ownership, sizes, and services offered vary significantly among transfer stations, they all serve the same basic purpose—consolidating waste from multiple collection vehicles into larger, high-volume transfer vehicles for more economical shipment to distant disposal sites—typically a landfill, waste-to-energy plant, or a composting facility.
Because solid waste transfer services are considered a utility, these projects may proceed as essential construction under Section 2(c) of EO-122.
Construction regarding recycling depends upon the interpretation of the subsections of EO-122 Section 2 that allow “essential” construction to move forward because while recycling is not governed by the public utility control act, it is mandatory in New Jersey.
Recyclables include discarded materials that can be reprocessed for manufacturing into new products. Common recyclables include paper, newsprint, ferrous metals like iron derivatives, plastic, glass containers, aluminum cans, motor oil, and tires.
Construction and demolition (C&D) debris results from the demolition or construction of buildings, roads, and other structures. It typically consists of concrete, brick, wood, masonry, roofing materials, sheetrock, plaster, metals, and tree stumps. Sometimes, C&D debris is managed separately from MSW; other times it is mixed with MSW.
To interpret Executive Order 122 to allow transfer site construction to proceed but not construction under the New Jersey recycling program is not a sensible distinction.
Recycling in New Jersey is mandatory. It serves a compelling public policy need and is essential to solid waste transfer operations. Recycling—the collection, processing, and manufacture of new products—likewise diverts materials from the landfill or incinerator.
Source reduction and recycling also play an integral role in a community’s total waste management system. These two activities significantly reduce the weight and volume of waste materials requiring disposal, which reduces transportation, landfill, and incinerator costs.
Source reduction consists of reducing waste at the source by changing product design, manufacturing processes, and purchasing and sales practices to reduce the quantity or toxicity of materials before they reach the waste stream.
NJDEP policy promotes source reduction as the waste management technique of choice. These recyclable materials are prepared for shipment to markets in a materials recovery facility (MRF). An MRF is a type of transfer station that separates, processes, and consolidates recyclable materials for shipment to one or more recovery facilities rather than a landfill or other disposal site. Consequently, the concepts and practices of transfer stations can be applied to MRFs as well.
Aggressive community source reduction and recycling programs substantially reduce the amount of waste destined for long haul transfer and disposal.
Accordingly, construction regarding recycling should be considered “essential” to the state achieving is waste and recycling reduction goals. Recycling is integral to the solid waste management scheme in New Jersey.
Best Practices for moving forward with construction
In the absence of further guidance from the Governor’s office, NJDEP, and the New Jersey Department of Community Affairs (DCA), we suggest that regulated waste and recycling entities and their environmental professionals consider implementing the following practices for any construction work performed during this time:
- Inform DCA of your situation, since the respective municipal code officials who issue construction permits are under the authority of DCA and not NJDEP. Please remember that most recycling facilities are subject to local permitting requirements and local code officials approve all permits;
- Submit all construction drawings and plans for major facilities that include solid waste and recycling facilities when proposing the construction of buildings to DCA’s major project review unit. That unit will review the respective drawings and plans and direct the municipal code official in the municipality where the facility is located to issue the respective permits;
- Alert the local police department about the work to be performed, so that if a neighbor or passer-by calls to report alleged non-compliance with the Executive Orders, the police are already aware of the work and its purpose;
- Provide employees who will be performing work in the field with “essential employee” letters to document they are performing an “essential” service that cannot be performed remotely, as indicated by Executive Order 107;
- Discuss site-specific issues with DCA and NJDEP. Transfer & MRF buildings have unique requirements rarely found in structures designed for other uses. These include the need for vertical clearances sufficient to accommodate the tipping height of commercial collection vehicles. New facilities are usually designed with at least 25 to 30 feet of vertical clearance from the tipping floor to the lowest overhead element;
- Busy transfer stations require adequate onsite space for vehicle parking and queuing, something reused buildings often lack. One of the most common problems with building reuse is inadequate queuing space, which leads to vehicles blocking neighborhood streets. Queuing trucks on city streets create health and safety issues and can be very disruptive for the surrounding neighborhood;
- Transfer stations and MRFs need relatively large, open floor areas suitable for maneuvering large vehicles. Interior building columns and walls might not accommodate the kind of safe traffic movements that are needed, which could pose a hazard and reduce traffic efficiency; and
- Prepare a plan for de-mobilization should the construction work at the waste or recycling site is required to cease because of COVID-19.
In recent weeks, construction at a new transfer station/MRF was allowed to go forward under the utility exemption when brought to NJDEP’s attention.
The COVID-19 pandemic requires adaptation to changing conditions. All companies and employers in this segment of the industry should adhere to all operational safety requirements and stay dynamic in these changing times.
As we all try to cope with the unprecedented situation arising from the COVID-19 virus, we want to take this opportunity to notify our clients and friends that Duane Morris Government Strategies (DMGS) is here to help if you need assistance of any kind and to assure you that the Firm is operating and fully functional. Our government affairs professionals and staff are working remotely and securely, and we remain available to assist without disruption.