NJDEP Proposes Amendments to the Solid and Hazardous Waste and A-901 Rules

From Riker Danzig Environmental UPDATE, August 1999.

On June 7, 1999, NJDEP published proposed amendments to certain portions of the Solid and Hazardous Waste Rules and the A-901 Rules. Currently, certain provisions of the New Jersey Solid Waste Regulations and Hazardous Waste Regulations require that the operators of solid or hazardous waste equipment be employees of a person or entity licensed or permitted pursuant to the Solid or Hazardous Waste Rules and in accordance with A-901. The proposed amendments would eliminate the .employee. requirement for leased vehicle operators who are operating under a lease agreement with, and under the complete control of, entities properly permitted or licensed in accordance with A-901.

.A-901. is the popular name used to refer to the disclosure component of the solid and hazardous waste registration requirements, under which background checks are performed for persons who apply for solid or hazardous waste permits and licenses. The purpose of the A-901 scrutiny is to eliminate individuals who are or might be connected to organized crime, other criminals or chronic environmental offenders.

NJDEP was aware and concerned that an A-901 permittee or licensee, after receiving a contract for waste transportation, would subcontract part or all of that contract to an unlicensed transporter. Under such circumstances, the unlicensed transporter would not have undergone the A-901 scrutiny and, therefore, would bypass the intended protections of A-901. In an effort to deter such evasion of A-901 scrutiny, the current regulatory provisions described above prohibit A-901 permittees and licensees from subcontracting with unlicensed entities by requiring that the operators of solid or hazardous waste equipment be employees of an A-901 permittee or licensee.

It has come to NJDEP.s attention, however, that certain vehicle operators are retained by A-901 permittees and licensees under the terms of an equipment lease, a vehicle lease or an operator lease. Under the current regulations, such leases would be considered subcontracts and the lessors would, therefore, be subject to A-901 scrutiny. NJDEP, however, has determined that it is willing to authorize the use of leased vehicle operators, under certain conditions which preserve the A-901 safeguards, and has proposed amendments to certain portions of the Solid and Hazardous Waste Rules and the A-901 Rules to allow such lease arrangements.

The proposed rules would make several changes to allow A-901 permittees and licensees to use leased vehicle operators to perform waste transportation. The proposed rules would also add safeguards to ensure that the effectiveness of A-901 scrutiny is not lost or diminished while allowing the use of leased vehicle operators. The proposed amendments delete the .employee. requirement and the requirement that all lessors undergo the A-901 disclosure and review process.

Specifically, so long as the rules governing registration requirements for solid waste transporters and registration requirements for hazardous waste transporters are complied with, the leased vehicle operators and their employees will not be deemed to be engaging or contracting to engage in solid or hazardous waste activities. Also, a contract to lease vehicles or operators that is entered into between a lessor and an A-901 licensee, permittee or exempt transporter in accord with the proposed amendments will not be considered a subcontract under the solid or hazardous waste rules. Thus, leased vehicle operators will be exempt from the requirements of A-901 and will not be deemed subcontractors for purposes of A-901 scrutiny.

The foregoing changes, however, make other safeguards necessary. First, as is the case already, all leased vehicles must be under the exclusive use, management, direction, control and possession of the A-901 permittee, licensee or exempt transporter. The A-901 permittee, licensee or exempt transporter will also be responsible for the actions, omissions and qualifications of leased vehicle operators and lessors. Additionally, lessors, li censees, permittees and exempt transporters must take reasonable steps to remove and destroy decals on the leased vehicle at the end of the lease or registration period, whichever occurs first. Finally, a lessor who leases large numbers of vehicles and operators, i.e., ten or more vehicles and operators or twenty percent or more of a particular permittee.s or licensee.s fleet, to a licensed entity must still undergo the A-901 review and disclosure process. NJDEP has retained the requirement that subcontractors who do not fulfill the criteria of leased vehicle operators under the solid or hazardous waste rules are still subject to the A-901 disclosure and review process.

NJDEP anticipates that the majority of lessors of vehicles and operators will not be considered subcontractors under the proposed amendments. NJDEP further predicts that the large majority of subcontracts, as that term is commonly understood, are leases of equipment and operators which will qualify for the exemptions introduced by the proposed rule amendments.